The Department of Justice and the Department of Homeland Security recently issued guidance that clarifies how the Cybersecurity Information Sharing Act (CISA) will impact the business community. The agencies specifically addressed the procedures for voluntarily sharing “cyber threat indicators,” as well as the application of the law’s immunities provision.
Basic Provisions of the Cybersecurity Information Sharing Act
The goal of CISA, which was enacted last December as part of the Cyber Security Act of 2015, is to promote information sharing regarding cyber threats impacting the private sector. Under the new law, federal agencies, such as the DHS, are authorized to alert businesses about potential cyber threats. At the same time, the law also creates procedures for businesses to share information about cyberattacks or data intrusions with both federal agencies and other private entities.
To encourage information sharing, companies that participate in the program are shielded from liability for violating privacy-protection or antitrust laws, provided that the information is shared in accordance with CISA. Most notably, the law requires that companies remove personally identifiable information from any data shared, unless that information is directly related to the threat.
Cyber Threat Information Shared Between Private Entities
Section 104(c) of CISA allows non-federal entities to share cyber threat indicators and defensive measures with any other entity—private, federal, state, local, territorial, or tribal—for a “cybersecurity purpose.” However, previous guidance did not specifically address how private entities may share cyber threat indicators and defensive measures with each other. As a result, it was unclear whether CISA’s liability protections extended to business to business communications.
The latest CISA guidance from the DOJ/DHS provides a detailed summary of the protections and exemptions that non-governmental entities receive for sharing cyber threat indicators and defensive measures with each other in accordance with CISA. It also expressly states: “CISA authorizes private entities to share cyber threat indicators and defensive measures with other private entities. … It also provides private entities with liability protection for conducting such sharing in accordance with CISA.”
Additional Guidance Provided by DOJ/DHS
The latest CISA guidance also addresses several other key issues, including how to identify and share cyber threat indicators and defensive measures. For instance, it emphasizes “cyber threat indicators and defensive measures will typically consist of technical information that describes attributes of a cybersecurity threat that generally need not include various categories of information that are considered sensitive and, therefore, protected by privacy laws.”
Cybersecurity Information Sharing Act Guidance Tips
The guidance provides specific examples of information unlikely to be directly related to a cybersecurity threat and is, therefore, inappropriate to share, including:
- Protected health information;
- Human resource information contained within an employee’s personnel file;
- Consumer information and history, including information covered by the Fair Credit Reporting Act;
- Educational history, including transcripts and information protected pursuant to Family Educational Rights and Privacy Act;
- Financial information, including bank statements, loans, and information protected by the Gramm-Leach-Bliley Act;
- Children’s information, including that protected under Children’s Online Privacy Protection Act; and
- Other identifying information protected by state privacy laws.
Businesses big and small can benefit from these guidelines. The challenge often lies in figuring out what is necessary for your company, what should be a priority, and how best to determine and integrate both technology and training into your operations.
Do you have any feedback, thoughts, reactions or comments concerning this topic? Feel free to leave a comment below for Fernando M. Pinguelo and follow the twitter accounts @CyberPinguelo and @eWHW_Blog for timely comments on related issues. If you have any questions about this post, please contact me or the Scarinci Hollenbeck attorney with whom you work. To learn more about data privacy and security, visit our Cyber Security & Data Protection page.
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