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by Office of Senator Al Franken
Section 701 of the Cybersecurity Act grants ISPs a broad, immunized and, according to many experts, duplicative authority to monitor private communications and deploy countermeasures against cybersecurity threats. This amendment deletes that authority, bringing it in line with
President Obama’s May 2011 legislative proposal. The excellent changes already in Title VII go a long way in addressing privacy and civil liberties concerns with this bill; this amendment will address what several experts consider its single largest remaining privacy issue.
For decades, the Wiretap Act has given ISPs the authority (1) to monitor their systems for cybersecurity threats; and (2) to protect their property and that of their customers against those threats. See 18 U.S.C. § 2510(4) and (5); §§ 2511(2)(a)(i); (2)(g)(iv); 2(i). If an ISP abuses this authority to snoop on its customers’ emails, it will face liability. Customers’ privacy is protected—and so is cybersecurity.
Section 701 overrides these protections to grant ISPs a new authority to monitor their systems for cybersecurity threats and deploy countermeasures against those threats. The terms “monitoring” and “countermeasures” are defined broadly—there is no requirement that they be deployed in a targeted or tailored manner. Also, if a company exercises these authorities negligently, they will likely face no liability: section 706 of the Cybersecurity Act immunizes companies that negligently violate their monitoring authority and allows companies who negligently deploy countermeasures to claim a total “good faith” defense. See S. 3414 section 706(a)(1); (b).
This combination of broad authority, overriding of privacy laws and broad immunity means that:
Tellingly, President Obama’s May 2011 cybersecurity proposal—crafted through a multi-year comprehensive process—includes a new authority for companies to disclose cybersecurity threat information but no new monitoring or countermeasures authorities. Senior Department of Homeland Security legal officials have acknowledged that these new authorities were deemed legally unnecessary.
The Franken Amendment is supported by the American Civil Liberties Union, the Center for Democracy and Technology, the Electronic Frontier Foundation, and the Competitive Enterprise Institute. For more information, contact Alvaro Bedoya at 4-1024 or Alvaro_Bedoya@judiciary- dem.senate.gov.
:: image made available by Veni Markovski, via Creative Commons license ::
Al Franken is the junior United States Senator from Minnesota.