Critical Information Infrastructure Protection and the Law: by Stewart D. Personick, Cynthia A. Patterson

By Stewart D. Personick, Cynthia A. Patterson

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26 CRITICAL INFORMATION INFRASTRUCTURE PROTECTION AND THE LAW a government agency is assumed to be commercial information, broadly defined. Cybersecurity-related information may be commercial in nature, but is it always “privileged or confidential”? C. 22 The Argument for Expanding FOIA Exemptions Given that the purpose of FOIA is to ensure that records in the possession of the government are accessible to the public, private sector companies have expressed concern that critical infrastructure information shared with the government might be released to third parties via an FOIA request.

The Argument That an Antitrust Exemption Is Needed Many in the private sector are concerned that sharing CIP-related information may expose participating companies to antitrust enforcement actions. In addition, many are concerned that determination of the safe harbors for CIP-related information sharing is a complex, expensive, and risky process that will discourage smaller firms from CIP-related information sharing. Further, although formal advice from the government can be obtained in the form of a “business review letter” (see next section), that mechanism has its limitations36 and does not provide absolute immunity from government enforcement actions or private litigation.

July 24, 2002. 15The PCCIP issued a series of reports, known as the Legal Foundations reports, that identified many legal issues associated with information assurance, including the Freedom of Information Act (FOIA), antitrust, tort liability, the Defense Production Act, and the Stafford Act. htm>. 16 CRITICAL INFORMATION INFRASTRUCTURE PROTECTION AND THE LAW laws examined are those that affect the willingness of industry to cooperate with the government to prevent, detect, and mitigate attacks.

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