A close look at the new CISPA

Justice League of the Internet, unite! So went the call from the Elders of the Internet to make a last stand against the long-feared reawakening of the… uh, legislative process. (No, there are no Elders of the Internet. I just couldn’t resist linking to that clip.)

Internet privacy advocates are up in arms these days over the Cyber Intelligence Sharing and Protection Act, a bill which modifies the guidelines by which information, including personal and/or private information, may be shared among technology companies and the federal government. CISPA was first introduced last year as House Resolution 3523, and passed by the House of Representatives, but it stalled and died out in the Senate, perhaps partially in response to strong public opposition.

Now, CISPA is back, in the form of House Resolution 624. This was passed by the House last week, and is headed to the Senate for discussion. The text of the bill is quite similar to last year’s version, so most of what I wrote about it last year is still applicable, but there are a few things I want to update in light of new information, plus some new provisions in the bill to look at. So what I’m going to do is repost more or less the same thing I wrote last year, with additions and updates to cover the new information.

Since this is a really long post, though, I’ll jump straight to the punch line. I don’t think CISPA is as bad as some people will say it is. Here is the short version of what I would like to see changed before the bill passes:

• Require judicial intervention to allow the sharing of personal information without the express approval of the subject, except when necessary to prevent an imminent threat
• Require that the subject of any shared personal information be notified immediately of what information was shared, except when necessary to protect national security
• Allow shared information to be subject to the Freedom of Information Act
• Allow the entity sharing information to specify which department(s) of the government it may be shared with (maybe this is already in there)
• Allow legal action to proceed against an entity believed to be sharing information improperly, even if the entity asserts they were acting in good faith
• Create a more flexible process for maintaining a list of classes of information that cannot be used by the government (and perhaps also by private entities)
• Give an independent or semi-independent watchdog the authority to implement (not just recommend) policies to protect privacy and civil liberties when personal information is shared

As usual, this post comes with the standard disclaimer that I am not a lawyer and this is not legal advice. I make no guarantees about the correctness of this information. If you’re concerned about specific effects that CISPA could have on you personally, check with a lawyer.

Amendments to National Security Act

The main body of CISPA consists of an addition to title 50 of the United States Code, which deals with national security. The proposed addition starts out as follows:

Sharing information with private entities

Sec. 1104. (a) Intelligence Community Sharing of Cyber Threat Intelligence With Private Sector and Utilities-

(1) IN GENERAL- The Director of National Intelligence shall establish procedures to allow elements of the intelligence community to share cyber threat intelligence with private-sector entities and utilities and to encourage the sharing of such intelligence.

This basically sums up a large part of what people consider to be the problem with CISPA. It allows the government, or more precisely the national intelligence community (FBI, CIA, NSA, and other such organizations) to share information they have collected with private-sector entities, like businesses. Now, I don’t know exactly what information our intelligence agencies collect on U.S. residents, but it stands to reason that if they wanted it, they could have access to phone records and the content of phone calls, emails, personal information like your address history and phone number history, your employment history and credit history, all your financial information, most of your shopping preferences, large parts of your web browsing history, and assorted other information. Obviously, government agencies can get far more information on your life and habits than private businesses or random people can. If a channel is opened up by which businesses can get a share of that information, they’d have a field day — and who knows what kinds of nefarious tricks they could pull with it?

But let’s hold on a minute. The capacity for information sharing that CISPA introduces comes with restrictions, which are spelled out by the next paragraph of the bill.

(2) SHARING AND USE OF CLASSIFIED INTELLIGENCE- The procedures established under paragraph (1) shall provide that classified cyber threat intelligence may only be--

(A) shared by an element of the intelligence community with--

(i) certified entities; or

(ii) a person with an appropriate security clearance to receive such cyber threat intelligence;

(B) shared consistent with the need to protect the national security of the United States; and

(C) used by a certified entity in a manner which protects such cyber threat intelligence from unauthorized disclosure; and

(D) used, retained, or further disclosed by a certified entity for cybersecurity purposes.

