Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 Eric A. Fischer Senior Specialist in Science and Technology April 20, 2015 Congressional Research Service 7-5700 www.crs.gov R43996 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 Summary It is generally recognized that effective sharing of information in cybersecurity is an important tool in the protection of information systems and their contents from unauthorized access by cybercriminals and other adversaries. Five bills on information sharing in cybersecurity have been introduced in the 114th Congress (H.R. 234, H.R. 1560, H.R. 1731, S. 456, and S. 754). The White House has also submitted a legislative proposal and issued an executive order on the topic. In the House, H.R. 1560, the Protecting Cyber Networks Act (PCNA), was reported out of the House Permanent Select Committee on Intelligence on April 13, 2015, and H.R. 1731, the National Cybersecurity Protection Advancement Act of 2015 (NCPAA), was ordered reported by the House Committee on Homeland Security on April 14. Both bills are expected to receive floor action in the House the week of April 20. They both focus on information sharing among private entities and between them and the federal government. They address the structure of the information-sharing process, issues associated with privacy and civil liberties, and liability risks for private-sector sharing, and both address some other topics in common. In addition to other provisions, the NCPAA would explicitly amend portions of the Homeland Security Act of 2002 (6 USC 101 et seq.), and the PCNA would amend parts of the National Security Act of 1947 (50 USC 3021 et seq.). Comparison of the bills reveals many similarities but also significant differences, for example in how they define terms in common such as cyber threat indicator, the roles they provide for federal agencies (especially, the Department of Homeland Security and the intelligence community), processes for nonfederal entities to share information with the federal government; processes for protecting privacy and civil liberties, uses permitted for shared information, and reporting requirements. H.R. 1560, H.R. 1731, and the other bills would all address concerns that are commonly raised about barriers to sharing of information on threats, attacks, vulnerabilities, and other aspects of cybersecurity—both within and across sectors. Barriers to sharing have long been considered by many to be a significant hindrance to effective protection of information systems, especially those associated with critical infrastructure. Private-sector entities often claim that they are reluctant to share such information among themselves because of concerns about legal liability, antitrust violations, and protection of intellectual property and other proprietary business information. Institutional and cultural factors have also been cited—traditional approaches to security tend to emphasize secrecy and confidentiality, which would necessarily impede sharing of information. All the bills have provisions aimed at facilitating sharing of information among private-sector entities and providing protections from liability that might arise from such sharing. While reduction or removal of such barriers may provide benefits in cybersecurity, concerns have also been raised about potential adverse impacts, especially with respect to privacy and civil liberties, and potential misuse of shared information. The legislative proposals all address many of the concerns. In general, the proposals limit the use of shared information to purposes of cybersecurity and law enforcement, and they limit government use, especially for regulatory purposes. All also include provisions to shield information shared with the federal government from public disclosure, including exemption from disclosure under the Freedom of Information Act (FOIA). All the proposals require reports to Congress on impacts of their provisions. All have provisions aimed at protecting privacy and civil liberties with respect to shared information that is not needed for cybersecurity purposes. Congressional Research Service Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 Most observers appear to believe that legislation on information sharing is either necessary or at least potentially beneficial—provided that appropriate protections are included—but two additional factors in particular may be worthy of consideration as the legislative proposals are debated. First, resistance to sharing of information among private-sector entities might not be substantially reduced by the actions contemplated in the legislation. Second, information sharing is only one of many facets of cybersecurity that organizations need to address to secure their systems and information. Congressional Research Service Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 Contents Current Legislative Proposals .......................................................................................................... 1 Comparison of H.R. 1560 and H.R. 1731 ........................................................................................ 4 Glossary of Abbreviations in the Table ..................................................................................... 4 Notes on the Table ..................................................................................................................... 5 Tables Table 1. Side-by-Side Comparison of Two House Bills on Information Sharing ............................ 5 Contacts Author Contact Information........................................................................................................... 25 Acknowledgments ......................................................................................................................... 25 Congressional Research Service Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 This report compares provisions in two bills in the House of Representatives that address information sharing and related activities in cybersecurity:1 • H.R. 1560, the Protecting Cyber Networks Act (PCNA), as reported by the House Permanent Select Committee on Intelligence on April 13; and • H.R. 1731, the National Cybersecurity Protection Advancement Act of 2015 (NCPAA), as ordered reported by the Committee on Homeland Security on April 14.2 Both bills are expected to receive floor action in the House the week of April 20. They both focus on information sharing among private entities and between them and the federal government. They address the structure of the information-sharing process, issues associated with privacy and civil liberties, and liability risks for private-sector sharing, and both address some other topics in common. In addition to other provisions, the NCPAA would explicitly amend portions of the Homeland Security Act of 2002 (6 USC 101 et seq.), and the PCNA would amend parts of the National Security Act of 1947 (50 USC 3021 et seq.). This report consists of a discussion of those and other legislative proposals on information sharing, along with selected associated issues, followed by a side-by-side analysis of the two House bills.3 For information on economic aspects of information sharing, see CRS Report R43821, Legislation to Facilitate Cybersecurity Information Sharing: Economic Analysis, by N. Eric Weiss. For discussion of legal issues, see CRS Report R43941, Cybersecurity and Information Sharing: Legal Challenges and Solutions, by Andrew Nolan. For an overview of cybersecurity issues, see CRS Report R43831, Cybersecurity Issues and Challenges: In Brief, by Eric A. Fischer. Current Legislative Proposals Five bills on information sharing have been introduced in the 114th Congress. The White House has also submitted a legislative proposal4 (WHP) and issued an executive order on the topic.5 Other proposals include the following: • The Cyber Intelligence Sharing and Protection Act (CISPA), which passed the House in the 113th Congress, has been reintroduced as H.R. 234. • S. 456 is an amended version of the White House proposal.6 1 The analysis is limited to a textual comparison of the bills and is not intended to reach any legal conclusions regarding them. 2 The Rules Committee print is available at http://docs.house.gov/billsthisweek/20150420/CPRT-114-HPRT-RU00HR1731.pdf. 3 The NCPAA is used as the basis for comparison. This approach was taken for purposes of efficiency and convenience only. CRS does not advocate or take positions on legislation or legislative issues. 