With Senate cybersecurity bill stalled, opponents want more changes

The chances of passage this year are dimming

The 2012 Cybersecurity Act (CSA) is dead, at least for now, after backers of the bill in the U.S. Senate couldn't get the needed 60 votes to end debate on the measure and bring it to a vote. Last-minute revisions and a major push by the White Housewere not enough to save the bill.

The 52-46 vote to end debate was largely on party lines, with most Republicans opposed and most Democrats in favor of the measure. Despite the frustration of supporters, privacy advocates were pleased, especially since chances of passage are dimming.

Rainey Reitman, activism director for the Electronic Frontier Foundation (EFF), said the group had sought revisions to "put some real privacy protections in place. And there is definitely the fear that if Congress takes up another bill in the future, it might not have them. That is very worrisome.

"There are serious privacy problems that haven't been resolved," she said, pointing to Section 701. That part of the bill, she said, "gives companies new affirmative authority to engage in 'countermeasures,' like dropping packets or monitoring our personal communications if they do so for cybersecurity purposes."

See also: Lieberman: Cybersecurity Act of 2012 will help us protect critical infrastructure.

EFF was concerned enough about the eavesdropping that it launched an online campaign called "Stop Cyber Spying."

The EFF had serious doubts that the bill would provide the protections intended, Reitman said. "So we can all be glad that it failed, and hope that when they take it up again, they will address the issues that have been raised."

EFF and other privacy advocates weren't alone. The U.S. Chamber of Commerce opposed the bill as well. R. Bruce Josten, executive director of government affairs, in a July 25 letter, called the measure "deeply flawed" and wanted the Senate to take more time to consider what the bill would do.

The Chamber and other business groups want more protections involving information sharing between the private and public sector. Josten wrote that the Chamber supports an alternative bill proposed by Sen. John McCain (R-Ariz.) called the SECURE IT Act of 2012. That bill, he said, would provide, "certainty that threat and vulnerability information voluntarily shared with the government will not lead to frivolous lawsuits, will not be publicly disclosed, and could not be used by officials to regulate other activities."

On The Foundry, the blog of the conservative Heritage Foundation, David Inserra wrote that CSA, "seeks to solve our cybersecurity ills, but only threatens to make the situation worse.

"The CSA offers incentives, such as classified cyber threat information, to actors that meet these standards," he wrote. "But if this critical infrastructure is truly critical, there is no good reason to withhold valuable information from those who might not check every box the government suggests. The CSA also remains flawed because the standards it writes will be obsolete by the time they are enacted.

"The processing power of computers doubles every 18-24 months, and it takes 24-36 months to write a major regulation or rule," Inserra wrote.

Larry Clinton, president of the Internet Security Alliance, in a letter to Congress, said the revised bill was better than earlier versions, but not good enough to win passage. "We believe Congress can and ought to pass meaningful cybersecurity legislation in this session," he wrote. "However, even well-intentioned initiatives, without careful consideration and discussion with the entities that will be affected by the proposals, can easily make our security situation worse."

Don't expect a perfect bill, said Joel Harding, a retired intelligence officer, consultant and author of the blog To Inform is to Influence, said the demands of various interest groups are virtually impossible to meet.

"Do I think this bill is ideal?" he said. "Never, nope, nuh uh. There are too many paranoid people on both sides of the discussions in security versus privacy. We will never have a cybersecurity bill where everybody is completely happy."

But he said the CSA could have served as a constructive start. "The United States needs to get a modern law on the books and sort out improvements and upgrades later," he said.

Jason Healey, of the Atlantic Council and a one-time White House security official, has been saying for months that nothing was going to get done on cybersecurity this year. He didn't much like CSA anyway.

"To really make a difference, we must fundamentally change the nature of defense and offense," Healey said. "We have to make it much easier to defend than to attack, shifting where we've been for decades. There's little in the bill that makes it probable we'll get there, which means we'll just need another bill in a few years."

Even if the bill had passed, the chances of it surviving a conference committee with the House of Representatives were nil. McCain said as much last week: "There is no chance that the cybersecurity bill ... will have a chance of passage in the House of Representatives," according to Molly Bernhart Walker, writing at FierceGovernmentIT.

Copyright © 2012 IDG Communications, Inc.

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