With all the uproar over the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA)--both of which prompted widespread online protests--it was easy to forget that the Senate had another cybersecurity bill in the works. But on Tuesday, a group of Senate committee leaders started rushing passage of the Cybersecurity Act of 2012 (S.2105). Although this cybersecurity bill doesn’t include the SOPA/PIPA executive "kill switch"—it still threatens to undermine whistleblowers, FOIA, and open government efforts.
Wikipedia may not be protesting yet, but POGO and its allies are definitely taking action.
Yesterday, we sent a letter to the Senators behind the bill—Joe Lieberman (I-CT), Susan Collins (R-ME), Dianne Feinstein (D-CA) and Jay Rockefeller (D-WV)—pointing out that the Cybersecurity Act of 2012 “creates unnecessary, overbroad and unwise limitations to access of information, including broad exemptions to the Freedom of Information Act (FOIA), and jeopardizes the rights of whistleblowers.”
Firstly, Section 107 of the bill includes an exceedingly broad definition of “critical infrastructure information,” which can exempt information from FOIA that is crucial for the public’s understanding of public health and safety risks (like the information about the deadly water contamination that occurred at Camp Lejeune.) The bill’s proposed exemption also conflicts with Congress’ recent “public interest balancing test,” which requires the Pentagon to weigh the interests of the public when attempting to withhold critical infrastructure security information.
Secondly, the language in Section 704(d) relating to cybersecurity threat indicators is troublingly broad. We don’t know what kind of information will be shared in the newly-created cybersecurity exchanges. With that in mind, it doesn’t make sense to blanket all public access to this information before we understand what’s covered.
Finally, POGO and allies have concerns that Section 107(e) narrowly defines free speech rights, and doesn’t align with current whistleblower protections. This could potentially limit the lawful disclosures of wrongdoing made by whistleblowers.
The Senators behind the bill are claiming that it already has broad congressional and industry support—which is why it’s being moved hastily to the Senate floor. But this bill certainly doesn’t have support from open and accountable government advocates.
“This legislation is far too complex and its reach far too extensive for fast tracking. The many implications for access to information and whistleblower protections should not have been negotiated behind closed doors,” said POGO Director of Public Policy Angela Canterbury. “We hope Majority Leader Reid and the senators advancing the bill will end the rush to pass it to avoid dangerous, unintended consequences.”
Dana Liebelson is POGO's Beth Daley Impact Fellow
Image from Dave Holmes