4 The White House, Updated Information Sharing Legislative Proposal, 2015, http://www.whitehouse.gov/sites/ default/files/omb/legislative/letters/updated-information-sharing-legislative-proposal.pdf. 5 Executive Order 13691, “Promoting Private Sector Cybersecurity Information Sharing,” Federal Register 80, no. 34 (February 20, 2015): 9349–53, http://www.gpo.gov/fdsys/pkg/FR-2015-02-20/pdf/2015-03714.pdf. 6 Senate Committee on Homeland Security and Government Affairs, Protecting America from Cyber Attacks: The Importance of Information Sharing, 2015, http://www.hsgac.senate.gov/hearings/protecting-america-from-cyber(continued...) Congressional Research Service 1 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 • S. 754, the Cybersecurity Information Sharing Act of 2015 (CISA), from the Senate Intelligence Committee, has many similarities to a bill with the same name introduced in the 113th Congress and shares many provisions with the PCNA, although there are also significant differences between S. 754 and the PCNA. All the bills would address concerns that are commonly raised about barriers to sharing of information on threats, attacks, vulnerabilities, and other aspects of cybersecurity—both within and across sectors. It is generally recognized that effective sharing of information is an important tool in the protection of information systems and their contents from unauthorized access by cybercriminals and other adversaries. Barriers to sharing have long been considered by many to be a significant hindrance to effective protection of information systems, especially those associated with critical infrastructure.7 Private-sector entities often claim that they are reluctant to share such information among themselves because of concerns about legal liability, antitrust violations, and protection of intellectual property and other proprietary business information. Institutional and cultural factors have also been cited—traditional approaches to security tend to emphasize secrecy and confidentiality, which would necessarily impede sharing of information. While reduction or removal of such barriers may provide benefits in cybersecurity, concerns have also been raised about potential adverse impacts, especially with respect to privacy and civil liberties, and potential misuse of shared information. The legislative proposals all address many of those concerns, but they vary somewhat in emphasis and method. The NCPAA focuses on the role of the Department of Homeland Security (DHS), and in particular the National Cybersecurity and Communications Integration Center (NCCIC). The PCNA, in contrast, focuses on the role of the intelligence community (IC),8 including authorization of the recently announced Cyber Threat Intelligence Integration Center (CTIIC). Both CISPA and CISA address roles of both DHS and the IC. The NCPAA, S. 456, and the WHP address roles of information sharing and analysis organizations (ISAOs).9 All of the proposals have provisions aimed at facilitating sharing of information among privatesector entities and providing protections from liability that might arise from such sharing. They vary somewhat in the kinds of private-sector entities and information covered, but almost all of them address information on both cybersecurity threats and defensive measures, the exception being S. 456 and the WHP, which cover only cyber threat indicators. In general, the proposals (...continued) attacks-the-importance-of-information-sharing. The hearing was not specifically on the White House proposal but it was held after the proposal was submitted and before the introduction of S. 456. 7 See, for example, CSIS Commission on Cybersecurity for the 44th Presidency, Cybersecurity Two Years Later, January 2011, http://csis.org/files/publication/110128_Lewis_CybersecurityTwoYearsLater_Web.pdf. 8 The IC consists of 17 agencies and others as designated under 50 U.S.C. 3003. 9 The House Committee on Homeland Security held two hearings on the White House proposal before H.R. 1731 was introduced (House Committee on Homeland Security, Examining the President’s Cybersecurity Information Sharing Proposal, 2015, http://homeland.house.gov/hearing/hearing-administration-s-cybersecurity-legislative-proposalinformation-sharing; House Committee on Homeland Security, Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies, Industry Perspectives on the President’s Cybersecurity Information Sharing Proposal, 2015, http://homeland.house.gov/hearing/subcommittee-hearing-industry-perspectives-president-scybersecurity-information-sharing). Congressional Research Service 2 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 limit the use of shared information to purposes of cybersecurity and law enforcement, and they limit government use, especially for regulatory purposes. All address concerns about privacy and civil liberties, although the mechanisms proposed vary to some extent, in particular the roles played by the Attorney General, the DHS Secretary, Chief Privacy Officers, the Privacy and Civil Liberties Oversight Board (PCLOB), and the Inspectors General of DHS and other agencies. All the proposals require reports to Congress on impacts of their provisions. All also include provisions to shield information shared with the federal government from public disclosure, including exemption from disclosure under the Freedom of Information Act (FOIA). While most observers appear to believe that legislation on information sharing is either necessary or at least potentially beneficial—provided that appropriate protections are included—two caveats in particular may be worthy of consideration as the legislative proposals are developed. The first is that resistance to sharing of information among private-sector entities might not be substantially reduced by the actions contemplated in the legislation. Information received can help an entity prevent or mitigate an attack. However, there is no direct benefit associated with providing information. While the legislative proposals may reduce the risks to private-sector entities associated with providing information, none include explicit incentives to stimulate such provision. In the absence of mechanisms to balance that asymmetry, the degree to which information sharing will increase under the provisions of the various legislative proposals may be uncertain. The second point is that information sharing is only one of many facets of cybersecurity.10 Entities must have the resources and processes in place that are necessary for effective cybersecurity risk management. Sharing may be relatively unimportant for many organizations, especially in comparison with other cybersecurity needs.11 In addition, most information sharing relates to imminent or near-term threats. It is not directly relevant to broader issues in cybersecurity such as education and training, workforce, acquisition, or cybercrime law, or major long-term challenges such as building security into the design of hardware and software, changing the incentive structure for cybersecurity, developing a broad consensus about cybersecurity needs and requirements, and adapting to the rapid evolution of cyberspace. 10 See, for example, Testimony of Martin C. Libicki before the House Committee on Oversight & Government Reform, Subcommittee on Information Technology, hearing on Industry Perspectives on the President’s Cybersecurity Information Sharing Proposal, 2015, http://homeland.house.gov/hearing/subcommittee-hearing-industry-perspectivespresident-s-cybersecurity-information-sharing. 11 For example, in the Cybersecurity Framework developed by the National Institute of Standards and Technology, target levels of information sharing vary among the four tiers of cybersecurity implementation developed for organizations with different risk profiles (National Institute of Standards and Technology, Framework for Improving Critical Infrastructure Cybersecurity, Version 1.0, February 12, 2014, http://www.nist.gov/cyberframework/upload/ cybersecurity-framework-021214-final.pdf). Congressional Research Service 3 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 Comparison of H.R. 1560 and H.R. 1731 The remainder of the report consists of a side-by-side comparison of provisions in H.R. 1560 as reported to the House and H.R. 1731 as ordered reported. Note that the language in the bills may be subject to additional amendment before floor consideration—for example through a manager’s amendment. Glossary of Abbreviations in the Table AG Attorney General CI Critical Infrastructure CPO Chief Privacy Officer CRADA Cooperative research and development agreement CTIIC Cyber Threat Intelligence Integration Center DHS Department of Homeland Security DNI Director of National Intelligence DOD Department of Defense DOJ Department of Justice HSA Homeland Security Act HSGAC Senate Homeland Security and Governmental Affairs Committee IC Intelligence community ICS Industrial control system ICS-CERT Industrial Control System Cyber Emergency Response Team IG Inspector General ISAC Information sharing and analysis center ISAO Information sharing and analysis organization MOU Memorandum of understanding NCCIC National Cybersecurity and Communications Integration Center NCPAA National Cybersecurity Protection Advancement Act of 2015 ODNI Office of the Director of National Intelligence PCLOB Privacy and Civil Liberties Oversight Board PCNA Protecting Cyber Networks Act SSA Sector-specific agency Secretary Secretary of Homeland Security U.S. United States USC United States Code US-CERT United States Computer Emergency Readiness Team U/S-CIP DHS Under Secretary for Cybersecurity and Infrastructure Protection Congressional Research Service 4 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 Notes on the Table Bold formatting denotes that the identified provision is the subject of the subsequent text (e.g., (d) or Sec. 2 (a)). Numbers and names of sections, subsections, and paragraphs (except definitions) added by the bills are enclosed in single quotation marks for clarity (e.g., ‘(a)’). Entries describing provisions in a bill are summaries or paraphrases, with direct quotes enclosed in double quotation marks. Page numbers in this table refer to pages in the pdf version of this report. Underlined text is used in selected cases as a visual aid to highlight differences with a corresponding provision in other bills or laws that might otherwise be difficult to discern. Related provisions in different proposals are adjacent to each other. H.R. 1731 serves as the basis for comparison. The names of titles, sections, and some paragraphs are stated the first time a provision from them is discussed in the table, but only the number, to the paragraph level or higher, is used thereafter. For the PCNA, some provisions appear out of sequence in the table. In such cases, the section number is repeated before a provision from a previously cited section that