CISPA: Who’s Watching?

Cybersecurity And The Right To Privacy

So what is the Cyber Intelligence Sharing and Protection Act (CISPA)?  It is a bill in the US that would allow for the sharing of Internet traffic information between the government and various companies.  The stated aim of the bill is to help the US with cyber-threats and ensure the safety of systems from cyber-attacks.  The other week, with very little notice, the House of Representatives passed CISPA by a vote of 288-127 vote.  Senate Democratic leadership says that CISPA will not come up for a vote, and President Obama has threatened a veto if it were to pass through Congress.  (You can read the bill by clicking here.)

1904132300There are some questions when it comes to CISPA.  What kind of information would companies be allowed to share?  To simply put this… any information that pertains to cybersecurity.  This is includes threats, vulnerabilities, efforts to degrade systems, and attempts at unauthorized access.  So whom can these companies share your information with?  Anyone they wish to ranging from other companies, the government, and even civilian agencies like the Department of Homeland Security, etc.  The way CISPA is currently written, there is the concept of getting important information on where it needs to go, but it doesn’t define on where that is.  So as companies make a record of what sites you visit, what you read, etc., they’d be allowed to share that information with anyone they choose to.  So what can be done with this information?  A short answer… anything they want to, and it doesn’t really need to have any relevance to cybersecurity.    There are no corporate-use limitations once that information is shared with another company.  So then they can do whatever they want with the information they receive.  When it comes to the government, there are only regulations in place for the federal government.  If a company chooses to share information with local or state law enforcement, then it’s a free for all.  The restrictions placed on the federal government mean that it can only use the information for addressing cybersecurity, prosecuting cybersecurity crimes, investigating and prosecuting crimes involving danger or death or serious harm, investigating crimes against children, and to protect the national security of the US.  So what else is in the bill?  CISPA allows for more surveillance of records and communications, and it provides companies with complete immunity for decisions made based on the information they gather.

So that is CISPA in a basic form.  It does not, however, compel companies to turn over information, but companies can elect to do so if they wish.  It does not require a subpoena or a warrant per the 4th Amendment to the US Constitution which protects citizens from unwarranted searches and seizure without a warrant to do so which was judicially issued with probable cause.  The definition of “search” was defined in the Supreme Court case Katz v. United States (1967).  The court ruled that a search occurs when a person expects privacy in the thing that is searched, and society believes that that expectation is reasonable.  In the case Griswold v. Connecticut (1965), the Supreme Court ruled that the Constitution protected the right to privacy though it is not mentioned specifically in the US Constitution.  Justice Arthur Goldberg wrote a concurring opinion based on the Ninth Amendment, as well as the Due Process Clause of the Fourteenth Amendment.  He would be joined in the concurrence of the Due Process Clause by Justice John Marshall Harlan II and Justice Byron White.

The Independent Voter Network (IVN) highlighted some points that were issued in a statement by the Intelligence Committee in support of CISPA.  These points were:

  1. “The legislation actually prohibits the expansion of any agency or current security authority and requires the government to ‘eliminate any personal information it happens to receive that is not necessary to understand the cyber threat.’
  2. They claim that CISPA has nothing to do with government surveillance. Rather, ‘it simply provides narrow authority to share anonymous cyber threat information between the government and the private sector.’
  3. Addressing concerns about the potential misuse of private information, the supporters state that there is a very narrow allowable use for the information going so far as to limit ‘the government’s permissible uses for cyber threat information by eliminating the national security use exception.’
  4. Regarding concerns over the government storing large amounts of personal information, ‘the bill prohibits the federal government from retaining or using information other than for the cyber threat purposes specified in the legislation.’
  5. Finally, the supporters are quick to point out that CISPA is not at all comparable to SOPA or PIPA. SOPA/PIPA concerned copyright infringement, whereas CISPA is about security.”

shutterstock_72840718Though the Supreme Court has ruled that we have a right to privacy and that it’s protected by the US Constitution, one must wonder where the line is drawn between privacy and protection from a cyberattack.  When the public first realized that companies were keeping private information about us and our habits online, there was an initial outcry over privacy violations.  Companies quickly had to draw up Privacy Guidelines on what information was collected and shared and to make sure the people were aware of them.  Those guidelines sometimes got rather so lengthy that people just didn’t read them.  So Congress stepped in and drafted a bill that stated companies also had to release a summary of those guidelines so that we, as consumers, could quickly scan it over.  But that information was usually shared among partnered or affiliated companies.  (i.e. Gap and Banana Republic since they are owned by the same parent company.  Or even ABC and ESPN since they are owned by the same parent company)  This type of information has helped a great deal in terms of marketing.  If you’ve ever noticed, ads on websites are often geared toward what you buy or the websites you browse.  But now we are discussing a bill that would allow companies to turn over any information they want to whomever they want… including the government.  It’s in the name of cybersecurity.  In IVN’s article, it states that “personal privacy and cyber security are often at odds.  As a consequence, it is difficult for both companies and the government to find hackers and protect power grids and online infrastructure against assault.”

