Written by Jim Harper, Director of Information Policy Studies at the Cato Institute. Posted with permission from Cato @ Liberty.
A year ago, almost to the day, I blogged about a legislative package on cybersecurity being proposed in the Senate. “Soviet-Style Cybersecurity,” I called it, because of the “centralizing and deadening effect” it would have on the many and varied efforts to respond to the many problems lumped together as “cybersecurity.” President Obama’s new executive order, titled “Improving Critical Infrastructure Cybersecurity,” has similar, if slightly more sinister, qualities.
To understand my thinking in this area, you must first understand the concepts in a superlative law review article I first read when I was doing oversight of the regulatory process as a congressional staffer. “Administrative Arm-Twisting in the Shadows of Congressional Delegations of Authority” is by University of Flordia law professor Lars Noah. In it, he described the administrative practice of imposing sanctions or withholding benefits in order to elicit “voluntary compliance” from regulated entities. The upshot? There is no “voluntary” when businesses are repeat players or under ongoing supervision of an agency.
The cybersecurity executive order has arm-twisting all over it.
This weekend Mitt Romney announced that his running mate would be Congressman Paul Ryan from Wisconsin. Ryan gained a lot of notoriety recently with his better-than-Obama’s budget proposal, which aimed to balance the budget in the next 3 or 4 decades.
It’s a sad day for conservatives when the hero to save them from their budget woes needs 30+ years to balance the budget.
Still, Ryan is the latest non-libertarian making waves about balancing the federal budget, so I would like to believe that Romney’s pick of Ryan is more about sending a message that he is (or that he wants to be) serious about fiscal issues rather than a pick to appease the Tea Party folks who don’t really care for Romney.
I am, however, a bit confused over the Tea Party excitement of Ryan. Sure, Romney could have made a worse choice, but Tea Party leaders are acting like the problems with Romney have vanished now that Ryan is on the ticket.
Let’s remember this is the same Paul Ryan who not only supported TARP but went to the floor of the House to beg his colleagues to do the same. This is the same Paul Ryan who supported the auto bailouts. How do those positions qualify anyone as a fiscal conservative?
Legislators in Washington are at it again, working tirelessly to ruin a perfectly good Internet.
Maybe it would be different if they consulted with leaders in technological advancements to find out the implications of an idea. Or maybe they could ask what technology might break because of a bill. But that’s not how it works.
I imagine the Congressional discussions of Internet manipulation to be like a group of senior citizens sipping coffee at McDonald’s at 5:00 a.m. and fussing about those “dagburned Internet machines” taking over life as they once knew it.
Surely it can’t be that way, but when you read the legislation, you have to wonder.
SOPA and PIPA threatened to do all sorts of bad things to the Internet. There was a whole list of problems with that legislation, and though massive Internet protests managed to derail the bills, it’s worth noting that if not for those protests, SOPA and PIPA would have been passed with much bipartisan support.
Then CISPA came along, and while it wasn’t a brutal pillaging of core Internet technologies like SOPA and PIPA, it would have opened the door for some serious privacy issues. With full cooperation from the Heritage Foundation (which was an outright betrayal of the American public), House Republicans managed to pass CISPA and send it to the Senate, where it fortunately hasn’t gone anywhere – yet.
I spent most of Friday in disbelief.
The House was supposed to be considering the Cyber Intelligence Safety and Protection Act, otherwise known as CISPA, on Friday. Thursday I caught some rumors that it was being moved up a day, and when I got online Friday morning, I found that they had indeed voted on it, and it passed 248-168.
My disbelief wasn’t that it passed but rather that my Congressman, Tom Graves, had voted in favor of it. He has a 5-way conservative test for considering legislation, and I’m still not sure how CISPA passed his test. I think CISPA has some obvious Constitutional problems, and when I saw Graves’ vote, I felt (for lack of a better word) betrayed.
That’s not to say that Graves is awful and needs to be thrown out. On the contrary, Tom really is a pretty good Congressman, and he’s usually on the right side of an issue even before I offer my input on legislation. For example, he opposed NDAA, and he was opposing SOPA before everybody else. Graves wasn’t the only usually-good Congressman to vote for this bill. Several others shocked me with a vote for CISPA as well.
While asking around and looking for reasons why these Congressmen went the wrong way on this bill, I was told multiple times that The Heritage Foundation was a major influence in CISPA’s passing. How unfortunate. While The Heritage Foundation typically does a good thing, apparently when it’s wrong, it’s really wrong.
Yesterday evening, the House — acting a day earlier than scheduled — passed the Cyber Intelligence Sharing and Protection Act (CISPA) in the face of opposition from the White House and a skeptical Internet community:
The House on Thursday approved cybersecurity legislation that privacy groups have decried as a threat to civil liberties.
The Cyber Intelligence Sharing and Protection Act, or CISPA, sponsored by Reps. Mike Rogers (R-Michigan) and Dutch Ruppersberger (D-Maryland), passed on a vote of 248 to 168.
Its goal is a more secure internet, but privacy groups fear the measure breaches Americans’ privacy along the way. The White House had weighed in on Wednesday, threatening a veto unless there were significant changes to increase consumer privacy. The bill was amended to provide more privacy protections, but it was not immediately clear whether the Senate or the White House would give the amended bill its blessing.
The Cyber Intelligence Sharing and Protection Act (CISPA) could soon be coming back up in Congress thanks to efforts by Sens. Dianne Feinstein (D-CA) and Saxby Chambliss (R-GA).
