6 USC 1507 - Construction and preemption

Collapse to view only § 1507. Construction and preemption

§ 1500. National Cyber Director
§ 1501. Definitions
§ 1502. Sharing of information by the Federal Government
§ 1503. Authorizations for preventing, detecting, analyzing, and mitigating cybersecurity threats
§ 1504. Sharing of cyber threat indicators and defensive measures with the Federal Government
§ 1505. Protection from liability
§ 1506. Oversight of government activities
§ 1507. Construction and preemption
§ 1508. Report on cybersecurity threats
§ 1509. Exception to limitation on authority of Secretary of Defense to disseminate certain information
§ 1510. Effective period

§ 1500. National Cyber Director

(a) Establishment

(b) National Cyber Director

(1) In general

(2) Position

(3) Pay and allowances

(1) In generalSubject to the authority, direction, and control of the President, the Director shall—

(A) serve as the principal advisor to the President on cybersecurity policy and strategy relating to the coordination of—

(i) information security and data protection;

(ii) programs and policies intended to improve the cybersecurity posture of the United States;

(iii) efforts to understand and deter malicious cyber activity;

(iv) efforts to increase the security of information and communications technology and services and to promote national supply chain risk management and vendor security;

(v) diplomatic and other efforts to develop norms and international consensus around responsible state behavior in cyberspace;

(vi) awareness and adoption of emerging technology that may enhance, augment, or degrade the cybersecurity posture of the United States; and

(vii) such other cybersecurity matters as the President considers appropriate;

(B) offer advice and consultation to the National Security Council and its staff, the Homeland Security Council and its staff, and relevant Federal departments and agencies, for their consideration, relating to the development and coordination of national cyber policy and strategy, including the National Cyber Strategy;

(C) lead the coordination of implementation of national cyber policy and strategy, including the National Cyber Strategy, by—

(i) in coordination with the heads of relevant Federal departments or agencies, monitoring and assessing the effectiveness, including cost-effectiveness, of the implementation of such national cyber policy and strategy by Federal departments and agencies;

(ii) making recommendations, relevant to changes in the organization, personnel, and resource allocation and to policies of Federal departments and agencies, to the heads of relevant Federal departments and agencies in order to implement such national cyber policy and strategy;

(iii) reviewing the annual budget proposals for relevant Federal departments and agencies and advising the heads of such departments and agencies whether such proposals are consistent with such national cyber policy and strategy;

(iv) continuously assessing and making relevant recommendations to the President on the appropriate level of integration and interoperability across the Federal cyber centers;

(v) coordinating with the Attorney General, the Federal Chief Information Officer, the Director of the Office of Management and Budget, the Director of National Intelligence, and the Director of the Cybersecurity and Infrastructure Security Agency, on the streamlining of Federal policies and guidelines, including with respect to implementation of subchapter II of chapter 35 of title 44, and, as appropriate or applicable, regulations relating to cybersecurity;

(vi) reporting annually to the President, the Assistant to the President for National Security Affairs, and Congress on the state of the cybersecurity posture of the United States, the effectiveness of such national cyber policy and strategy, and the status of the implementation of such national cyber policy and strategy by Federal departments and agencies; and

(vii) such other activity as the President considers appropriate to further such national cyber policy and strategy;

(D) lead coordination of the development and ensuring implementation by the Federal Government of integrated incident response to cyberattacks and cyber campaigns of significant consequence, including—

(i) ensuring and facilitating coordination among relevant Federal departments and agencies in the development of integrated operational plans, processes, and playbooks, including for incident response, that feature—(I) clear lines of authority and lines of effort across the Federal Government;(II) authorities that have been delegated to an appropriate level to facilitate effective operational responses across the Federal Government; and(III) support for the integration of defensive cyber plans and capabilities with offensive cyber plans and capabilities in a manner consistent with improving the cybersecurity posture of the United States;

(ii) ensuring the exercising of defensive operational plans, processes, and playbooks for incident response;

(iii) ensuring the updating of defensive operational plans, processes, and playbooks for incident response as needed to keep them updated; and

