The 22 Amendments That Could Determine the Fate of the Senate’s Cybersecurity Bill

The amendments will get a vote if and when CISA comes up after recess.

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Aug. 26, 2015, 5 a.m.

After a brief but heated battle, sen­at­ors packed up for sum­mer re­cess early this month without vot­ing on a key cy­ber­se­cur­ity bill. In an­noun­cing that the bill’s con­sid­er­a­tion would be delayed, Ma­jor­ity Lead­er Mitch Mc­Con­nell lined up 22 amend­ments that will get a vote when the bill comes up again in the fall, a product of in­tense ne­go­ti­ations over the bill’s fate.

The amend­ments—10 from Re­pub­lic­ans and 11 from Demo­crats, plus one from the bill’s bi­par­tis­an co-spon­sors—range widely in their goals, and they have been the sub­ject of a lob­by­ing push this month from both sup­port­ers and op­pon­ents of the Cy­ber­se­cur­ity In­form­a­tion Shar­ing Act, or CISA.

The bill sets up in­cent­ives for busi­nesses to share cy­ber­threat in­form­a­tion with the gov­ern­ment, with the goal of sup­ply­ing both with the tools and data they need to bol­ster their de­fenses. It will likely come up again after the Sen­ate re­con­venes in Septem­ber, but is just one is­sue in a tight le­gis­lat­ive sched­ule.

Here are the 22 amend­ments that could make or break the bill.

OPERATIONS

1. Of­fers li­ab­il­ity pro­tec­tion for shar­ing with FBI and Secret Ser­vice

CISA would al­low busi­nesses to share cy­ber­threat in­form­a­tion dir­ectly with any fed­er­al agency, but of­fers them li­ab­il­ity pro­tec­tion only for shar­ing with the De­part­ment of Home­land Se­cur­ity.

An amend­ment from Sen. Tom Cot­ton takes li­ab­il­ity pro­tec­tions a step fur­ther and would ex­tend them to com­pan­ies who want to share with the FBI or Secret Ser­vice.

The pro­vi­sion is a use­ful one for busi­nesses that reg­u­larly deal with data breaches. “If you think about when there’s a breach, the gov­ern­ment has re­peatedly said that it’s im­port­ant to come to law en­force­ment and work with law en­force­ment to help ad­dress that,” said An­drew Tannen­baum, cy­ber­se­cur­ity coun­sel at IBM. “One of the main en­tit­ies that a com­pany would share with in that situ­ation would be the FBI or the Secret Ser­vice, so it’s im­port­ant to in­clude that in the leg­al pro­tec­tions.”

But the Cot­ton amend­ment is also one of the most wor­ri­some for pri­vacy ad­voc­ates. Robyn Greene, policy coun­sel at New Amer­ica’s Open Tech­no­logy In­sti­tute, says the pro­pos­al has “ob­vi­ous pri­vacy and civil liber­ties con­cerns, be­cause the FBI is a do­mest­ic in­tel­li­gence and law-en­force­ment agency.” Greene says the Cot­ton amend­ment could be harm­ful to the pro­gram’s op­er­a­tions be­cause it fur­ther de­cent­ral­izes the pro­vi­sion of in­form­a­tion with­in the gov­ern­ment from the DHS hub.

2. Nar­rows defin­i­tions of cy­ber­se­cur­ity threats and in­dic­at­ors

An amend­ment put for­ward by three of the Sen­ate’s most out­spoken pri­vacy ad­voc­ates—Sens. Al Franken, Patrick Leahy, and Ron Wyden—nar­rows the defin­i­tions of cy­ber­se­cur­ity threats and the cy­ber­threat in­dic­at­ors that busi­nesses and the gov­ern­ment are al­lowed to share.

