Despite reports of progress on cybersecurity legislation, a hearing Wednesday in front of the Senate Homeland Security Committee showed the two sides remain far apart and may not be able to bridge the gap before the close of the legislative session. A panel of experts including former CIA and NSA director Michael Hayden told lawmakers that their competing cybersecurity proposals (S 2105, S 2151) share a good deal in common and aren't necessarily competing bills. The experts were in agreement that it would be best for Congress to act now and pass something that can be improved down the road, rather than waiting for a perfect bill while the country is vulnerable to attack. Their views were in line with panel Chairman Joe Lieberman, I-Conn., who is determined to address one of his pet national security concerns before retiring at the end of the year.
But panel Republicans weren't as inclined to dismiss the differences between the bills, particularly John McCain, R-Ariz., a leader of the opposition. McCain reiterated his longstanding concerns about the Department of Homeland Security being placed in charge of cybersecurity, arguing that giving DHS the unchecked ability to issue regulations would do more harm than good. He also dismissed the idea that it would be better to pass a bill in haste, rather than waiting to get it right. His concerns about the capacity of DHS were echoed by RAND Coporation senior adviser Brian Michael Jenkins, though Sen. Susan Collins, R-Maine, argued DHS has done a good job of staffing up recently. Still, the most salient objection may have come from Wisconsin Republican Ron Johnson, who compared the cybersecurity debate to the backlash against SOPA (HR 3261). Given the public's distrust of any attempt to police the Web, he argued cybersecurity legislation should only address the highest priority, which according to the panel, was information sharing between the public and private sector.
Johnson's argument hits home, because it is among the few that takes into account the political realities of cybersecurity in an election year. Put simply, the portions of the public that are concerned about tech policy issues (tech companies, online activists, developers and others who rely on the Web for their living) deeply mistrust the government's ability to regulate it. While Lieberman doesn't have a campaign to worry about, the White House and Senate leadership do. Which is why it's difficult to see them ramming through their unpopular legislation in the name of national security just months ahead of the presidential election, particularly with liberal, Tea Party, industry and privacy advocacy groups all aligned against it. Even the information sharing legislation passed by the House (HR 3523) has drawn considerable suspicion from civil liberties advocates, even though its sponsors negotiated with privacy groups in an attempt to appease their concerns. At least that bill has the backing of industry, which is dead-set against Lieberman's package.
We still expect Congress to either pass something akin to an information sharing measure or nothing at all this session. Absent an agreement in the Senate, Democrats could still choose to push forward with regulations for critical infrastructure providers, however weak, over GOP objections. But doing so would almost ensure that the House would resist, shelving cybersecurity for another year. Given the rising stakes of the issue, the experts tell us that would be folly.
Lieberman Preparing Record For Successor: Sen. Lieberman is also preparing for his departure by calling a series of hearings on emerging threats, designed to give the next Senate Homeland Security chairman an overview of the threats facing the United States and how the government is handling them. The influential committee has jurisdiction over law enforcement agencies, first responders and government overhaul efforts, among other topics. Whoever gets the gavel will be in prime position to shape federal policy in cybersecurity and will likely take a lead role in the formation of the national public safety broadband network. But it's currently not clear who that would be; Sen. Thomas Carper of Delaware is the senior Democrat on the panel. Web Sales Tax Gaining Momentum in Congress: The push to enact online sales tax legislation has gained steam in recent weeks, with Sen. Michael Enzi, R-Wyo., recently pushing his bill as an amendment to the small-business tax package (S 2237) pending on the Senate floor. The House Judiciary will also take up the issue later this month, giving hope to retailers that argue online companies hold an advantage over their brick-and-mortar counterparts by not having to charge customers sales tax. Currently companies are only required to collect the tax in states where they have a physical presence, an inconsistent standard that has prompted considerable dispute. Retailers received a boost when Amazon.com joined their camp; the online retailing giant currently only pays sales tax in five states, but will soon have to do so in major markets like California and Texas, prompting them to push for a national standard.Small business advocates and eBay maintain that charging sales tax would hurt small companies, but their arguments may fall on deaf ears, particularly given the current budget crunch facing most states. With the legislative session shrinking quickly, there may not be enough time to address the issue this session, but we expect Congress to eventually establish a national standard that would open up a new stream of revenue for the states.
Security Leak Laws Tough to Change: Experts told a House Judiciary Committee sub-panel on Wednesday that the laws governing leaks of classified information are outdated and ambiguous, making any update a complex task. Cracking down on leaks has become a hot topic after recent reports revealed details about classified drone strike and cyberweapon programs, prompting accusations that the White House authorized the leaks for political reasons. Lawmakers on both sides of the aisle have expressed interest in stopping the leaks by potentially increasing the ability of the intelligence community inspector general to probe them. One legal expert said revising the Espionage Act would be necessary, but any change would have consequences for the First Amendment and the freedom of the press.