CISPA: Another Infringement on Liberty

If there was ever a time when an oath meant something, this is not it.  If the common man is no longer imbued with a sense of solemnity when he gives his word it is nonsensical to hope that politicians will take their obligations seriously.

At this point I usually rail against Democrats for failing to understand the basic tenets and essential role of the U.S. Constitution.  But today, I am reminded that Republicans are just as quick to ignore the Constitution as soon as some encroachment is cloaked in the mantle of national security.

The Cyber Intelligence Sharing and Protection Act (CISPA) is active in the Republican-led House of Representatives.  Almost all of the more than 100 sponsors are Republican, and the bill (HR3523) has already passed the House Committee on Intelligence.  CISPA is another erosion of free speech and free information, and the broad coalitions that opposed SOPA and ACTA need to reunite and speak up.

CISPA would allow corporations to effectively spy on users and share private information with other companies and the federal government and do so with impunity provided the spying is done in the name of cybersecurity.  The sponsor, Representative Mike Rogers, tells us that CISPA is necessary to protect the intellectual property rights of American businesses from, among others, Chineses pirates and hackers, and cyberterrorists.

I concede that there is a need to protect American intellectual property but this offered remedy may be far worse than the disease, as least as it affects an individual.  Companies we all know and (ahem) trust with sensitive private information – companies like Facebook, Microsoft, and Oracle – support CISPA.   Less certain is that the members of Congress – who swore an oath to uphold and defend the Constitution – are concerned with upholding and defending things like due process, probable cause, free association, and free speech.

Reading legislation is something that I do as a normal part of my professional life.  I have read hundreds, if not thousands, of bills.  Too often I must read the bill several times before I feel any confidence that I understand it.   Having now read CISPA probably a dozen times two things are clear to me.

CISPA is not clear, not at all.  CISPA deals will “information directly pertaining to a vulnerability of, or threat to, a system or network of a government or private entity, including information pertaining to the protection of a system or network from (A) efforts to degrade, disrupt, or destroy such system or network; or (B) theft or misappropriation of private or government information, intellectual property, or personally identifiable information.”  While clause B is intended to deal with counterfeiters, clause A holds no limiting principles that I can ascertain.  If a product reviewer writes about iPhone “jailbreaking” or Occupy Wall Street circulates emails orchestrating a boycott, CISPA could permit a response more appropriately reserved for Iranian hackers.   This is either sloppy bill drafting, or purposefully vague.  I have my guess.

The second problem with CISPA is something that has become the modus operandi of our ruling classes.  CISPA avoids making clear statements in favor of empowering a political appointee to make regulations governing the scope and practices of the law (see Obamacare for the most egregious use of this tactic).   Specifically CISPA gives authority to the Director of National Intelligence, currently James Clapper.  Retired Lt. General Clapper may be a fine man, but that is well beside the point.

According to CISPA the Director of National Intelligence would have to make regular reports to the Orwellian titled Privacy and Civil Liberties Oversight Board.  Feel better yet?

CISPA is said to be moving toward the House floor for a full vote.  It should be stopped.

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