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Homeland Security Internet monitoring dropped from CISPA

Rep. Sheila Jackson Lee, a Democrat, withdraws her amendment to CISPA that would give Homeland Security more Internet-monitoring authority -- after CISPA's author dubbed it "Big Brother."

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
5 min read
Homeland Security's Janet Napolitano won't receive Internet-monitoring authority now that a CISPA amendment has been withdrawn.
Homeland Security's Janet Napolitano won't receive Internet-monitoring authority now that a proposed CISPA amendment has been withdrawn. DHS

Rep. Mike Rogers, the author of a controversial Internet surveillance bill and chairman of the House Intelligence Committee, isn't exactly a card-carrying civil libertarian.

The Michigan Republican has called for the execution of accused Wikileaker Bradley Manning. His CISPA bill, whichpassed the House of Representatives this afternoon, has been savaged as obliterating "any semblance of online privacy" for Americans and, by fellow Republilican Ron Paul, as "Big Brother writ large."

But Rogers strode onto the floor of the U.S. House of Representatives this afternoon to invoke the same Big Brother epithet to denounce a proposed Democratic amendment (PDF) to CISPA that authorizes Homeland Security Secretary Janet Napolitano to "intercept" a large portion of Web and e-mail communications.

CISPA author Mike Rogers, a Republican, calls a proposed Democratic amendment "Big Brother on steroids."
CISPA author Mike Rogers, a Republican, calls a proposed Democratic amendment "Big Brother on steroids." C-SPAN

"This would be the government tracking communications, your medical records from the Veterans Association, your IRS forms coming in and out of the federal government," Rogers said. "This is exactly what scares people."

After groups as varied as the ACLU, the American Library Association, and the Republican Liberty Caucus have slammed CISPA as anti-privacy, Rogers seemed to relish the opportunity to position himself as an ardent defender of Internet freedom. CISPA stands for the Cyber Intelligence Sharing and Protection Act.

It didn't hurt that the sponsor of the amendment was Rep. Sheila Jackson Lee, a notoriously feisty partisan Democrat. And that Jackson Lee's amendment was patterned on legislation that President Obama announced last year.

While cybersecurity is important, Rogers said, "we can't do it by trampling privacy and civil liberties. This is awful. I'm just shocked."

"This is Big Brother on steroids," Rogers added, for good measure.

Amendment Excerpts

The Secretary of Homeland Security is authorized, notwithstanding any other provision of law, to acquire, intercept, retain, use, and disclose communications and other system traffic that are transiting to or from or stored on Federal systems and to deploy countermeasures with regard to such communications and system traffic for cybersecurity purposes provided that the Secretary certifies that such acquisitions, interceptions, and countermeasures are reasonable [sic] necessary for the purpose of protection Federal systems from cybersecurity threats...

The Secretary may enter into contracts or other agreements, or otherwise request and obtain the assistance of, private entities that provide electronic communication or cybersecurity services to acquire, intercept, retain, use, and disclose communications and other system traffic...

Jackson Lee's amendment would authorize Homeland Security to "acquire, intercept, retain," and "use" data that transit networks owned by the federal government or operated on its behalf by a carrier such as Verizon, Qwest, and AT&T. Homeland Security could do that if it claims the surveillance would ward off "cybersecurity threats."

Rogers' attack left Jackson Lee, named the "meanest" member of Congress by Washingtonian magazine, a bit surprised and definitely annoyed. (Last December, Jackson Lee interrupted the discussion of the Stop Online Piracy Act, or SOPA, to demand an apology after a Republican tweeted that she had been boring him. She also caught flack for saying there was still a north and south Vietnam.)

The amendment would "protect federal systems from cybersecurity threats," Jackson Lee said. "What it does not do is allow Homeland Security and the Justice Department to spy on Americans."

Jackson Lee took aim at Rogers, saying that CISPA fell short and needed an upgrade. "Oversight of our nation's critical infrastructure was not included," she said.

She warned that her measure would let Homeland Security protect the computer network that "allows Congress to operate" -- probably not the best argument to present to the legislative branch, since her language would also give the executive branch to "intercept, retain, use, and disclose" data flowing over Capitol Hill networks as well.

Rep. Lynn Westmoreland, a Georgia Republican, responded by going on the offensive. "This is the type of amendment that people fear," he said. "That we would give Homeland Security the ability to keep, intercept the transmission. That is totally out of hand."

Faced with staunch Republican opposition in a GOP-dominated House, Jackson Lee responded by denouncing Rogers' CISPA bill as just as bad.

The "underlying bill" -- that is, CISPA -- "is considered an underlying invasion of privacy," Jackson Lee said.

Probably the most controversial section of CISPA says that "notwithstanding any other provision of law," companies may share information with Homeland Security, the IRS, or the National Security Agency. By including the word "notwithstanding," CISPA's drafters intended to make their legislation trump all existing federal and state laws, including ones dealing with wiretaps, educational records, medical privacy, and more.

At the end of the debate, Jackson Lee withdrew her amendment, but not before accusing the Republicans of engaging in a complete "misrepresentation" of her amendment.

Americans for Limited Government president Bill Wilson sent CNET this statement after the debate over Jackson Lee's amendment:

It is a good day for liberty when an Orwellian amendment so horrific that it would have authorized the Secretary of Homeland Security, a political appointee, to monitor the nation's entire digital infrastructure and in the process, spy on Americans, was withdrawn from consideration. This police state on steroids amendment by Rep. Sheila Jackson Lee was a thuggish thrust at authoritarian control on all Americans.

It is likely the amendment was about to go down to a spectacular bipartisan defeat. And deservedly so.

Meanwhile, the House is continuing to debate other proposed amendments to CISPA. Civil liberties groups have pointed out, however, that the most pro-privacy amendments were not allowed to be considered.

"Key amendments that address the fundamental civil liberties issues in the bill have been left behind," a coalition of anti-CISPA groups said in a letter to Congress today. "Even if a number of amendments are adopted, on balance CISPA will still needlessly and unjustifiably impinge on Americans' privacy because amendments that are imperative won't even be considered. We strongly urge you to vote 'no.'"

The letter was signed by the ACLU, the Electronic Frontier Foundation, the National Association of Criminal Defense Lawyers, Liberty Coalition, and others. Also signing was the Center for Democracy and Technology, which had previously agreed to muzzle its criticisms of the bill, as CNET reported yesterday.

A final floor vote on CISPA is expected soon.

Update 4:15 p.m. PT: The House has approved CISPA by a 248-168 vote, despite the growing opposition and a formal veto threat. Here's our CNET article with details.