The U.S. Senate is preparing to vote on cybersecurity legislation that proponents say is sorely needed to better help companies and the government share information about the latest Internet threats. Critics of the bill and its many proposed amendments charge that it will do little, if anything, to address the very real problem of flawed cybersecurity while creating conditions that are ripe for privacy abuses. What follows is a breakdown of the arguments on both sides, and a personal analysis that seeks to add some important context to the debate.

Up for consideration by the full Senate this week is the Cybersecurity Information Sharing Act (CISA), a bill designed to shield companies from private lawsuits and antitrust laws if they seek help or cooperate with one another to fight cybercrime. The Wall Street Journal and The Washington Post each recently published editorials in support of the bill.

Update, 6:57 p.m. ET: The Senate this afternoon passed CISA by a vote of 74-21.

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“The idea behind the legislation is simple: Let private businesses share information with each other, and with the government, to better fight an escalating and constantly evolving cyber threat,” the WSJ said in an editorial published today (paywall). “This shared data might be the footprint of hackers that the government has seen but private companies haven’t. Or it might include more advanced technology that private companies have developed as a defense.”

“Since hackers can strike fast, real-time cooperation is essential,” the WSJ continued. “A crucial provision would shield companies from private lawsuits and antitrust laws if they seek help or cooperate with one another. Democrats had long resisted this legal safe harbor at the behest of plaintiffs lawyers who view corporate victims of cyber attack as another source of plunder.”

The Post’s editorial dismisses “alarmist claims [that] have been made by privacy advocates who describe it as a ‘surveillance’ bill”:

“The notion that there is a binary choice between privacy and security is false. We need both privacy protection and cybersecurity, and the Senate legislation is one step toward breaking the logjam on security,” the Post concluded. “Sponsors have added privacy protections that would scrub out personal information before it is shared. They have made the legislation voluntary, so if companies are really concerned, they can stay away. A broad coalition of business groups, including the U.S. Chamber of Commerce, has backed the legislation, saying that cybertheft and disruption are “advancing in scope and complexity.”

But critics of CISA say the devil is in the details, or rather in the raft of amendments that may be added to the bill before it’s passed. The Center for Democracy & Technology (CDT), a nonprofit technology policy group based in Washington, D.C., has published a comprehensive breakdown of the proposed amendments and their potential impacts.

CDT says despite some changes made to assuage privacy concerns, neither CISA as written nor any of its many proposed amendments address the fundamental weaknesses of the legislation. According to CDT, “the bill requires that any Internet user information volunteered by a company to the Department of Homeland Security for cybersecurity purposes be shared immediately with the National Security Agency (NSA), other elements of the Intelligence Community, with the FBI/DOJ, and many other Federal agencies – a requirement that will discourage company participation in the voluntary information sharing scheme envisioned in the bill.”

CDT warns that CISA risks turning the cybersecurity program it creates into a backdoor wiretap by authorizing sharing and use of CTIs (cyber threat indicators) for a broad array of law enforcement purposes that have nothing to do with cybersecurity. Moreover, CDT says, CISA will likely introduce unintended consequences:

“It trumps all law in authorizing companies to share user Internet communications and data that qualify as ‘cyber threat indicators,’ [and] does nothing to address conduct of the NSA that actually undermines cybersecurity, including the stockpiling of zero day vulnerabilities.”

ANALYSIS

On the surface, efforts to increase information sharing about the latest cyber threats seem like a no-brainer. We read constantly about breaches at major corporations in which the attackers were found to have been inside of the victim’s network for months or years on end before the organization discovered that it was breached (or, more likely, they were notified by law enforcement officials or third-party security firms).

If only there were an easier way, we are told, for companies to share so-called “indicators of compromise” — Internet addresses or malicious software samples known to be favored by specific cybercriminal groups, for example — such breaches and the resulting leakage of consumer data and corporate secrets could be detected and stanched far more quickly.

In practice, however, there are already plenty of efforts — some public, some subscription-based — to collect and disseminate this threat data. From where I sit, the biggest impediment to detecting and responding to breaches in a more timely manner comes from a fundamental lack of appreciation — from an organization’s leadership on down — for how much is riding on all the technology that drives virtually every aspect of the modern business enterprise today. While many business leaders fail to appreciate the value and criticality of all their IT assets, I guarantee you today’s cybercrooks know all too well how much these assets are worth. And this yawning gap in awareness and understanding is evident by the sheer number of breaches announced each week.

Far too many organizations have trouble seeing the value of investing in cybersecurity until it is too late. Even then, breached entities will often seek out shiny new technologies or products that they perceive will help detect and prevent the next breach, while overlooking the value of investing in talented cybersecurity professionals to help them make sense of what all this technology is already trying to tell them about the integrity and health of their network and computing devices.

One of the more stunning examples of this comes from a depressingly static finding in the annual data breach reports published by Verizon Enterprise, a company that helps victims of cybercrime respond to and clean up after major data breaches. Every year, Verizon produces an in-depth report that tries to pull lessons out of dozens of incidents it has responded to in the previous year. It also polls dozens of law enforcement agencies worldwide for their takeaways from investigating cybercrime incidents.

The depressingly static stat is that in a great many of these breaches, the information that could have tipped companies off to a breach much sooner was already collected by the breached organization’s various cybersecurity tools; the trouble was, the organization lacked the human resources needed to make sense of all this information.

We all want the enormous benefits that technology and the Internet can bring, but all too often we are unwilling to face just how dependent we have become on technology. We embrace and extoll these benefits, but we routinely fail to appreciate how these tools can be used against us. We want the benefits of it all, but we’re reluctant to put in the difficult and very often unsexy work required to make sure we can continue to make those benefits work for us.

The most frustrating aspect of a legislative approach to fixing this problem is that it may be virtually impossible to measure whether a bill like CISA will in fact lead to more information sharing that helps companies prevent or quash data breaches. Meanwhile, history is littered with examples of well-intentioned laws that produce unintended (if not unforeseen) consequences.

Having read through the proposed CISA bill and its myriad amendments, I’m left with an impression perhaps best voiced in a letter sent earlier this week to the bill’s sponsors by nearly two-dozen academics. The coalition of professors charged that CISA is an example of the classic “let’s do something law” from a Congress that is under intense pressure to respond to a seemingly never-ending parade of breaches across the public and private sectors.

Rather than encouraging companies to increase their own cybersecurity standards, the professors wrote, “CISA ignores that goal and offloads responsibility to a generalized public-private secret information sharing network.”

“CISA creates new law in the wrong places,” the letter concluded. “For example, as the attached letter indicates, security threat information sharing is already quite robust. Instead, what are most needed are more robust and meaningful private efforts to prevent intrusions into networks and leaks out of them, and CISA does nothing to move us in that direction.”

Further reading: Independent national security journalist Marcy Wheeler’s take at EmptyWheel.net.

Tags: CDT, Center for Democracy & Technology, CISA, Cybersecurity Information Sharing Act, DBIR, emptywheel.net, Marcy Wheeler, S., S. 754, Verizon Enterprise