Pessimism is mounting about the chances that Congress will reauthorize a cyber threat information-sharing law before it’s set to expire at the end of this month — with no clear path for either a temporary or long-term extension.
Industry groups and the Trump administration have put a lot of muscle into renewing the 2015 Cybersecurity Information Sharing Act (CISA 2015), which they say is a vital tool in the fight against malicious hackers because of the legal protections it provides for organizations to share cyber threat data with each other and the government.
But in recent weeks, multiple efforts to re-up the law have failed or been brushed aside:
- The House inserted a two-month extension of CISA 2015 into a continuing resolution to avert a government shutdown, but after the House passed the bill, the Senate voted against the continuing resolution last week. Negotiations about continuing to fund the federal government past the end of this month appear to be at a standstill.
- The Senate Homeland Security and Governmental Affairs Committee had scheduled a markup of legislation last week introduced by Chairman Rand Paul, R-Ky., to extend the law with significant changes that drew bipartisan and industry criticism. The panel then abruptly canceled the markup.
- The top Democrat on Paul’s panel, Gary Peters of Michigan, tried to get an unaltered or “clean” 10-year reauthorization of the expiring law passed on the Senate floor with a unanimous consent motion, but Paul objected without explanation, preventing it from advancing.
- House Homeland Security Chairman Andrew Garbarino, R-N.Y., sought earlier this month to offer his legislation to extend and alter CISA 2015 as an amendment to the House version of the annual defense policy bill, or National Defense Authorization Act (NDAA), but the Rules Committee prohibited the amendment from receiving a vote. (A Senate intelligence policy bill had included a 10-year extension, but when senators folded the intelligence authorization bill into that chamber’s version of the NDAA, Paul objected and got it removed.)
All of that leaves an extension of CISA 2015 without a home, and with a key senator, Paul, likely to stand in the way of swift renewal anytime soon. Under the circumstances, “I bet it does” expire, one industry source said of CISA 2015.
“I’d be pleasantly surprised if it is continued given Paul’s objection,” the source said.
And that could be a big problem for both lawmakers and private-sector organizations.
While it’s unclear exactly how even a temporary lapse in the law might affect cyber information sharing, some have offered dire predictions about how bad it will be. In the legal community, “if you’re giving people a reason not to do something, they won’t do it,” said another industry source.
If there’s a big breach during a time when the law has expired, the political risks increase, because cyberattack victims are likely to blame the lapse for what happens, said the source, who has extensive cybersecurity policy experience.
Best hopes (until recently)
Advocates had long pinned their hopes that a temporary two-year CISA 2015 renewal would be included in the continuing resolution (CR), given the urgency to avoid a government shutdown and the fact that the law was sent to expire when the fiscal year ends gave Congress a perfect opportunity. The House GOP’s inclusion of that short-term extension language in the CR — and Democrats’ support for it in their own proposal — indicated widespread support for the idea. The CR passed 217-212.
Senate leaders have a tradition of honoring objections on policy matters from the heads of the committees with jurisdiction over those topics when they are up for consideration in other bills. But multiple observers told CyberScoop that they interpreted the inclusion of the CISA 2015 law extension in the House CR as a sign that Senate leaders were prepared to ignore objections from Paul in this case.
Besides lawmakers and private-sector groups, the Trump administration has been pressing for renewal. Industry and Senate sources say that new National Cyber Director Sean Cairncross has been especially focused on selling lawmakers on the need for action on CISA 2015.
But temporary renewal is now a casualty of the broader fight over a government shutdown, with the Senate voting 44-48 against the CR.
Paul complications
Earlier this month, the House Homeland Security Committee approved Garbarino’s bill to renew CISA 2015 for 10 years by a vote of 25-0. While Democrats questioned whether the legislation should’ve included any changes to the law rather than a “clean” reauthorization, Garbarino’s changes themselves garnered no significant opposition.
That wasn’t the case for the version Paul sponsored and that was scheduled for vote in his committee last week, which would have provided a two-year reauthorization. Industry groups objected to the Paul legislation striking provisions of the 2015 law that provided protections related to cyber threat data sharing with the federal government against disclosure from Freedom of Information Act requests. They opposed a section that would get rid of the law’s section on federal preemption, under which the law supersedes state laws and regulations.
