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.