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With SOPA Shelved, Congress Readies its Next Attack on the Internet

February 13, 2012 - by Donny Shaw

One of the things that became clear in Congress’ push to pass Hollywood’s web censorship bills is that powerful corporations and the federal government do not want the rule of law to apply on the internet. The attitude that our basic freedoms and legal protections are somehow not valid on the internet is partly just the kind of reaction you would expect from entrenched powers whenever new technologies emerge, but it’s also a response to the particular peer-to-peer features of the internet that threaten to make their key sources of power — control of information flow — less relevant.

Not surprisingly, with SOPA and PIPA indefinitely shelved, some members of Congress are getting ready to introduce a new internet power grab bill. The bill, which is still in draft form, is called the “Cybersecurity Information Sharing Act of 2012.” The basic idea is to promote the sharing of information regarding perceived cybersecurity threats between private entities and the federal government. Of course, sharing information about cybersecurity threats is already perfectly legal, provided that the parties involved follow basic legal guidelines for protecting the privacy of individuals who are not criminal suspects. According to a review of the draft text by an experience legislative expert, the first thing the bill would do is throw out those legal guidelines and replace them with a blanket understanding that information monitoring and sharing that is done in the name of cybersecurity is essentially above the law and immune from legal recourse. Jim Harper at Cato Institute explains based on his reading of the draft:

Reading over the draft, I was struck by sweeping language purporting to create “affirmative authority to monitor and defend against cybersecurity threats.” To understand the strangeness of these words, we must start at the beginning:

We live in a free country where all that is not forbidden is allowed. There is no need in such a country for “affirmative” authority to act. So what does this section do as it in purports to permit private and governmental entities to monitor their information systems, operate active defenses, and such? It sweeps aside nearly all other laws controlling them.

“Consistent with the Constitution of the United States and notwithstanding and other provision of law,” it says (emphasis added), entities may act to preserve the security of their systems. This means that the only law controlling their actions would be the Constitution.

It’s nice that the Constitution would apply, but the obligations in the Privacy Act of 1974 would not. The Electronic Communications Privacy Act would be void. Even the requirements of the E-Government Act of 2002, such as privacy impact assessments, would be swept aside.

The Constitution doesn’t constrain private actors, of course. This language would immunize them from liability under any and all regulation and under state or common law. Private actors would not be subject to suit for breaching contractual promises of confidentiality. They would not be liable for violating the privacy torts. Anything goes so long as one can make a claim to defending “information systems,” a term that refers to anything having to do with computers.

Elsewhere, the bill creates an equally sweeping immunity against law-breaking so long as the law-breaking provides information to a “cybersecurity exchange.” This is a breath-taking exemption from the civil and criminal laws that protect privacy, among other things.

This is analogous to SOPA and PIPA’s provisions that would allow corporations to block access to entire websites suspected of containing links to copyright infringement without having to seek court approval. The cybersecurity bill appears to allow corporations and the government to share internet-user information freely, in a wholesale manner, as long as it is done in the name of protecting cybersecurity. Corporations would be given full legal immunity for all of the private information of innocent, non-suspect internet users they hand over to the government, just as they would for all of the legal internet content they would be empowered to censor under SOPA and PIPA.

The bill is scheduled to be officially introduced next week by Senate Honeland Security Chairman Joe Lieberman [I, CT]. Majority Leader Harry Reid [D, NV] is planning to bring it the Senate floor for a vote in early 2012 (i.e. as soon as possible). The bill language could still be changed from the draft reviewed by Harper before it is introduced. We’ll be watching it closely.

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Comments

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  • alkrauss 02/14/2012 12:37pm

    Is this S.2102, introduced 2/12? And/or would it be the bill talked about here?

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    alkrauss 02/14/2012 2:13pm

    According to Sen. Rockefeller’s office, the bill number for the cybersecurity bill he just introduced is S.2105. It isn’t on the Thomas system yet, but here are articles by Reuters and Bloomberg.

  • Comm_reply
    alkrauss 02/14/2012 2:40pm

    Looks like text of s.2105 can be found here, although at the moment if you open the pdf, it is called S.11 and the introduction date is blank.

  • alkrauss 02/14/2012 3:29pm

    Yes, S. 2105 is the bill. From the text available here:

    TITLE VII—INFORMATION SHARING
    Sec. 701. Affirmative authority to monitor and defend against cybersecurity
    threats.

    Looks like this is the one. With Reid wanting to bring it to the floor ASAP and a Senate Homeland Security & Governmental Affairs hearing scheduled on February 16, we had better get into action fast on this.

  • alkrauss 02/14/2012 8:02pm

    Some of the worst parts of the bill have been modified, however, take a look at Title VII Information:

    “Notwithstanding chapter 119, 121, or 206 of title 18, United States Code, the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), and the Communications Act of 1934 (47 U.S.C. 151 et seq.), any private
    entity may—
    (1) monitor information systems of the entity and information that is stored on, processed by, or transiting the information systems for cybersecurity threats;”

    Making exceptions to FISA and Title 18 of the US Code (which has to do with intercepting communications, pen registries and the like) should not be done in haste.

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  • richarddelta 02/27/2012 10:20pm

    I’m feeling the government knows this is a losing battle… Funningly enough, I am quite certain additional laws will be passed at some point…i just hope (1) they are not as full-on as SOPA and instead simply allow the gov’t a feeling of control with no control whatsoever…and (2) they in no way sensor anything but instead prosecute those who break the new law Best Slow Cooker Reviews 2012

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  • DaveLawson 03/11/2012 10:21pm

    Wow, this is a scary bill. I will be tracking this one. Thanks to the other comments for finding the bill number.

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  • kezzn2 04/05/2012 9:36am

    Pay attention to who is passing these bills, guys. That Senator Joe Lieberman [I, CT] mentioned above has been implicated in multiple such immoral and unconstitutional bills — feel free to view his record.

    Senator Lindsey Graham is another key figure.

    These people are as crooked as crooked gets.

  • SmartGuy2B 05/10/2012 10:04am

    Anytime the Govt gets involved in private/non govt issues it tends to make them worst by imposing laws which take freedoms away. They’ve been hungry for imposing tax on the internet while they are too inept to balance a budget or get deficits under control. And we the people are supposed just give them more of our hard earned dollars because they are sooo diligent, responsible and accountable? They should take a search engine marketing training program and see all the hard work it takes to make it on the internet, then respect it, and butt out!

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