Democrats’ cyber bill still looms large

Josh Peterson Tech Editor
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Senate Majority Leader Harry Reid, following a recent anti-piracy legislative debacle with SOPA and PIPA, will lead his second effort of 2012 to push Internet-regulating legislation, this time in the form of a new cybersecurity bill. The expected bill is the latest attempt by the Democrats to broadly expand the authority of executive branch agencies over the Internet.

Details about the bill remain shrouded in secrecy. Clues available to the public suggest that the bill might be stronger than President Barack Obama’s cybersecurity proposal, which was released in May 2011. Reid said that he would bring the bill — expected to come out of the Senate Homeland Security and Government Affairs Committee, chaired by Connecticut independent Sen. Joe Lieberman — to the floor during the first Senate work period of 2012.

A classified meeting behind closed doors in October 2011 between key Senate committee leaders with jurisdiction over cybersecurity and White House officials, took place at the request of the Obama administration. Lieberman, in an interview with The Hill in October, said that past Senate cybersecurity bills were considerably stronger than the White House proposal.

The White House proposal recommended that the Department of Homeland Security be given broad regulatory authority for cybersecurity matters over civilian networks. The White House proposal also recommends that the DHS program be “developed in consultation with privacy and civil liberties experts and with the approval of the Attorney General.”

A recent bill in the House  — the Promoting and Enhancing Cybersecurity and Information Sharing Effectiveness Act of 2011 or PrECISE Act — also empowers DHS in the event of a cyberattack, but the bill has been criticized by Reid as not giving the agency enough power. PrECISE focuses on strengthening the information sharing component between private corporations and DHS by allowing a limited amount of information to be shared between the two.

Reid favors an approach that would expand DHS authority beyond currently regulated “critical infrastructure,” such as utilities and financial institutions, to also include Internet service providers and private networks. (RELATED: Full coverage of the tech industry)

“Lieberman said the turf war over which agency should be in charge of implementing the government’s cybersecurity plan has been largely resolved and there is a ‘broad consensus’ that DHS is best suited to the task, with technical and intelligence support from the military and National Security Agency,” reported The Hill.

Paul Rosenzweig, a visiting fellow at The Heritage Foundation, recently concluded that the NSA “does it better than DHS” when it comes to cybersecurity. Rosenzweig, who crafted policy inside of DHS, noted that the preference should be for a civilian agency to oversee a predominately civilian network, but it lacks the manpower to handle that responsibility. DHS recently announced a decision to hire 1,000 new cyber experts.

“But until these new experts are on board (and finding and hiring that many will be a long process), civilian defenses will have to rely on existing expertise that lies predominantly with NSA,” said Rosenzweig.

The NSA, at present, already works closely with financial institutions to battle hackers.

Reid sent a letter to Senate Minority Leader Mitch McConnell in November, which urged the need to act for fear of a major cyber attack, regardless of whether legislative working groups that have been working on this issue come to an agreement. McConnell replied with a letter of his own, advising Reid to introduce legislation that would have bipartisan support.

“Everyone wants to improve cybersecurity, but, if we’ve learned nothing else from previous legislation affecting the Internet, we know that an imposition of an overly broad regulatory regime of the Internet ecosystem will not sit well with the American people,” a Senate aide told The Daily Caller.

Reasons for the rush may include Democrats’ desire to pass cybersecurity legislation before November elections, but both Reid’s office and HSGAC did not respond to The Daily Caller’s request for comment by the time of publication.

The new bill, according to the recommendations in the White House proposal, would also expand Racketeer Influenced and Corrupt Organizations Act penalties to the cyber realm. The Department of Justice used RICO as one of the tools to takedown of the popular file-sharing site, MegaUpload, in January.

The cybersecurity bill effort comes as yet another attempt by the Democrats to expand the power of the federal government over the Internet in less than two years. Past efforts include the House Stop Online Piracy Act, and the Protect IP Act in the Senate, and the Federal Communications Commission’s so-called “net neutrality” regulation.