The current form of CISPA is too broad, as its opponents suggest.  It doesn’t define which agency (agencies) can receive information… or to put it different, with whom these companies are supposed to share the information with.  And though it is supposed to only be information regarding cybersecurity, that still needs to be clearly and definitively defined.  Our cyber security does need to be protected from threats, but it must be done without jeopardizing our right to privacy.  And it must make it absolutely clear that the government cannot ask for such information on anyone without a subpoena or a warrant as per the Fourth Amendment.  Just because we are now in the computer/digital age, does not mean that our rights defined in the Bill of Rights are any less important and don’t need to be protected.  If anything, we must be on the guard even more now than probably any other time since the initial founding of our country.  CISPA should be grabbing everyone’s attention.  And the Senate should be paying close attention to its wording… though the head of the committee that would be bringing up the bill, Sen. Jay Rockefeller (D-WV), has stated the bill is DOA already.  Privacy is a right shared by all Americans, and we deem it an important right.  So where do we draw that line between our personal privacy and cybersecurity?  And is it even possible for the two to coexist in some form?

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The Day After

The election is finally over.  A winner has been announced, and the parties have all ended.  Now we must ask ourselves, “What now?”  The country is still facing some very large issues between now and then end of the year.  These range from taxes, the debt ceiling, and many more things.  The lame-duck Congress, the one that has been one of the least productive in history, is charged with dealing with these topics with President Obama.  It remains to be seen if the two sides can put aside major differences to hammer out a compromise for the good of the nation.

Pundits have already started talking.  Blame and finger pointing has started on the losing end while the winning side basks in the glory of the moment.  But both sides should stop for a moment and remember something.  The electorate is more divided than ever, and we didn’t think it could even get more divided than it already was.  Though President Obama cruised easily to an electoral vote majority (Electoral College) though it was smaller than in 2008, and though Democrats picked up a seat in the Senate and might pick up a few in the Republican-controlled House of Representatives, it was the popular vote that gives us the biggest indication of  what the people were thinking… 50% in favor of Obama and 48% in favor of Romney.  (These numbers could change as not all votes are in at the time this is being written.)  As of right now, somewhere close to 3-million votes is what separates the two main candidates.  The Senate is still fairly evenly divided and the House is just a bit moreso.  After all these grueling months, the people decided to leave the country with a divided government… Republicans in control of the House of Representatives and Democrats in control of the Senate and White House.  This means that both sides are going to have to work together come January to face some major issues that are in front of our country.  And the outgoing Congress can’t let the ball drop either.  Even though several members will not be returning, they still must do their job until the end.  The two sides aren’t always going to agree.  We know this, and we expect it.  That’s what divided government is all about.  But the two sides must communicate and work through those differences for the good of the country.  Talking of working together across the aisle is one thing and action is another.  The time for talk has passed, and the people are demanding action.  Divided government is supposed to be more difficult in its design, but it’s not supposed to be an all-out roadblock.

While the Republican Party must figure out where it goes in the future, one thing is absolutely clear.  They must start finding ways to attract minority voters.  Though independent voters mostly swing to Mitt Romney in the election, the Republican party lost even more of the minority vote than it did in 2008.  And the minority vote is quickly on the rise.  The white vote was only at 72%, though it’s hard to judge where that level really is since voter turnout was well below 2008 and even 2004 levels.  As a result, neither party should go around talking of any mandate.  I’ve written about that before. (The New Mandate)  If half of the population isn’t voting, that means 3/4th didn’t vote for you.  So it is nearly impossible to declare a mandate when looking at those numbers.  And with the popular vote so close from those that did vote, it means that we want to be governed from the middle and not from the extreme left or the extreme right.

The dust has now settled, and its long overdo that our government, and its leaders get to work.  There is too much at stake on the future of our country.  This should no longer be about political grandstanding.  The voters have spoken, and they have signaled that they want a little from the left and a little from the right.  They want common sense solutions, and they want you to act like grown-ups. So now get to it.  Show us that work can be done across the aisle and between the two chambers and two of the branches of government on the big issues.  We need you to govern for once, especially in these next two months of the lame-duck Congress.  With the new Congress in January, I hope it works better than the last one.  Show the people that you can rise above partisan bickering to get the job done.