This amend­ment, which has the sup­port of civil-liber­ties groups, would al­low com­pan­ies to share cy­ber­threat in­form­a­tion only in­so­far as it’s “ne­ces­sary to de­scribe or identi­fy” a hand­ful of ma­li­cious activ­it­ies that hack­ers gen­er­ally en­gage in. It would also nar­row the defin­i­tion of cy­ber­threats by re­quir­ing that com­pan­ies only share in­form­a­tion about activ­it­ies “reas­on­ably likely” to res­ult in harm.

But the more re­strict­ive defin­i­tions of threats and in­dic­at­ors could be stum­bling blocks for busi­nesses that want to par­ti­cip­ate in the shar­ing pro­gram, says Matt Eggers, seni­or dir­ect­or of na­tion­al se­cur­ity pro­grams at the U.S. Cham­ber of Com­merce, which has been act­ive in sup­port­ing cy­ber­in­form­a­tion-shar­ing le­gis­la­tion for years.

“In a lot of ways, if you’re deal­ing with cy­ber­threat in­dic­at­ors, it may take a while to fig­ure out if there is real harm or po­ten­tial harm,” Eggers said. “If you have to wait un­til you know with near-cer­tainty or at least a high level of con­fid­ence that harm is be­ing done or could be done, time will have elapsed, and I think that’s the is­sue there.”

3. Re­states vol­un­tary nature of private sec­tor shar­ing

CISA’s spon­sors and sup­port­ers say the bill’s in­form­a­tion-shar­ing plat­form would be vol­un­tary, be­cause it uses only in­cent­ives to get busi­nesses to par­ti­cip­ate, but the bill’s op­pon­ents say the way the in­cent­ives are laid out all but force com­pan­ies to en­gage with the gov­ern­ment.

The ex­ist­ing pi­lot in­form­a­tion-shar­ing pro­gram, run through DHS, re­quires com­pan­ies to send the gov­ern­ment cy­ber­threat in­form­a­tion if they wish to re­ceive in­form­a­tion from oth­er par­ti­cipants. Ac­cord­ing to Amie Stepan­ovich, U.S. policy man­ager at Ac­cess, a di­git­al hu­man rights or­gan­iz­a­tion, stay­ing out of the loop is too high a price to pay not to share with the gov­ern­ment.

“Com­pan­ies will be forced to par­ti­cip­ate simply to keep up with their par­ti­cip­at­ing com­pet­it­ors,” Stepan­ovich wrote in a Wired op-ed last week. “Not to com­ply might ac­tu­ally harm their cor­por­ate in­terests and put their cus­tom­ers at risk.”

One of two amend­ments offered by Sen. Jeff Flake re­in­forces the vol­un­tary nature of the in­form­a­tion-shar­ing pro­gram when private com­pan­ies share in­form­a­tion with one an­oth­er, but Stepan­ovich says the Flake amend­ment does not ad­dress the like­li­hood that the gov­ern­ment will re­quire all par­ti­cipants to share cy­ber­threat in­form­a­tion.

“Once you get in­to con­tract ne­go­ti­ations, there are a lot of ways you can push en­tit­ies en­ter­ing in­to the con­tract in­to send­ing in­form­a­tion,” Stepan­ovich said in an in­ter­view this week. “It be­comes very likely that once they’re in these ne­go­ti­ations that the com­pany is go­ing to be roped in­to a con­trac­tu­al agree­ment that will have them send­ing in­form­a­tion to the gov­ern­ment.”

PRIVACY

4. Re­quires com­pan­ies to re­move per­son­al in­form­a­tion “to the ex­tent feas­ible”

The busi­ness and civil-liber­ties com­munit­ies strongly dis­agree over wheth­er the cur­rent ver­sion of CISA would res­ult in in­di­vidu­als Amer­ic­ans’ per­son­al in­form­a­tion be­ing shared with the gov­ern­ment in­ap­pro­pri­ately.

New Amer­ica re­leased a break­down last week of the sorts of per­son­al in­form­a­tion that it says would end up in the cy­ber­threat in­dic­at­ors that busi­nesses are ex­pec­ted to share. The in­form­a­tion the think tank iden­ti­fied in­cludes IP ad­dresses, MAC ad­dresses, emails, doc­u­ments and me­dia files, and users’ web traffic.

