The Cybersecurity Information Sharing Act or CISA passed the Senate this week by vote of 74-21, but not without controversy. CISA would not establish a generally applicable federal standard for safeguarding personal information, nor would it enact a federal breach notification requirement. Rather, if signed into law, CISA would among other things create a framework for governmental entities and private entities to share cyber threat information for cybersecurity purposes in order to help protect against the massive data breaches that have hit the federal government and major U.S. companies. A companion bill has been passed in the House and, if successfully reconciled, the law will be sent to President Obama, who indicated support for the bill.

The controversy surrounding CISA relates primarily to the belief that the bill’s measures seeking greater data security come at too great a cost – privacy. Advocates of CISA believe, in general, that the sharing of cyber threat indicators or defensive measures for cybersecurity purposes and the monitoring of information systems are needed to address attacks on these systems. Privacy advocates and others reject that view, arguing in essence that this move toward greater data security jettisons privacy protections. That is, under the guise of security, companies would be free to monitor and share personal data with the federal government, enabling more expansive data collection and surveillance and without regard to privacy protections under other laws.

Section 104 of CISA would permit a private entity to monitor that entity’s information system or the information system of another entity, including a Federal entity (with that other entity’s written consent), or the information stored on those systems – for a cybersecurity purpose. A cybersecurity purpose means “the purpose of protecting an information system or information that is stored on, processed by, or transiting an information system from a cybersecurity threat or security vulnerability.”

Subsection (c) of 104 also would permit an entity to share with, or receive from, any other entity or the Federal Government a “cyber threat indicator” or “defensive measure.” Under the bill, cyber threat indicator is defined to mean an “action on or through an information system that may result in an unauthorized effort to adversely impact the security, availability, confidentiality, or integrity of an information system or information that is stored on, processed by, or transiting an information system.” However, the entity receiving the cyber threat indicator or defensive measure would be required to comply with otherwise lawful restrictions placed on the sharing or use of such cyber threat indicator or defensive measure by the sharing entity. In addition, CISA would require that:

An entity monitoring an information system, operating a defensive measure, or providing or receiving a cyber threat indicator or defensive measure … [must] implement and utilize a security control to protect against unauthorized access to or acquisition of such cyber threat indicator or defensive measure.

The bill goes on to provide that when sharing a cyber threat indicator, entities must either:

review such cyber threat indicator to assess whether such cyber threat indicator contains any information that the entity knows at the time of sharing to be personal information or information that identifies a specific person not directly related to a cybersecurity threat and remove such information; or

implement and utilize a technical capability configured to remove any information contained within such indicator that the entity knows at the time of sharing to be personal information or information that identifies a specific person not directly related to a cybersecurity threat.

Privacy advocates argue that this language leaves open the possibility that entities sharing cyber threat indicators might not “know” if the indicator contains personal information, thus weakening the privacy protection for personal information under this provision. However, Senate Select Committee on Intelligence (SSCI) Chairman Richard Burr (R-NC), sponsor of CISA, points to these provisions and others to refute the privacy concerns raised by opponents of the bill. In a press release, “Debunking Myths about Cybersecurity Information Sharing Act,” Sen. Burr argues, among other things, that under CISA:

The cyber threat information sharing is completely voluntary. Companies have the choice as to whether they want to participate in CISA’s cyber threat information sharing process, but all privacy protections are mandatory.

The debate surely will continue as the House and Senate reconcile their versions of the law. For now, business should continue to focus on their own efforts to safeguard personal and other confidential data, and be prepared in the event they experience a data breach.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.