[Congressional Record Volume 161, Number 125 (Tuesday, August 4, 2015)]
[Senate]
[Pages S6315-S6320]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2598. Mr. FRANKEN submitted an amendment intended to be proposed
by him to the bill S. 754, to improve cybersecurity in the United
States through enhanced sharing of information about cybersecurity
threats, and for other
[[Page S6316]]
purposes; which was ordered to lie on the table; as follows:
Beginning on page 5, strike line 10 and all that follows
through page 52, line 6, and insert the following:
(7) Entity.--
(A) In general.--Except as otherwise provided in this
paragraph, the term ``entity'' means any private entity, non-
Federal government agency or department, or State, tribal, or
local government (including a political subdivision,
department, or component thereof).
(B) Inclusions.--The term ``entity'' includes a government
agency or department of the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Northern Mariana Islands, and any other
territory or possession of the United States.
(C) Exclusion.--The term ``entity'' does not include a
foreign power as defined in section 101 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
(8) Federal entity.--The term ``Federal entity'' means a
department or agency of the United States or any component of
such department or agency.
(9) Information system.--The term ``information system''--
(A) has the meaning given the term in section 3502 of title
44, United States Code; and
(B) includes industrial control systems, such as
supervisory control and data acquisition systems, distributed
control systems, and programmable logic controllers.
(10) Local government.--The term ``local government'' means
any borough, city, county, parish, town, township, village,
or other political subdivision of a State.
(11) Malicious cyber command and control.--The term
``malicious cyber command and control'' means a method for
unauthorized remote identification of, access to, or use of,
an information system or information that is stored on,
processed by, or transiting an information system.
(12) Malicious reconnaissance.--The term ``malicious
reconnaissance'' means a method for actively probing or
passively monitoring an information system for the purpose of
discerning security vulnerabilities of the information
system, if such method is associated with a known or
suspected cybersecurity threat.
(13) Monitor.--The term ``monitor'' means to acquire,
identify, or scan, or to possess, information that is stored
on, processed by, or transiting an information system.
(14) Private entity.--
(A) In general.--Except as otherwise provided in this
paragraph, the term ``private entity'' means any person or
private group, organization, proprietorship, partnership,
trust, cooperative, corporation, or other commercial or
nonprofit entity, including an officer, employee, or agent
thereof.
(B) Inclusion.--The term ``private entity'' includes a
State, tribal, or local government performing electric
utility services.
(C) Exclusion.--The term ``private entity'' does not
include a foreign power as defined in section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801).
(15) Security control.--The term ``security control'' means
the management, operational, and technical controls used to
protect against an unauthorized effort to adversely affect
the confidentiality, integrity, and availability of an
information system or its information.
(16) Security vulnerability.--The term ``security
vulnerability'' means any attribute of hardware, software,
process, or procedure that could enable or facilitate the
defeat of a security control.
(17) Tribal.--The term ``tribal'' has the meaning given the
term ``Indian tribe'' in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b).
SEC. 3. SHARING OF INFORMATION BY THE FEDERAL GOVERNMENT.
(a) In General.--Consistent with the protection of
classified information, intelligence sources and methods, and
privacy and civil liberties, the Director of National
Intelligence, the Secretary of Homeland Security, the
Secretary of Defense, and the Attorney General, in
consultation with the heads of the appropriate Federal
entities, shall develop and promulgate procedures to
facilitate and promote--
(1) the timely sharing of classified cyber threat
indicators in the possession of the Federal Government with
cleared representatives of relevant entities;
(2) the timely sharing with relevant entities of cyber
threat indicators or information in the possession of the
Federal Government that may be declassified and shared at an
unclassified level;
(3) the sharing with relevant entities, or the public if
appropriate, of unclassified, including controlled
unclassified, cyber threat indicators in the possession of
the Federal Government; and
(4) the sharing with entities, if appropriate, of
information in the possession of the Federal Government about
cybersecurity threats to such entities to prevent or mitigate
adverse effects from such cybersecurity threats.
(b) Development of Procedures.--
(1) In general.--The procedures developed and promulgated
under subsection (a) shall--
(A) ensure the Federal Government has and maintains the
capability to share cyber threat indicators in real time
consistent with the protection of classified information;
(B) incorporate, to the greatest extent practicable,
existing processes and existing roles and responsibilities of
Federal and non-Federal entities for information sharing by
the Federal Government, including sector specific information
sharing and analysis centers;
(C) include procedures for notifying entities that have
received a cyber threat indicator from a Federal entity under
this Act that is known or determined to be in error or in
contravention of the requirements of this Act or another
provision of Federal law or policy of such error or
contravention;
(D) include requirements for Federal entities receiving
cyber threat indicators to implement and utilize security
controls to protect against unauthorized access to or
acquisition of such cyber threat indicators; and
(E) include procedures that require a Federal entity, prior
to the sharing of a cyber threat indicator--
(i) to review such cyber threat indicator to assess whether
such cyber threat indicator contains any information that
such Federal entity knows at the time of sharing to be
personal information of or identifying a specific person not
directly related to a cybersecurity threat and remove such
information; or
(ii) to implement and utilize a technical capability
configured to remove any personal information of or
identifying a specific person not directly related to a
cybersecurity threat.