The Cham­ber of Com­merce has been work­ing to counter those claims by put­ting out in­form­a­tion­al fly­ers through a cy­ber­se­cur­ity co­ali­tion made up of dozens of U.S. trade groups.

“Some pri­vacy and civil liber­ties groups per­petu­ate the false­hood that per­son­al in­form­a­tion is typ­ic­ally ne­ces­sary to identi­fy cy­ber threats,” read a re­cent Cham­ber fly­er. “This po­s­i­tion is in­ac­cur­ate and be­ing used to op­pose needed cy­ber­se­cur­ity in­form­a­tion-shar­ing le­gis­la­tion.”

The pro-busi­ness group says the amount of per­son­al in­form­a­tion that would be shared is very lim­ited, and will rarely be trace­able to its source. Its in­form­a­tion­al fly­er says cy­ber­threat in­dic­at­ors will “in the vast ma­jor­ity of cy­ber in­cid­ents do not im­plic­ate a per­son’s be­ha­vi­or­al, fin­an­cial, or so­cial in­form­a­tion.”

It’s no sur­prise that the amend­ment that would most ag­gress­ively in­crease CISA’s pri­vacy pro­tec­tions was put for­ward by Wyden, the Demo­crat from Ore­gon who once called the pro­posed le­gis­la­tion a “sur­veil­lance bill by an­oth­er name.”

The Wyden amend­ment would strengthen the re­quire­ment that private com­pan­ies re­move sens­it­ive per­son­al in­form­a­tion be­fore shar­ing cy­ber­threat in­dic­at­ors. The amend­ment would al­low com­pan­ies to in­clude per­son­al in­form­a­tion in the data they share only if the in­form­a­tion is ne­ces­sary to identi­fy or de­scribe a threat, and re­quire them to scrub per­son­al data “to the ex­tent feas­ible.”

CISA op­pon­ents have tar­geted this amend­ment as the most im­port­ant must-pass change to the bill. “This is a sig­ni­fic­ant front-end pro­tec­tion that would really im­prove not only the pri­vacy con­cerns in the bill, but also the op­er­a­tion­al ef­fect­ive­ness, be­cause what it’s go­ing to do is it’s go­ing to bet­ter cur­ate the threat data that’s shared,” said Greene.

But Eggers, of the Cham­ber of Com­merce, says busi­nesses are con­stantly on the lookout for vague or sub­ject­ive lan­guage that eludes easy in­ter­pret­a­tion—and he says the Wyden amend­ment falls in­to that trap.

“‘To the ex­tent feas­ible,’ I think, is go­ing to wrap law­yers, se­cur­ity pro­fes­sion­als, and oth­ers around the axle in terms of wheth­er or not they’ve re­moved in­form­a­tion suf­fi­ciently,” Eggers said.

5. Re­quires com­pan­ies to re­move per­son­al in­form­a­tion if they “reas­on­ably be­lieve” it’s un­re­lated

Sen. Dean Heller put for­ward an amend­ment that, like Wyden’s, would re­quire com­pan­ies to re­move per­son­al in­form­a­tion from cy­ber­threat in­dic­at­ors they share if they “reas­on­ably be­lieve” the in­form­a­tion does not re­late dir­ectly to a threat. While the Heller amend­ment im­poses less strin­gent re­stric­tions on busi­nesses than the Wyden amend­ment, it still lacks the “leg­al cer­tainty” Eggers says busi­nesses want.

6 and 7. Re­quire DHS to re­move per­son­al in­form­a­tion be­fore shar­ing with oth­er gov­ern­ment agen­cies

A pair of amend­ments put for­ward by Delaware’s two Demo­crat­ic sen­at­ors, Chris Coons and Tom Carp­er, are also geared to­ward scrub­bing per­son­al in­form­a­tion from cy­ber­threat in­dic­at­ors. But rather than put­ting the bur­den on com­pan­ies, both are de­signed to push DHS to re­move the per­son­al in­form­a­tion be­fore shar­ing it with oth­er gov­ern­ment agen­cies.