A Taxable Penalty

Is it a tax or is it not?  The Supreme Court has said yes and thus is constitutional.  In 2009, President Obama said that it wasn’t repeatedly.  Republicans said that it did not fall under the Commerce Clause for the Congress to pass such legislation, and therefore, wasn’t constitutional.  There have been so many different angles coming at us these past couple of days over the Affordable Care Act (“Obamacare”), that one’s head might start spinning in circles if it came to making sense of any of it.

President Obama did in fact say in 2009 on “This Week with George Stephanopoulis” on ABC that the Affordable Care Act wasn’t a tax.  Democrats in Congress even made the same point.  But that came down to semantics.  The word used throughout the legislation was ‘penalty,’ and it only applies to those that don’t have health insurance.  Knight professor of Constitutional Law and the First Amendment at Yale Law School, Jack M. Balkin, wrote the following in an op-ed for CNN:  “If the Affordable Care Act imposed a mandate, it was ordering people to buy insurance, and nobody likes to be told what to do by the government. But if it was a tax, then it actually gave people a choice: Pay a small tax, or buy health insurance.”  Republicans like to make the charge that the Affordable Care Act is government-run/socialist healthcare, and they’ve managed to stick to that message and get people worked up over it (hence how we now have the Tea-Party wing of the Republican Party).  Most First World nations (and others) actually have government-run/socialist healthcare, and one should go look those countries up before making such a claim here.  So here is my question to this.  How is the Affordable Care Act government-run/socialist healthcare when people still have the right to choose which healthcare provider and plan they wish to go with?  The government isn’t forcing us to buy healthcare from itself since there is no public option.  For those on Medicare and Medicaid, which are government run healthcare programs, this law doesn’t really concern them.  It also doesn’t affect those with company healthcare.  It mostly goes after those that buy healthcare on their own… whether they choose to or have to.  It does have far bigger reaches such as covering pre-existing conditions, covering dependents until they are 26, etc., etc.  (click here for more information)  If one were buying individual health insurance, they will now be able to enter into an exchange that will allow them to be like a company with bigger numbers for better prices rather than just being one person.  It’s often the lone individual that gets stuck with higher premiums.  The consumer still gets to choose which health insurance they wish to purchase or even choose not to and pay the penalty.

“The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; […]” Article I, Section 8 of the US Constitution

So now that it has been determined that the Affordable Care Act was essentially taxing people that didn’t have health insurance (despite the term ‘penalty’ being used), it now just needed to justified by providing for the general welfare.  In the end, five justices of the Supreme Court ruled that it did and therefore fell under the powers of Congress.  Again, I go back to the op-ed on CNN from Jack M. Balkin…

“The answer to that question was also pretty clear. Congress wanted to give all Americans a new set of consumer protection rules that prevented insurance companies from denying coverage for pre-existing conditions and imposing lifetime caps on coverage. The only way to make those reforms work, Congress thought, was to get more people in the national risk pool. Hence, Congress decided to give uninsured people a nudge instead of a direct order: It taxed them if they didn’t buy insurance.”

With the Supreme Court ruling, the Affordable Care Act is now the legal law of the land… despite where any of us stand on the issue.  The only way it can be repealed is by an act of Congress… which Republicans are trying to do.  Presumptive Republican presidential nominee Mitt Romney and other Republicans are saying that Affordable Care Act will add trillions to the deficit.  This has been rated as False by Politifact.  They went to the non-partisan Congressional Budget Office for their official numbers.  The CBO said that with the passage of the legislation, it would lower the deficit by $124 billion over 10-years, and that repealing it would increase the deficit by as much as $210-billion over 10-years.  The CBO isn’t perfect with it’s calculations.  It even admits that it’s hard to predict future numbers since there are many variables that can make them go up and down.  There is one additional stipulation.  These numbers were crunched before the Supreme Court ruling, which did make one decision that could affect them.  The court ruled that though the federal government could give the option for states to accept (or not) the new Medicaid funding, the federal federal government could not withhold all Medicaid to the states if they refused… that it could only withhold future payment increases, but not what was already agreed to when the federal government and the state governments entered into the Medicaid program.  The CBO is currently crunching the numbers to see how the ruling will affect the overall numbers.