appears immediately below an entry on a provision from another section. (For example, the entry Sec. 3. Authorizations for Preventing, Detecting, Analyzing, and Mitigating Cybersecurity Threats is used the first time a provision from that section is discussed, but the next appearance of one of its provisions occurs immediately after an entry for Sec. 9. Construction and Preemption and is therefore labelled Sec. 3(c)(3). That is followed immediately by a discussion of subsection (a), which is not preceded by a section number.) The entry “[Similar to NCPAA]” means that the text in that provision in the PCNA is closely similar in meaning but not identical to the corresponding provision in the NCPAA. See the “Glossary of Abbreviations in the Table” for meanings of those abbreviations. Table 1. Side-by-Side Comparison of Two House Bills on Information Sharing NCPAA—H.R. 1731 PCNA—H.R. 1560 “To amend the Homeland Security Act of 2002 to enhance multi-directional sharing of information related to cyber­security risks and strengthen privacy and civil liberties protections, and for other purposes.” “To improve cybersecurity in the United States through enhanced sharing of information about cybersecurity threats, and for other purposes.” Sec. 1. Short Title Sec. 1. Short Title National Cybersecurity Protection Advancement Act of 2015 Protecting Cyber Networks Act Sec. 2. National Cybersecurity and Communications Integration Center Amends Sec. 226 of the Homeland Security Act (HSA). [Note: This is the section establishing the National Cybersecurity and Communications Integration Center added by P.L. 113-282 and is referred to in the bill as the “second section 226” to distinguish it from an identically numbered section added by P.L. 113-277.] (a) Definitions Sec. 11. Definitions Adds the following: Agency: As in 44 USC 3502. Appropriate Federal Entities: Departments of Commerce, Defense, Energy, Homeland Security, Justice, and Treasury; and Office of the ODNI. Cybersecurity Threat: An action unprotected by the 1st Amendment to the Constitution that involves an information Congressional Research Service 5 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 NCPAA—H.R. 1731 PCNA—H.R. 1560 system and may result in unauthorized efforts to adversely impact the security, integrity, confidentiality, or availability of the system or its contents, but not including actions solely involving violations of consumer terms of service or licensing agreements. Cyber Threat Indicator: Technical information necessary to describe or identify Cyber Threat Indicator: Information or a physical object necessary to describe or identify - a method for network awareness [defined below] of an information system to discern its technical vulnerabilities, if the method is known or reasonably suspected of association with a known or suspected cybersecurity risk, including - malicious reconnaissance, including - communications that reasonably appear to have “the purpose of gathering technical information related to a cybersecurity risk,” - anomalous patterns of communications that appear to have “the purpose of gathering technical information related to a cybersecurity threat or security vulnerability,” - a method for defeating a technical or security control, - a method of defeating a security control or exploiting a security vulnerability, - a technical vulnerability including anomalous technical behavior that may become a vulnerability, - a security vulnerability or anomalous activity indicating the existence of one, - a method of causing a legitimate user of an information system or its contents to inadvertently enable defeat of a technical or operational control, - a method of causing a legitimate user of an information system or its contents to unwittingly enable defeat of a security control or exploitation of a security vulnerability, - a method for unauthorized remote identification, access, or use of an information system or its contents, if the method is known or reasonably suspected of association with a known or suspected cybersecurity risk, or - “malicious cyber command and control,” - actual or potential harm from an incident, including exfiltration of information; or [Identical to NCPAA] - any other cybersecurity risk attribute that cannot be used to identify specific persons believed to be unrelated to the risk, and disclosure of which is not prohibited by law - any other cybersecurity threat attribute the disclosure of which is not prohibited by law. - any combination of the above. Cybersecurity Purpose: Protecting an information system or its contents from a cybersecurity risk or incident. Cybersecurity Purpose: Protecting (including by using defensive measures) an information system or its contents from a cybersecurity threat or security vulnerability or identifying a threat source. Defensive Measure: An “action, device, procedure, signature, technique, or other measure” applied to an information system that “detects, prevents or mitigates a known or suspected cybersecurity risk or incident” or attributes that could help defeat security controls, but not including measures that destroy, render unusable, or substantially harm an information system not operated by that entity or by another entity that consented to such actions. Defensive Measure: An “action, device, procedure, technique, or other measure” executed on an information system or its contents that “prevents or mitigates a known or suspected cybersecurity threat or security vulnerability.” Federal Entity: A US department or agency, or any component Congressional Research Service 6 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 NCPAA—H.R. 1731 PCNA—H.R. 1560 thereof. Information System: As in 44 USC 3502. Local Government: A political subdivision of a state. Malicious Cyber Command and Control: “A method for unauthorized remote identification of, access to, or use of an information system” or its contents. Malicious Reconnaissance: A method, associated with a known or suspected cybersecurity threat, for probing or monitoring an information system to discern its vulnerabilities. Network Awareness: Scanning, identifying, acquiring, monitoring, logging, or analyzing the contents of an information system. Monitor: Scanning, identifying, acquiring, or otherwise possessing the contents of an information system. Non-Federal Entity: A private or governmental entity that is not federal, but not including foreign powers as defined in 50 USC 1801. Private Entity: A nonfederal entity that is an individual, nonfederal government utility, or Private Entity: A person, nonfederal government utility, or private group, organization, proprietorship, partnership, trust, cooperative, corporation, or other commercial or nonprofit entity , including personnel. [Identical to NCPAA] including personnel, but not including a foreign power as defined in 50 USC 1801. Real Time: Automated, machine-to-machine system processing of cyber threat indicators where the occurrence and “reporting or recording” of an event are “as simultaneous as technologically and operationally practicable.” Security Control: The management, operational, and technical controls used to protect an information system and its contents against unauthorized attempts to adversely affect their confidentiality, integrity, or availability. Security Control: The management, operational, and technical controls used to protect an information system and its contents against unauthorized attempts to adversely impact their confidentiality, integrity, or availability. Security Vulnerability: “Any attribute of hardware, software, process, or procedure that could enable or facilitate the defeat of a security control.” Sharing: “Providing, receiving, and disseminating.” Tribal: As in 25 USC 450b. (b) Amendment Specifies tribal governments, private entities, and ISACs as appropriate members of the NCCIC in DHS. Sec. 3. Information Sharing Structure and Processes Sec. 2. Sharing of Cyber Threat Indicators and Defensive Measures by the Federal Government With Non-federal Entities (a) In General Amends Sec. 226 of the HSA. Amends Title I of the National Security Act of 1947 by adding a new section. ‘Sec. 111. Sharing of Cyber Threat Indicators and Defensive Measures by the Federal Government With Congressional Research Service 7 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 NCPAA—H.R. 1731 PCNA—H.R. 1560 Non-Federal Entities’ ‘(a) Sharing by the Federal Government’ (1) revises the functions of the NCCIC by specifying that it is the “lead” federal civilian interface for information sharing, adding “cyber threat indicators” and “defensive measures” to the subjects it addresses, and expanding its functions to include ‘(1)’ requires the DNI, in consultation with the heads of other appropriate federal entities, to develop and promulgate procedures consistent with protection of classified information, intelligence sources and methods, and privacy and civil liberties, for - providing information and recommendations on information sharing, - in consultation with other appropriate agencies, collaborating with international partners, including on enhancing “the security and resilience of the global cybersecurity ecosystem,” and - sharing “cyber threat indicators, defensive measures,” and information on cybersecurity risks and incidents with federal and nonfederal entities, including across critical-infrastructure (CI) sectors and with fusion centers. [Note: See also the provisions on the CTIIC in H.R. 1560, p. 10.] timely sharing of classified cyber threat indicators and declassified indicators and information with relevant nonfederal entities, and sharing of information about imminent or ongoing cybersecurity threats to such