DHS hopes to get same cyber-spying powers as NSA

Josh Peterson Tech Editor
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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.

The DHS would receive cyber threat intelligence from other intelligence agencies — including NSA — and share it with telecom companies. In turn, telecom companies could voluntarily share aggregate threat statistics with DHS.

“By using DHS as the middleman, the Obama administration hopes to bring the formidable overseas intelligence-gathering of the NSA closer to ordinary U.S. residents without triggering an outcry from privacy advocates who have long been leery of the spy agency’s eavesdropping,” Reuters reported.

The DHS’ expanded role even earned the support of NSA Director Gen. Keith Alexander, who has been vocal about his belief in finding the right balance to preserving civil liberties while protecting the nation.

Technically, private communications companies share information voluntarily with the DHS, but the potential repercussions of failing to cooperate with the federal government make it unclear how much room there is to refuse.

Former Qwest CEO Joseph Nacchio told a court in 2007 that Qwest was denied lucrative multimillion dollar contracts with the NSA after he refused to involve Qwest in the agency’s warrantless surveillance program. Nacchio’s disclosure was part of an appeal to an insider trading conviction, for which he is currently serving a six year prison sentence.

“If a company is already being compelled to give one government agency information, it is probably easier for another government agency to go to that company and ask for that information,” Berin Szoka, president of TechFreedom told The Daily Caller.

Calls for increased information sharing between the public and private sectors have also increased as it becomes more apparent that private companies are on the front lines of a covert world war being waged among the world’s major nations in cyberspace. The rise of Big Data, cloud computing, and increased mobile Internet adoption have also fueled the push for greater collaboration between the highest levels of government and the private sector.

But the prospect of Homeland Security gaining extensive access to sensitive information raises concern. The DHS — a cabinet-level mishmash of departments ranging from immigration to disaster relief to counterterrorism to the Coast Guard that was cobbled together during the Bush Administration — has had a mixed record on basic management, efficiency and response to major catastrophes.

Under current Homeland Security Secretary Janet Napolitano, the DHS targeted law-abiding Americans for their political beliefs, most strikingly in a 2009 report [pdf]  on “extremists” that warned of the dangers posed by pro-life advocates, critics of same-sex marriage and groups concerned with abiding by the U.S. Constitution.

The DHS described critics of the federal government on both ends of the political spectrum as having the potential to be radicalized, capable of engaging in physical violence or cyber attacks against the public and the government — an assessment that contrasts sharply with the department’s policy of deference toward Islamic extremists.

The administration’s political allies on the left welcomed the DHS’ report warning against rightwing extremists as a way to smear their political enemies and to fuel the narrative that domestic terrorists pose a greater threat than Islamic extremists. This development was made more ominous by news that another powerful federal agency, the Internal Revenue Service, has been singling out conservative groups for abuse and sharing confidential information with media allies.

Napolitano has also raised questions about her fitness to oversee massive internet surveillance by repeatedly telling interviewers that she does not use email.

Finally, the DHS is not subject to the kind of oversight the NSA is from courts established under the Foreign Intelligence Surveillance Act. Although the actual oversight of FISA courts is debatable — the courts apparently approve all but .03 percent of surveillance requests — the DHS, with its access to police departments all over the country and its involvement in broad areas of American life not related to national security or law enforcement, potentially has a greater capacity to overstep its bounds.

On Friday, Napolitano denied the existence of an Orwellian surveillance state while responding to public concerns about the NSA’s surveillance programs, stating that it was “far from the case.”

But Americans may not be reassured after revelations about the NSA’s domestic information gathering and the extent of its global surveillance infrastructure. The ACLU and the NYCLU filed a lawsuit against the Obama administration last week to halt the NSA’s dragnet phone surveillance program.

Outdated privacy laws established in the 1980s have given elements within the federal government the legal flexibility they need to carry out warrantless surveillance. Despite the recent focus on the NSA, other agencies have histories of questionable data collection.

Until recently, a policy of the criminal division of the IRS stated that the agency could search emails without warrants. The Justice Department also decided as recently as 2012 that a subpoena is all the legal authority it needs to search emails and Facebook chats.

The DHS did not return TheDC’s request for comment.

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