Cyber Bill Boosts DHS Cyberthreat Sharing but Critics Fear Backdoor to NSA Surveillance

The National Cybersecurity and Communications Integration Center in Arlington, Va.

The National Cybersecurity and Communications Integration Center in Arlington, Va. Evan Vucci/AP

The $1.1 trillion spending bill creates an instant information-sharing regime housed at DHS.

A funding deal approved by the House today and set to clear Congress within days positions the Department of Homeland Security as the front door for hack surveillance intelligence arriving from private industry. The back door, to the chagrin of some privacy activists, is the intelligence community.

The 2,000-page $1.1 trillion spending bill rife with unconnected policy measures creates an instant information-sharing regime housed at DHS.

One of the provisions aligns very closely with a controversial, years-in-the-making bill called the Cybersecurity Information Sharing Act, or CISA.

A separate, related measure empowers Homeland Security to scan data from any agency for telltale signs of hacker operations.

Companies within six months will receive procedures for voluntarily sharing with DHS details about malicious network activities, including email data that sometimes could contain personal information.

Organizations also can choose to receive details, also known as “indicators” or “signatures,” from DHS that are collected from federal agencies and other participating firms.

The hotline system must be able to ferry submissions to the director of national intelligence, Pentagon, Justice Department and several other relevant agencies -- a key concern among privacy advocates wary of surveillance overreach.

The bill sets out a number of deadlines:

  • Within three months after enactment, Homeland Security must develop a tool capable of accepting computer records from industry via email, a website form, or another means of instant machine-to-machine interaction.
  • Within six months, the two departments must publish the steps and rules for receiving the intelligence, some of which will be classified.
  • One year from now, agencies must report on whether the system is effective at sharing information in real-time and list the number of security clearances handed out to participants wanting access to the classified tips.

There are many provisions in the legislative package intended to strip out identifying information before it is circulated throughout the intelligence and law enforcement communities.

Within six months, DHS and Justice must issue privacy guidelines governing the collection, use and distribution of threat information obtained from companies. The rules must spell out "appropriate sanctions" against federal employees who violate the civil liberties requirements.

Every two years, agencies must report on the ramifications of sharing threat information on privacy rights.

The government is supposed to remove identifying details unrelated to network threats from submissions before sharing. The report must document the number of notifications sent out to individuals whose personal information was exposed in files that had nothing to do with a cyber incident.

Still, civil liberties activists say the risk of compromising privacy is greater than the chances of stopping a data breach under the legislation.

Sen. Ron Wyden, D- Ore., an outspoken critic of U.S. surveillance programs, tweeted Wednesday, after the deal was revealed late the day before: "Latest, worse version of CISA has no real privacy protections & would do little or nothing to prevent major hacks."

Robyn Greene, policy counsel at the left-leaning New America Open Technology Institute, released a statement, saying, the bill "sets up a near free-for-all for the NSA and FBI to ramp up surveillance and investigation of Americans, and could seriously undermine data security and cybersecurity in general. If the excess of personal information that may be shared under this bill is targeted by malicious and nation state hackers -- and there’s no reason to think it won’t be -- this may well turn out to be the intelligence community’s next major boondoggle."

The same package expands the use of a governmentwide network intrusion-blocker fueled by all of this information sharing. The DHS-operated tool, dubbed EINSTEIN, scans agency systems for indicators gleaned from industry and government and deflects the malicious emails or network traffic.

The bill authorizes DHS to surveil all federal civilian networks – including citizen communications -- for these signs of an attack.

The current incarnation of the technology -- EINSTEIN 3A -- can only detect threats it has been informed of, not "zero day" security vulnerabilities unknown to the system. The legislation would require DHS to test and deploy, if useful, "advanced protective technologies," including commercial ones, that go beyond "signature-based detection."

Civil liberties provisions include a privacy officer review within one year to ensure procedures respect applicable laws on communications interception.  

After DHS makes the system available governmentwide, agencies have up to a year to activate the protections.

Currently, EINSTEIN 3A’s intrusion-blocking features are only offered to customers of CenturyLink, AT&T or Verizon. Agencies that connect to the Internet through Sprint, Level 3 or other Internet service providers are not protected.

DHS announced earlier this month CenturyLink has won a multiyear contract to fill gaps in the governmentwide firewall.

Lawmakers with jurisdiction over DHS were generally pleased with the concessions made to push the bill through.

Rep. Bennie Thompson, D-Tenn., ranking Democrat at the Homeland Security Committee, said in a statement, “I would note that the privacy provisions" in the measure "are less detailed and prescriptive than the legislation we advanced" out of committee. "However, it does give significant attention to privacy concerns by solidifying DHS’ civilian role in the cyber information sharing space.”

Sen. Ron Johnson, R-Wis., head of the Homeland Security and Governmental Affairs Committee, co-authored the EINSTEIN section with committee ranking Democrat Sen. Tom Carper, D-Del.

Johnson said in a statement, the package is "an important first step toward improving our cyber-defenses. It’s not perfect, but it’s a big step in the right direction, one that Congress has been trying to enact for several years. I’m proud to have been part of the bipartisan group, with my colleagues on the Senate and House Intelligence and the Homeland Security committees, that finally helped get this legislation passed."