The Democrats, and President Obama, celebrated the ruling on Thursday while Republicans fussed over it.  And though the moods were celebratory on the left, I’m quick to remember that nothing energizes the right more than “Obamacare.”  This November will be the endgame.  If the Republicans can’t win the presidency and both houses of Congress by big enough margins, then the Affordable Care Act will be here to stay.  Only time can tell if the legislation will go down as a triumph or a failure… no matter how November goes.  In the past, we’ve seen bad legislation be popular and good legislation be unpopular.  For now, the shock is wearing off, and voting populace is turning now to more pressing matters… jobs and the economy, despite Republican efforts to keep healthcare at the top.  It’s hard to say how this will play out in the years to come, but it will take an educated populace to get through all the partisan rhetoric.

“You can fool all the people some of the time and some of the people all the time, but you can’t fool all of the people all of the time.” Abraham Lincoln~

SIDENOTE:
According to a new Gallup poll, Americans are evenly divided as to whether they agree with the Supreme Court decision 46% to 46%.  Approximately 80% of Democrats agree compared to 45% of Independents and 13% of Republicans.

LINKS:
Washington Week (PBS) – Friday, June 29, 2012

Job Creationism: Legislation Lockdown

Jobs.  Jobs.  Jobs.  There is no doubt that the 2012 elections will be about the economy and jobs… from the Presidential election to the elections of Congress and various state elections.  And the heated debate of creating jobs is ratcheting up even more… a sign that this particular issue (this one issue) will be the focus of the attention this time around.  As President Obama insists that Congress begin passing his recommendations for creating jobs, House Speaker John Boehner (R-OH) insists that Republicans in the House have already passed 30-such jobs bills that are now stalled in the Democratic Senate in which Senate Majority Leader Harry Reid (D-NV) refuses to bring any of them to a vote.

It’s a tit-for-tat in the end.  The President wants Congress to pass his agenda which he knows Republicans won’t vote for.  So he puffs out his chest and tells them that Congress won’t act to help create jobs and improve the economy.  The Republicans in the House start passing bills that they know won’t get passed by the Senate or receive the President’s signature.  So they puff out their chests and claim its the Democrats that are refusing to create jobs and improve the economy.  Are you seeing the commonality of this?  Basically, it’s both sides doing things that the other side won’t agree with it, and trying to act like the “good guy” in the debate since it is an election year.  As hard as it has been to get Congress to do anything major in a bipartisan way in the last two years (probably even the past 4), it will be even moreso this year as each side wants to prop up their candidates.

So as President Obama sends his post-it note to Congress with the legislation he wants it to pass, Speaker Boehner is right and wrong about the stalled legislation in the Senate.  He’s right that the House did pass jobs bills that are stuck in the other chamber, but he’s wrong about the number of them.  He has repeatedly said there are 30 of them, but there are only 27.  He probably just rounded the number up since 30 is a simpler number to work with than 27.  Each of these bills is outlined on the GOP website.  So without going into finite detail about each of them, what exactly are these bills that the GOP is trumpeting?

  • H.R. 3606 – Jumpstart our Business Startups (JOBS) Act
  • H.R. 1633 – Farm Dust Regulation Prevention Act of 2011
  • H.R. 10 – Regulations from the Executive in Need of Scrutiny (REINS) Act of 2011
  • H.R. 3010 – Regulatory Accountability Act of 2011
  • H.R. 527 – Regulatory Flexibility Improvements Act of 2011
  • H.R. 3012 – Fairness for High-Skilled Immigrants Act 2011
  • H.R. 3094 – Workforce Democracy and Fairness Act
  • H.R. 2930 – Entrepreneur Access to Capital Act
  • H.R. 2940 – Access to Capital for Job Creators Act
  • H.R. 1965 – To Amend the Securities Laws
  • H.R. 1070 – Small Company Capital Formation Act of 2011
  • H.R. 1904 – Southeast Arizona Land Exchange and Conservation Act of 2011
  • H.R. 2273 – Coal Residuals Reuse and Management Act
  • H.R. 2681 – Cement Sector Regulatory Relief Act of 2011
  • H.R. 2250 – EPA Regulatory Relief Act of 2011
  • H.R. 2401 – Transparency in Regulatory Analysis of Impacts on the Nation Act of 2011 (TRAIN)
  • H.R. 2587 – Protecting Jobs from Government Interference Act
  • H.R. 1938 – North American-Made Energy Security Act
  • H.R. 1315 – Consumer Financial Protection Safety and Soundness Improvement Act of 2011
  • H.R. 2018 – Clean Water Cooperative Federalism Act of 2011
  • H.R. 2021 – Jobs and Energy Permitting Act of 2011
  • H.R. 1231 – Reversing President Obama’s Offshore Moratorium Act
  • H.R. 1229 – Putting the Gulf of Mexico Back to Work Act
  • H.R. 1230 – Restarting American Offshore Leasing Now Act
  • H.R. 910 – Energy Tax Prevention Act of 2011
  • H.J. Res. 37 – Disapproval of FCC’s Net Neutrality Regulations
  • H.R. 872 – Reducing Regulatory Burdens Act of 2011