(2) Coordination.--In developing the procedures required
under this section, the Director of National Intelligence,
the Secretary of Homeland Security, the Secretary of Defense,
and the Attorney General shall coordinate with appropriate
Federal entities, including the National Laboratories (as
defined in section 2 of the Energy Policy Act of 2005 (42
U.S.C. 15801)), to ensure that effective protocols are
implemented that will facilitate and promote the sharing of
cyber threat indicators by the Federal Government in a timely
manner.
(c) Submittal to Congress.--Not later than 60 days after
the date of the enactment of this Act, the Director of
National Intelligence, in consultation with the heads of the
appropriate Federal entities, shall submit to Congress the
procedures required by subsection (a).
SEC. 4. AUTHORIZATIONS FOR PREVENTING, DETECTING, ANALYZING,
AND MITIGATING CYBERSECURITY THREATS.
(a) Authorization for Monitoring.--
(1) In general.--Notwithstanding any other provision of
law, a private entity may, for cybersecurity purposes,
monitor--
(A) an information system of such private entity;
(B) an information system of another entity, upon the
authorization and written consent of such other entity;
(C) an information system of a Federal entity, upon the
authorization and written consent of an authorized
representative of the Federal entity; and
(D) information that is stored on, processed by, or
transiting an information system monitored by the private
entity under this paragraph.
(2) Construction.--Nothing in this subsection shall be
construed--
(A) to authorize the monitoring of an information system,
or the use of any information obtained through such
monitoring, other than as provided in this Act; or
(B) to limit otherwise lawful activity.
(b) Authorization for Sharing or Receiving Cyber Threat
Indicators.--
(1) In general.--Except as provided in paragraph (2) and
notwithstanding any other provision of law, an entity may,
for the purposes permitted under this Act and consistent with
the protection of classified information, share with, or
receive from, any other entity or the Federal Government a
cyber threat indicator.
(2) Lawful restriction.--An entity receiving a cyber threat
indicator from another entity or Federal entity shall comply
with otherwise lawful restrictions placed on the sharing or
use of such cyber threat indicator by the sharing entity or
Federal entity.
(3) Construction.--Nothing in this subsection shall be
construed--
(A) to authorize the sharing or receiving of a cyber threat
indicator other than as provided in this subsection; or
(B) to limit otherwise lawful activity.
(c) Protection and Use of Information.--
(1) Security of information.--An entity monitoring an
information system or providing or receiving a cyber threat
indicator under this section shall implement and utilize a
security control to protect against unauthorized access to or
acquisition of such cyber threat indicator.
(2) Removal of certain personal information.--An entity
sharing a cyber threat indicator pursuant to this Act shall,
prior to such sharing--
(A) 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 of or identifying a specific person not directly
related to a cybersecurity threat and remove such
information; or
(B) 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 of or identifying a specific person not directly
related to a cybersecurity threat.
(3) Use of cyber threat indicators by entities.--
[[Page S6317]]
(A) In general.--Consistent with this Act, a cyber threat
indicator shared or received under this section may, for
cybersecurity purposes--
(i) be used by an entity to monitor--
(I) an information system of the entity; or
(II) an information system of another entity or a Federal
entity upon the written consent of that other entity or that
Federal entity; and
(ii) be otherwise used, retained, and further shared by an
entity subject to--
(I) an otherwise lawful restriction placed by the sharing
entity or Federal entity on such cyber threat indicator; or
(II) an otherwise applicable provision of law.
(B) Construction.--Nothing in this paragraph shall be
construed to authorize the use of a cyber threat indicator
other than as provided in this section.
(4) Use of cyber threat indicators by state, tribal, or
local government.--
(A) Law enforcement use.--
(i) Prior written consent.--Except as provided in clause
(ii), a cyber threat indicator shared with a State, tribal,
or local government under this section may, with the prior
written consent of the entity sharing such indicator, be used
by a State, tribal, or local government for the purpose of
preventing, investigating, or prosecuting any of the offenses
described in section 5(d)(5)(A)(vi).
(ii) Oral consent.--If exigent circumstances prevent
obtaining written consent under clause (i), such consent may
be provided orally with subsequent documentation of the
consent.
