[author: Jay Ireland]
On April 26, 2012 the House passed the Cyber Intelligence Sharing and Protection Act (“CISPA”) on a 248 – 168 vote. CISPA is supported by many communications and technology companies (e.g., Verizon, AT&T, Facebook, and Microsoft) as a critical step in protecting the nation’s infrastructure and national security from cyber attacks, by permitting the sharing of cyber threat information between private companies and the federal government. Critics (e.g., the ACLU, Center for Democracy and Technology, and others) strenuously oppose CISPA based on concerns it compromises individual privacy by allowing personal information to be shared with the government without adequate protections, oversight, or legal recourse. The White House opposes the legislation and has threatened to veto it in its current form.
CISPA, which would sunset 5 years after enactment, seeks to combat cyber attacks by allowing (but not requiring) private entities to use cybersecurity systems to identify, obtain “cyber threat information,” and share that information with other entities, including the federal government, “notwithstanding any other provision of law.” Such cyber threat information shared with a federal department or agency can only be used for (i) “cybersecurity purposes” (i.e., “the purpose of ensuring the integrity, confidentiality, or availability of, or safeguarding, a system or network”); (ii) investigating and prosecuting cyber-crimes; (iii) protecting individuals from serious bodily harm or death and related investigations; (iv) protecting minors from exploitation and serious threats of harm; or (v) protecting national security. While CISPA facilitates sharing of information to protect national security interests, it does not impose government cybersecurity standards on the private sector.
To address privacy concerns, CISPA provides that cyber threat information shared by the private sector with the federal government cannot be affirmatively searched other than for the purposes itemized above. The bill also forbids the government from using personally identifiable information from library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, educational records and medical records. Information shared with the federal government is exempt from Freedom-of-Information disclosure and generally cannot be disclosed to non-federal entities (unless the sharing entity authorizes such disclosure), or used by the federal government for other regulatory purposes.
CISPA would also authorize (but does not require) the sharing of cyber threat intelligence obtained by “elements of the intelligence community” with private-sector entities and utilities holding appropriate security clearances. Those private-sector entities and utilities are encouraged to share such information with other cleared entities subject to certain restrictions. The federal government cannot condition its sharing of cyber threat intelligence with a private entity on that entity also sharing information with the government. Procedures will be developed, in consultation with the Secretary of Homeland Security, to ensure that operators of critical infrastructure receive “all appropriate cyber threat intelligence” possessed by the federal government.
Private-sector entities (including their officers, employees or agents) that use cybersecurity systems in good faith to identify, or obtain, cyber threat information or that share such information as permitted by CISPA are exempt from civil and criminal liability. CISPA provides a private remedy for the federal government’s intentional or willful violation of the permitted uses of information – the greater of actual damages, or $1,000 and attorney fees.
Focus now turns to the Senate which is expected to consider two competing bills this month (S. 2151, the Strengthening and Enhancing Cybersecurity by Using Research, Education, Information, and Technology Act of 2012 or “SECURE IT” Act sponsored by Senator McCain, and S. 2104, the “Cybersecurity Act of 2012” sponsored by Senator Lieberman). An anti-SOPA style campaign is already underway by privacy advocates to ensure that any Senate bill that emerges contains privacy protections that were not successfully included in CISPA. It is likely that substantial revision is necessary to avoid the threatened veto. In addition, while players in the online industry have been silent or quietly supportive of CISPA, Mozilla came out against it in the wake of its passing the House. Progress of the bill and related legislation in the Senate will be critical to watch in the coming weeks and months.