Saturday, April 27, 2013

While we were sleeping ... Part 2 - CISPA

In the midst of the nightmare made real in Boston, the Manchin-Toomey Amendment was defeated in the Senate, but that wasn't the only piece of key legislation debated by Congress. While the Senate was debating gun regulation, the House of Representatives was busy debating legislation that was far more significant than universal background checks proposed in the Senate.

To further combat terrorism and online piracy, conservatives proposed the Cyber Intelligence Sharing and Protection Act (CISPA). This legislation would allow private companies, including social media services, Internet providers, and cell phone providers, to voluntarily provide user data with government to respond to (or prevent) a cyberattack on the United States.

The hope of congressmen sponsoring CISPA was the data provided by private entities would give the intelligence community (FBI, CIA, NSA, etc.) the ability to scour through e-mails, texts, messages, and other information to root out digital threats and stop them in real time. Plots would be thwarted before they ever have an opportunity to maximize damage.

Incidentally, this sort of legislation would also allow the government to respond to the more conventional terrorist attacks. This type of legislation would have perhaps been able to prevent an incident like the bombing at the Boston Marathon. The covert actions of would-be terrorists would be under constant scrutiny, and make it infinitely more difficult to communicate and organize. The upside is tremendous.

However, CISPA represents a serious threat to the privacy of all Americans. Having the government pour through all of our communication conjures images of 1984 or Fahrenheit 451. Both liberals and conservatives have expressed serious concerns about the constitutionality of such legislation. Does CISPA represent a violation of the 4th Amendment protection against unreasonable searches and seizures?

Proponents of the legislation say no, as private corporations would only be permitted to voluntarily turn over data to the government. They would be under no obligation to do so. Thus, the government isn't conducting an unreasonable search and seizure if content users agree to the terms of service of a private company, and then that company willingly provides that information to the government.

Private entities such as Facebook or Google already use data mining to tailor advertisements to the tastes of the individual user. They also have occasion to sell that information about your preferences to a third party. The federal government wants to be one of those third parties. Of course, many critics of CISPA rightly question why companies would provide the government with user data.

CISPA stands to benefit Internet providers and any company who sells books, music, television and movies. Part of CISPA's data exchange would allow the government to crack down on online piracy, which steals millions of dollars annually from the entertainment business. Not only could the government track down terrorists, but they could do a far better job at preventing copyright infringement and illegal downloading, and punish those who involve themselves in that sort of activity. Nice quid pro quo.

The problem with CISPA is that it is far too reaching in its ability to permit government agencies with the private communications of citizens who have done nothing to warrant any suspicion of wrongdoing. Americans have a reasonable expectation of privacy and CISPA represents an end run around the Constitution. While the government may not be directly searching through the lives of citizens, their actions represent the worst possible violation of one of man's most basic rights -- privacy.

Proponents of CISPA argue that citizens don't have to use the Internet, cell phones, or social media -- but that represents an antiquated view of American society. While social media is a mere luxury, the Internet and telephone service are becoming more integral to functioning in the 21st century. Not having these services puts citizens at a distinct disadvantage. What was once considered a trivial luxury of our world is becoming part of the infrastructure in America, and there is no going back.

CISPA violates the Constitution, as the government is using corporations as a proxy, a tool to do their work. The logic of the bill's supporters is the same as a murderer who claims they didn't kill anyone because they didn't touch the person, when indeed it was the gun that should be held responsible since it actually killed the victim.

The House passed CISPA with overwhelming support, but thankfully the Senate (just yesterday) revealed the bill, in its current form, would not reach a vote on the floor. If you're relieved by this news, don't let your guard down too quickly. Congress has attempted to craft legislation similar to CISPA over the last three years and they will try again.

Furthermore, we should be careful to examine the level of surveillance that already exists in the United States. The Patriot Act and the Foreign Intelligence Surveillance Act already allow for federal agencies to obtain telecommunication data, banking records, and other personal information with little (or sometimes no) reasonable suspicion of illegal activity.

Former Justice Department attorney Thomas Tamm publicly revealed the federal government's blatant abuse of warrantless wiretaps in 2007. Part of the federal government's indiscretions included the cooperation of AT&T in setting up several access points for the National Security Agency that permitted all communication data to be mined and stored for the purpose of surveillance. Tamm chose to inform The New York Times about what he had learned -- that the federal government for whom he worked was betraying the law and the Constitution itself.

The protection of our nation against its enemies is paramount, but not at the expense of our values and laws. If changes need to be made to better protect the nation, that is a process that must be handled in such a way not to subvert the fundamental freedoms that make us who we are.

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