Domestic spying capabilities used by the National Security Agency to collect massive amounts of data on American citizens could soon be available to the Department of Homeland Security — a bureaucracy with the power to arrest citizens that is not subject to limitations imposed on the NSA.
Unlike the DHS, the NSA is an intelligence agency, not a domestic law enforcement agency. It cannot arrest those suspected of wrongdoing. That power of the federal government lies with agencies under the jurisdiction of the Justice Department, the Treasury, Homeland Security and other law enforcement agencies.
The NSA and DHS have waged a long Capitol Hill turf war over cybersecurity. Bills such as the Cyber Intelligence Sharing and Protection Act and the Cybersecurity Act of 2012 have sought to clearly define the relationship between the two agencies, but struggled to get off the ground.
Until recently, the NSA’s military access to domestic private sector records — including personally identifiable consumer information — fueled opposition to CISPA’s passage from civil liberties advocates, the White House and Senate Democrats.
Meanwhile, Republican critics of the DHS believed the department was too incompetent and inexperienced to conduct meaningful cybersecurity oversight for the nation’s critical infrastructure. Both CISPA and the Cybersecurity Act died in session last year.
The drive for an expanded DHS role in domestic spying, however, has been picking up steam. CISPA was reintroduced in the House of Representatives in February and passed in April. Although the bill stalled in the Senate, one of its most troubling portions remains intact: a provision granting private companies immunity from “any provision of the law” if they break privacy agreements between themselves and their customers to share private information with the federal government.
Michigan Republican Rep. Justin Amash opposed this provision in a debate with House Intelligence Committee Chairman Mike Rogers in April, but failed to earn his colleagues’ support. The provision remained intact when the House approved CISPA in April.
Democrats also appear to be rethinking their positions about cyber-spying powers.
President Obama signed an executive order on February 12 establishing DHS’s role in securing the nation’s cybersecurity. Later, the federal government expanded a cybersecurity program “that scans Internet traffic headed into and out of defense contractors to include far more of the country’s private, civilian-run infrastructure,” according to a Reuters report.