information sharing

On March 12, 2024, the Department of Defense (DoD) published a final rule, revising the eligibility criteria for the voluntary DoD Defense Industrial Base (DIB) Cybersecurity (CS) Activities Program.  The intent of the rule is to permit all defense contractors that own or operate unclassified information systems that process, store, or transmit covered defense information to participate in the program.  Previously, only cleared contractors were permitted to participate in the sharing of this information.  The final rule also amends identity proofing requirements by eliminating the need to obtain a medium security certificate to participate in either the voluntary or mandatory reporting regimes.  The rule will take effect on April 11, 2024, and DoD anticipates a significant increase in contractor participation.

Additional information about the rule is outlined below.Continue Reading DoD Expands Contractor Cybersecurity Information Sharing Program

We have already seen tremendous fallout from recent cyber attacks on Target, the U.S. Office of Personnel Management, Sony Pictures, and J.P. Morgan.  Now imagine that, instead of an email server or a database of information, a hacker gained access to the controls of a nuclear reactor or a hospital.  The potential consequences are devastating: death, injury, mass property destruction, environmental damage, and major utility service and business disruption.  Now what if there were a mechanism that would incentivize industry to create and deploy robust and ever-evolving cybersecurity programs and protocols in defense of our nation’s critical infrastructure?

In late 2014, Representative Michael McCaul (R-TX), Chairman of the House Committee on Homeland Security, proposed legislation that would surgically amend the SAFETY Act, which currently offers liability protection to sellers and users of approved anti-terrorism technologies in the event of litigation stemming from acts of terrorism.  Rep. McCaul’s amendment would broaden this protection to cybersecurity technologies in the event of “qualifying cyber incidents.”  The proposed legislation defines a “qualifying cyber incident” as an unlawful access that causes a “material level[] of damage, disruption, or casualties severely affecting the [U.S.] population, infrastructure, economy, or national morale, or Federal, State, local, or tribal government functions.”  Put simply, under the proposed legislation, a cyber incident could trigger SAFETY Act protection without being deemed an act of terrorism.Continue Reading SAFETY First: Using the SAFETY Act to Bolster Cybersecurity

There are currently three major cybersecurity-related bills pending in the 114th Congress that address information sharing among private entities and between private entities and the federal government: the Protecting Cyber Networks Act (PCNA), H.R. 1560, the National Cybersecurity Protection Advancement Act of 2015 (NCPAA), H.R. 1731, and the Cyber Security Information Act of 2015 (CISA), S. 754. Some of the key issues that need to be resolved across these bills include: which agency will be designated as the lead as a clearinghouse for cyber threat information, what liability protections will be granted to those companies that do share information, and whether the structures established under any of these bills will also facilitate greater sharing of government threat information with the private sector. Although the bills all provide that existing reporting requirements will not be disturbed, such as those for Department of Defense “(DOD”) contractors, it remains unclear how these different reporting schemes will interact. Similarly, these bills do not address a provision in the House version of the 2016 National Defense Authorization Act that would provide liability protection to certain DOD contractors for properly reporting cyber incidents on their networks and information systems.

Restrictions on the sharing of cyber threat and vulnerability information are often raised as significant barriers to effective cybersecurity. But the sharing of such information is not without risk. In particular, private entities have raised concerns about how the government would use this information and whether such disclosures could result in antitrust, privacy or other legal complications. These bills look to increase incentives for cooperation between the government and the private sector in fending off cyber-attacks by encouraging private companies to voluntarily share information about the particular traits of cyber-attacks—what the bills refer to as “cyber threat indicators”—that they have previously encountered. In response to some of the concerns previously voiced by industry, these bills provide civil suit immunity for private entities that elect to share their information with each other and with the government. The bills also contain liability protection for contractors who monitor government computer systems. What follows is a brief comparison of all three major bills and why their different approaches may or may not benefit government contractors.Continue Reading Competing Bills Focus on Cybersecurity Information Sharing But Final Language and Ultimate Passage Remain Unknown

Following Obama’ s February 13, 2015 Executive Order to promote the sharing of cybersecurity risks and incidents between the federal government and the private sector, Congress has introduced a slew of information-sharing legislation.  Such legislation includes the Cybersecurity Information Sharing Act of 2015 (“CISA”), which was marked up and approved 14-1 by the Senate Intelligence Committee in a closed session on March 12.

CISA, which has been met with some criticism in the press, provides for the promulgation of policies and procedures for the voluntary sharing of “cyber threat indicators” among the federal government and the private sector.  The bill defines “cyber threat indicators” as “information necessary to describe or identify –

  • malicious reconnaissance . . .;
  • a method of defeating a security control or exploitation of a security vulnerability;
  • a security vulnerability;
  • a method of causing a user with legitimate access to an information system . . . to unwittingly enable the defeat of a security control or exploitation of a security vulnerability;
  • malicious cyber command and control;
  • the actual or potential harm cause by an incident . . .; or
  • any other attribute of a cybersecurity threat.”

As currently drafted, CISA would apply to contractors in two ways:Continue Reading Controversial Cyber Information Sharing Bill May Impact Government Contractors