(iv) reviewing and ensuring that defensive operational plans, processes, and playbooks improve coordination with relevant private sector entities, as appropriate;

(E) preparing the response by the Federal Government to cyberattacks and cyber campaigns of significant consequence across Federal departments and agencies with responsibilities pertaining to cybersecurity and with the relevant private sector entities, including—

(i) developing for the approval of the President, in coordination with the Assistant to the President for National Security Affairs and the heads of relevant Federal departments and agencies, operational priorities, requirements, and plans;

(ii) ensuring incident response is executed consistent with the plans described in clause (i); and

(iii) ensuring relevant Federal department and agency consultation with relevant private sector entities in incident response;

(F) coordinate and consult with private sector leaders on cybersecurity and emerging technology issues in support of, and in coordination with, the Director of the Cybersecurity and Infrastructure Security Agency, the Director of National Intelligence, and the heads of other Federal departments and agencies, as appropriate;

(G) annually report to Congress on cybersecurity threats and issues facing the United States, including any new or emerging technologies that may affect national security, economic prosperity, or enforcing the rule of law; and

(H) be responsible for such other functions as the President may direct.

(2) Delegation of authority

(A) The Director may—

(i) serve as the senior representative to any organization that the President may establish for the purpose of providing the President advice on cybersecurity;

(ii) subject to subparagraph (B), be included as a participant in preparations for and, when appropriate, the execution of domestic and international summits and other international meetings at which cybersecurity is a major topic;

(iii) delegate any of the Director’s functions, powers, and duties to such officers and employees of the Office as the Director considers appropriate; and

(iv) authorize such successive re-delegations of such functions, powers, and duties to such officers and employees of the Office as the Director considers appropriate.

(B) In acting under subparagraph (A)(ii) in the case of a summit or a meeting with an international partner, the Director shall act in coordination with the Secretary of State.

(d) Omitted

(e) Powers of the Director

(1) In generalThe Director may, for the purposes of carrying out the functions of the Director under this section—

(A) subject to the civil service and classification laws, select, appoint, employ, and fix the compensation of such officers and employees as are necessary and prescribe their duties, except that not more than 75 individuals may be employed without regard to any provision of law regulating the employment or compensation at rates not to exceed the basic rate of basic pay payable for level IV of the Executive Schedule under section 5315 of title 5;

(B) employ experts and consultants in accordance with section 3109 of title 5, and compensate individuals so employed for each day (including travel time) at rates not in excess of the maximum rate of basic pay for grade GS–15 as provided in section 5332 of such title, and while such experts and consultants are so serving away from their homes or regular place of business, to pay such employees travel expenses and per diem in lieu of subsistence at rates authorized by section 5703 of such title 5 for persons in Federal Government service employed intermittently;

(C) accept officers or employees of the United States or members of the Armed Forces on a detail from an element of the intelligence community (as such term is defined in section 3003(4) of title 50) or from another element of the Federal Government on a nonreimbursable basis, as jointly agreed to by the heads of the receiving and detailing elements, for a period not to exceed three years;

(D) promulgate such rules and regulations as may be necessary to carry out the functions, powers, and duties vested in the Director;

(E) utilize, with their consent, the services, personnel, and facilities of other Federal agencies;

(F) enter into and perform such contracts, leases, cooperative agreements, or other transactions as may be necessary in the conduct of the work of the Office and on such terms as the Director may determine appropriate, with any Federal agency, or with any public or private person or entity;

(G) accept voluntary and uncompensated services, notwithstanding the provisions of section 1342 of title 31;

(H) adopt an official seal, which shall be judicially noticed; and

(I) provide, where authorized by law, copies of documents to persons at cost, except that any funds so received shall be credited to, and be available for use from, the account from which expenditures relating thereto were made.

