United States: The Cybersecurity Information Sharing Act of 2015: An Overview

On December 18, 2015, President Barack Obama signed into law the Cybersecurity Information Sharing Act of 2015 (CISA), which establishes a voluntary system for sharing cyber threat indicators1 and defensive measures2 for a cybersecurity purpose3 between federal entities4 and nonfederal entities.5 Examples of cyber threat indicators include web server logs showing that a particular IP address is testing a company's vulnerabilities on its website; techniques that permit unauthorized access to a control system; malware found on the company's network; domain names or IP addresses associated with botnet command and control servers; discovered vulnerabilities; and IP addresses sending malicious traffic in connection with a distributed denial of service attack. Examples of defensive measures include information about security devices that protects a company's network, such as the configuration of a firewall mechanism, and techniques to protect against phishing campaigns.

CISA provides a safe harbor from civil, regulatory and antitrust liability for nonfederal entities that share this information in accordance with its provisions. However, CISA's safe harbor protection does not shield nonfederal entities from potential liability for data breaches or other cybersecurity incidents. It only shields nonfederal entities from liability for their act of sharing or receiving such information.

CISA only extends civil liability protection for sharing cyber threat indicators and defensive measures to private entities,6 but only if the sharing was done in accordance with CISA (i.e., through DHS-certified channels and mechanisms). Where this sharing is done in a manner not consistent with CISA, private entities do not receive liability protection, but are still eligible for the following CISA protections and exemptions:

  1. federal antitrust exemptions;
  2. exemptions from federal and state disclosure laws, such as federal, state, tribal or local government freedom of information laws, open government laws, open records laws or sunshine laws;
  3. exemptions from certain state and federal regulatory uses, which prevent any federal, state, tribal or local government from bringing an enforcement action based on the sharing, but not the development or implementation of a regulation;
  4. no waiver of any applicable protection or privilege for shared material;
  5. treatment of shared material as commercial, financial and proprietary information when so designated by the sharing entity; and
  6. ex parte communications waiver, which prevents the sharing of cyber threat indicators and defensive measures with the federal government under CISA from being subject to the rules of any federal agency or department or judicial doctrine regarding communications with a decision-making official.7

CISA limits the government's use of the information shared under its provisions and the type of data to which the government has access. The government may only use the information provided under CISA for either a cybersecurity purpose; to identify cybersecurity threats or security vulnerabilities; to respond to, prevent or mitigate a specific threat of death or serious bodily and economic harm; or to investigate or prosecute specific criminal offenses. It may not use the information to bring an enforcement action.

In addition, CISA requires nonfederal entities that share cyber threat indicators and defensive measures to remove all information that the sharing entity "knows at the time of sharing" to be the personal information of a specific individual or information that identifies a specific individual unrelated to the cybersecurity threat.8 The guidance provides a spear-phishing email as an illustration of what should be done. The personal information of the sender of the spear-fishing email, such as the name, email address and content of the email, should be shared, but the personal information of the intended victims should not.

CISA centralizes cybersecurity information sharing between federal entities and nonfederal entities in the Department of Homeland Security (DHS), specifically the National Cybersecurity and Communications Integration Center (NCCIC). On February 16, 2016, the DHS published interim guidance and policies for implementing CISA. On June 15, 2016, the DHS and Department of Justice (DOJ) released the final guidance on implementing CISA.

The final guidance for CISA contemplates the utilization of the Automated Indicator Sharing (AIS) initiative as the primary means of sharing information. The AIS initiative is an automated system that receives, processes and disseminates cyber threat indicators and defensive measures in real time with all AIS participants. The system works by having AIS participants connect to a DHS-managed system in NCCIC. A server housed at each AIS participant's location enables participants to exchange information with the NCCIC. Once the NCCIC has reviewed a submission to determine that there is no personally identifiable information (pii), the indicators and defensive measures will be shared with all AIS participants.

In addition to pii, DHS has identified the types of personal information that are protected by federal and state laws and unlikely to be related to a cybersecurity threat. AIS participants should be particularly diligent about removing the following types of information from their CISA submissions:

  1. protected health information (phi), such as medical records, laboratory reports or hospital bills;
  2. human resource information within an employee's personnel file, such as hiring decisions, performance reviews and disciplinary actions;
  3. consumer information/history related to an individual's purchases, preferences, complaints or credit;
  4. education history, such as transcripts, or training;
  5. financial information, such as bank statements, loan information or credit reports;
  6. identifying information about property ownership, such as property purchase records or vehicle identification numbers; and
  7. identifying information about children under the age of 13 subject to the Children's Online Privacy Protection Act.

After agreeing to the AIS's Terms of Use, AIS participants may submit cyber threat indicators or defensive measures through one of three methods: (1) the DHS Trusted Automated eXchange of Indicator of Information (TAXII) server in the AIS Profile format; (2) a web form on the US-CERT web portal; or (3) by email to DHS.