(B) Exemption from disclosure.--A cyber threat indicator
shared with a State, tribal, or local government under this
section shall be--
(i) deemed voluntarily shared information; and
(ii) exempt from disclosure under any State, tribal, or
local law requiring disclosure of information or records.
(C) State, tribal, and local regulatory authority.--
(i) In general.--Except as provided in clause (ii), a cyber
threat indicator shared with a State, tribal, or local
government under this Act shall not be directly used by any
State, tribal, or local government to regulate, including an
enforcement action, the lawful activity of any entity,
including an activity relating to monitoring or sharing of a
cyber threat indicator.
(ii) Regulatory authority specifically relating to
prevention or mitigation of cybersecurity threats.--A cyber
threat indicator shared as described in clause (i) may,
consistent with a State, tribal, or local government
regulatory authority specifically relating to the prevention
or mitigation of cybersecurity threats to information
systems, inform the development or implementation of a
regulation relating to such information systems.
(d) Antitrust Exemption.--
(1) In general.--Except as provided in section 8(e), it
shall not be considered a violation of any provision of
antitrust laws for 2 or more private entities to exchange or
provide a cyber threat indicator, or assistance relating to
the prevention, investigation, or mitigation of a
cybersecurity threat, for cybersecurity purposes under this
Act.
(2) Applicability.--Paragraph (1) shall apply only to
information that is exchanged or assistance provided in order
to assist with--
(A) facilitating the prevention, investigation, or
mitigation of a cybersecurity threat to an information system
or information that is stored on, processed by, or transiting
an information system; or
(B) communicating or disclosing a cyber threat indicator to
help prevent, investigate, or mitigate the effect of a
cybersecurity threat to an information system or information
that is stored on, processed by, or transiting an information
system.
(e) No Right or Benefit.--The sharing of a cyber threat
indicator with an entity under this Act shall not create a
right or benefit to similar information by such entity or any
other entity.
SEC. 5. SHARING OF CYBER THREAT INDICATORS WITH THE FEDERAL
GOVERNMENT.
(a) Requirement for Policies and Procedures.--
(1) Interim policies and procedures.--Not later than 60
days after the date of the enactment of this Act, the
Attorney General, in coordination with the heads of the
appropriate Federal entities, shall develop and submit to
Congress interim policies and procedures relating to the
receipt of cyber threat indicators by the Federal Government.
(2) Final policies and procedures.--Not later than 180 days
after the date of the enactment of this Act, the Attorney
General shall, in coordination with the heads of the
appropriate Federal entities, promulgate final policies and
procedures relating to the receipt of cyber threat indicators
by the Federal Government.
(3) Requirements concerning policies and procedures.--
Consistent with the guidelines required by subsection (b),
the policies and procedures developed and promulgated under
this subsection shall--
(A) ensure that cyber threat indicators are shared with the
Federal Government by any entity pursuant to section 4(b)
through the real-time process described in subsection (c) of
this section--
(i) are shared in an automated manner with all of the
appropriate Federal entities;
(ii) are not subject to any delay, modification, or any
other action that could impede real-time receipt by all of
the appropriate Federal entities; and
(iii) may be provided to other Federal entities;
(B) ensure that cyber threat indicators shared with the
Federal Government by any entity pursuant to section 4 in a
manner other than the real-time process described in
subsection (c) of this section--
(i) are shared as quickly as operationally practicable with
all of the appropriate Federal entities;
(ii) are not subject to any unnecessary delay,
interference, or any other action that could impede receipt
by all of the appropriate Federal entities; and
(iii) may be provided to other Federal entities;
(C) consistent with this Act, any other applicable
provisions of law, and the fair information practice
principles set forth in appendix A of the document entitled
``National Strategy for Trusted Identities in Cyberspace''
and published by the President in April 2011, govern the
retention, use, and dissemination by the Federal Government
of cyber threat indicators shared with the Federal Government
under this Act, including the extent, if any, to which such
cyber threat indicators may be used by the Federal
Government; and
(D) ensure there is--
(i) an audit capability; and
(ii) appropriate sanctions in place for officers,
employees, or agents of a Federal entity who knowingly and
willfully conduct activities under this Act in an
unauthorized manner.
(4) Guidelines for entities sharing cyber threat indicators
with federal government.--
(A) In general.--Not later than 60 days after the date of
the enactment of this Act, the Attorney General shall develop
and make publicly available guidance to assist entities and
promote sharing of cyber threat indicators with Federal
entities under this Act.
(B) Contents.--The guidelines developed and made publicly
available under subparagraph (A) shall include guidance on
the following:
(i) Identification of types of information that would
qualify as a cyber threat indicator under this Act that would
be unlikely to include personal information of or identifying
a specific person not directly related to a cyber security
threat.