(2) Rules of construction regarding details

(f) Rules of constructionNothing in this section may be construed as—

(1) modifying any authority or responsibility, including any operational authority or responsibility of any head of a Federal department or agency;

(2) authorizing the Director or any person acting under the authority of the Director to interfere with or to direct a criminal or national security investigation, arrest, search, seizure, or disruption operation;

(3) amending a legal restriction that was in effect on the day before January 1, 2021 that requires a law enforcement agency to keep confidential information learned in the course of a criminal or national security investigation;

(4) authorizing the Director or any person acting under the authority of the Director to interfere with or to direct a military operation;

(5) authorizing the Director or any person acting under the authority of the Director to interfere with or to direct any diplomatic or consular activity;

(6) authorizing the Director or any person acting under the authority of the Director to interfere with or to direct an intelligence activity, resource, or operation; or

(7) authorizing the Director or any person acting under the authority of the Director to modify the classification of intelligence information.

(g) DefinitionsIn this section:

(1) The term “cybersecurity posture” means the ability to identify, to protect against, to detect, to respond to, and to recover from an intrusion in an information system the compromise of which could constitute a cyber attack or cyber campaign of significant consequence.

(2) The term “cyber attack and cyber campaign of significant consequence” means an incident or series of incidents that has the purpose or effect of—

(A) causing a significant disruption to the confidentiality, integrity, or availability of a Federal information system;

(B) harming, or otherwise significantly compromising the provision of service by, a computer or network of computers that support one or more entities in a critical infrastructure sector;

(D) causing a significant misappropriation of funds or economic resources, trade secrets, personal identifiers, or financial information for commercial or competitive advantage or private financial gain; or

(E) otherwise constituting a significant threat to the national security, foreign policy, or economic health or financial stability of the United States.

(3) The term “incident” has the meaning given such term in section 3552 of title 44.

(4) The term “incident response” means a government or private sector activity that detects, mitigates, or recovers from a cyber attack or cyber campaign of significant consequence.

(5) The term “information security” has the meaning given such term in section 3552 of title 44.

(6) The term “intelligence” has the meaning given such term in section 3003 of title 50.

(Pub. L. 116–283, div. A, title XVII, § 1752, Jan. 1, 2021, 134 Stat. 4144; Pub. L. 117–81, div. A, title XV, § 1552, Dec. 27, 2021, 135 Stat. 2070.)

§ 1501. Definitions

In this subchapter:

(1) Agency

(2) Antitrust laws

The term “antitrust laws”—

(A) has the meaning given the term in section 12 of title 15;

(B) includes section 45 of title 15 to the extent that section 45 of title 15 applies to unfair methods of competition; and

(C) includes any State antitrust law, but only to the extent that such law is consistent with the law referred to in subparagraph (A) or the law referred to in subparagraph (B).

(3) Appropriate Federal entities

The term “appropriate Federal entities” means the following:

(A) The Department of Commerce.

(B) The Department of Defense.

(D) The Department of Homeland Security.

(E) The Department of Justice.

(F) The Department of the Treasury.

(G) The Office of the Director of National Intelligence.

(4) Cybersecurity purpose

(5) Cybersecurity threat

(6) Cyber threat indicator

(7) Defensive measure

(8) Federal entity

(9) Information system

(10) Local government

(11) Malicious cyber command and control

(12) Malicious reconnaissance

(13) Monitor

(14) Non-Federal entity

(A) In general

(B) Inclusions

(15) Private entity

(A) In general

(B) Inclusion

(16) Security control

(17) Security vulnerability

(18) Tribal

(Pub. L. 114–113, div. N, title I, § 102, Dec. 18, 2015, 129 Stat. 2936; Pub. L. 117–263, div. G, title LXXI, § 7143(b)(4), Dec. 23, 2022, 136 Stat. 3661.)