A “certified entity” is defined in subsection (g) of the bill as follows:

(1) CERTIFIED ENTITY- The term certified entity' means a protected entity, self-protected entity, or cybersecurity provider that--

(A) possesses or is eligible to obtain a security clearance, as determined by the Director of National Intelligence; and

(B) is able to demonstrate to the Director of National Intelligence that such provider or such entity can appropriately protect classified cyber threat intelligence.

and in turn, “protected entity,” “self-protected entity,” and “cybersecurity provider,” and the related term “cybersecurity purpose,” are defined as

(4) CYBERSECURITY PROVIDER- The term cybersecurity provider' means a non-governmental entity that provides goods or services intended to be used for cybersecurity purposes.

(5) CYBERSECURITY PURPOSE- The term cybersecurity purpose' means the purpose of ensuring the integrity, confidentiality, or availability of, or safeguarding, a system or network, including protecting a system or network from--

(A) efforts to degrade, disrupt, or destroy such system or network; or

(B) theft or misappropriation of private or government information, intellectual property, or personally identifiable information.

(7) PROTECTED ENTITY- The term protected entity' means an entity, other than an individual, that contracts with a cybersecurity provider for goods or services to be used for cybersecurity purposes.

(8) SELF-PROTECTED ENTITY- The term `self-protected entity' means an entity, other than an individual, that provides goods or services for cybersecurity purposes to itself.'

OK, soo… if I’m getting this right, certified entities are basically businesses or organizations that either produce or use (or both) computer security technology, and either have or are eligible for a certain level of security clearance, and which confirm that they are capable of protecting whatever information they receive from unauthorized use. However, simply being capable of obtaining a security clearance, and being capable of protecting information, is not saying much. That’s where subparagraphs (C) and (D) come in; it actually requires these certified entities to protect the information they’re given, and not to use it for any purpose other than cybersecurity.

In essence, the apparent intent of the bill is to set up a framework to ensure that, once privileged information leaves the intelligence community, it doesn’t go any further and isn’t used for any purpose other than the one it was explicitly shared for. But the relevant definitions don’t seem specific enough to make that happen. “Cybersecurity purposes” encompasses any activity intended to prevent theft or misuse of various types of information, as well as any sort of technological attack. Consider this situation: let’s say you wind up on some low-level CIA watchlist for a perfectly innocent reason, such as making multiple business trips to China over the course of a few months. Ordinarily, they would probably watch you for a little while longer, see nothing of interest, and file the whole matter away. But under CISPA, the CIA could share their interest in you with your email provider, who could then start keeping a very close eye on your emails. And, of greater concern, anything suspicious-looking (even if it’s actually innocent, these things can be misinterpreted) that your email provider finds, they can then share back with the CIA. Yes, CISPA doesn’t require this information to be shared, but how well do you trust your email provider to stick up for your right to privacy?

Here’s another issue: how much information is the intelligence community allowed to share, anyway? That is loosely addressed by subparagraph (B), which says that the government can only share information as necessary to protect national security. There are a couple of problems I have with this statement. First of all, it’s really vague on what exactly is necessary to protect national security. I understand that intelligence services need to have flexible tools to deal with problems that they haven’t anticipated, and it would hinder their work to specify a complete list of circumstances under which information could be shared outside the government, but I really feel like some restrictions could be put in place here — for example, sharing information might only be allowed

1. when necessary to get access to additional information for which the private entity is the only source, or
2. when necessary to facilitate the cooperation of the private entity in an ongoing investigation; and
3. in the face of an imminent threat to national security such that the delay required to go through legal proceedings in a court (i.e. getting a warrant) could lead to property damage or loss of life.

It might be necessary to create some additional procedure by which a court could approve a request to share information with the private sector, since warrants are usually used to take things, not to give them out (as far as I know), but certainly that could be part of the bill as well. Honestly, I’m not sure exactly what sorts of situations prompted this bill to be written, and so I’m not sure what sorts of restrictions would be appropriate. But if history is any indication, intelligence agencies will try pretty hard to pass all sorts of things off as being required in the name of national security, and the current wording gives them free reign to do just that. And as with any organization, there are almost certainly going to be a few people in the intelligence community who would abuse that power.