entities to prevent and mitigate adverse impacts. - notify the Secretary, the HSC, and the HSGAC of significant violations of privacy and civil liberties protections under ‘Sec. 226(i)(6),’ - promptly notifying nonfederal entities that have shared information known to be in error or in contravention to section requirements, - participating in DHS-run exercises, and ‘(2)’ requires that the procedures incorporate existing information-sharing mechanisms of federal and nonfederal entities, including ISACs, as much as possible, and include methods to promote efficient granting of security clearances to appropriate representatives of nonfederal entities. (2) expands NCCIC membership to include the following [Note: all are existing entities]: - an entity that collaborates with state and local governments on risks and incidents and has a voluntary information sharing relationship with the NCCIC, - the US-CERT for collaboratively addressing, responding to, providing technical assistance upon request on, and coordinating information about and timely sharing of threat indicators, defensive measures, analysis, or information about cybersecurity risks and incidents, - the ICS-CERT to coordinate with ICS owners and operators, provide training on ICS cybersecurity, and timely share information about indicators, defensive measures, or cybersecurity risks and incidents of ICS, - the “National Coordinating Center for Communications to coordinate the protection, response, and recovery of emergency communications,” and Congressional Research Service 8 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 NCPAA—H.R. 1731 PCNA—H.R. 1560 - “an entity that coordinates with small and medium-sized businesses.” (3) adds “cyber threat indicators” and “defensive measures” to the subjects covered in the principles of operation of the NCCIC, requires that information be shared as appropriate with small and medium-sized businesses, specifies that information be guarded against disclosure, and stipulates that the NCCIC must work with the DHS CPO to ensure that the NCCIC follows privacy and civil liberties policies and procedures under ‘Sec. 226(i)(6)’; (4) adds new subsections to Sec. 226 of the HSA: ‘(g) Rapid Automated Sharing’ ‘(1)’ requires the DHS U/S-CIP to develop capabilities, in coordination with stakeholders and based as appropriate on existing standards and approaches in the information technology industry, that support and advance automated and timely sharing of threat indicators and defensive measures to and from the NCCIC and with SSAs for each CI sector in accordance with ‘Sec. 226(h).’. ensure the capability of real-time sharing consistent with protection of classified information. [Note: ‘Sec. 111(b)(2)’ requires procedures to ensure such sharing—see p. 10.] ‘(2)’ requires the U/S-CIP to report to Congress twice per year on the status and progress of that capability until it is fully implemented. ‘(h) Sector Specific Agencies’ Requires the Secretary to collaborate with relevant CI sectors and heads of appropriate federal agencies to recognize each CI SSA designated as of March 25, 2015, in the DHS National Infrastructure Protection Plan. Designates the Secretary as SSA head for each sector for which DHS is the SSA. Requires the Secretary to coordinate with relevant SSAs to - support CI sector security and resilience activities, - provide knowledge, expertise, and assistance on request, and - support timely sharing of threat indicators and defensive measures with the NCCIC. [Note: For other provisions of ‘Sec. 111(a)(2)’, see pp. 14 and 17.] ‘(b) Definitions’ Defines the following terms by reference to Sec. 11 of the bill: Appropriate Federal Entities, Cyber Threat Indicator, Defensive Measure, Federal Entity, and Non-Federal Entity. (b) Submittal to Congress Requires that the procedures developed by the DNI be submitted to Congress within 90 days of enactment of the bill. (c) Table of Contents Amendment Revises the table of contents of the National Security Act of 1947 to reflect the addition of ‘Sec. 111’. Sec. 4. Sharing of Cyber Threat Indicators and Defensive Measures With Appropriate Federal Entities Other Than the Department of Defense or Congressional Research Service 9 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 NCPAA—H.R. 1731 PCNA—H.R. 1560 the National Security Agency (a) Requirement for Policies and Procedures (1) Adds new subsections to ‘Sec. 111’ of the National Security Act of 1947 ‘(i) Voluntary Information Sharing Procedures’ ‘(b) Policies and Procedures for Sharing with the Appropriate Federal Entities Other Than the Department of Defense or the National Security Agency’ ‘(1)’ permits voluntary information-sharing relationships for cybersecurity purposes between the NCCIC and nonfederal entities but prohibits requiring such an agreement. Permits the NCCIC to terminate an agreement for repeated, intentional violation of the terms of ‘(h).’ Permits the Secretary to deny an agreement for national security reasons. ‘(1)’ requires the President to develop and submit to Congress policies and procedures for federal receipt of cyber threat indicators and defensive measures. ‘(2)’ permits the relationship to be established through a standard agreement for nonfederal entities not requiring specific terms. Stipulates negotiated agreements with DHS where appropriate. Permits other agreements between the NCCIC and consenting nonfederal entities. Stipulates that any agreement in effect prior to enactment of the bill will be deemed in compliance with requirements in ‘(h).’Requires that those agreements include “relevant privacy protections as in effect under Cooperative Research and Development Agreement for Cybersecurity Information Sharing and Collaboration, as of December 31st 2014.” ‘(2)’ requires that they be developed in accordance with the privacy and civil liberties guidelines under Sec. 4(b) of the bill, ensure - real-time sharing of indicators from nonfederal entities with appropriate federal entities except DOD, - receipt without delay except for good cause, and - provision to all relevant federal entities, - audit capability, and - appropriate sanctions for federal personnel who knowingly and willfully use shared information other than in accordance with the bill. (2) requires that an interim version of the policies and procedures be submitted to Congress within 90 days of enactment of the bill, and the final version within 180 days. (c) National Cyber Threat Intelligence Integration Center (1) Adds a new section to the National Security Act of 1947. ‘Sec. 119b. Cyber Threat Intelligence Integration Center’ ‘(a) Establishment’ Establishes the CTIIC within the ODNI. ‘(b) Director’ Congressional Research Service 10 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 NCPAA—H.R. 1731 PCNA—H.R. 1560 Creates a director for the CTIIC, to be appointed by the DNI. ‘(c) Primary Missions’ Specifies the missions of the CTIIC with respect to cyberthreat intelligence as - serving as the primary federal organization for analyzing and integrating it, - ensuring full access and support of appropriate agencies to activities and analysis, - disseminating analysis to the President, appropriate agencies, and Congress, - coordinating agency activities, and - conducting strategic federal planning. ‘(d) Limitations’ Requires that the CTIIC - have no more than 50 permanent positions, - may not augment staff above that limit in carrying out its primary missions, and - be located in a building owned and operated by an element of the IC, (4) revises the table of contents of the National Security Act of 1947. Sec. 3. Authorizations for Preventing, Detecting, Analyzing, and Mitigating Cybersecurity Threats ‘(3) Information Sharing Authorization’ (c) Authorization for Sharing or Receiving Cyber Threat Indicators or Defensive Measures Permits nonfederal entities to share, for cybersecurity purposes, cyber threat indicators, and defensive measures, from their own information systems or those of other entities upon written consent, with other nonfederal entities or the NCCIC, (1) permits nonfederal entities to share, for cybersecurity purposes and consistent with privacy requirements under (d)(2), lawfully obtained cyber threat indicators or defensive measures with other nonfederal entities or appropriate federal entities except DOD, notwithstanding any other provision of law, except that recipients must comply with lawful restrictions on sharing and use imposed by the source. [Similar to NCPAA]. (d) Protection and Use of Information Requires reasonable efforts by nonfederal and federal entities, prior to sharing, to safeguard personally identifying information from unintended disclosure or unauthorized access or acquisition and remove such information where it is reasonably believed when it is shared to be unrelated to a cybersecurity risk or incident. (2) requires reasonable efforts by nonfederal entities, before sharing a threat indicator, to remove information reasonably believed to be personal or personally identifying of a specific person not directly related to a cybersecurity threat, or implement a technical capability for removing such information. Sec. 9. Construction and Preemption (f) Information Sharing Relationships Stipulates that nothing in ‘(3)’ - limits or modifies an existing information sharing relationship or prohibits or requires a new one, Stipulates that nothing in the bill - (1) limits or modifies an existing information sharing relationship or (2) prohibits or requires a new one, Sec. 3(c)(3) stipulates that nothing in (c) Congressional Research Service 11 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 NCPAA—H.R. 1731 - limits otherwise lawful activity, or - impacts or modifies