Democrats also raised concerns about several key definitions in the law, including those related to the rules for how companies can use defensive measures. According to Senate aides who spoke with CyberScoop, these changes could leave small- and medium-sized businesses particularly vulnerable. Combined with the other industry objections, the aides said, Paul’s bill would have functionally ended private sector information sharing with the government.
Industry is wary of major changes to CISA 2015 in general.
“The fact is that over the last 10 years, it’s been an effective way for the private sector to share information, which is a key ingredient in improving cybersecurity, and we should just be very careful while making changes to something that is working pretty well,” said Henry Young, senior director of policy for Business Software Alliance.
A section of the legislation that Paul wrote on free speech protections also created questions. Five Senate and industry sources told CyberScoop that Paul canceled the markup because Senate Republican panel members planned amendments that would have, with somewhat different approaches, stripped Paul’s changes in favor of a “clean” reauthorization.
Spokespeople for senators that sources said were behind those amendments, Joni Ernst of Iowa and Bernie Moreno of Ohio, did not respond to requests for comment.
A spokesperson for Paul disputed what the sources told CyberScoop about the reason for the cancellation.
“The characterization of the cancellation of the markup is false,” said the spokesperson, Gabrielle Lipsky. “The Democrats, who are not negotiating in good faith, asked for more time.”
Peters said in a Senate floor speech Friday that it was “disappointing” that Paul canceled the markup, and that “we were blocked from even having a discussion about the policy or draft legislation.”
Constituents in Paul’s home state have lobbied him on the importance of a “clean” reauthorization of CISA 2015; Paul’s public remarks about extension of the law have largely focused on passing a bill that includes additional guarantees on free speech.
“We make this request respecting your determination to protect Americans’ privacy and freedom of speech from censorship and intimidation by federal government employees, and we share those concerns,” a number of Kentucky business groups wrote to Paul in a Sept. 17 letter advocating for a “clean” extension. “We would welcome the opportunity to work with you to increase privacy and censorship protections in other legislation.”
Peters asked for unanimous consent Friday for the Senate to advance a 10-year reauthorization. Paul said only, “I object,” thus blocking the renewal effort from Peters.
“Congress must pass an extension of these cybersecurity protections and prevent a lapse that would completely undercut our cybersecurity defenses and expose critical sectors to preventable attacks,” Peters said in a statement to CyberScoop. “These liability protections ensure trusted, rapid information sharing between the private sector and government to quickly detect, prevent, and respond to cybersecurity threats. I’m continuing to work toward a bipartisan, bicameral deal that will renew these protections for the long-term, but we cannot afford to let these critical cybersecurity protections expire at the end of the month.”
Other avenues
A common hope among advocates was that after a short-term extension became law as part of the CR, a longer-term extension would be included in the NDAA, which often passes toward the end of each calendar year or the start of the next.
But hopes for that diminished after actions in both the House and Senate. In the Senate, the Intelligence Committee had included a 10-year renewal in its annual intelligence authorization bill. That legislation was then included in the Senate version of the NDAA, but sources on and off the Hill told CyberScoop that Paul objected to inclusion of the CISA 2015 extension, so it was removed.
And the Rules Committee decided on Sept. 9 that Garbarino’s CISA 2015 renewal amendment wasn’t germane, thus preventing him from offering it during debate on the House floor about the NDAA. One day later, the House passed its version of the NDAA, 231-196.
The next steps for CISA 2015 reauthorization are unclear. Paul’s office did not respond to a question about his future plans for renewing CISA 2015.
Options for a short-term renewal are limited for now to whatever congressional leaders do to try to revive or replace a CR, but the timeline for doing so before CISA 2015 expires is exceptionally tight. Options for a long-term renewal might include an amendments package for the Senate version of the NDAA, since the full Senate has yet to take up its bill.
CISA 2015 “must not lapse on September 30, 2025. Allowing it to expire will create a significantly more hostile security environment for the U.S.,” Matthew Eggers, vice president of cybersecurity policy in the cyber, intelligence, and security division at the U.S. Chamber of Commerce, told CyberScoop in a written statement. “The Chamber advocates for a multi-year reauthorization of this vital law. Short-term extensions are counterproductive. Both the private sector and the government need certainty, including the ability to allocate resources for long-term cybersecurity planning and implementation. House and Senate leaders and the Trump administration have expressed strong support for reauthorizing CISA 2015.”
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