The other thing that bothers me about this is that there is not much accountability for what information gets shared and why it had to be shared. There is a provision in an earlier part of the bill (section 2, which I’ll discuss in more detail later) that specifies that any sharing of information with the federal government under this act must be described in an annual report to Congress. But it says nothing explicit about information shared by the federal government, and it also leaves a lot of leeway for the details of the information shared to be kept in the dark.

(c) Reports on Information Sharing-

(1) INSPECTOR GENERAL OF THE DEPARTMENT OF HOMELAND SECURITY REPORT- The Inspector General of the Department of Homeland Security, in consultation with the Inspector General of the Department of Justice, the Inspector General of the Intelligence Community, the Inspector General of the Department of Defense, and the Privacy and Civil Liberties Oversight Board, shall annually submit to the appropriate congressional committees a report containing a review of the use of information shared with the Federal Government under subsection (b) of section 1104 of the National Security Act of 1947, as added by section 3(a) of this Act, including--

(A) a review of the use by the Federal Government of such information for a purpose other than a cybersecurity purpose;

(B) a review of the type of information shared with the Federal Government under such subsection;

(C) a review of the actions taken by the Federal Government based on such information;

(D) appropriate metrics to determine the impact of the sharing of such information with the Federal Government on privacy and civil liberties, if any;

(E) a list of the departments or agencies receiving such information;

(G) a review of the sharing of such information within the Federal Government to identify inappropriate [stovepiping](http://en.wikipedia.org/wiki/Stovepiping) of shared information; and

(G) any recommendations of the Inspector General for improvements or modifications to the authorities under such section.

...

(3) FORM- Each report required under paragraph (1) or (2) shall be submitted in unclassified form, but may include a classified annex.

A new subsection has been added since last year’s version of CISPA, describing a report to be prepared and submitted by the privacy officers of the intelligence community on the privacy implications of the government’s actions under CISPA.

(2) PRIVACY AND CIVIL LIBERTIES OFFICERS REPORT- The Officer for Civil Rights and Civil Liberties of the Department of Homeland Security, in consultation with the Privacy and Civil Liberties Oversight Board, the Inspector General of the Intelligence Community, and the senior privacy and civil liberties officer of each department or agency of the Federal Government that receives cyber threat information shared with the Federal Government under such subsection (b), shall annually and jointly submit to Congress a report assessing the privacy and civil liberties impact of the activities conducted by the Federal Government under such section 1104. Such report shall include any recommendations the Civil Liberties Protection Officer and Chief Privacy and Civil Liberties Officer consider appropriate to minimize or mitigate the privacy and civil liberties impact of the sharing of cyber threat information under such section 1104.

This does partially address the concerns I had about last year’s version of this section, in that there is some sort of oversight over the information sharing process. But it seems rather weakly defined. All that this subsection allows is the submission of a report and recommendations, which could very well be ignored. I’d much rather have some assurance built into the bill that the recommendations will actually be followed, when doing so doesn’t directly hinder national security (and even then, there should be a requirement for an explanation).

Sharing information with the government

Whew. OK. Let’s move on to the next part of the bill, subsections (b) and (c), which deal with the reverse process, namely when private-sector entities share information with federal intelligence services.

(b) Use of Cybersecurity Systems and Sharing of Cyber Threat Information-

(1) IN GENERAL-

(A) CYBERSECURITY PROVIDERS- Notwithstanding any other provision of law, a cybersecurity provider, with the express consent of a protected entity for which such cybersecurity provider is providing goods or services for cybersecurity purposes, may, for cybersecurity purposes--

(i) use cybersecurity systems to identify and obtain cyber threat information to protect the rights and property of such protected entity; and

(ii) share such cyber threat information with any other entity designated by such protected entity, including, if specifically designated, the entities of the Department of Homeland Security and the Department of Justice designated under paragraphs (1) and (2) of section 2(b) of the Cyber Intelligence Sharing and Protection Act.