The Coons and Carp­er amend­ments are aimed at the same goal as the oth­er at­tempts to keep sens­it­ive in­form­a­tion out of cy­ber­threat in­dic­at­ors, but since CISA would al­low busi­nesses to share dir­ectly with any fed­er­al agency, there would re­main ways for per­son­al in­form­a­tion to make its way in­to gov­ern­ment sys­tems.

LIABILITY

8. Pre­vents busi­nesses from us­ing CISA li­ab­il­ity pro­tec­tions to break user agree­ments

An amend­ment put for­ward by Sen. Rand Paul—the only one out of the dozen offered by the Ken­tucky Re­pub­lic­an that will get a vote—tar­gets CISA’s li­ab­il­ity pro­tec­tions, the main tool the le­gis­la­tion uses to get busi­nesses to par­ti­cip­ate.

Paul’s pro­pos­al would lim­it the li­ab­il­ity pro­tec­tions ex­ten­ded to busi­nesses so that com­pan­ies would re­main bound to the pri­vacy agree­ments they enter in­to with their cus­tom­ers.

The pro­vi­sion is sup­por­ted by pri­vacy ad­voc­ates for its en­cour­age­ment of trans­par­ency, but op­posed by busi­nesses who are look­ing for the widest li­ab­il­ity pro­tec­tions pos­sible.

“If li­ab­il­ity pro­tec­tion is re­moved or thrown in­to ques­tion, busi­nesses will say, ‘We just don’t have a good bill here. It doesn’t do any good for me when I’m bat­tling—let’s face it—the Chinese, North Koreans, the Ir­a­ni­ans, the Rus­si­ans, or cy­ber­crim­in­als,’” Eggers said.

OVERSIGHT

9. Im­ple­ments a six-year sun­set

One pro­pos­al from Flake and Franken would set a six-year timer after which the bill would sun­set. Con­gress would at that point have to reau­thor­ize the bill and would have a chance to tweak it.

10. Re­quires gov­ern­ment to no­ti­fy in­di­vidu­als about im­prop­er shar­ing

A second amend­ment from Wyden would re­quire the gov­ern­ment to no­ti­fy in­di­vidu­als whose per­son­al in­form­a­tion was im­prop­erly shared or re­vealed.

11. Re­moves FOIA ex­emp­tion

A change pro­posed by Leahy would re­move a part of the bill that ex­empts in­form­a­tion shared through the pro­gram from Free­dom of In­form­a­tion Act re­quests (but pri­vacy ad­voc­ates say most of the in­form­a­tion would already be covered un­der stand­ing ex­emp­tions).

12 and 13. Com­mis­sion gov­ern­ment cy­ber re­ports

Two pro­pos­als, one from Sen. Jon Test­er and an­oth­er from Sen. Dan Coats, would com­mis­sion gov­ern­ment re­ports on cy­ber­se­cur­ity.

Test­er’s amend­ment would re­quire the gov­ern­ment to re­port the num­ber of threat in­dic­at­ors and de­fens­ive meas­ures shared, the num­ber of times per­son­al in­form­a­tion was re­moved, the num­ber of times per­son­al in­form­a­tion was not re­moved but should have been, and the num­ber of times the gov­ern­ment used cy­ber­threat in­form­a­tion to pro­sec­ute of­fenses not re­lated to cy­ber­se­cur­ity.

The amend­ment from Coats would com­mis­sion a re­port on cy­ber­se­cur­ity threats to mo­bile devices.

MANAGER'S AMENDMENT

14. Mul­tiple pri­vacy, op­er­a­tions, and over­sight changes

A set of changes put for­ward by the co-spon­sors of CISA, Sens. Di­anne Fein­stein and Richard Burr, makes ba­sic changes that have the sup­port of all sides. The man­ager’s amend­ment in­cludes changes to what can be shared, how shared in­form­a­tion can be used, how com­pan­ies would be al­lowed to de­fend them­selves against cy­ber­threats, and it would fur­ther curb ex­emp­tions from FOIA re­quests.