(ii) Identification of types of information protected under
otherwise applicable privacy laws that are unlikely to be
directly related to a cybersecurity threat.
(iii) Such other matters as the Attorney General considers
appropriate for entities sharing cyber threat indicators with
Federal entities under this Act.
(b) Privacy and Civil Liberties.--
(1) Guidelines of attorney general.--Not later than 60 days
after the date of the enactment of this Act, the Attorney
General shall, in coordination with heads of the appropriate
Federal entities and in consultation with officers designated
under section 1062 of the National Security Intelligence
Reform Act of 2004 (42 U.S.C. 2000ee-1), develop, submit to
Congress, and make available to the public interim guidelines
relating to privacy and civil liberties which shall govern
the receipt, retention, use, and dissemination of cyber
threat indicators by a Federal entity obtained in connection
with activities authorized in this Act.
(2) Final guidelines.--
(A) In general.--Not later than 180 days after the date of
the enactment of this Act, the Attorney General shall, in
coordination with heads of the appropriate Federal entities
and in consultation with officers designated under section
1062 of the National Security Intelligence Reform Act of 2004
(42 U.S.C. 2000ee-1) and such private entities with industry
expertise as the Attorney General considers relevant,
promulgate final guidelines relating to privacy and civil
liberties which shall govern the receipt, retention, use, and
dissemination of cyber threat indicators by a Federal entity
obtained in connection with activities authorized in this
Act.
(B) Periodic review.--The Attorney General shall, in
coordination with heads of the appropriate Federal entities
and in consultation with officers and private entities
described in subparagraph (A), periodically review the
guidelines promulgated under subparagraph (A).
(3) Content.--The guidelines required by paragraphs (1) and
(2) shall, consistent with the need to protect information
systems from cybersecurity threats and mitigate cybersecurity
threats--
(A) limit the impact on privacy and civil liberties of
activities by the Federal Government under this Act;
(B) limit the receipt, retention, use, and dissemination of
cyber threat indicators containing personal information of or
identifying specific persons, including by establishing--
(i) a process for the timely destruction of such
information that is known not to be directly related to uses
authorized under this Act; and
(ii) specific limitations on the length of any period in
which a cyber threat indicator may be retained;
(C) include requirements to safeguard cyber threat
indicators containing personal information of or identifying
specific persons
[[Page S6318]]
from unauthorized access or acquisition, including
appropriate sanctions for activities by officers, employees,
or agents of the Federal Government in contravention of such
guidelines;
(D) include procedures for notifying entities and Federal
entities if information received pursuant to this section is
known or determined by a Federal entity receiving such
information not to constitute a cyber threat indicator;
(E) protect the confidentiality of cyber threat indicators
containing personal information of or identifying specific
persons to the greatest extent practicable and require
recipients to be informed that such indicators may only be
used for purposes authorized under this Act; and
(F) include steps that may be needed so that dissemination
of cyber threat indicators is consistent with the protection
of classified and other sensitive national security
information.
(c) Capability and Process Within the Department of
Homeland Security.--
(1) In general.--Not later than 90 days after the date of
the enactment of this Act, the Secretary of Homeland
Security, in coordination with the heads of the appropriate
Federal entities, shall develop and implement a capability
and process within the Department of Homeland Security that--
(A) shall accept from any entity in real time cyber threat
indicators, pursuant to this section;
(B) shall, upon submittal of the certification under
paragraph (2) that such capability and process fully and
effectively operates as described in such paragraph, be the
process by which the Federal Government receives cyber threat
indicators under this Act that are shared by a private entity
with the Federal Government through electronic mail or media,
an interactive form on an Internet website, or a real time,
automated process between information systems except--
(i) communications between a Federal entity and a private
entity regarding a previously shared cyber threat indicator;
and
(ii) communications by a regulated entity with such
entity's Federal regulatory authority regarding a
cybersecurity threat;
(C) ensures that all of the appropriate Federal entities
receive in an automated manner such cyber threat indicators
shared through the real-time process within the Department of
Homeland Security;
(D) is in compliance with the policies, procedures, and
guidelines required by this section; and
(E) does not limit or prohibit otherwise lawful disclosures
of communications, records, or other information, including--
(i) reporting of known or suspected criminal activity, by
an entity to any other entity or a Federal entity;
(ii) voluntary or legally compelled participation in a
Federal investigation; and
(iii) providing cyber threat indicators as part of a
statutory or authorized contractual requirement.
(2) Certification.--Not later than 10 days prior to the
implementation of the capability and process required by
paragraph (1), the Secretary of Homeland Security shall, in
consultation with the heads of the appropriate Federal
entities, certify to Congress whether such capability and
process fully and effectively operates--
(A) as the process by which the Federal Government receives
from any entity a cyber threat indicator under this Act; and
(B) in accordance with the policies, procedures, and
guidelines developed under this section.