After quite speculation at the end of last month, Mother Jones reported on Monday that Feinstein confirmed that she and Chambliss were working to revive the measure, which is sure to get under the craw of Internet activists and civil liberties groups.
“I am working with Senator Saxby Chambliss (R-Ga.) on bipartisan legislation to facilitate the sharing of cyber related information among companies and with the government and to provide protection from liability,” Feinstein told Mother Jones. “The legislation will…still maintain necessary privacy protections.”
This is the second attempt this year to move CISPA through Congress. The House of Representatives passed CISPA back in April, over a veto threat from the White House due to a lack of privacy protections. The Senate, however, shelved the measure shortly thereafter.
The National Security Agency’s broad surveillance programs aren’t just bad for Americans’ privacy, they’re also bad for business. That’s what Facebook CEO Mark Zuckerberg — a guy who knows a thing or two about running an Internet firm — said on Wednesday at an event hosted by TechCrunch:
While speaking at TechCrunch’s Disrupt event in San Francisco, Zuckerberg emphasized that it is his job “and our job to protect everyone who uses Facebook and all the information they share with us.” He said the government response put U.S. tech firms doing business overseas in a tough spot.
“It’s our government’s job to protect all of us and also to protect our freedoms and protect our economy … and companies,” he added. “And I think they did a bad job of balancing those things here. … So frankly, I think the government blew it. They blew it on communicating the balance of what they were going for here with this.”
Zuckerberg appeared to be noting the government’s initial steps when the NSA story first broke after revelations by leaker Edward Snowden.
“The morning after this started breaking, a bunch of people asked them what they thought,” he said. “And the government’s comment was, ‘Oh don’t worry, basically we’re not spying on any Americans.’ Oh, wonderful, that’s really helpful to companies who are trying to serve people around the world and really going to inspire confidence in American Internet companies. Thanks for going out there and being clear about what you are doing. I think that was really bad.”
There has been a lot of outrage and surprise expressed by members of Congress over the mounting scandals coming out the Obama Administration. But perhaps the real scandal is that the Congress is often complicit when Americans liberties are violated by out-of-control administrations.
During a speech yesterday on the House floor, Congressman Thomas Massie (R-KY) pointedly told his colleagues in Washington to “wake up” to the sort of overreach and abuses of civil liberties that are being committed by the government.
“Can’t we see what’s happening? In just the past month we discovered that the NSA is snooping on millions of innocent Americans using the PATRIOT ACT (Congress wrote the Patriot Act!), the IRS is targeting conservative organizations using the tax code (Congress created that tax code), and DHS has 200 million hollow-point bullets stockpiled (Congress funded DHS — just last week!),” explained Massie. “You want me to be surprised? I’m not surprised… I’m outraged! But what’s happening here? In each case of executive overreach, Congress gave an inch, and the executive branch took a mile.”
Massie noted that the outrage from members over the scandals is hypocritical. They complain and investigate then, he said, “Congress turns around and funds and encourages more unconstitutional behavior.”
“If we don’t reverse this trend, we can kiss our civil liberties good–bye,” said Massie.
“The Constitution embodies American principles that men and women have fought and died to protect. We swore an oath to it. Mr Speaker, I encourage my colleagues to reflect on the damage that CISPA, the PATRIOT Act, and the NDAA have wrought on our civil liberties, and implore my fellow members to uphold the constitutional rights they swore to protect,” he added. “Don’t yield one inch.”
Watch Massie’s full speech below:
Nick Gillespie of Reason TV recently sat down with Rep. Thomas Massie (R-KY), who is one of the new libertarian-minded Republicans in the Congress, to discuss a number of issues, ranging from his support of the Keystone XL and his opposition to expansive government surveillance and the so-called “fiscal cliff” deal that was passed earlier this year.
On Keystone XL, which was recently approved by the House, Massie explained that he voted to support the project because he “thought that the government was trying to hold up the project.
“I sit on the committee that marked up the bill, and so I got a chance to hear the amendments that the Democrats offered,” explained Massie. “They had some good points, but most of their amendments were designed to kill the bill. I wish they had offered amendments that were actually constructive.”
Gillespie asked about passing more laws to protect Americans from onerous and overreaching proposals like CISPA and other forms of government surveillance. Massie said that Congress doesn’t really need to pass new protections because the Constitution already protects the rights of Americans.
“A lot of what I see Congress grapple with here is the introduction of new technology into society and trying to resolve that with existing laws. I don’t necessarily think we need new laws, we need to respect the Constitution,” Massie told Gillespie. “So just because we have a new type of technology like the Internet or drones, for instance, doesn’t mean that all of our constitutional rights have to go away. As Congressmen we have be sure that they’re preserved even with the advent of new technology.”
During the debate in the House of Representatives over cyber-security, the White House issued veto threat over CISPA due to Internet privacy concerns. Despite that strong stance on a controversial piece of legislation, there have been a number of news stories recently showing various government agencies willingness to ignore constitutional protections to gain access to e-mail and other forms of electronic communication and files.
In fact, it’s the official policy of President Barack Obama’s Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) that agents do not need a warrant when they want to gain access to e-mail and Facebook accounts:
The U.S. Department of Justice and the FBI believe they don’t need a search warrant to review Americans’ e-mails, Facebook chats, Twitter direct messages, and other private files, internal documents reveal.
Government documents obtained by the American Civil Liberties Union and provided to CNET show a split over electronic privacy rights within the Obama administration, with Justice Department prosecutors and investigators privately insisting they’re not legally required to obtain search warrants for e-mail. The IRS, on the other hand, publicly said last month that it would abandon a controversial policy that claimed it could get warrantless access to e-mail correspondence.