The changes from Fein­stein and Burr put to rest some of the is­sues the pri­vacy com­munity was most wor­ried about by al­low­ing in­form­a­tion shar­ing only for cy­ber­se­cur­ity pur­poses and re­mov­ing an au­thor­iz­a­tion that would have al­lowed law en­force­ment to use cy­ber­threat in­form­a­tion to pur­sue vi­ol­ent felons.

OTHER

15. In­creases pun­ish­ments for cy­ber­crimes

An amend­ment from Sen. Shel­don White­house has raised alarm from pri­vacy ad­voc­ates for ex­pand­ing pen­al­ties for vi­ol­at­ing the Com­puter Fraud and Ab­use Act. That law, which makes ac­cess­ing pro­tec­ted com­puters and net­works il­leg­al, has long come un­der fire for pun­ish­ing low-level com­puter crimes and for dis­cour­aging le­git­im­ate se­cur­ity re­search.

The White­house amend­ment to CISA would al­low a zeal­ous pro­sec­utor to seek up to 20 years of pris­on time for an in­di­vidu­al who harms a com­puter con­nec­ted to “crit­ic­al in­fra­struc­ture,” a term broadly defined by the Pat­ri­ot Act.

16. Eases clear­ance pro­cess for com­mit­tee staffers

17. Es­tab­lishes small-busi­ness cy­ber cen­ter at DHS

Sen. Dav­id Vit­ter has two of­fer­ings in the mix: The first would make it easi­er for mem­bers on Sen­ate com­mit­tees that handle sens­it­ive in­form­a­tion to get at least one staffer a se­cur­ity clear­ance, and the second would es­tab­lish re­sources for small-busi­ness cy­ber­se­cur­ity with­in DHS.

18. Re­quires De­part­ment of State to write in­ter­na­tion­al cy­ber policy

19. Man­dates re­ports on for­eign gov­ern­ments’ cy­ber­crime ef­forts

A pair of amend­ments from Sen. Cory Gard­ner and Sen. Mark Kirk have to do with in­ter­na­tion­al cy­ber­se­cur­ity policy. Gard­ner’s amend­ment would re­quire the sec­ret­ary of State to draw up a “com­pre­hens­ive strategy re­lat­ing to United States in­ter­na­tion­al policy with re­gard to cy­ber­space” and make parts of it pub­licly avail­able. Kirk’s amend­ment would push the sec­ret­ary of State to con­sult with gov­ern­ments of coun­tries that are home to cy­ber crim­in­als to de­term­ine how those crim­in­als are be­ing pur­sued.

20. Ex­tends Pri­vacy Act rights to al­lied coun­tries’ cit­izens

An amend­ment offered by Sen. Chris Murphy ex­tends the rights in the Pri­vacy Act to U.S. al­lies, which would al­low for­eign cit­izens to chal­lenge how their private in­form­a­tion is used in Amer­ic­an courts.

21. In­creases fund­ing for OPM cy­ber­se­cur­ity

Sen. Bar­bara Mikul­ski put for­ward an amend­ment that would ap­pro­pri­ate $37 mil­lion to the Of­fice of Per­son­nel Man­age­ment to boost its cy­ber­se­cur­ity ef­forts, a re­ac­tion to the dev­ast­at­ing data breaches at that agency last year.

22. Au­thor­izes DHS to in­tro­duce gov­ern­ment-wide cy­ber­de­fenses

An amend­ment from Carp­er would tack on an en­tire bill—the Fed­er­al Cy­ber­se­cur­ity En­hance­ment Act, a ver­sion of which Carp­er has offered as a stan­dalone be­fore—which would au­thor­ize DHS to roll out a cy­ber­de­fense sys­tem called Ein­stein to every fed­er­al agency.

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