CISPA: Goodbye Privacy, Hello Police State

-- By SamuelDostart - 22 Apr 2013

Section I: So What is CISPA?

On the feet of massive opposition to SOPA and a failed first attempt, Congress is again attempting to pass expansive internet-monitoring regulation, widely opposed by the White House and many civil liberty advocates, and seen as “essentially nullifying current privacy laws.” CISPA functions as a proposed amendment to the National Security Act of 1947, that created the CIA and was responsible for the post-war restructuring of the armed forces. The stated goal of CISPA is “To provide for the sharing of certain cyber threat intelligence and cyber threat information between the intelligence community and cybersecurity entities, and for other purposes.” CISPA has been said to "waive every single privacy law ever enacted in the name of cybersecurity," by Republican Jared Polis.

The Primary Functions of CISPA

Some of CISPA’s primary goals and takeaways include:

- Eliminating any practical barrier to information sharing between governmental entities. Commentators have suggested that this indicates a shift of internet monitoring from civilian agencies towards the military.

- CISPA’s restrictions on how your information can be used for purposes other than deterring cybersecurity are very unclear, and it gives companies the ability to intercept your emails and text messages, send copies to each other and the government, and modify or prevent them from reaching their destination.

- The legal standard for citizens to hold companies liable for violating your privacy is very high, requiring “willful misconduct” the citizen to establish: (I) Intentionally to achieve a wrongful purpose; (II) knowingly without legal or factual justification; (III) in disregard of a known or obvious risk that is so great as to make it highly probable that the harm of the act or omission will outweigh the benefit.

- The rationale for cybersecuirty information gathering “is so broad that it leaves the door open to censor any speech that a company believes would ‘degrade the network.” The ACLU, in addition,recognizes the need for explicit collection and use limitations and rigorous oversight mechanisms to hold the government accountable. The lack of any accountability device is starting and very troubling.

- As long as companies share information in good faith compliance, they are protected from all civil or criminal liability.

In summary, CISPA permits the US government effectively limitless, unmonitored, access to all of the data files related to people’s lives. It represents congress attempting to take a nuclear strategy towards privacy rights – effectively leaving none behind.

Section II: Does CISPA violate the 4th Amendment?

The 4th Amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

CISPA bulldozes existing privacy laws, to allow real-time information sharing with the federal government, without making any reasonable effort to protect people’s privacy. The EFF has said that CISPA will lead to "backdoor wiretaps" and would "give companies a free pass to monitor and collect communications … and ship that data wholesale to the government or anyone else provided they claim it was for 'cybersecurity purposes.'” It is also noteworthy that these private companies are free from Freedom of Information requests.

Could there be a limit on the government's ability to use private companies to get around the 4th Amendment?

As we have discussed, the 4th Amendment applies to the government – not to private companies. CISPA turns companies into tools for the government by sanctioning them to track or spy on Americans, and absolving these companies of any liability from doing so (even if doing so is expressly against promises made to the users). CISPA also contains a section using the clause “notwithstanding any other provision of law,” which has the intent of superseding all other existing federal and state law. This section’s language has the intent of superseding any conflicting provisions to the contrary, potentially including the 4th Amendment.

It may be too much to hope for a revitalization of the 4th Amendment to align it with the ideal that identities are now searched, not places. However, there may be an argument that when the government turns companies into instruments, the companies must be viewed as an arm of the government. Here, companies are expected to provide the government with a continuous, instantaneous, up-to-date data dump on the personal lives of every American, and which the government would not be permitted to gain itself without the use of search warrants. While this may be a stretch, if the 4th Amendment is seen as containing a prohibition on attempts to innovate the search and seizure doctrine, as we talked about in class, then CISPA is unconstitutional. Unfortunately, this argument and others opposing the constitutionality of CISPA are at odds with the Supreme Court’s current interpretation.

Conclusion

While it is unclear whether any of these arguments will hold water, it is heartening to see that Obama believes the legislation is too broad and vague, and may veto it if it comes across his desk. Even more broadly, these parties have to be aware of the tragic triviality that will be made of the 4th Amendment if CISPA is passed. While the US may be better off with the government having some ability to detect terrorist attacks online, CISPA is too broad, and destroys too many civil liberties to be even considered as an answer.

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During periods, like now, when the House of Representatives goes bat-shit crazy (a recurrent phenomenon in our political history), commenting soberly on its productions is absurd. The questions of importance in Washington are, what is the White House going to ask for, and what are there 60 votes in the Senate to do? CISPA offers no guidance on those points, being nothing but the production of the bat-shit crazy House of Representatives.

So if this is current legal or political analysis, I think it misses the point. Conceptually, all governments will now attempt to listen to and data-mine anything they can, and the degree to which they can will be determined by local public opinion within their societies. Other social institutions will facilitate that listening to the extent that they are bribed or forced, and are not prevented by the rule of law.

The White House is currently deciding how much new authority to listen to the Net it wants to ask for, given the current climate of public opinion. The Senate will present a constellation of difficulties you could give good political analysis about, as you could about the nature of the forces within the Administration carry the President towards his eventual decisions.

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