§ 1502. Sharing of information by the Federal Government

(a) In generalConsistent 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 jointly develop and issue procedures to facilitate and promote—

(1) the timely sharing of classified cyber threat indicators and defensive measures in the possession of the Federal Government with representatives of relevant Federal entities and non-Federal entities that have appropriate security clearances;

(2) the timely sharing with relevant Federal entities and non-Federal entities of cyber threat indicators, defensive measures, and information relating to cybersecurity threats or authorized uses under this subchapter, in the possession of the Federal Government that may be declassified and shared at an unclassified level;

(3) the timely sharing with relevant Federal entities and non-Federal entities, or the public if appropriate, of unclassified, including controlled unclassified, cyber threat indicators and defensive measures in the possession of the Federal Government;

(4) the timely sharing with Federal entities and non-Federal entities, if appropriate, of information relating to cybersecurity threats or authorized uses under this subchapter, in the possession of the Federal Government about cybersecurity threats to such entities to prevent or mitigate adverse effects from such cybersecurity threats; and

(5) the periodic sharing, through publication and targeted outreach, of cybersecurity best practices that are developed based on ongoing analyses of cyber threat indicators, defensive measures, and information relating to cybersecurity threats or authorized uses under this subchapter, in the possession of the Federal Government, with attention to accessibility and implementation challenges faced by small business concerns (as defined in section 632 of title 15).

(b) Development of procedures

(1) In generalThe procedures developed under subsection (a) shall—

(A) ensure the Federal Government has and maintains the capability to share cyber threat indicators and defensive measures 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 entities and non-Federal entities for information sharing by the Federal Government, including sector specific information sharing and analysis centers;

(C) include procedures for notifying, in a timely manner, Federal entities and non-Federal entities that have received a cyber threat indicator or defensive measure from a Federal entity under this subchapter that is known or determined to be in error or in contravention of the requirements of this subchapter or another provision of Federal law or policy of such error or contravention;

(D) include requirements for Federal entities sharing cyber threat indicators or defensive measures to implement and utilize security controls to protect against unauthorized access to or acquisition of such cyber threat indicators or defensive measures;

(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 not directly related to a cybersecurity threat that such Federal entity knows at the time of sharing to be personal information of a specific individual or information that identifies a specific individual and remove such information; or

(ii) to implement and utilize a technical capability configured to remove any information not directly related to a cybersecurity threat that the Federal entity knows at the time of sharing to be personal information of a specific individual or information that identifies a specific individual; and

(F) include procedures for notifying, in a timely manner, any United States person whose personal information is known or determined to have been shared by a Federal entity in violation of this subchapter.

(2) Consultation

(Pub. L. 114–113, div. N, title I, § 103, Dec. 18, 2015, 129 Stat. 2939.)

§ 1503. Authorizations for preventing, detecting, analyzing, and mitigating cybersecurity threats

(a) Authorization for monitoring

(1) In generalNotwithstanding 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 non-Federal 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) ConstructionNothing 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 subchapter; or

(B) to limit otherwise lawful activity.

(b) Authorization for operation of defensive measures

(1) In generalNotwithstanding any other provision of law, a private entity may, for cybersecurity purposes, operate a defensive measure that is applied to—

(A) an information system of such private entity in order to protect the rights or property of the private entity;

(B) an information system of another non-Federal entity upon written consent of such entity for operation of such defensive measure to protect the rights or property of such entity; and

(C) an information system of a Federal entity upon written consent of an authorized representative of such Federal entity for operation of such defensive measure to protect the rights or property of the Federal Government.

(2) ConstructionNothing in this subsection shall be construed—

(A) to authorize the use of a defensive measure other than as provided in this subsection; or

(B) to limit otherwise lawful activity.

(1) In general

(2) Lawful restriction

(3) ConstructionNothing in this subsection shall be construed—

(A) to authorize the sharing or receiving of a cyber threat indicator or defensive measure other than as provided in this subsection; or

(B) to limit otherwise lawful activity.

(d) Protection and use of information

(1) Security of information

(2) Removal of certain personal informationA non-Federal entity sharing a cyber threat indicator pursuant to this subchapter shall, prior to such sharing—

(A) review such cyber threat indicator to assess whether such cyber threat indicator contains any information not directly related to a cybersecurity threat that the non-Federal entity knows at the time of sharing to be personal information of a specific individual or information that identifies a specific individual and remove such information; or

(B) implement and utilize a technical capability configured to remove any information not directly related to a cybersecurity threat that the non-Federal entity knows at the time of sharing to be personal information of a specific individual or information that identifies a specific individual.

