President Obama Issues Executive Order on Cybersecurity Information Sharing

by White & Case LLP

On February 13, 2015, President Barack Obama signed an executive order entitled "Promoting Private Sector Cybersecurity Information Sharing" (the "Executive Order")[1] to foster cybersecurity threat information sharing within the private sector and between the private sector and the government.[2] The Executive Order is intended to complement the Administration’s cyber threat information sharing legislative proposal released last month,[3] including by providing a framework, through the establishment of Information Sharing and Analysis Organizations ("ISAOs").[4] The Administration believes that the establishment of the ISAOs will be important for providing a framework for the limited liability protections recommended by the legislative proposal.

The Executive Order is focused on the widespread establishment of ISAOs and the mechanisms by which they function and interact with the government. It directs the Secretary of Homeland Security (the "Secretary") to "strongly" encourage the formation of ISAOs,[5] which may be organized on any number of bases (including in response to specific emerging cybersecurity threats), spanning both public and private sectors, and formed as for-profit or nonprofit entities.[6] The Executive Order directs the National Cybersecurity and Communications Integration Center ("NCCIC") to continuously coordinate with ISAOs regarding information sharing related to cybersecurity risks and threats, responses to incidents and strengthening information security systems.[7]

The Executive Order also directs the Secretary to empower a nongovernmental organization to serve as the ISAO Standards Organization ("SO"),[8] which will be tasked with identifying a "common set of voluntary standards or guidelines for the creation and functioning of ISAOs."[9] To be selected, the SO must demonstrate that it can engage the broad range of organizations that might participate in the cybersecurity threat information sharing network and those parties who might share information in support of their customers. The standards to be promulgated by the SO will broadly address the baseline capabilities and requirements that ISAOs established under the Executive Order should possess, including contractual and operations related arrangements and privacy protections such as minimization.[10] The Executive Order provides that all information sharing should be conducted in a manner that protects individuals’ privacy and civil liberties and the information being shared.[11]

Finally, the Executive Order amends Executive Order 12829,[12] which established the National Industrial Security Program to protect classified information and manage the needs of certain private sector contractors to have access thereto.[13] The Executive Order authorizes the NCCIC to enter into agreements with ISAOs to promote critical infrastructure cybersecurity and the Secretary to approve classified information sharing arrangements between the NCCIC and ISAOs and determine an ISAO’s eligibility to access classified national security information.[14] These provisions, together with the amendment to Executive Order 12829, would permit ISAOs and other information-sharing entities to access classified cybersecurity threat-related information where the Secretary determines that such access may be necessary or appropriate.[15]

Cybersecurity and data protection continue to be areas of particular interest for the private sector and the current Administration. Additional legislation and regulation further addressing these issues is likely to be proposed and debated in the near future. As discussions develop and the legislation is debated, companies should gauge their interest in participating in ISAOs or similar organizations.

[1] - Exec. Order No. 13691 of Feb. 13, 2015, 80 Fed. Reg. 9347 (Feb. 20, 2015). The Executive Order is available here.
[2] - Id. at Sec. 1.
[3] - The Obama Administration’s cybersecurity legislative proposals are discussed in our previous post
[4] - Fact Sheet: Exec. Order Promoting Private Sector Cybersecurity Information Sharing (Feb. 12, 2015), available here.
[5] - Exec. Order, supra note 1, at Sec. 2(a). Further, to promote the formation of ISAOs, the Executive Order calls on the Secretary to consult with those Federal entities responsible for cybersecurity activities and sector-specific entities essential to national infrastructure. Id. at Sec. 2(d).
[6] - Id. at Sec. 2(b).
[7] - Id. at Sec. 2(c).
[8] - See id. at Sec. 3(a).
[9] - Id.
[10] -  Id. Specifically, the standards shall address, among other things, "contractual agreements, business processes, operating procedures, technical means, and privacy protections, such as minimization, for ISAO operation and ISAO member participation." Id.
[11] - Id. at Sec. 1. Section 5 of the Executive Order also requires agencies operating under the Executive Order to ensure that privacy and civil liberties’ protections based upon the Fair Information Practice Principles and other applicable policies are "incorporated into their activities." Id. at Sec. 5(a). The Fair Information Practice Principles are set forth in Appendix A of the National Strategy for Trusted Identities in Cyberspace. See National Strategy for Trusted Identities in Cyberspace (April 2011), available here (the stated principles are: transparency, individual participation, purpose specification, data minimization, use limitation, data quality and integrity, security, and accountability and auditing).
[12] - Exec. Order No. 12829 of Jan. 6, 1993, 58 Fed. Reg. 3479 (Jan. 8, 1993), as amended by Exec. Order No. 12885 of Dec. 14, 1993, 58 Fed. Reg. 65863 (Dec. 14, 1993), available here.
[13] - See generally Exec. Order, supra note 1, at Sec. 6.
[14] - Id. at Secs. 4(a), (c); 6(i), (l).
[15] - Specifically, the Executive Order directs the Secretary to determine the eligibility of ISAOs and their members for necessary security clearances associated with the voluntary agreements contemplated under Section 4(a), in accordance with Executive Orders 13549 and 12829 (as amended, including as by the Executive Order itself). See Exec. Order, supra note 1, at Sec. 4(c); see also supra note 8. The Executive Order also designates the NCCIC as a critical infrastructure program under the Critical Infrastructure Information Act of 2002. Id. at Sec. 4(a).

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