(3) Public notice and access.--The Secretary of Homeland
Security shall ensure there is public notice of, and access
to, the capability and process developed and implemented
under paragraph (1) so that--
(A) any entity may share cyber threat indicators through
such process with the Federal Government; and
(B) all of the appropriate Federal entities receive such
cyber threat indicators in real time with receipt through the
process within the Department of Homeland Security.
(4) Other federal entities.--The process developed and
implemented under paragraph (1) shall ensure that other
Federal entities receive in a timely manner any cyber threat
indicators shared with the Federal Government through such
process.
(5) Report on development and implementation.--
(A) In general.--Not later than 60 days after the date of
the enactment of this Act, the Secretary of Homeland Security
shall submit to Congress a report on the development and
implementation of the capability and process required by
paragraph (1), including a description of such capability and
process and the public notice of, and access to, such
process.
(B) Classified annex.--The report required by subparagraph
(A) shall be submitted in unclassified form, but may include
a classified annex.
(d) Information Shared With or Provided to the Federal
Government.--
(1) No waiver of privilege or protection.--The provision of
cyber threat indicators to the Federal Government under this
Act shall not constitute a waiver of any applicable privilege
or protection provided by law, including trade secret
protection.
(2) Proprietary information.--Consistent with section
4(b)(2), a cyber threat indicator provided by an entity to
the Federal Government under this Act shall be considered the
commercial, financial, and proprietary information of such
entity when so designated by the originating entity or a
third party acting in accordance with the written
authorization of the originating entity.
(3) Exemption from disclosure.--Cyber threat indicators
provided to the Federal Government under this Act shall be--
(A) deemed voluntarily shared information and exempt from
disclosure under section 552 of title 5, United States Code,
and any State, tribal, or local law requiring disclosure of
information or records; and
(B) withheld, without discretion, from the public under
section 552(b)(3)(B) of title 5, United States Code, and any
State, tribal, or local provision of law requiring disclosure
of information or records.
(4) Ex parte communications.--The provision of a cyber
threat indicator to the Federal Government under this Act
shall not be subject to a rule of any Federal agency or
department or any judicial doctrine regarding ex parte
communications with a decisionmaking official.
(5) Disclosure, retention, and use.--
(A) Authorized activities.--Cyber threat indicators
provided to the Federal Government under this Act may be
disclosed to, retained by, and used by, consistent with
otherwise applicable provisions of Federal law, any Federal
agency or department, component, officer, employee, or agent
of the Federal Government solely for--
(i) a cybersecurity purpose;
(ii) the purpose of identifying a cybersecurity threat,
including the source of such cybersecurity threat, or a
security vulnerability;
(iii) the purpose of identifying a cybersecurity threat
involving the use of an information system by a foreign
adversary or terrorist;
(iv) the purpose of responding to, or otherwise preventing
or mitigating, an imminent threat of death, serious bodily
harm, or serious economic harm, including a terrorist act or
a use of a weapon of mass destruction;
(v) the purpose of responding to, or otherwise preventing
or mitigating, a serious threat to a minor, including sexual
exploitation and threats to physical safety; or
(vi) the purpose of preventing, investigating, disrupting,
or prosecuting an offense arising out of a threat described
in clause (iv) or any of the offenses listed in--
(I) section 3559(c)(2)(F) of title 18, United States Code
(relating to serious violent felonies);
(II) sections 1028 through 1030 of such title (relating to
fraud and identity theft);
(III) chapter 37 of such title (relating to espionage and
censorship); and
(IV) chapter 90 of such title (relating to protection of
trade secrets).
(B) Prohibited activities.--Cyber threat indicators
provided to the Federal Government under this Act shall not
be disclosed to, retained by, or used by any Federal agency
or department for any use not permitted under subparagraph
(A).
(C) Privacy and civil liberties.--Cyber threat indicators
provided to the Federal Government under this Act shall be
retained, used, and disseminated by the Federal Government--
(i) in accordance with the policies, procedures, and
guidelines required by subsections (a) and (b);
(ii) in a manner that protects from unauthorized use or
disclosure any cyber threat indicators that may contain
personal information of or identifying specific persons; and
(iii) in a manner that protects the confidentiality of
cyber threat indicators containing personal information of or
identifying a specific person.
(D) Federal regulatory authority.--
(i) In general.--Except as provided in clause (ii), cyber
threat indicators provided to the Federal Government under
this Act shall not be directly used by any Federal, State,
tribal, or local government to regulate, including an
enforcement action, the lawful activities of any entity,
including activities relating to monitoring or sharing cyber
threat indicators.