(3) Use of cyber threat indicators and defensive measures by non-Federal entities

(A) In generalConsistent with this subchapter, a cyber threat indicator or defensive measure shared or received under this section may, for cybersecurity purposes—

(i) be used by a non-Federal entity to monitor or operate a defensive measure that is applied to—(I) an information system of the non-Federal entity; or(II) an information system of another non-Federal entity or a Federal entity upon the written consent of that other non-Federal entity or that Federal entity; and

(ii) be otherwise used, retained, and further shared by a non-Federal entity subject to—(I) an otherwise lawful restriction placed by the sharing non-Federal entity or Federal entity on such cyber threat indicator or defensive measure; or(II) an otherwise applicable provision of law.

(B) Construction

(4) Use of cyber threat indicators by State, tribal, or local government

(A) Law enforcement use

(B) Exemption from disclosureA cyber threat indicator or defensive measure shared by or with a State, tribal, or local government, including a component of a State, tribal, or local government that is a private entity, under this section shall be—

(i) deemed voluntarily shared information; and

(ii) exempt from disclosure under any provision of State, tribal, or local freedom of information law, open government law, open meetings law, open records law, sunshine law, or similar law requiring disclosure of information or records.

(i) In general

(ii) Regulatory authority specifically relating to prevention or mitigation of cybersecurity threats

(e) Antitrust exemption

(1) In general

(2) ApplicabilityParagraph (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.

(f) No right or benefit

(Pub. L. 114–113, div. N, title I, § 104, Dec. 18, 2015, 129 Stat. 2940.)

§ 1504. Sharing of cyber threat indicators and defensive measures with the Federal Government

(a) Requirement for policies and procedures

(1) Interim policies and procedures

(2) Final policies and procedures

(3) Requirements concerning policies and proceduresConsistent with the guidelines required by subsection (b), the policies and procedures developed or issued under this subsection shall—

(A) ensure that cyber threat indicators shared with the Federal Government by any non-Federal entity pursuant to section 1503(c) of this title 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 only subject to a delay, modification, or other action due to controls established for such real-time process that could impede real-time receipt by all of the appropriate Federal entities when the delay, modification, or other action is due to controls—(I) agreed upon unanimously by all of the heads of the appropriate Federal entities;(II) carried out before any of the appropriate Federal entities retains or uses the cyber threat indicators or defensive measures; and(III) uniformly applied such that each of the appropriate Federal entities is subject to the same delay, modification, or other action; and

(iii) may be provided to other Federal entities;

(B) ensure that cyber threat indicators shared with the Federal Government by any non-Federal entity pursuant to section 1503 of this title 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; and

(i) audit capabilities; and

(ii) appropriate sanctions in place for officers, employees, or agents of a Federal entity who knowingly and willfully conduct activities under this subchapter in an unauthorized manner.

(4) Guidelines for entities sharing cyber threat indicators with Federal Government

(A) In general

(B) ContentsThe 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 subchapter that would be unlikely to include information that—(I) is not directly related to a cybersecurity threat; and(II) is personal information of a specific individual or information that identifies a specific individual.

(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 and the Secretary of Homeland Security consider appropriate for entities sharing cyber threat indicators with Federal entities under this subchapter.

(b) Privacy and civil liberties

(1) Interim guidelines

(2) Final guidelines

(A) In general

(B) Periodic review

(3) ContentThe 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 effect on privacy and civil liberties of activities by the Federal Government under this subchapter;

(B) limit the receipt, retention, use, and dissemination of cyber threat indicators containing personal information of specific individuals or information that identifies specific individuals, 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 subchapter; 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 specific individuals or information that identifies specific individuals 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) consistent with this subchapter, 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 subchapter, including the extent, if any, to which such cyber threat indicators may be used by the Federal Government;

(E) 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;

(F) protect the confidentiality of cyber threat indicators containing personal information of specific individuals or information that identifies specific individuals to the greatest extent practicable and require recipients to be informed that such indicators may only be used for purposes authorized under this subchapter; and

(G) 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.

