The Democracy Delusion

New Crypto-Fascist Laws for “Our Own Good”

The initiative “Sunshine in Government” has sent a letter to various senators manning the “Select Committee on Intelligence”, pointing out to them that the proposed CISA Act (the full Orwellian name of which is “Cybersecurity in Information Sharing Act 2014”) is apt to destroy what little is left of the “free press” (i.e., it seems the corporate media are apparently still given the benefit of the doubt by some).

It would probably be better to name it the “Anti Snowden Act”, as its purpose appears mainly to protect the government and prevent it from losing face in the future by having its shenanigans exposed. The full letter can be downloaded via a link at the end of this post. Here are two passages from it:

“We appreciate that the Act’s main goal is to encourage private companies, through significant limitations on liability, to share information voluntarily with the federal government (and each other) to help combat cyber threats.

However, we are concerned that the discussion draft released last week would threaten the flow of accurate news and information to the public and policymakers by creating a substantial chilling effect among journalists and their confidential sources, which are sometimes necessary to inform the public about matters that have nothing to do with securing computer networks. CISA as proposed would grant the federal government virtually unlimited authority to thwart news gathering and the use of confidential sources by removing meaningful judicial oversight and placing the balancing of vital democratic interests in the hands of the executive branch and private industry.  

The bill implicates the First and Fourth Amendments, and would permit the government to entirely bypass existing legal standards and prior notice requirements, including those currently found in the Electronic Communications Privacy Act (ECPA). The legislation is also diametrically opposed to the carefully crafted language of the federal shield bill, which tasks federal judges with balancing the right to a free press and the needs of law enforcement.

Specifically, CISA would authorize any department or agency of the federal government to obtain from private companies – without a warrant or other traditional legal process – “cyber threat indicators” and use that information for a “cybersecurity purpose” or for “the purpose of preventing, investigating, or prosecuting” crimes under the Espionage Act (Title 18, Chapter 37).Notwithstanding the express mention of the Espionage Act, the terms “cyber threat indicator” and “cybersecurity purpose” (and the additional terms that further define these terms) are exceedingly overbroad.

Reading the interconnected definitions together, CISA would grant the federal government the authority to engage in the warrantless collection of journalists’ communications records – including content and transactional metadata – if the government deems the journalists, or the confidential sources they work with, “security vulnerabilities” or “cybersecurity threats” potentially “adversely impacting” the confidentiality of information stored on government computers.

This kind of unbridled federal government authority – to classify journalists and their confidential sources as “security vulnerabilities” or “cybersecurity threats,” and obtain their communications records without meaningful judicial oversight, legal standards or prior notice – would create a significant chilling effect that would harm newsgathering and the ability of the press to inform the public.

The bill’s practical impact would be felt hardest by national security reporters who often inform the public with stories based on unauthorized disclosures of government information. We understand that unauthorized disclosures are disfavored by the government, but they also serve valuable purposes including exposing government malfeasance or outright illegal conduct. In fact, like other committees in both the Senate and House, this Committee’s oversight activities regularly depend upon and benefit from news reporting based on unauthorized disclosures.

Yet a national security reporter may fall squarely within the extremely broad definitions of CISA, be deemed a “procedural” or “operational” threat to the continued secrecy of government information, and be subject to government surveillance – either in the form of real-time monitoring or access to stored records – without the specific protections of the Fourth Amendment, ECPA, or even the Foreign Intelligence Surveillance Act (FISA). Or, if a story has already been published based on a leak, the federal government could obtain from private companies communications records about the journalist for the express purpose of investigating or prosecuting the leaker under the Espionage Act.”

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In sum, CISA would enable the federal government to do an end-run around the Constitution and existing privacy laws. Absent the protections found in strong judicial oversight, legal standards and prior notice requirements, federal investigators and prosecutors could easily obtain the communications records of journalists and their confidential sources, thereby creating an impermissible chilling effect on news gathering and irreversibly harming the flow of accurate news and information to the public and policymakers.”