(ii) Exceptions.--
(I) Regulatory authority specifically relating to
prevention or mitigation of cybersecurity threats.--Cyber
threat indicators provided to the Federal Government under
this Act may, consistent with Federal or State regulatory
authority specifically relating to the prevention or
mitigation of cybersecurity threats to information systems,
inform the development or implementation of regulations
relating to such information systems.
(II) Procedures developed and implemented under this act.--
Clause (i) shall not apply to procedures developed and
implemented under this Act.
SEC. 6. PROTECTION FROM LIABILITY.
(a) Monitoring of Information Systems.--No cause of action
shall lie or be maintained in any court against any private
entity, and such action shall be promptly dismissed, for the
monitoring of information systems and information under
section 4(a) that is conducted in accordance with this Act.
(b) Sharing or Receipt of Cyber Threat Indicators.--No
cause of action shall lie or be maintained in any court
against any entity, and such action shall be promptly
dismissed, for the sharing or receipt of cyber threat
indicators under section 4(b) if--
(1) such sharing or receipt is conducted in accordance with
this Act; and
(2) in a case in which a cyber threat indicator is shared
with the Federal Government, the cyber threat indicator is
shared in a manner that is consistent with section
[[Page S6319]]
5(c)(1)(B) and the sharing or receipt, as the case may be,
occurs after the earlier of--
(A) the date on which the interim policies and procedures
are submitted to Congress under section 5(a)(1); or
(B) the date that is 60 days after the date of the
enactment of this Act.
(c) Construction.--Nothing in this section shall be
construed--
(1) to require dismissal of a cause of action against an
entity that has engaged in gross negligence or willful
misconduct in the course of conducting activities authorized
by this Act; or
(2) to undermine or limit the availability of otherwise
applicable common law or statutory defenses.
SEC. 7. OVERSIGHT OF GOVERNMENT ACTIVITIES.
(a) Biennial Report on Implementation.--
(1) In general.--Not later than 1 year after the date of
the enactment of this Act, and not less frequently than once
every 2 years thereafter, the heads of the appropriate
Federal entities shall jointly submit and the Inspector
General of the Department of Homeland Security, the Inspector
General of the Intelligence Community, the Inspector General
of the Department of Justice, the Inspector General of the
Department of Defense, and the Inspector General of the
Department of Energy, in consultation with the Council of
Inspectors General on Financial Oversight, shall jointly
submit to Congress a detailed report concerning the
implementation of this Act.
(2) Contents.--Each report submitted under paragraph (1)
shall include the following:
(A) An assessment of the sufficiency of the policies,
procedures, and guidelines required by section 5 in ensuring
that cyber threat indicators are shared effectively and
responsibly within the Federal Government.
(B) An evaluation of the effectiveness of real-time
information sharing through the capability and process
developed under section 5(c), including any impediments to
such real-time sharing.
(C) An assessment of the sufficiency of the procedures
developed under section 3 in ensuring that cyber threat
indicators in the possession of the Federal Government are
shared in a timely and adequate manner with appropriate
entities, or, if appropriate, are made publicly available.
(D) An assessment of whether cyber threat indicators have
been properly classified and an accounting of the number of
security clearances authorized by the Federal Government for
the purposes of this Act.
(E) A review of the type of cyber threat indicators shared
with the Federal Government under this Act, including the
following:
(i) The degree to which such information may impact the
privacy and civil liberties of specific persons.
(ii) A quantitative and qualitative assessment of the
impact of the sharing of such cyber threat indicators with
the Federal Government on privacy and civil liberties of
specific persons.
(iii) The adequacy of any steps taken by the Federal
Government to reduce such impact.
(F) A review of actions taken by the Federal Government
based on cyber threat indicators shared with the Federal
Government under this Act, including the appropriateness of
any subsequent use or dissemination of such cyber threat
indicators by a Federal entity under section 5.
(G) A description of any significant violations of the
requirements of this Act by the Federal Government.
(H) A summary of the number and type of entities that
received classified cyber threat indicators from the Federal
Government under this Act and an evaluation of the risks and
benefits of sharing such cyber threat indicators.
(3) Recommendations.--Each report submitted under paragraph
(1) may include recommendations for improvements or
modifications to the authorities and processes under this
Act.
(4) Form of report.--Each report required by paragraph (1)
shall be submitted in unclassified form, but may include a
classified annex.