existing procedures for reporting criminal activity to appropriate law enforcement authorities, or participating in an investigation. PCNA—H.R. 1560 - authorizes information sharing other than as provided in (c), - permits unauthorized sharing of classified information, - authorizes federal surveillance of any person, - prohibits a federal entity, at the request of a nonfederal entity, from technical discussion of threat indicators and defensive measures and assistance with vulnerabilities and threat mitigation, - prohibits an authorized nonfederal entity from sharing indicators or defensive measures with DOD, or - limits otherwise lawful activity. Requires the U/S-CIP to coordinate with stakeholders to develop and implement policies and procedures to coordinate disclosures of vulnerabilities as practicable and consistent with relevant international industry standards. ‘(4) Network Awareness Authorization’ (a) Authorization for Private-Sector Defensive Monitoring permits nonfederal, nongovernment entities, notwithstanding any other provision of law, to conduct network awareness, for cybersecurity purposes and to protect rights or property, of - its own information systems, - with written consent, information systems of a nonfederal or federal entity, or - the contents of such systems. (1) permits private entities, notwithstanding any other provision of law, to monitor, for cybersecurity purposes, Stipulates that nothing in ‘(4)’ - authorizes network awareness other than as provided in the section, or - limits otherwise lawful activity, [Similar to NCPAA], [Similar to NCPAA], or [Similar to NCPAA]. (2) Stipulates that nothing in (a) - authorizes monitoring other than as provided in the bill, - limits otherwise lawful activity, or - authorizes federal surveillance of any person. ‘(5) Defensive Measure Authorization’ (b) Authorization for Operation of Defensive Measures permits nonfederal, nongovernment entities to operate defensive measures, for cybersecurity purposes and to protect rights or property, that are applied to - its own information systems, - with written consent, information systems of a nonfederal or federal entity, or - the contents of such systems, (1) permits private entities to operate defensive measures, for cybersecurity purposes and to protect rights or property, that are operated on and the effects of which are limited to [Similar to NCPAA], or [Similar to NCPAA], notwithstanding any other provision of law, except that measures may not be used except as authorized in the section, and ‘(5)’ does not limit otherwise lawful activity. (3) notwithstanding any other provision of law, except that measures may not be used except as authorized in (b), and (b) does not limit otherwise lawful activity. (2) stipulates that (1) does not authorize operation of defensive measures that intentionally or recklessly destroy, render wholly or partly unusable or inaccessible, substantially harm, or initiate a new action, process, or procedure on an information system or its contents not owned by either the private entity operating the measure or a nonfederal or federal entity that provided written authorization to that private entity. (e) No Right or Benefit Congressional Research Service 12 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 NCPAA—H.R. 1731 PCNA—H.R. 1560 Stipulates that sharing of indicators with a nonfederal entity creates no right or benefit to similar information by any nonfederal entity. ‘(6) Privacy and Civil Liberties Protections’ Sec. 4 (b) Privacy and Civil Liberties Requires the U/S-CIP, in coordination with the DHS CPO and Chief Civil Rights and Civil Liberties Officer, (1) requires the AG, in consultation with appropriate federal agency heads and agency privacy and civil liberties officers, to establish and review annually policies and procedures on information shared with the NCCIC under the section. to develop and review periodically guidelines on privacy and civil liberties to govern federal handling of cyber threat indicators obtained through the bill’s provisions. Requires that they apply only to DHS, consistent with the need for timely protection of information systems from and mitigation of cybersecurity risks and incidents, the policies and procedures (2) requires that, consistent with the need for protection of information systems and threat mitigation, the guidelines - be consistent with DHS Fair Information Practice Principles, - be consistent with Fair Information Practice Principles in the White House National Strategy for Trusted Identities in Cyberspace [Note: The two versions of the principles are identical, except that the DHS version applies the principles to DHS whereas the White House document applies them to “organizations”], - “reasonably limit, to the extent practicable, receipt, retention, use, and disclosure of cybersecurity threat indicators and defensive measures associated with specific persons” not needed for timely protection of systems and networks, - limit receipt, retention, use, and dissemination of cybersecurity threat indicators containing personal information of or identifying specific persons, including by establishing processes for prompt destruction of information known not to be directly related to uses under the bill, and notification of recipients that indicators may be used only for cybersecurity purposes, and setting limitations on retention of indicators, - minimize impacts on privacy and civil liberties, - provide data integrity through prompt removal and destruction of obsolete or erroneous personal information unrelated to the information shared and retained by the NCCIC in accordance with this section, - include requirements to safeguard from unauthorized access or acquisition cyber threat indicators and defensive measures retained by the NCCIC, identifying specific persons, including proprietary or businesssensitive information, - limit impacts on privacy and civil liberties of federal activities under the bill, including guidelines for removal of personal and personally identifying information handled by federal entities under the bill, - include requirements to safeguard from unauthorized access or acquisition cyber threat indicators containing personal information of or identifying specific persons, - protect the confidentiality of cyber threat indicators and defensive measures associated with specific persons, to the greatest extent practicable, - ensure that relevant constitutional, legal, and privacy protections are observed. - be consistent with other applicable provisions of law, - include procedures to notify entities if a federal entity receiving information knows that it is not a cyber threat indicator, - include steps to ensure that dissemination of indicators is consistent with the protection of classified and other sensitive national security information. Congressional Research Service 13 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 NCPAA—H.R. 1731 PCNA—H.R. 1560 Stipulates that the U/S-CIP may consult with NIST in developing the policies and procedures. Requires the DHS CPO and the Officer for Civil Rights and Civil Liberties, in consultation with the PCLOB, to submit to appropriate congressional committees the policies and procedures within 180 days of enactment and annually thereafter. Requires the AG to submit to Congress interim guidelines within 90 days of enactment and final guidelines within 180 days. Requires the U/S-CIP, in consultation with the PCLOB and the DHS CPO and Chief Civil Rights and Civil Liberties Officer, to ensure public notice of and access to the policies and procedures. Requires the DHS CPO to - monitor implementation of the policies and procedures, - submit to Congress an annual review on their effectiveness, - work with the U/S-CIP to carry out provisions in ‘(c)’ on notification about violations of privacy and civil liberties policies and procedures and about information that is erroneous or in contravention of section requirements, - regularly review and update impact assessments as appropriate to ensure that all relevant protections are followed, and ‘Sec. 111(a)(2)’ requires that procedures for sharing developed by the DNI include methods to notify nonfederal entities that have received information from a federal entity known to be in error or in contravention to bill requirements. - ensure appropriate sanctions for DHS personnel who knowingly and willfully conduct unauthorized activities under the section. Sec. 4(b)(2) requires that the AG’s guidelines include appropriate sanctions for federal activities in contravention of them. [Note: The provision does not specify whether these sanctions are limited to violation of requirements for safeguarding information or the guidelines as a whole.], Sec. 7. Oversight of Government Activities (b) Reports on Privacy and Civil Liberties. Requires the DHS IG, in consultation with the PCLOB and IGs of other agencies receiving shared indicators or defensive measures from the NCCIC, to submit a report to HSC and HSGAC within two years of enactment and periodically thereafter reviewing such information, including (2) requires the IGs of DHS, the IC, DOJ, and DOD to jointly submit a biennial report to Congress on - receipt, use, and dissemination of cybersecurity indicators and defensive measures shared with federal entities under the section, - receipt, use, and dissemination of cybersecurity indicators and defensive measures shared with federal entities under the bill, - information on NCCIC use of such information for purposes other than cybersecurity, - types of information shared with the NCCIC, - types of indicators shared with federal entities, - actions taken by NCCIC based on shared information; - actions taken