I am going to focus on H.R. 3606 (JOBS Act) for just a moment.  There is a reason why I want to bring this particular piece of legislation to attention.  It passed the House in March by a huge bipartisan vote… 390-23.  Yes, a major bipartisan vote.  The legislation went to the Senate, which according to the GOP website linked to earlier in this article, it still sits.  Wrong.  At the end of March, the Senate passed the JOBS Act with a few minor tweaks in it… 73-26.  The main part of the tweak was stringent safeguards to protect investors.  The tweaked bill went back to the House where it passed 380-41.  All of these votes were bipartisan and the legislation was signed by President Obama.

Other than the JOBS Act, the GOP website (linked above) only focuses on the bills that are stuck in the Senate.  But, if one were to look at House Majority Leader Eric Cantor’s (R-VA) website, then a different outlook comes to play. It does have the JOBS Act listed correctly as being passed by both chambers and signed by the President.  All of the other bills on the list are stalled in the Senate; however, there are numerous other bills that have been passed by both chambers and signed by President Obama.  But that little fact doesn’t get discussed by the politicians who are jockeying for position or the media.  One must look at both lists to actually get a broader scope of the issue as a whole.

So, I’ve discussed the GOP rhetoric, but what about President Obama?  He sent his post-it note to the members of Congress on the bills he would like to see passed.  Unlike my earlier list of individual bills the GOP House has passed, the President cannot write such bills.  That falls to Congress alone.  He can make recommendations, though, on what he would like to see in those bills.  He calls it The American Jobs Act (AJA).  It has five distinct parts to it.

  1. Tax cuts to help America’s small businesses hire and grow
  2. Putting workers back on the job while rebuilding and modernizing America
  3. Pathways back to work for Americans looking for jobs
  4. More money in the pockets of every American worker and family
  5. Fully Paid For

This was the exact legislation that President Obama called upon before a joint-session of Congress in September 2011.  According to an AP report, independent analysis concluded that the plan would have a positive impact.

“A tentative thumbs-up. That was the assessment Thursday night from economists who offered mainly positive reviews of President Barack Obama’s $450 billion plan to stimulate job creation.” […]

“Mark Zandi, chief economist at Moody’s Analytics, estimated that the president’s plan would boost economic growth by 2 percentage points, add 2 million jobs and reduce unemployment by a full percentage point next year compared with existing law.”

Macroeconomic Advisers weren’t as optimistic, but did say that they “estimate that the American Jobs Act (AJA), if enacted, would give a significant boost to GDP and employment over the near-term.”  So what happened to the legislation?  Republicans in the House refused to bring it up for a vote, and a Republican filibuster prevented it from being brought to the floor in the Senate.  Doesn’t this sound a little like what the House GOP is accusing the Senate Democrats of doing.  As earlier stated, it’s a tit-for-tat… neither side wanting to help the other on bills that would put Americans back to work.

As we head into the summer and the autumn, and the campaign rhetoric with creating jobs heats up even more than it already has, we must remember that both sides have been proposing jobs legislation only to have the other side block it in some form or fashion.  It’s at this point, one must ask where all the moderates have gone that would have come together and weaved through the various chambers and viewpoints and proposed a bill that was a sensible compromise that could have been passed.  In essence, we the voters have pretty much voted them out of office.  It is possible that the two sides can work together, as was listed earlier with the JOBS Act and several other bills that are listed on House Majority Leader Cantor’s website.  Though they might not agree on everything, it’s time for Congress to sit down with each other and do some serious discussions on proper legislation that will help our economy grow and put the people back to work.  Though, I do have to remind myself from time to time that it’s not the president or members of Congress that create jobs.  They create the scenario for the creation of jobs (or the decline of jobs).  Regardless, both sides have to do this together.  Passing legislation that you know won’t get passed the other side is a waste of time.  Instead, it’s time for both sides to continuously sit down with each other and bring about common sense (non-partisan) solutions.  We can see that it has been done.  So it is possible to continue with that momentum.  Both sides are in this together, and it’s both sides that should be held accountable.

LINKS:
WP – House passes JOBS bill
Politico – Senate passes JOBS Act with tweak
NYT – Final Approval by House
House GOP Plan for America’s Job Creators
House Majority Leader Eric Cantor (R-VA)
White House: The American Jobs Act 

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