SOPA and PIPA were criticized by stakeholders, outside of Hollywood and the entertainment industry, who railed against the bills expanded empowerment of the Department of Justice. The DOJ argued that new legal powers were needed in order to combat the problem of foreign “rogue sites,” which profited from the facilitation of copyrighted material.

As with cybersecurity, there is little disagreement in Congress over the need for anti-piracy leglsiation; SOPA and PIPA received broad bipartisan sponsorship in both chambers of Congress. The top five members to receive campaign donations from groups supportive of SOPA and PIPA, however, were all Democratic senators. Reid alone had received $3.5 million from supportive groups in the last campaign cycle, according to

A spokesperson for California Republican Rep. Darrell Issa, who proposed his own anti-piracy legislation called OPEN, told The Daily Caller during the SOPA and PIPA debates that the bills were rapidly losing support in part because they gave the Obama Justice Department and Attorney General Holder “broad new powers to police the Internet while saddling digital job creators with stifling new regulatory burdens.”

“The bills eviscerate the proven Digital Millenium Copyright Act protections, forcing Internet service providers, search engines and law-abiding domestic sites to become arms of the Justice Department at home and abroad,” said the spokesperson.

The net neutrality battle — while largely business matter between content companies, like Google and Facebook, and Internet service providers (ISPs) like Verizon, AT&T and Comcast — was also along partisan lines, and the victors were the Democrats.

Political support for the FCC’s so-called “net neutrality” regulations also came from coordination between the White House, the Democratic majority in the FCC and the Senate, activist groups and Google.  Supporters said it was necessary to place the Internet under government control, viewing the Internet like regulated utilities such as water and electricity.

The regulation, which originally received major bipartisan opposition from members of Congress who believed that the FCC had acted outside of its legal authority, was later upheld by Senate Democrats — including Massachusetts Democratic Sen. John Kerry and Minnesota Democratic Sen. Al Franken — who viewed that not only did the FCC hold the necessary legal authority to regulate the Internet, but free speech was to be protected by the government through “net neutrality.”

FCC Chairman Julius Genachowski, when he was nominated by Obama, was praised by those who knew him well as someone would enact an “overarching strategic agenda,” which included implementing “net neutrality” regulations, among other things. One of Obama’s campaign planks in during the 2008 presidential election cycle was “net neutrality.”

The White House was actively involved in the policy debate. Former White House Deputy Chief Technology Officer Andrew McLaughlin, was found to have been communicating with representatives of his former employer, Google, through backchannel emails over net neutrality policy. Former FCC Commissioner Michael Copps was found to be in “collusion” over net neutrality policy with activist group Free Press, a group which has received substantial funding from left-leaning foundations.

McLaughlin also met with former Free Press employee Ben Scott, now a policy advisor at the State Department, to discuss policy on net neutrality and broadband investment.

Free Press later sued the FCC because it did not consider the commission’s Internet regulations strong enough. Timothy Karr at Free Press called the FCC’s “net neutrality” regulations a “betrayal” by Obama and Genachowski.

Update February 10:

Senate Homeland Security and Government Affairs Committee Majority Spokesperson Leslie Phillips told The Daily Caller Friday the bill does not regulate the Internet or information, and that any regulatory authority associated with the bill would be extremely narrow.

Phillips told TheDC that the purpose of this bill is to improve the security of critical infrastructure networks that control the energy or water supply, the financial sector or nuclear facilities – networks, which if attacked could cause mass death or catastrophic damage to the economy or national security. The bill also covers federal civilian networks. “We’re not talking about music files,” said Phillips. “We’re talking about life-sustaining services. This is not a regulatory bill. This is a national security bill.”

Phillips also told TheDC that the bill has not been shrouded in secrecy. “We have been circulating drafts of this bill for months.”

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