by federal entities as a result of receiving shared indicators, - metrics to determine impacts of sharing on privacy and civil liberties, - a list of federal agencies receiving the information, - a list of federal entities receiving the indicators, - identification of inappropriate stovepiping of shared - identification of inappropriate barriers to sharing Congressional Research Service 14 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 NCPAA—H.R. 1731 PCNA—H.R. 1560 information, information, - recommendations for improvements or modifications to sharing under the section. - recommendations for improvements or modifications to authorities under the bill. Requires that the reports be submitted in unclassified form but permits a classified annex. Requires public availability of unclassified parts of the reports. Requires the DHS CPO and Chief Civil Rights and Civil Liberties Officer, in consultation with the PCLOB, the DHS IG, and senior privacy and civil liberties officers of each federal agency receiving indicators or defensive measures shared with the NCCIC, to (1) requires the PCLOB to submit a biennial report to Congress submit a biennial report to Congress and the President assessing impacts on privacy and civil liberties of federal activities under ‘(6)’, including assessing impacts of activities under the bill on and sufficiency of policies, procedures, and guidelines in addressing concerns about privacy and civil liberties, including recommendations to minimize or mitigate such impacts. recommendations for improvements or modifications to authorities under the bill. Requires that the reports be submitted in unclassified form but permits a classified annex. Requires public availability of unclassified parts of the reports. (a) Biennial Report on Implementation Adds to ‘Sec. 111’ of the National Security Act ‘(c) Biennial Report on Implementation’ ‘(1)’ requires the DNI to submit a report to Congress on implementation of the bill, ‘(2)’ within one year of enactment and ‘(1)’ at least biennially thereafter, including - review of types of indicators shared with the federal government, - the degree to which such information may impact privacy and civil liberties of specific persons, along with quantitative and qualitative assessment of such impacts and adequacy of federal efforts to reduce them, - assessment of sufficiency of policies, procedures, and guidelines to ensure effective and responsible sharing under Sec. 4 of the PCNA, - sufficiency of procedures under Sec. 3 for timely sharing, - appropriateness of classification of indicators and accounting of security clearances authorized, - federal actions taken based on shared indicators, including appropriateness of subsequent use or dissemination under the bill, - description of any significant federal violations of the requirements of the bill, including assessments of all reports of federal personnel misusing information provided under the bill and all disciplinary actions taken, and - a summary of the number and types of nonfederal entities receiving classified indicators from the federal government and Congressional Research Service 15 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 NCPAA—H.R. 1731 PCNA—H.R. 1560 evaluation of risks and benefits of such sharing. ‘(3)’ permits reports to include recommendations for improvements or modifications to authorities and processes under the bill. ‘(4)’ requires that the reports be submitted in unclassified form but permits a classified annex. ‘(5)’ requires public availability of unclassified parts of the reports. ‘(7) Uses and Protection of Information’ Sec. 3. Authorizations for Preventing, Detecting, Analyzing, and Mitigating Cybersecurity Threats (d) Protection and Use of Information [Nonfederal Entities] Permits a nonfederal, nongovernment entity that shares indicators or defensive measures with the NCCIC to (3) permits a nonfederal entity [Note: including government entities], for a cybersecurity purpose, to use, retain, or disclose indicators and defensive measures, solely for cybersecurity purposes. use indicators or defensive measure shared or received under (d) to monitor or operate a defensive measure on its own information systems or those of other nonfederal or federal entities upon written authorization from them, with Requires reasonable efforts prior to sharing to safeguard personally identifying information from unintended disclosure and unauthorized access or acquisition, and remove such information where it is reasonably believed when shared to be unrelated to a cybersecurity risk or incident. [See (2), p. 11, describing requirements for removal of personal information]. Requires compliance with appropriate restrictions on subsequent disclosure or retention placed by a federal or nonfederal entity on indicators or defensive measures disclosed to other entities. further use, retention, or sharing subject to lawful restrictions by the sharing entity or otherwise applicable provisions of law. Stipulates that the information shall be deemed voluntarily shared. Requires implementation and utilization of security controls to protect against unauthorized access or acquisition. (1) requires implementation of appropriate security controls to protect against unauthorized access or acquisition. Prohibits use of such information to gain an unfair competitive advantage. [Federal Entities] Sec. 4(d) Information Shared with or Provided to the Federal Government Permits federal entities receiving indicators or defensive measures from the NCCIC or otherwise under the section to use, retain, or further disclose it solely for (5) permits federal entities or personnel receiving indicators or defensive measures under the bill to, consistent with otherwise applicable provisions of federal law, use, retain, or disclose it solely for - cybersecurity purposes. - a cybersecurity purpose, - responding to, prosecuting, or otherwise preventing or mitigating threats of death or serious bodily harm or offenses arising out of such threats, - responding to serious threats to minors, including sexual exploitation and threats to physical safety, and - preventing, investigating, disrupting, or prosecuting fraud and Congressional Research Service 16 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 NCPAA—H.R. 1731 PCNA—H.R. 1560 identity theft, espionage and censorship, protection of trade secrets, and serious violent felonies. Prohibits federal disclosure, retention, or use for any purpose not permitted under (5). Requires reasonable efforts prior to sharing to safeguard personally identifying information from unintended disclosure and unauthorized access or acquisition, and remove such information where it is reasonably believed when shared to be unrelated to a cybersecurity risk or incident. Stipulates that the policies, procedures, and guidelines in Sec. 4(a) [on provision of information to the federal government] and (b) [on privacy and civil liberties] of the bill apply to such information. Stipulates that the indicators and defensive measures shall be deemed voluntarily shared. Sec. 4(d)(3) stipulates that the information shall be deemed voluntarily shared. Requires implementation and utilization of security controls to protect against unauthorized access or acquisition. ‘Sec. 111(a)(2)’ requires that procedures for sharing developed by the DNI include requirements for federal entities to implement security controls to protect against unauthorized access to or acquisition of shared information. ‘Sec. 111(a)(2)’ requires that procedures for sharing developed by the DNI include methods for federal entities to assess, prior to sharing, whether an indicator contains information known to be personal or personally identifying of a specific person and to remove such information, or to implement a technical capability to do so. Sec. 9(a) Prohibition of Surveillance Prohibits use in surveillance or collection activities to track an individual’s personally identifiable information. Stipulates that the bill does not authorize DOD or any element of the IC to target a person for surveillance. Stipulates that the information is exempt from disclosure under 5 USC 552 [the Freedom of Information Act (FOIA)] or nonfederal disclosure laws and withheld, without discretion, from the public under 5 USC 552(3)(B). Sec. 4(d)(3) [Similar to NCPAA], and exempt from disclosure under nonfederal disclosure laws, except for those requiring disclosure in criminal prosecutions. Prohibits use for regulatory purposes. [Note: No specific corresponding prohibition, but Sec. 4(d)(5) above prohibits federal disclosure, retention, or use for any purpose other than those specified in the paragraph.] Specifies that there is no waiver of applicable privilege or protection under law, including trade-secret protection; (1) [Similar to NCPAA]. Requires that the information be considered the commercial, financial, and proprietary information of the nonfederal entity when so designated by it. (2) requires that, consistent with Sec. 3(c)(2), the information be considered the commercial, financial, and proprietary information of the originating nonfederal source, when so designated by such source or nonfederal entity acting with written authorization from it. Stipulates that the information is not subject to judicial doctrine or rules of federal entities on ex-parte communications. (4) [Similar to NCPAA] [Nonfederal Government Entities] [Note: See also Nonfederal Entities, p. 16] Permits indicators or defensive measures shared under the section with state, local, and tribal government to be used, retained, or further disclosed solely for cybersecurity purposes. Sec. 3(d)(4) permits state, local, and tribal government entities to