(1) In generalNot later than 90 days after December 18, 2015, 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 non-Federal entity in real time cyber threat indicators and defensive measures, 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 and defensive measures under this subchapter that are shared by a non-Federal 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) consistent with section 1503 of this title, communications between a Federal entity and a non-Federal entity regarding a previously shared cyber threat indicator to describe the relevant cybersecurity threat or develop a defensive measure based on such cyber threat indicator; and

(ii) communications by a regulated non-Federal 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 and defensive measures 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 a non-Federal entity to any other non-Federal entity or a Federal entity, including cyber threat indicators or defensive measures shared with a Federal entity in furtherance of opening a Federal law enforcement investigation;

(ii) voluntary or legally compelled participation in a Federal investigation; and

(iii) providing cyber threat indicators or defensive measures as part of a statutory or authorized contractual requirement.

(2) Certification and designation

(A) Certification of capability and processNot later than 90 days after December 18, 2015, the Secretary of Homeland Security shall, in consultation with the heads of the appropriate Federal entities, submit to Congress a certification as to whether the capability and process required by paragraph (1) fully and effectively operates—

(i) as the process by which the Federal Government receives from any non-Federal entity a cyber threat indicator or defensive measure under this subchapter; and

(ii) in accordance with the interim policies, procedures, and guidelines developed under this subchapter.

(B) Designation

(i) In generalAt any time after certification is submitted under subparagraph (A), the President may designate an appropriate Federal entity, other than the Department of Defense (including the National Security Agency), to develop and implement a capability and process as described in paragraph (1) in addition to the capability and process developed under such paragraph by the Secretary of Homeland Security, if, not fewer than 30 days before making such designation, the President submits to Congress a certification and explanation that—(I) such designation is necessary to ensure that full, effective, and secure operation of a capability and process for the Federal Government to receive from any non-Federal entity cyber threat indicators or defensive measures under this subchapter;(II) the designated appropriate Federal entity will receive and share cyber threat indicators and defensive measures in accordance with the policies, procedures, and guidelines developed under this subchapter, including subsection (a)(3)(A); and(III) such designation is consistent with the mission of such appropriate Federal entity and improves the ability of the Federal Government to receive, share, and use cyber threat indicators and defensive measures as authorized under this subchapter.

(ii) Application to additional capability and process

(3) Public notice and accessThe 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 non-Federal entity may share cyber threat indicators and defensive measures through such process with the Federal Government; and

(B) all of the appropriate Federal entities receive such cyber threat indicators and defensive measures in real time with receipt through the process within the Department of Homeland Security consistent with the policies and procedures issued under subsection (a).

(4) Other Federal entities

(d) Information shared with or provided to the Federal Government

(1) No waiver of privilege or protection

(2) Proprietary information

(3) Exemption from disclosureA cyber threat indicator or defensive measure shared with the Federal Government under this subchapter shall be—

(A) deemed voluntarily shared information and exempt from disclosure under section 552 of title 5 and any State, tribal, or local provision of law requiring disclosure of information or records; and

(B) withheld, without discretion, from the public under section 552(b)(3)(B) of title 5 and any State, tribal, or local provision of law requiring disclosure of information or records.

(4) Ex parte communications

(5) Disclosure, retention, and use

(A) Authorized activitiesCyber threat indicators and defensive measures provided to the Federal Government under this subchapter 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—(I) a cybersecurity threat, including the source of such cybersecurity threat; or(II) a security vulnerability;

(iii) the purpose of responding to, or otherwise preventing or mitigating, a specific threat of death, a specific threat of serious bodily harm, or a specific threat of serious economic harm, including a terrorist act or a use of a weapon of mass destruction;

(iv) the purpose of responding to, investigating, prosecuting, or otherwise preventing or mitigating, a serious threat to a minor, including sexual exploitation and threats to physical safety; or

(v) the purpose of preventing, investigating, disrupting, or prosecuting an offense arising out of a threat described in clause (iii) or any of the offenses listed in—(I) sections 1028 through 1030 of title 18 (relating to fraud and identity theft);(II) chapter 37 of such title (relating to espionage and censorship); and(III) chapter 90 of such title (relating to protection of trade secrets).

