CISPA, Approved by House, Poses Threat to Internet Freedom

by Ifrah PLLC
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SOPA and PIPA, as legislative efforts to deal with online piracy and other infringing activity, have gone the way of the Edsel. But their next of kin, a new bill known as CISPA, has made it through the House, passing 248 to 168. It too seems unlikely to become law, as the White House has threatened to veto it.

SOPA and PIPA hit the skids after major online companies and consumer activist groups mounted a host of protests across the Internet, including Wikipedia’s and Google’s blackout in January. The concerns with SOPA and PIPA were that the legislation could cripple Internet innovation. The public concern over CISPA, and the declared basis for the White House veto threat, is that it the bill would significantly threaten civil liberties.

CISPA’s stated goal is to create new channels for communication between government intelligence entities and private firms regarding potential and emerging cybersecurity threats. It allows a company to intercept emails or text messages and to modify those messages or prevent them from reaching their destination if they qualify as a cybersecurity threat. It would allow the companies and the federal government to share information with each other in an attempt to foil hackers.

Like SOPA and PIPA, CISPA includes portions that protect intellectual property. If a person is potentially infringing on intellectual property and that infringing activity is considered a threat to cybersecurity, under CISPA his website or the place where his content was posted could be blocked. Critics argue that the proposed definition of “cybersecurity” is so broad that it allows for the possibility of the restriction of communications that are not in any way threatening.

CISPA would create a system of information sharing that would involve the oversight of the Director of National Intelligence, who would appoint members of the intelligence community who would work with employees of tech companies and grant security clearances. Any information that was categorized under the cyberthreat intelligence category could not be divulged beyond the two parties without approval.

Many tech companies that actively opposed SOPA are supporting CISPA. CISPA is drawing support from such firms as Facebook, Microsoft, AT&T, IBM, Intel, Oracle, and Verizon as well as business groups such as the Financial Services Roundtable and the U.S. Chamber of Commerce.

A key difference may be that under CISPA, companies like Facebook would not be required to share any information about their users with the authorities, and if they did, CISPA would protect them from liability. The bill currently states that any sharing that occurs under the legislation “supersedes any statute of a State or political subdivision of a State that restricts or otherwise expressly regulates” the exchanges between the government and other parties.

Online advocacy groups are gearing up to protest against CISPA. The Center for Democracy and Technology, as well as the American Civil Liberties Union and the Electronic Frontier Foundation are rallying against the bill, and the number of blogs and websites calling for CISPA to be defeated is increasing rapidly.

Although CISPA’s approach is different from that of SOPA and PIPA, this bill has many of the same potential problems that those bills had. The very broad language defining a cybersecurity threat could be prone to abuse. Several amendments were added to the bill in order to appease civil liberties concerns, such as limiting the government’s use of private data and which cyberthreat data can be shared. Even with these amendments, advocacy groups remain concerned about the legislation, and the veto threat persists. It remains to be seen what will happen with CISPA, but we hope it goes the way of SOPA and PIPA. We will keep you updated as things progress.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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