Participants who share indicators and defensive measures through the AIS will not be identified as the source of that information unless they affirmatively consent to the disclosure of their identities. DHS will not verify the accuracy of the indicators or defensive measures submitted by participants. The AIS Terms of Use require participants to use "reasonable efforts" to ensure that any indicator or defensive measure is accurate at the time that it is submitted.9 However, as the government obtains useful information concerning an indicator or defensive measure, it may assign a reputational score.

Nonfederal entities may continue to provide cyber threat indicators and defensive measures to federal entities through Information Sharing and Analysis Centers (ISACs) and Information Sharing and Analysis Organizations (ISAOs), which are private entities that share cybersecurity information with federal entities through DHS. Private entities that share this information with ISACs and ISOCs in accordance with CISA still receive all the protections and exemptions under CISA. Similarly, ISACs and ISAOs that share information with other private entities in accordance with CISA also receive the same level of protection under CISA.

The implementation of CISA is still a work in progress. It remains to be seen how this information sharing will look and how effective it will be. If they are considering participating, companies should take appropriate steps to ensure the sharing is done in a manner that is consistent with CISA's provisions and maximizes CISA's protections.

Footnotes

1. CISA defines "cyber threat indicator" as:

[I]nformation that is necessary to describe or identify:

(i) malicious reconnaissance, including anomalous patterns of communications that appear to be transmitted for the purpose of gathering technical information related to a cybersecurity threat or security vulnerability;

(ii) a method of defeating a security control or exploitation of a security vulnerability;

(iii) a security vulnerability, including anomalous activity that appears to indicate the existence of a security vulnerability;

(iv) a method of causing a user with legitimate access to an information system or information that is stored on, processed by or transiting an information system to unwittingly enable the defeat of a security control or exploitation of a security vulnerability;

(v) a malicious cyber command or control;

(vi) the actual or potential harm caused by an incident, including a description of the information exfiltrated as a result of a particular cybersecurity threat;

(vii) any other attribute of a cybersecurity threat, if disclosure of such attribute is not otherwise prohibited by law; or

(viii) any combination of (i)-(vii).

Section 102(6) of CISA.

2. CISA defines "defensive measures" as:

An action, device, procedure, signature, technique or other measure applied to an information system or information that is stored on, processed by or transiting an information system that detects, prevents or mitigates a known or suspected cybersecurity threat or security vulnerability; but does not include a measure that destroys, renders unusable, provides unauthorized access to or substantially harms an information system or information stored on, processed by or transiting such information system not owned by (i) the private entity operating the measure, or (ii) another entity that is unauthorized to provide consent and has provided consent to that private entity for operation of such measure.

Section 102(7) of CISA.

3. CISA defines a "cybersecurity purpose" as "the purpose of protecting an information system or information that is stored on, processed by or transmitting an information system from a cybersecurity threat or security vulnerability." Section 102(4) of CISA.

4. CISA defines a "federal entity" as "a department or agency of the United Sates or any component of such department or agency." Section 102(9).

5. CISA defines a "nonfederal entity" as "any private entity, nonfederal government agency or department, or state, tribal or local government (including a political subdivision, department or component thereof)." Section 102(14) of CISA.

6. CISA defines "private entities" as including "any person or private group, organization, proprietorship, partnership, trust, cooperative, corporation or other commercial or nonprofit entity, including an officer, employee or agent thereof," and "State, tribal or local government performing utility services, such as electric, natural gas or water services." Section 102(15)(A)-(B) of CISA.

7. All of CISA's protections, including liability protection, are available to private entities. However, other state, tribal or local government entities that are not included in CISA's definition of "private entities" are not eligible for liability or antitrust protection, which is reserved for "private entities." These other entities are still eligible for CISA's other protections and exemptions.

8. In addition, CISA enables private entities to monitor and adopt defensive measures for their own information systems for cybersecurity purposes. CISA explicitly shields private entities from any liability for monitoring activities conducted in a manner consistent with its requirements.

9. See U.S. Dep't of Homeland Sec. Terms of Use, § 3.2.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
25 Oct 2017, Conference, California, United States

CALOBA is excited to bring you our General Counsel (GC) roundtable event. Our distinguished panel of top legal counsel will share their experiences at the helm of some of the top technology companies.

30 Oct 2017, Seminar, California, United States

This program will address some of the hottest legal and policy topics that online platforms have brought to the fore: free speech, hate speech, fake news, privacy and surveillance, artificial intelligence, augmented reality, changing notions of “ownership” of information and software-enabled consumer products, and the perennial issue of copyright.

8 Nov 2017, Conference, California, United States

Fenwick & West is proud to be participating in PLI’s 49th Annual Institute on Securities Regulation scheduled for November 8-10, 2017 at The Roosevelt Hotel in New York City. The Institute is considered the premier conference, as well as one of the longest running, in the securities law field.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.