(B) Prohibited activities

(C) Privacy and civil libertiesCyber threat indicators and defensive measures provided to the Federal Government under this subchapter 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—(I) personal information of a specific individual; or(II) information that identifies a specific individual; and

(iii) in a manner that protects the confidentiality of cyber threat indicators containing—(I) personal information of a specific individual; or(II) information that identifies a specific individual.

(D) Federal regulatory authority

(i) In general

(ii) Exceptions(I) Regulatory authority specifically relating to prevention or mitigation of cybersecurity threats(II) Procedures developed and implemented under this subchapter

(Pub. L. 114–113, div. N, title I, § 105, Dec. 18, 2015, 129 Stat. 2943.)

§ 1505. Protection from liability

(a) Monitoring of information systems

(b) Sharing or receipt of cyber threat indicatorsNo cause of action shall lie or be maintained in any court against any private entity, and such action shall be promptly dismissed, for the sharing or receipt of a cyber threat indicator or defensive measure under section 1503(c) of this title if—

(1) such sharing or receipt is conducted in accordance with this subchapter; and

(2) in a case in which a cyber threat indicator or defensive measure is shared with the Federal Government, the cyber threat indicator or defensive measure is shared in a manner that is consistent with section 1504(c)(1)(B) of this title 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 1504(a)(1) of this title and guidelines are submitted to Congress under section 1504(b)(1) of this title; or

(B) the date that is 60 days after December 18, 2015.

(c)Nothing in this subchapter shall be construed—

(1) to create—

(A) a duty to share a cyber threat indicator or defensive measure; or

(B) a duty to warn or act based on the receipt of a cyber threat indicator or defensive measure; or

(2) to undermine or limit the availability of otherwise applicable common law or statutory defenses.

(Pub. L. 114–113, div. N, title I, § 106, Dec. 18, 2015, 129 Stat. 2950.)

§ 1506. Oversight of government activities

(a) Report on implementation

(1) In general

(2) ContentsThe report required by paragraph (1) may include such recommendations as the heads of the appropriate Federal entities may have for improvements or modifications to the authorities, policies, procedures, and guidelines under this subchapter and shall include the following:

(A) An evaluation of the effectiveness of real-time information sharing through the capability and process developed under section 1504(c) of this title, including any impediments to such real-time sharing.

(B) An assessment of whether cyber threat indicators or defensive measures have been properly classified and an accounting of the number of security clearances authorized by the Federal Government for the purpose of sharing cyber threat indicators or defensive measures with the private sector.

(C) The number of cyber threat indicators or defensive measures received through the capability and process developed under section 1504(c) of this title.

(D) A list of Federal entities that have received cyber threat indicators or defensive measures under this subchapter.

(b) Biennial report on compliance

(1) In general

(2) ContentsEach report submitted under paragraph (1) shall include, for the period covered by the report, the following:

(A) An assessment of the sufficiency of the policies, procedures, and guidelines relating to the sharing of cyber threat indicators within the Federal Government, including those policies, procedures, and guidelines relating to the removal of information not directly related to a cybersecurity threat that is personal information of a specific individual or information that identifies a specific individual.

(C) A review of the actions taken by the Federal Government based on cyber threat indicators or defensive measures shared with the Federal Government under this subchapter, including a review of the following:

(i) The appropriateness of subsequent uses and disseminations of cyber threat indicators or defensive measures.

(ii) Whether cyber threat indicators or defensive measures were shared in a timely and adequate manner with appropriate entities, or, if appropriate, were made publicly available.

(D) An assessment of the cyber threat indicators or defensive measures shared with the appropriate Federal entities under this subchapter, including the following:

(i) The number of cyber threat indicators or defensive measures shared through the capability and process developed under section 1504(c) of this title.

