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RICH: Son of SOPA

New cybersharing bill poses same threat to liberty as defeated measure

- - Wednesday, April 25, 2012

Having failed earlier this year to foist an Orwellian kill switch on Internet free speech, Congress is now peddling a kinder, gentler piece of "cybersecurity legislation." However, Washington's latest attempt to play Big Brother on the Internet poses an equally clear and present danger to our fundamental liberties.

With the furor over the Stop Online Piracy Act having subsided, congressional leaders apparently are hoping that the ire of America's burgeoning information freedom movement has been exhausted. They're also hoping that the same coalition that successfully shot down the Piracy Act won't notice the sinister outlines of its latest alphabet soup invasion - the Cyber Intelligence Sharing and Protection Act (CISPA). In fact, they've enlisted the help of heavy hitters such as Facebook and Microsoft in an effort to convince us that the Web is somehow on-board with this latest example of unchecked government intrusion into our private lives.

Nothing could be further from the truth.

The stated purpose of CISPA is to "allow elements of the intelligence community to share cyberthreat intelligence with private-sector entities and to encourage the sharing of such intelligence." While the first part of that equation isn't particularly problematic (law enforcement is a core function of government and should alert providers to criminal activity allegedly occurring within their networks), the "sharing" component of this legislation represents an insidiously expansive assault on liberty.

How expansive?

"CISPA would allow [Internet Service Providers], social networking sites, and anyone else handling Internet communications to monitor users and pass information to the government without any judicial oversight," writes Rainey Reitman of the Electronic Frontier Foundation.

In other words, concepts such as "probable cause" or even "reasonable suspicion" would no longer apply.

What sort of information are we talking about, though? And who would be reviewing it?

According to the American Civil Liberties Union, this legislation "would give the government, including military spy agencies, unprecedented powers to snoop through people's personal information - medical records, private emails, financial information - all without a warrant, proper oversight or limits."

Translation? "Big Brother is watching you."

And not only does CISPA permit such online snooping, it actively encourages it by shielding providers from the liability associated with these surveillance actions, shredding the existing framework of privacy protection and replacing it with broad new definition of immunity.

Specifically, CISPA enables providers to "use cybersecurity systems to identify and obtain cyberthreat information," which would then be turned over to the government. The problem? Based on the law's expansive definitions, almost anything can be construed as a "cyberthreat," and just as there is no limit to the type of information that can be transmitted, there also is no recourse for those whose privacy is violated. In fact, CISPA would force individuals to prove that providers supplied information intentionally and with a "wrongful purpose" in order to win a judgment.

"This is an insanely onerous definition of willful misconduct that makes it essentially impossible to ever sue a company for wrongly sharing data under CISPA," say the authors of TechDirt, an industry website.

Additionally, this broad, new standard of immunity would be applied "notwithstanding any other law," further eroding existing privacy protections.

It gets even worse. Once your private information has been passed on to the government without your knowledge or consent - and with no way to right the wrong - there is absolutely no limit to how Big Brother can use it.

"CISPA lacks any meaningful limitations on the ways in which the federal government may use personal information and the content of private communications that it receives from private companies," writes Sharon Bradford Franklin of the Constitution Project, a bipartisan watchdog organization.

In other words, there is no requirement that the information obtained via CISPA's snooping be associated with the threats the legislation ostensibly addresses.

This is precisely the sort of unwarranted intrusion that our Founding Fathers set out to protect us from - which is why opposition to CISPA is coming from all points along the political spectrum.

"CISPA encourages some of our most successful Internet companies to act as government spies, sowing distrust of social media and chilling communications in one segment of the world economy where Americans still lead," Rep. Ron Paul, Texas Republican, wrote recently in opposing the legislation.

Even the Obama administration, which is obviously no stranger to the concept of government overreaching, appears to grasp these dangers.

"While information-sharing legislation is an essential component of comprehensive legislation to address critical infrastructure risks, information-sharing provisions must include robust safeguards to preserve the privacy and civil liberties of our citizens," President Obama's National Security Council spokeswoman Caitlin Hayden said recently.

It has been written that those who sacrifice liberty for security wind up losing both. That is what CISPA would do, which is why we should reject it and refrain from taking another step down that perilous path.

Howard Rich is chairman of Americans for Limited Government.