(b) Reports on Privacy and Civil Liberties.--
(1) Biennial report from privacy and civil liberties
oversight board.--Not later than 2 years after the date of
the enactment of this Act and not less frequently than once
every 2 years thereafter, the Privacy and Civil Liberties
Oversight Board shall submit to Congress and the President a
report providing--
(A) an assessment of the effect on privacy and civil
liberties by the type of activities carried out under this
Act; and
(B) an assessment of the sufficiency of the policies,
procedures, and guidelines established pursuant to section 5
in addressing concerns relating to privacy and civil
liberties.
(2) Biennial report of inspectors general.--
(A) In general.--Not later than 2 years after the date of
the enactment of this Act and not less frequently than once
every 2 years thereafter, the Inspector General of the
Department of Homeland Security, the Inspector General of the
Intelligence Community, the Inspector General of the
Department of Justice, the Inspector General of the
Department of Defense, and the Inspector General of the
Department of Energy shall, in consultation with the Council
of Inspectors General on Financial Oversight, jointly submit
to Congress a report on the receipt, use, and dissemination
of cyber threat indicators that have been shared with Federal
entities under this Act.
(B) Contents.--Each report submitted under subparagraph (A)
shall include the following:
(i) A review of the types of cyber threat indicators shared
with Federal entities.
(ii) A review of the actions taken by Federal entities as a
result of the receipt of such cyber threat indicators.
(iii) A list of Federal entities receiving such cyber
threat indicators.
(iv) A review of the sharing of such cyber threat
indicators among Federal entities to identify inappropriate
barriers to sharing information.
(3) Recommendations.--Each report submitted under this
subsection may include such recommendations as the Privacy
and Civil Liberties Oversight Board, with respect to a report
submitted under paragraph (1), or the Inspectors General
referred to in paragraph (2)(A), with respect to a report
submitted under paragraph (2), may have for improvements or
modifications to the authorities under this Act.
(4) Form.--Each report required under this subsection shall
be submitted in unclassified form, but may include a
classified annex.
SEC. 8. CONSTRUCTION AND PREEMPTION.
(a) Otherwise Lawful Disclosures.--Nothing in this Act
shall be construed--
(1) to limit or prohibit otherwise lawful disclosures of
communications, records, or other information, including
reporting of known or suspected criminal activity, by an
entity to any other entity or the Federal Government under
this Act; or
(2) to limit or prohibit otherwise lawful use of such
disclosures by any Federal entity, even when such otherwise
lawful disclosures duplicate or replicate disclosures made
under this Act.
(b) Whistle Blower Protections.--Nothing in this Act shall
be construed to prohibit or limit the disclosure of
information protected under section 2302(b)(8) of title 5,
United States Code (governing disclosures of illegality,
waste, fraud, abuse, or public health or safety threats),
section 7211 of title 5, United States Code (governing
disclosures to Congress), section 1034 of title 10, United
States Code (governing disclosure to Congress by members of
the military), section 1104 of the National Security Act of
1947 (50 U.S.C. 3234) (governing disclosure by employees of
elements of the intelligence community), or any similar
provision of Federal or State law.
(c) Protection of Sources and Methods.--Nothing in this Act
shall be construed--
(1) as creating any immunity against, or otherwise
affecting, any action brought by the Federal Government, or
any agency or department thereof, to enforce any law,
executive order, or procedure governing the appropriate
handling, disclosure, or use of classified information;
(2) to affect the conduct of authorized law enforcement or
intelligence activities; or
(3) to modify the authority of a department or agency of
the Federal Government to protect classified information and
sources and methods and the national security of the United
States.
(d) Relationship to Other Laws.--Nothing in this Act shall
be construed to affect any requirement under any other
provision of law for an entity to provide information to the
Federal Government.
(e) Prohibited Conduct.--Nothing in this Act shall be
construed to permit price-fixing, allocating a market between
competitors, monopolizing or attempting to monopolize a
market, boycotting, or exchanges of price or cost
information, customer lists, or information regarding future
competitive planning.
(f) Information Sharing Relationships.--Nothing in this Act
shall be construed--
(1) to limit or modify an existing information sharing
relationship;
(2) to prohibit a new information sharing relationship;
(3) to require a new information sharing relationship
between any entity and the Federal Government; or
(4) to require the use of the capability and process within
the Department of Homeland Security developed under section
5(c).
(g) Preservation of Contractual Obligations and Rights.--
Nothing in this Act shall be construed--
(1) to amend, repeal, or supersede any current or future
contractual agreement, terms of service agreement, or other
contractual relationship between any entities, or between any
entity and a Federal entity; or
(2) to abrogate trade secret or intellectual property
rights of any entity or Federal entity.
(h) Anti-Tasking Restriction.--Nothing in this Act shall be
construed to permit the Federal Government--
(1) to require an entity to provide information to the
Federal Government;
(2) to condition the sharing of cyber threat indicators
with an entity on such entity's provision of cyber threat
indicators to the Federal Government; or
(3) to condition the award of any Federal grant, contract,
or purchase on the provision of a cyber threat indicator to a
Federal entity.