use shared cyber threat indicators for cybersecurity purposes, responding to, prosecuting, or otherwise preventing or Congressional Research Service 17 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 NCPAA—H.R. 1731 PCNA—H.R. 1560 mitigating threats of death or serious bodily harm or offenses arising out of such threats, or responding to serious threats to minors, including sexual exploitation and threats to physical safety. Requires reasonable efforts prior to sharing to safeguard personally identifying information from unintended disclosure and unauthorized access or acquisition, and remove such information where it is reasonably believed when shared to be unrelated to a cybersecurity risk or incident. [See (2), p. 11, describing requirements for removal of personal information]. Stipulates that the information be considered “commercial, financial, and proprietary” if so designated by the provider. [Note: Sec. 3(d)(3) stipulates that further use, retention, or sharing of information received by a nonfederal entity is subject to lawful restrictions by the sharing entity or otherwise applicable provisions of law. See Nonfederal Entities, p. 16.] Stipulates that the indicators and defensive measures shall be deemed voluntarily shared. Stipulates that such shared indicators be deemed voluntarily shared and exempt from disclosure, and Requires implementation and utilization of security controls to protect against unauthorized access or acquisition. Exempts the information from disclosure under nonfederal disclosure laws or regulations. exempts the shared indicators from disclosure under nonfederal disclosure laws or regulations, except as required in criminal prosecutions. Prohibits use for regulation of lawful activities of nonfederal entities. ‘(8) Liability Exemptions’ Sec. 6. Protection from Liability (a) Monitoring of Information Systems States that “no cause of action shall lie or be maintained in any court” against nonfederal, nongovernment entities for conducting network awareness under ‘(4)’ conducted under Sec. 3(a) in accordance with the section or States that “no cause of action shall lie or be maintained in any court” against private entities for monitoring information systems under Sec. 3(a) conducted in good faith in accordance with the bill or (b) Sharing or Receipt of Cyber Threat Indicators for sharing indicators or defensive measures under ‘(3),’ or a failure to act if sharing is done in accordance with the section. for information sharing under Sec. 3(c) in accordance with the bill or a good-faith failure to act if sharing is done in accordance with the bill. stipulates that nothing in the section (c)(1) stipulates that nothing in the section - requires dismissal of a cause of action against a nonfederal, nongovernment entity that engages in willful misconduct in the course of activities under the section. - requires dismissal of a cause of action against a nonfederal entity that engages in willful misconduct in the course of activities under the bill, or - undermines or limits availability of otherwise applicable common law or statutory defenses. [Identical to NCPAA] Establishes the burden of proof as clear and convincing evidence from the plaintiff of injury-causing gross negligence or willful misconduct, (2) [Similar to NCPAA] Defines willful misconduct as an act or omission taken intentionally to achieve a wrongful purpose, knowingly without justification, and in disregard of risk of highly probable harm that outweighs any benefit. (3) [Similar to NCPAA]. ‘(9) Federal Government Liability for Violations of Restrictions on the Use and Protection of Voluntarily Shared Information’ Sec. 5. Federal Government Liability for Violations of Privacy or Civil Liberties Congressional Research Service 18 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 NCPAA—H.R. 1731 PCNA—H.R. 1560 (a) In General Makes the federal government liable to injured persons for intentional or willful violation of restrictions on federal disclosure and use under ‘Sec. 226’, with minimum damages of $1,000 plus Makes the federal government liable to injured persons for intentional or willful violation of privacy and civil liberties guidelines under Sec. 4(b), with minimum damages of $1,000 plus reasonable attorney fees as determined by the court and other reasonable litigation costs in any case under (a) where “the complainant has substantially prevailed.” [Identical to NCPAA] (b) Venue Stipulates the federal district courts where the case may be brought as the one in which the complainant resides or the principal place of business is located, the District of Columbia, or [Identical to NCPAA] where the federal department or agency that disclosed the information is located. where the federal department or agency that violated the guidelines is located. (c) Statute of Limitations Sets the statute of limitations at two years from the date of violation of restrictions in provisions on information-sharing authorization (‘(h)(3),’) privacy and civil liberties (‘(h)(6),’) or federal use and protection of information (‘(h)(7)(B)’). Sets the statute of limitations at two years from the date of violation of guidelines on privacy and civil liberties. (d) Exclusive Cause of Action. Sets action under ‘(h)’ as the exclusive remedy for violation of restrictions under ‘(h)(3),’ ‘(h)(6),’ or ‘(h)(7)(B)’. Sets action under (d) as the exclusive remedy for federal violations under the bill. ‘(10) Anti-Trust Exemption’ Exempts nonfederal entities from violation of antitrust laws for sharing indicators or defensive measures or providing assistance for cybersecurity purposes, provided that the action is taken to assist with preventing, investigating, or mitigating a cybersecurity risk or incident. Prohibits specified monopolistic activities such as price-fixing. ‘(11) Construction and Preemption’ Sec. 9(b) Otherwise Lawful Disclosures Stipulates that the section does not limit or prohibit otherwise lawful disclosures or participation in an investigation by a nonfederal entity of information to any other federal or nonfederal entity. Stipulates that the bill does not limit or prohibit otherwise lawful disclosures by a nonfederal entity of information to any other federal or nonfederal entity, or any otherwise lawful use by a federal entity, whether or not the disclosures duplicate those made under the bill. (c) Whistle Blower Protections Stipulates that the section does not prohibit or limit disclosures protected under 5 USC 2302(b)(8), 5 USC 7211, 10 USC 1034, 50 USC 3234, or similar provisions of federal or state law. Stipulates that the bill does not prohibit or limit disclosures protected under 5 USC 2302(b)(8), 5 USC 7211, 10 USC 1034, or similar provisions of federal or state law. (e) Relationship to Other Laws Stipulates that the section does not affect any requirements under other provisions of law for nonfederal entities providing information to federal entities. Stipulates that the bill does not affect any requirements under other provisions of law for nonfederal entities providing information to federal entities. (g) Preservation of Contractual Obligations and Rights Congressional Research Service 19 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 NCPAA—H.R. 1731 PCNA—H.R. 1560 Stipulates that the section does not change contractual relationships between nonfederal entities or them and federal entities or abrogate trade-secret or intellectual property rights. Stipulates that the bill does not change contractual relationships between nonfederal entities or them and federal entities, or abrogate trade-secret or intellectual property rights. (h) Anti-Tasking Restriction Stipulates that the section does not permit the federal government to require nonfederal entities to provide it with information, or condition sharing of indicators or defensive measures on provision by such entities of indicators or defensive measures, or condition award of grants, contracts, or purchases on such provision. Stipulates that the bill does not permit the federal government to require nonfederal entities to provide it with information, or condition sharing of indicators on provision of indicators, or condition award of grants, contracts, or purchases on such provision. (i) No Liability for Non-Participation Stipulates that the section does not create liabilities for any nonfederal entities that choose not to engage in the voluntary activities authorized in the section. Stipulates that the bill does not create liabilities for any nonfederal entities that choose not to engage in the voluntary activities authorized in the bill. (j) Use and Retention of Information Stipulates that the section does not authorize or modify existing federal authority to retain and use information shared under the bill for uses other than those permitted under the section. Stipulates that the bill does not authorize or modify existing federal authority to retain and use information shared under the bill for uses other than those permitted under the bill. Stipulates that the section does not restrict or condition sharing for cybersecurity purposes among nonfederal entities or require sharing by them with the NCCIC. (k) Federal Preemption Specifies that the section supersedes state and local laws relating to its provisions (1) specifies that the bill supersedes state and local laws relating to its provisions. (2) stipulates that the bill does not supersede state and local laws on use of authorized law enforcement practices and procedures. Requires the Secretary to develop policies and procedures for direct reporting by the NCCIC Director of significant risks and incidents. Requires the Secretary to build on existing mechanisms to promote public awareness