The odds of the Senate passing cybersecurity legislation (S 3414) before the August recess took a hit last night, as Senate Majority Leader Harry Reid, D-Nev., moved to close debate and file cloture late Tuesday. Reid took action after the two sides were unable to agree on which amendments consider, with Republicans pushing for a vote on repealing the 2010 health care law. Reid now needs 60 votes to move forward, which he admitted he is unlikely to get. That means cybersecurity legislation could wither on the vine as soon as today, if no deal is reached.
Both sides are predictably passing the blame, with Democrats accusing Republicans of placing partisan politics above national security, and Republicans charging that Democrats tried to rush complex legislation that could have unintended consequences. Regarding the latter point, Republicans point out that the latest version of the Democrats' legislation, which includes major changes like the removal of mandatory security standards for critical infrastructure providers, was introduced only two weeks ago. This is a case where the Democrats' attempt to hold the hard line in negotiations has clearly been a failure.
Sen. Joe Lieberman, I-Conn., and the bill's other sponsors have stubbornly insisted on the inclusion of security requirements until the last minute, despite clear indications that Republicans in both chambers have no appetite for such broad regulations. Even the latest draft is drawing concerns from the U.S. Chamber of Commerce, which argues the voluntary standards in the bill would eventually become mandatory in practice. Democrats and Senate leadership are blaming the chamber for its opposition to the bill, but industry's concerns about potential regulation are widespread and longstanding. The bill's sponsors may have significantly watered down its security requirements, but never really abandoned their fixation on implementing some sort of security standards, which may ultimately prevent passage.
The sponsors of the bill also appear to have misplayed their political position, perhaps relying on the national security implications of the bill to pressure the GOP into going along. But in reality, cybersecurity is still not a voting issue for most Americans. Republicans know that failure to pass a bill won't have any short-term political cost, but supporting something opposed by industry could lead to trouble down the road. So the political upside is fairly limited for either party. Of course, many lawmakers are supporting the cybersecurity bill because they believe it is the right thing for the country. Democrats and the White House were counting on the threat of a cyberattack being significant enough to compel Republicans to act. But it's not clear that the bill as it now stands would do much to prevent a major cyberattack, or even give either side sufficient political cover if such an event causes significant damage or loss of life in the U.S.
Given the uncertainty about the potential benefits vs the very real opposition, it's looking doubtful that the Senate will pass legislation this week. The only possible road forward appears to be a complete capitulation on the part of the Democrats regarding critical infrastructure, and that hasn't happened yet, so there's no reason to believe it will take place now. Senate Republicans appear happy to move on to recess, with their party line being that the Democrats tried to rush through a critical piece of legislation that would regulate the Internet. The accuracy of that statement can be debated, but Republicans can also point to the House's information sharing bill (HR 3523) as evidence they take cybersecurity seriously. Democrats will likely blame GOP obstructionism, as they have on other issues. Either way, most voters probably won't care. We'll be tracking close leading up to the cloture vote.
Bill Would Boost Online Tracking of Hazardous Waste: The House Energy and Commerce Committee approved legislation (S 710) on Tuesday that would require the EPA to create an electronic system to track the transport of hazardous waste. The agency would have three years and $2 million to do so. The same panel also advanced a separate measure (HR 6131) that would extend the Federal Trade Commission's authority to target foreign businesses attempting to scam U.S. consumers. The agency's authority to share information and cooperate with foreign governments was set to expire next year; the Senate and House both advanced measures Tuesday that would extend that authority until 2020. Bono Mack Stumps for Data Privacy Bill: Rep. Mary Bono Mack, R-Calif., published an op-ed in Roll Call today stumping for the passage of her data privacy legislation (HR 2577), which would require companies to protect consumers' personal information and notify them if the data has been breached. There is widespread support for creating a national data breach standard to replace the patchwork of state laws, but Congress has been bogged down over the details, like how long companies should have before they must inform consumers that their information has been compromised.