(B) SELF-PROTECTED ENTITIES- Notwithstanding any other provision of law, a self-protected entity may, for cybersecurity purposes--

(i) use cybersecurity systems to identify and obtain cyber threat information to protect the rights and property of such self-protected entity; and

(ii) share such cyber threat information with any other entity, including the entities of the Department of Homeland Security and the Department of Justice designated under paragraphs (1) and (2) of section 2(b) of the Cyber Intelligence Sharing and Protection Act.

This part seems straightforward enough; it’s basically saying that a technology security company can share with the government (or anyone else) information about threats to its systems or its clients’ resources, with the explicit permission of the client, when doing so is necessary for the company to do its job of protecting the client.

(2) USE AND PROTECTION OF INFORMATION- Cyber threat information shared in accordance with paragraph (1)--

(A) shall only be shared in accordance with any restrictions placed on the sharing of such information by the protected entity or self-protected entity authorizing such sharing, including appropriate anonymization or minimization of such information and excluding limiting a department or agency of the Federal Government from sharing such information with another department or agency of the Federal Government in accordance with this section;

(B) may not be used by an entity to gain an unfair competitive advantage to the detriment of the protected entity or the self-protected entity authorizing the sharing of information; and

(C) may only be used by a non-Federal recipient of such information for a cybersecurity purpose;

This part, somewhat expanded since last year’s CISPA, specifies conditions on when and how that information can be shared: basically that it has to be done in accordance with the company’s own privacy policy, and that it can’t be used for inappropriate purposes (though I doubt that “unfair competitive advantage” covers all the inappropriate purposes one could come up with).

(D) if shared with the Federal Government--

(i) shall be exempt from disclosure under section 552 of title 5, United States Code (commonly known as the "Freedom of Information Act");

(ii) shall be considered proprietary information and shall not be disclosed to an entity outside of the Federal Government except as authorized by the entity sharing such information;

This says that information shared with the government is exempt from Freedom of Information Act requests. Now, I used to think this was a good thing, because the type of information shared will often be personally identifying information like names, addresses, phone numbers, email addresses, perhaps credit card numbers, accounts with various services, and so on. But the Freedom of Information Act, 5 USC § 552, already includes provisions to omit personally identifying information:

To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, staff manual, instruction, or copies of records referred to in subparagraph (D). However, in each case the justification for the deletion shall be explained fully in writing, and the extent of such deletion shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by the exemption in subsection (b) under which the deletion is made. If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made.

With that in place, there seems to be little justification for exempting this information from FOIA entirely. It seems only fair that, if your information is being shared between private entities and the government, you should be able to know what is being shared, when there isn’t a pressing need to keep it secret. I would like to see the FOIA exemption removed from the bill.

But anyway, back to CISPA:

(iii) shall not be used by the Federal Government for regulatory purposes; and

OK, so information shared under CISPA can’t be used to create or enforce regulations. That’s good, I guess. I’m not sure exactly how this would be relevant.

(iv) shall not be provided to another department or agency of the Federal Government under paragraph (2)(A) if--

(I) the entity providing such information determines that the provision of such information will undermine the purpose for which such information is shared; or

(II) unless otherwise directed by the President, the head of the department or agency of the Federal Government receiving such cyber threat information determines that the provision of such information will undermine the purpose for which such information is shared; and

(v) shall be handled by the Federal Government consistent with the need to protect sources and methods and the national security of the United States; and

Honestly, I can’t quite tell what is being said here. Paragraph (2)(A) (scroll up a bit) seems to be saying that different agencies of the federal government can share information among each other, but this says that the entity providing that information, or the head of the government agency receiving it, can block that intragovernmental sharing by saying that it would undermine the purpose for which the information is shared. Again, I really can’t imagine what sort of situation this would be relevant in. But I think it would just be better to limit the sharing of information between governmental agencies. Let the company sharing the information specify where it’s going, and that’s it.

