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:
- federal antitrust exemptions;
- 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;
- 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;
- no waiver of any applicable protection or privilege for shared material;
- treatment of shared material as commercial, financial and proprietary information when so designated by the sharing entity; and
- 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:
- protected health information (phi), such as medical records, laboratory reports or hospital bills;
- human resource information within an employee’s personnel file, such as hiring decisions, performance reviews and disciplinary actions;
- consumer information/history related to an individual’s purchases, preferences, complaints or credit;
- education history, such as transcripts, or training;
- financial information, such as bank statements, loan information or credit reports;
- identifying information about property ownership, such as property purchase records or vehicle identification numbers; and
- identifying information about children under the age of 13 subject to the Children’s Online Privacy Protection Act.
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.