about the importance of securing information systems. Requires a report from the Secretary within 180 days of enactment to HSC and HSGAC on efforts to bolster collaboration on cybersecurity with international partners. Requires the Secretary, within 60 days of enactment, to publicly disseminate information about ways of sharing information with the NCCIC, including enhanced outreach to CI owners and operators. (d) Protection of Sources and Methods Stipulates that the bill does not affect federal enforcement actions on classified information or conduct of authorized law-enforcement or intelligence activities, or modify the authority of the President or federal entities to protect and Congressional Research Service 20 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 NCPAA—H.R. 1731 PCNA—H.R. 1560 control dissemination of classified information, sources and methods, and U.S. national security. Sec. 4. Information Sharing and Analysis Organizations Amends Sec. 212 of the HSA to (1) broaden the functions of ISAOs to include cybersecurity risk and incident information beyond that relating to critical infrastructure, and (2) add by reference the definitions of cybersecurity risk and incident in 6 USC 148(a). Sec. 5. Streamlining of Department of Homeland Security Cybersecurity and Infrastructure Protection Organization (a) Cybersecurity and Infrastructure Protection Directorate Renames the DHS National Protection and Programs Directorate as the Cybersecurity and Infrastructure Protection. [Sic.] (b) Senior Leadership of the Cybersecurity and Infrastructure Protection Directorate Provides a specific title for the undersecretary in charge of critical infrastructure protection as U/S-CIP. Also adds two deputy undersecretaries, one for cybersecurity and the other for infrastructure protection. Does not require new appointments for current officeholders and specifies that appointment of the undersecretaries does not require Senate confirmation. (c) Report Requires a report to HSC and HSGAC from the U/S-CIP within 90 days of enactment on the feasibility of becoming an operational component of DHS, If that is determined to be the best option for mission fulfillment, requires submission of a legislative proposal and implementation plan. Also requires that the report include plans for more effective execution of the cybersecurity mission, including expediting of information sharing agreements. Sec. 6. Cyber Incident Response Plans (a) In General Amends Sec. 227 of the HSA to change “Plan” to “Plans” in the title, to specify the U/S-CIP as the responsible official, and to add a new subsection: ‘(b) Updates to the Cyber Incident Annex to the National Response Framework’ Requires the Secretary, in coordination with other agency heads and in accordance with the National Cybersecurity Incident Response Plan, to update, maintain, and exercise regularly the Cyber Incident Annex to the DHS National Response Framework. (b) Clerical Amendment Congressional Research Service 21 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 NCPAA—H.R. 1731 PCNA—H.R. 1560 Amends the table of contents of the act to reflect the title change made by (a). Sec. 7. Security and Resiliency of Public Safety Communications; Cybersecurity Awareness Campaign (a) In General Adds two new sections to the HSA: ‘Sec. 230. Security and Resiliency of Public Safety Communications’ Requires the NCCIC to coordinate with the DHS Office of Emergency Communications to assess information on cybersecurity incidents involving public safety communications to facilitate continuous improvement in those communications. ‘Sec. 231. Cybersecurity Awareness Campaign’ ‘(a) In General’ Requires the U/S-CIP to develop and implement an awareness campaign on risks and best practices for mitigation and response, including at a minimum public service announcements and information on best practices that are vendor- and technology-neutral. ‘(b) Consultation’ Requires consultation with a wide range of stakeholders. (b) Clerical Amendment Amends the table of contents of the act to include the new sections. Sec. 8. Critical Infrastructure Protection Research and Development (a) Strategic Plan; Public-Private Consortiums Adds a new section to the HSA: ‘Sec. 318. Research and Development Strategy for Critical Infrastructure Protection’ ‘(a) In General’ Requires the Secretary to submit to Congress within 180 days of enactment, and biennially thereafter, a strategic plan to guide federal research and development in technology relating to both cyber- and physical security for CI. ‘(b) Contents of Plan’ Requires the plan to include - CI risks and technology gaps identified in consultation with stakeholders and a resulting risk and gap analysis, - prioritized needs based on that analysis, emphasizing technologies to address rapidly evolving threats and technology and including clearly defined roadmaps, - facilities and capabilities required to meet those needs, - current and planned programmatic initiatives to foster technology advancement and deployment, including Congressional Research Service 22 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 NCPAA—H.R. 1731 PCNA—H.R. 1560 collaborative opportunities, and - progress on meeting plan requirements. ‘(c) Coordination’ Requires coordination between the DHS Under Secretaries for Science and Technology and for the National Protection and Programs Directorate. [Note: Sec. 5 renames the latter position as the U/S-CIP.] ‘(d) Consultation’ Requires the Under Secretary for Science and Technology to consult with CI Sector Coordinating Councils, heads of other relevant federal agencies, and state, local, and tribal governments as appropriate. (b) Clerical Amendment Amends the table of contents of the act to include the new section. Sec. 9. Report on Reducing Cybersecurity Risks in DHS Data Centers Requires a report to HSC and HSGAC within one year of enactment on the feasibility of creating an environment within DHS for reduction in cybersecurity risks in data centers, including but not limited to increased compartmentalization of systems with a mix of security controls among compartments. Sec. 8. Report on Cybersecurity Threats (a) Report Required Requires the DNI, in consultation with heads of other appropriate elements of the IC, to submit within 180 days of enactment a report to the House and Senate Intelligence Committees on cybersecurity threats, including attacks, theft, and data breaches. (b) Contents Requires that the report include (1) assessments of current U.S. intelligence sharing and cooperation relationships with other countries on such threats directed against the United States and threatening U.S. national security interests, the economy, and intellectual property, identifying the utility of relationships, participation by elements of the IC, and possible improvements, (2) a list and assessment of countries and nonstate actors constituting the primary sources of such threats, (3) description of how much U.S. capabilities to respond to or prevent such threats to the U.S. private sector are degraded by delays in notification of the threats, (4) assessment of additional technologies or capabilities that would enhance the U.S. ability to prevent and respond to such threats, and (5) assessment of private-sector technologies or practices that could be rapidly fielded to assist the IC in preventing and responding to such threats. Congressional Research Service 23 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 NCPAA—H.R. 1731 PCNA—H.R. 1560 (c) Form of Report Requires that the report be unclassified, but may include a classified annex. (d) Public Availability of Report Requires that the unclassified portion of the report be publicly available. (e) Intelligence Community Defined Defines intelligence community as in 50 USC 3003. Sec. 10. Assessment Requires the Comptroller General, within two years of enactment, to submit a report to HSC and HSGAC assessing implementation of the bill and, as practicable, findings on increased sharing at NCCIC and throughout the United States. Sec. 11. Consultation Requires a report from the U/S-CIP on “the feasibility of a prioritization plan in the event of simultaneous multi-CI incidents. Sec. 12. Technical Assistance Requires the DHS IG to review US-CERT and ICS-CERT operations to assess their capacity for responding to current and potentially increasing requests for technical assistance from nonfederal entities. Sec. 13. Prohibition on New Regulatory Authority Sec. 9(l) Regulatory Authority Stipulates that the bill does not grant DHS new authority to promulgate regulations or set standards relating to cybersecurity for nonfederal, nongovernmental entities. Stipulates that the bill does not authorize (1) promulgation of regulations or (2) establishment of regulatory authority not specified by the bill, or (3) duplicative or conflicting regulatory actions. Sec. 14 Sunset Ends all requirements for reports in the bill seven years after enactment. Sec. 8. Prohibition on New Funding Stipulates that the bill does not authorize additional funds for implementation and must be carried out using available amounts. Sec. 10. Conforming Amendments Adds information shared under the bill to the kinds of information exempt from disclosure under FOIA. Source: CRS. Notes: See “Notes on the Table.” Congressional Research Service 24 Cybersecurity and Information Sharing: Comparison of H.R. 1560 and H.R. 1731 Author Contact Information Eric A. Fischer Senior Specialist in Science and Technology efischer@crs.loc.gov, 7-7071 Acknowledgments Stephanie Logan, an intern, provided valuable assistance with the comparative analysis and other preparation for this report. Congressional Research Service 25