(3) EXEMPTION FROM LIABILITY-

(A) EXEMPTION- No civil or criminal cause of action shall lie or be maintained in Federal or State court against a protected entity, self-protected entity, cybersecurity provider, or an officer, employee, or agent of a protected entity, self-protected entity, or cybersecurity provider, acting in good faith--

(i) for using cybersecurity systems or sharing information in accordance with this section; or

(ii) for not acting on information obtained or shared in accordance with this section.

(B) LACK OF GOOD FAITH- For purposes of the exemption from liability under subparagraph (A), a lack of good faith includes any act or omission taken with intent to injure, defraud, or otherwise endanger any individual, government entity, private entity, or utility.

This paragraph is an interesting inclusion in part because of (3)(A)(ii), which provides immunity from prosecution for declining to use any of this cybersecurity information. I like this clause because it means that, if you’re ever not sure about the legal status of some information shared pursuant to this act, the safe “default” course of action is to just leave it alone, and that way there will be no legal consequences. This is much better than the alternative of providing immunity from prosecution for people who went ahead and used the information, under the belief that they were doing so legally, but who actually weren’t.

However, the condition of “acting in good faith” is kind of worrying because, as subparagraph (3)(B) says, it’s based on intent, and it’s very difficult to prove intent in court. This means that even if you think a company is illegally sharing your personal information with the government, all they have to do is claim that they are acting in good faith, and any legal action you may take against them will be dismissed. That just goes too far. If you suspect a company of improper information sharing, there really should be some sort of process by which you can satisfy yourself that they’re not doing it, and a proper court proceeding (that at least goes far enough for the shared information to be revealed) should be one such method.

(5) RULE OF CONSTRUCTION- Nothing in this subsection shall be construed to provide new authority to--

(A) a cybersecurity provider to use a cybersecurity system to identify or obtain cyber threat information from a system or network other than a system or network owned or operated by a protected entity for which such cybersecurity provider is providing goods or services for cybersecurity purposes; or

(B) a self-protected entity to use a cybersecurity system to identify or obtain cyber threat information from a system or network other than a system or network owned or operated by such self-protected entity.

There’s actually one more thing I don’t get about this entire subsection. Why is it even necessary? After all, most companies already have privacy policies, and most of those already say that they may share information with the government in accordance with a court order or when necessary to protect their business, in some cases even without explicit approval by the client. Now, granted, this is coming from the perspective of an individual, and subsection (b) does not apply to individuals (it talks about “protected entities,” which are organizations, not people). But I would imagine that businesses have similar agreements in place when they deal with each other. So everything that this piece of CISPA allows was already perfectly legal? Maybe it just needed to be explicit, but I just don’t see the point.

Let’s continue on to subsection (c), which governs how the federal government (in particular, the intelligence community) may use any information it receives from private-sector entities.

(c) Federal Government Use of Information-

(1) LIMITATION- The Federal Government may use cyber threat information shared with the Federal Government in accordance with subsection (b)--

(A) for cybersecurity purposes;

(B) for the investigation and prosecution of cybersecurity crimes;

(C) for the protection of individuals from the danger of death or serious bodily harm and the investigation and prosecution of crimes involving such danger of death or serious bodily harm; or

(D) for the protection of minors from child pornography, any risk of sexual exploitation, and serious threats to the physical safety of minors, including kidnapping and trafficking and the investigation and prosecution of crimes involving child pornography, any risk of sexual exploitation, and serious threats to the physical safety of minors, including kidnapping and trafficking, and any crime referred to in section 2258A(a)(2) of title 18, United States Code.

(2) AFFIRMATIVE SEARCH RESTRICTION- The Federal Government may not affirmatively search cyber threat information shared with the Federal Government under subsection (b) for a purpose other than a purpose referred to in paragraph (1)(B).

...

(6) RETENTION AND USE OF CYBER THREAT INFORMATION- No department or agency of the Federal Government shall retain or use information shared pursuant to subsection (b)(1) for any use other than a use permitted under subsection (c)(1).

