Lieberman’s Cyber-Demagoguery

Demagoguery vs. Constitutionality
May 12, 2010
We the people do not sacrifice our liberty for temporary security
July 2, 2010

Demagoguery in the name of national security is a grand tradition in the US Congress—so much so that the competition for top demagogue is fierce. Despite the crowded field, however, when it comes to grandstanding on terror, Senator Joe Liebermann is in a class by himself. Last month Lieberman floated a bill that would suspend legal rights on any US citizen suspected of terror ties by stripping them of citizenship. Proving that champion demagogues never rest on their laurels, Lieberman this month has broken new ground, using concerns about cybersecurity to launch the “Protecting Cyberspace as a National Asset Act”, a bill that, as dissected by former Rep. Bob Barr of Georgia, would grant the Executive Branch wide power and discretion to assert control on virtually all aspects of the Internet on the basis of potential cyber-threats, a likely recipe for overreach if ever there was one.

The Congress for the past year has been toying with legislation to protect the government’s vast cyber-systems, but which at the same time would grant the president and the Department of Commerce in particular, vast and virtually unfettered power to commandeer even private computer network systems under the vague notion of a potential cyber-threat.  None of these bills has gained sufficient traction to pass either house of the Congress.  Lieberman hopes his latest attempt, encumbered by the unwieldy title, the “Protecting Cyberspace as a National Asset Act” (“PCNAA”), will break that losing streak. PCNAA would greatly expand the federal cyber-security bureaucracy, this time largely within the Department of Homeland Security.  In particular, a new National Center for Cybersecurity and Communications (NCCC), would gain power to issue enforceable commands to any private company that “relies” on the internet.  Any internet traffic or private internet system could be shut down under emergency powers granted in the legislation.  These powers could be exercised if the government determines there is a vaguely-defined “incident” that even “potentially jeopardizes” any internet or communications network. Federal interference in the private sector would not be limited to “emergencies.”  As noted, for example, by privacy expert Declan McCullagh in a recent article, the NCCC would be able to monitor the “security status” of private websites and internet systems. Anticipating industry opposition to the legislation, the draft bill makes a significant effort to essentially buy-off private-sector opposition, by granting immunity from civil lawsuits to companies that might commit costly errors or harm customers as a result of complying with government directives under the legislation.  As another indirect inducement to gain industry support, Lieberman’s bill makes clear that federal agencies will be making massive new purchases of products to enhance the security of their cyber systems.