The respected top political reporter for CNet News, Declan McCullagh, wrote a fascinating update this week on a little known law currently being drafted in the United States which could hand the White House the power to disconnect private-sector computers from the Internet.
Such a contentious threat to the freedom of the Internet was bound to attract the attention of users, Internet companies and civil liberties groups, who were alarmed this spring when news of the controversial draft surfaced in Washington DC.
McCullagh reports that aides to Senator Jay Rockefeller, a West Virginia Democrat, have spent months drafting behind closed doors. CNet News obtained a copy of the 55-page draft of S.773, which despite revision still appears to permit the US president to seize temporary control of private-sector networks in the event of a "cybersecurity emergency."
"The new version would allow the president to "declare a cybersecurity emergency" relating to "non-governmental" computer networks and do what's necessary to respond to the threat," writes McCullagh. "Other sections of the proposal include a federal certification program for "cybersecurity professionals," and a requirement that certain computer systems and networks in the private sector be managed by people who have been awarded that license."
Larry Clinton, president of the Internet Security Alliance, told McCullagh: "I think the redraft, while improved, remains troubling due to its vagueness. It is unclear what authority Sen. Rockefeller thinks is necessary over the private sector. Unless this is clarified, we cannot properly analyze, let alone support the bill." The Alliance counts representatives of Verizon, Verisign, Nortel, and Carnegie Mellon University on its board.
Representatives of other large Internet and telecommunications companies expressed concerns about the bill in a teleconference with Rockefeller's aides this week, McCullagh reported.
A spokesman for Senator Rockefeller approached by McCullagh declined to comment on the record, saying that many people were unavailable because of the summer recess.
However, a Senate source familiar with the bill compared the president's power to take control of portions of the Internet to what President Bush did when grounding all aircraft on September 11, 2001. The source said that one primary concern was the electrical grid, and what would happen if it were attacked from a broadband connection.
McCullagh recalls that when Rockefeller, the chairman of the Senate Commerce committee, and Olympia Snowe, a Republican from Maine introduced the original bill in April this year, they claimed it was vital to protect national cybersecurity. "We must protect our critical infrastructure at all costs – from our water to our electricity, to banking, traffic lights and electronic health records," Rockefeller said.
In May, President Obama acknowledged that the government is "not as prepared" as it should be to respond to cyber-disruptions and announced that a new cybersecurity coordinator position would be created inside the White House staff.
"Three months later, that post remains empty, one top cybersecurity aide has quit, and some wags have begun to wonder why a government that receives failing marks on cybersecurity should be trusted to instruct the private sector what to do," McCullagh trenchantly observes.
In his analysis of the proposed legalization, McCullagh writes that Rockefeller's legalization seeks to reshuffle the way the federal government addresses the topic. It requires a "cybersecurity workforce plan" from every federal agency, a "dashboard" pilot project, measurements of hiring effectiveness, and the implementation of a "comprehensive national cybersecurity strategy" in six months – even though its mandatory legal review will take a year to complete.
Lee Tien, a senior staff attorney with the Electronic Frontier Foundation in San Francisco, told McCullagh that the privacy implications of sweeping changes implemented before the legal review is finished worry him.
"As soon as you're saying that the federal government is going to be exercising this kind of power over private networks, it's going to be a really big issue," he predicted.
Probably the most controversial language begins in Section 201, which permits the president to "direct the national response to the cyber threat" if necessary for "the national defense and security."
The White House is supposed to engage in "periodic mapping" of private networks deemed to be critical, and those companies "shall share" requested information with the federal government. ("Cyber" is defined as anything having to do with the Internet, telecommunications, computers, or computer networks.)
"The language has changed but it doesn't contain any real additional limits," EFF's Tien says. "It simply switches the more direct and obvious language they had originally to the more ambiguous (version)…The designation of what is a critical infrastructure system or network as far as I can tell has no specific process. There's no provision for any administrative process or review. That's where the problems seem to start.
"And then you have the amorphous powers that go along with it."
McCullagh adds: "Translation: If your company is deemed "critical," a new set of regulations kick in involving who you can hire, what information you must disclose, and when the government would exercise control over your computers or network."
The Internet Security Alliance's Clinton adds that his group is "supportive of increased federal involvement to enhance cyber security, but we believe that the wrong approach, as embodied in this bill as introduced, will be counterproductive both from an national economic and national secuity perspective."
McCullagh subsequently managed to squeeze a comment from Jena Longo, deputy communications director for the Senate Commerce committee, who said in a statement:
"The president of the United States has always had the constitutional authority, and duty, to protect the American people and direct the national response to any emergency that threatens the security and safety of the United States.
"The Rockefeller-Snowe Cybersecurity bill makes it clear that the president's authority includes securing our national cyber infrastructure from attack. The section of the bill that addresses this issue, applies specifically to the national response to a severe attack or natural disaster.
"This particular legislative language is based on longstanding statutory authorities for wartime use of communications networks.
"To be very clear, the Rockefeller-Snowe bill will not empower a "government shutdown or takeover of the Internet" and any suggestion otherwise is misleading and false. The purpose of this language is to clarify how the president directs the public-private response to a crisis, secure our economy and safeguard our financial networks, protect the American people, their privacy and civil liberties, and coordinate the government's response."
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