This piece, considerably reworked from the original bill, allows the government to use information collected under CISPA for cybersecurity purposes and for certain kinds of serious crime prevention, which seem like acceptable additions, but not to search through it to find evidence of other crimes. This is probably better than last year’s CISPA when I wrote about that, but it still suffers from the same vagueness in the definition of “cybersecurity purposes” that I brought up earlier.

(3) ANTI-TASKING RESTRICTION- Nothing in this section shall be construed to permit the Federal Government to--

(A) require a private-sector entity to share information with the Federal Government; or

(B) condition the sharing of cyber threat intelligence with a private-sector entity on the provision of cyber threat information to the Federal Government.

This bit says that the bill does not give the government the authority to demand information from a private company, at least not in any way that isn’t already permitted by existing laws (namely, with a search warrant). It’s definitely a good thing to make clear that intelligence agencies are still not allowed to bypass the judicial process; CISPA does not enable warrantless wiretapping and the like. A lot of people are not getting this point correct.

(4) PROTECTION OF SENSITIVE PERSONAL DOCUMENTS- The Federal Government may not use the following information, containing information that identifies a person, shared with the Federal Government in accordance with subsection (b):

(A) Library circulation records.

(B) Library patron lists.

(C) Book sales records.

(D) Book customer lists.

(E) Firearms sales records.

(F) Tax return records.

(G) Educational records.

(H) Medical records.

This identifies selected pieces of information that the government can’t use, even if it is shared. The point of this is presumably that, if it gets back to the government that you checked out a couple of books on nuclear engineering, for example, that shouldn’t mark you as a terrorist. Good for that, I guess, but I have to wonder where this list came from. I think there should be a more flexible process for marking certain classes of information as protected from government use, probably resulting in a slightly longer list.

At this point I want to point out one section that existed in the earlier version of CISPA but was removed:

(7) PROTECTION OF INDIVIDUAL INFORMATION- The Federal Government may, consistent with the need to protect Federal systems and critical information infrastructure from cybersecurity threats and to mitigate such threats, undertake reasonable efforts to limit the impact on privacy and civil liberties of the sharing of cyber threat information with the Federal Government pursuant to this subsection.

I think this is meant to be replaced by the section on privacy and civil liberties in section 2 of the act (discussed below under “Federal Government Coordination”), so maybe it isn’t a big deal that it was removed, but it’s something to be aware of.

One final piece of the USC amendment (that I’m going to talk about), that is present in the new CISPA:

(d) Federal Government Liability for Violations of Restrictions on the Disclosure, Use, and Protection of Voluntarily Shared Information-

(1) IN GENERAL- If a department or agency of the Federal Government intentionally or willfully violates subsection (b)(3)(D) or subsection (c) with respect to the disclosure, use, or protection of voluntarily shared cyber threat information shared under this section, the United States shall be liable to a person adversely affected by such violation in an amount equal to the sum of--

(A) the actual damages sustained by the person as a result of the violation or \$1,000, whichever is greater; and

(B) the costs of the action together with reasonable attorney fees as determined by the court.

This provides for penalties that the government must bear if it violates the restrictions on how shared information can be used or reshared. In principle, this is a pretty useful section of the bill, but it’s hampered by two issues:

• The restrictions that the bill does include still allow for a wide variety of uses of shared information, and it’s not even clear in many cases which uses are allowed and which ones aren’t
• More importantly, there’s practically no way for a “person adversely affected by such violation” to find out about it! Remember, information shared under CISPA is exempt from FOIA requests, and there’s no requirement to notify the subjects of the shared information.