(i) No Liability for Non-Participation.--Nothing in this
Act shall be construed to subject any entity to liability for
choosing not to engage in the voluntary activities authorized
in this Act.
[[Page S6320]]
(j) Use and Retention of Information.--Nothing in this Act
shall be construed to authorize, or to modify any existing
authority of, a department or agency of the Federal
Government to retain or use any information shared under this
Act for any use other than permitted in this Act.
(k) Federal Preemption.--
(1) In general.--This Act supersedes any statute or other
provision of law of a State or political subdivision of a
State that restricts or otherwise expressly regulates an
activity authorized under this Act.
(2) State law enforcement.--Nothing in this Act shall be
construed to supersede any statute or other provision of law
of a State or political subdivision of a State concerning the
use of authorized law enforcement practices and procedures.
(l) Regulatory Authority.--Nothing in this Act shall be
construed--
(1) to authorize the promulgation of any regulations not
specifically authorized by this Act;
(2) to establish or limit any regulatory authority not
specifically established or limited under this Act; or
(3) to authorize regulatory actions that would duplicate or
conflict with regulatory requirements, mandatory standards,
or related processes under another provision of Federal law.
(m) Authority of Secretary of Defense To Respond to Cyber
Attacks.--Nothing in this Act shall be construed to limit the
authority of the Secretary of Defense to develop, prepare,
coordinate, or, when authorized by the President to do so,
conduct a military cyber operation in response to a malicious
cyber activity carried out against the United States or a
United States person by a foreign government or an
organization sponsored by a foreign government or a terrorist
organization.
SEC. 9. REPORT ON CYBERSECURITY THREATS.
(a) Report Required.--Not later than 180 days after the
date of the enactment of this Act, the Director of National
Intelligence, in coordination with the heads of other
appropriate elements of the intelligence community, shall
submit to the Select Committee on Intelligence of the Senate
and the Permanent Select Committee on Intelligence of the
House of Representatives a report on cybersecurity threats,
including cyber attacks, theft, and data breaches.
(b) Contents.--The report required by subsection (a) shall
include the following:
(1) An assessment of the current intelligence sharing and
cooperation relationships of the United States with other
countries regarding cybersecurity threats, including cyber
attacks, theft, and data breaches, directed against the
United States and which threaten the United States national
security interests and economy and intellectual property,
specifically identifying the relative utility of such
relationships, which elements of the intelligence community
participate in such relationships, and whether and how such
relationships could be improved.
(2) A list and an assessment of the countries and nonstate
actors that are the primary threats of carrying out a
cybersecurity threat, including a cyber attack, theft, or
data breach, against the United States and which threaten the
United States national security, economy, and intellectual
property.
(3) A description of the extent to which the capabilities
of the United States Government to respond to or prevent
cybersecurity threats, including cyber attacks, theft, or
data breaches, directed against the United States private
sector are degraded by a delay in the prompt notification by
private entities of such threats or cyber attacks, theft, and
breaches.
(4) An assessment of additional technologies or
capabilities that would enhance the ability of the United
States to prevent and to respond to cybersecurity threats,
including cyber attacks, theft, and data breaches.
(5) An assessment of any technologies or practices utilized
by the private sector that could be rapidly fielded to assist
the intelligence community in preventing and responding to
cybersecurity threats.
(c) Form of Report.--The report required by subsection (a)
shall be made available in classified and unclassified forms.
(d) Intelligence Community Defined.--In this section, the
term ``intelligence community'' has the meaning given that
term in section 3 of the National Security Act of 1947 (50
U.S.C. 3003).
SEC. 10. CONFORMING AMENDMENTS.
(a) Public Information.--Section 552(b) of title 5, United
States Code, is amended--
(1) in paragraph (8), by striking ``or'' at the end;
(2) in paragraph (9), by striking ``wells.'' and inserting
``wells; or''; and
(3) by inserting after paragraph (9) the following:
``(10) information shared with or provided to the Federal
Government pursuant to the Cybersecurity Information Sharing
Act of 2015.''.
(b) Modification of Limitation on Dissemination of Certain
Information Concerning Penetrations of Defense Contractor
Networks.--Section 941(c)(3) of the National Defense
Authorization Act for Fiscal Year 2013 (Public Law 112-239;
10 U.S.C. 2224 note) is amended by inserting at the end the
following: ``The Secretary may share such information with
other Federal entities if such information consists of cyber
threat indicators and such information is shared consistent
with the policies and procedures promulgated by the Attorney
General under section 5 of the Cybersecurity Information
Sharing Act of 2015.''.
______