(ii) An assessment of any information not directly related to a cybersecurity threat that is personal information of a specific individual or information identifying a specific individual and was shared by a non-Federal government 1

1 So in original. Probably should be capitalized.

entity with the Federal government 1 in contravention of this subchapter, or was shared within the Federal Government in contravention of the guidelines required by this subchapter, including a description of any significant violation of this subchapter.

(iii) The number of times, according to the Attorney General, that information shared under this subchapter was used by a Federal entity to prosecute an offense listed in section 1504(d)(5)(A) of this title.

(iv) A quantitative and qualitative assessment of the effect of the sharing of cyber threat indicators or defensive measures with the Federal Government on privacy and civil liberties of specific individuals, including the number of notices that were issued with respect to a failure to remove information not directly related to a cybersecurity threat that was personal information of a specific individual or information that identified a specific individual in accordance with the procedures required by section 1504(b)(3)(E) of this title.

(v) The adequacy of any steps taken by the Federal Government to reduce any adverse effect from activities carried out under this subchapter on the privacy and civil liberties of United States persons.

(E) An assessment of the sharing of cyber threat indicators or defensive measures among Federal entities to identify inappropriate barriers to sharing information.

(3) Recommendations

(d) Form of reports

(e) Public availability of reports

(Pub. L. 114–113, div. N, title I, § 107, Dec. 18, 2015, 129 Stat. 2951.)

§ 1507. Construction and preemption

(a) Otherwise lawful disclosures

Nothing in this subchapter 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 a non-Federal entity to any other non-Federal entity or the Federal Government under this subchapter; 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 subchapter.

(b) Whistle blower protections

Nothing in this subchapter 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

(e) Prohibited conduct

(f) Information sharing relationships

Nothing in this subchapter 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 non-Federal entity and a Federal entity or another non-Federal entity; or

(4) to require the use of the capability and process within the Department of Homeland Security developed under section 1504(c) of this title.

(g) Preservation of contractual obligations and rights

Nothing in this subchapter 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 non-Federal entities, or between any non-Federal entity and a Federal entity; or

(2) to abrogate trade secret or intellectual property rights of any non-Federal entity or Federal entity.

(h) Anti-tasking restriction

Nothing in this subchapter shall be construed to permit a Federal entity—

(1) to require a non-Federal entity to provide information to a Federal entity or another non-Federal entity;

(2) to condition the sharing of cyber threat indicators with a non-Federal entity on such entity’s provision of cyber threat indicators to a Federal entity or another non-Federal entity; 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 or another non-Federal entity.

(i) No liability for non-participation

(j) Use and retention of information

(k) Federal preemption

(1) In general

(2) State law enforcement

(l) Regulatory authority

Nothing in this subchapter shall be construed—

(1) to authorize the promulgation of any regulations not specifically authorized to be issued under this subchapter;

(2) to establish or limit any regulatory authority not specifically established or limited under this subchapter; 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 malicious cyber activity carried out by foreign powers

(n) Criminal prosecution

(Pub. L. 114–113, div. N, title I, § 108, Dec. 18, 2015, 129 Stat. 2953; Pub. L. 115–232, div. A, title XVI, § 1631(b), Aug. 13, 2018, 132 Stat. 2123.)

§ 1508. Report on cybersecurity threats

(a) Report required

(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 data 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.

(d) Intelligence community defined

(Pub. L. 114–113, div. N, title I, § 109, Dec. 18, 2015, 129 Stat. 2955.)

§ 1509. Exception to limitation on authority of Secretary of Defense to disseminate certain information

Notwithstanding subsection (c)(3) of section 393 of title 10, the Secretary of Defense may authorize the sharing of cyber threat indicators and defensive measures pursuant to the policies, procedures, and guidelines developed or issued under this subchapter.

(Pub. L. 114–113, div. N, title I, § 110, Dec. 18, 2015, 129 Stat. 2956.)

§ 1510. Effective period

(a) In general

(b) Exception

(Pub. L. 114–113, div. N, title I, § 111, Dec. 18, 2015, 129 Stat. 2956.)