Federal Government Coordination

This year’s version of CISPA includes an entirely new section describing how information is to be shared within different branches of the federal government. I just want to go over one section here, the one relating to privacy and civil liberties:

(b) Coordinated Information Sharing-

(5) PRIVACY AND CIVIL LIBERTIES-

(A) POLICIES AND PROCEDURES- The Secretary of Homeland Security, the Attorney General, the Director of National Intelligence, and the Secretary of Defense shall jointly establish and periodically review policies and procedures governing the receipt, retention, use, and disclosure of non-publicly available cyber threat information shared with the Federal Government in accordance with section 1104(b) of the National Security Act of 1947, as added by section 3(a) of this Act. Such policies and procedures shall, consistent with the need to protect systems and networks from cyber threats and mitigate cyber threats in a timely manner--

(i) minimize the impact on privacy and civil liberties;

(ii) reasonably limit the receipt, retention, use, and disclosure of cyber threat information associated with specific persons that is not necessary to protect systems or networks from cyber threats or mitigate cyber threats in a timely manner;

(iii) include requirements to safeguard non-publicly available cyber threat information that may be used to identify specific persons from unauthorized access or acquisition;

(iv) protect the confidentiality of cyber threat information associated with specific persons to the greatest extent practicable; and

(v) not delay or impede the flow of cyber threat information necessary to defend against or mitigate a cyber threat.

(B) SUBMISSION TO CONGRESS- The Secretary of Homeland Security, the Attorney General, the Director of National Intelligence, and the Secretary of Defense shall, consistent with the need to protect sources and methods, jointly submit to Congress the policies and procedures required under subparagraph (A) and any updates to such policies and procedures.

(C) IMPLEMENTATION- The head of each department or agency of the Federal Government receiving cyber threat information shared with the Federal Government under such section 1104(b) shall--

(i) implement the policies and procedures established under subparagraph (A); and

(ii) promptly notify the Secretary of Homeland Security, the Attorney General, the Director of National Intelligence, the Secretary of Defense, and the appropriate congressional committees of any significant violations of such policies and procedures.

(D) OVERSIGHT- The Secretary of Homeland Security, the Attorney General, the Director of National Intelligence, and the Secretary of Defense shall jointly establish a program to monitor and oversee compliance with the policies and procedures established under subparagraph (A).

Pretty wordy, but the gist is that high-level officials in the Department of Homeland Security, Department of Justice, and Department of Defense are tasked with limiting privacy violations and infringements of civil liberties as much as possible. It’s definitely a good thing that the law includes some provision for this, but I wonder if it couldn’t be a little more specific about what these policies should entail. Besides, the heads of the DHS, DOJ, and DOD are not exactly the people I want watching their own organizations for privacy violations. That’s okay, since their job is to prevent crime and maintain security, but I’d like to see more of this responsibility delegated to an independent or semi-independent watchdog, like the Inspectors General.

Conclusion

Bottom line, I think this bill is somewhat improved over last year’s version of CISPA, and I definitely think it’s not as bad as some hardcore privacy activists would have you believe (or maybe they’re just people dead set against anything bearing the name CISPA). Honestly, I can’t really get that worked up about the bill in its current form. Sure, there are some changes I’d like to see in it — to repeat myself from the introduction:

• Require judicial intervention to allow the sharing of personal information without the express approval of the subject, except when necessary to prevent an imminent threat
• Require that the subject of any shared personal information be notified immediately of what information was shared, except when necessary to protect national security
• Allow shared information to be subject to the Freedom of Information Act
• Allow the entity sharing information to specify which department(s) of the government it may be shared with (maybe this is already in there)
• Allow legal action to proceed against an entity believed to be sharing information improperly, even if the entity asserts they were acting in good faith
• Create a more flexible process for maintaining a list of classes of information that cannot be used by the government (and perhaps also by private entities)
• Give an independent or semi-independent watchdog the authority to implement (not just recommend) policies to protect privacy and civil liberties when personal information is shared

I wouldn’t go so far as to say I support the bill as is, but it’s not the kind of egregious violation of civil liberties that, say, PIPA was. This bill really just doesn’t seem to do a whole lot.

If you’d like to weigh in on the legislative process, contact your Senator to voice your opinion! With CISPA having just passed the House, Senators will be particularly receptive to feedback on the bill in the upcoming days and weeks. I’d also suggest reading the bill itself, of course (in its entirety, not just the sections I’ve quoted here), and other resources, such as the EFF CISPA FAQ and any number of threads on Reddit, if you’re into that sort of thing. Just be wary — there’s a lot of misinformation out there, so use your judgment!