It was early in the morning on January 18. We all remember it. I was exhausted from staying up until 4am working on an article, and I was running on about three hours of sleep and a handful of Bold Party Chex Mix. All of a sudden it dawned on me: I could not remember what book Lew Wallace, Nineteenth Century governor of the New Mexico territory and legendary foe of gunslinger Billy the Kid, wrote. Now, I am a big fan of trivia and an even bigger fan of Old Western lore, so weary-eyed me was determined to “remember” the answer. Obviously, I headed to Wikipedia for an expedient solution. That was when I saw it – Wikipedia was “blacked-out” in opposition to SOPA, the much-chided proposed legislative measure meant to curb online copyright infringement. We were all concerned about SOPA, PIPA, and, to a lesser extent, ACTA. It was a great moment of solidarity against a draconian solution to a real problem, but have we all let our guard down too soon?

The Cyber Intelligence Sharing and Protection Act of 2011 (CISPA), introduced in late 2011 by Rep. Mike Rogers, seeks to open lines of communication between entities such as the National Security Agency and private-sector enterprises in order to improve cybersecurity and protect individuals’ private information. However, many are concerned that, like SOPA, this well-intentioned piece of legislation could be expanded beyond its purported aims in order to abridge the constitutional rights of American citizens. Among the concerned are organizations like the ACLU.

In an open letter, the ACLU catalogs its apprehensions, most of which are based on personal privacy rights. As the ACLU reads the bill, private organizations would be able to share customers’ private information with the government for “cybersecurity purposes.” If the companies provided the information in good faith within the bounds of the statute, the organizations would enjoy full immunity for violations of customers’ privacy. Further, the ACLU is concerned that there is no comprehensive oversight structure in place, and no regulatory body has been charged with assembling usage guidelines. At the very least, the ACLU maintains that Congress should pare down the provisions of CISPA and define its application and purview narrowly.

The Electronic Frontier Foundation (EFF) goes even further, arguing that CISPA “effectively creates a ‘cybersecurity’ exemption to all existing laws.” According to the EFF, “cybersecurity” concerns could be interpreted broadly to include intellectual property, essentially making the bill another SOPA. Beyond this, the bill could be used to silence whistleblowers, targeting controversial sites like Wikileaks. This is a real concern, as the current administration, once touted as a protector of whistleblowers, has become hostile towards those bent on exposing government corruption.

The moral of the story is this: we live in an age of exposure. Technology has outgrown the intended confines of the Constitution, and we occupy a brave new world in which we, the people, will have to remain constantly vigilant in order to protect our privacy rights. Legislators will be waiting until the public consciousness forgets about SOPA, and they will pass legislation that impinges our privacy rights in the name of “national security.” The question becomes one of substance and conviction. What good is safety when we have no rights?

By the way, Lew Wallace wrote Ben-Hur.

– W. Colton Cline

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3 Responses to A New SOPA? When Cybersecurity Goes Too Far

  1. Sophia says:

    Great post, Colton! It seems as though legislators are claiming that CISPA is different from SOPA/PIPA because it doesn’t allow the government to disable websites. Instead, it allows lawmakers to “snoop” around websites and collect private information in the name of cybersecurity. You are right: both disabling websites and unlimited “snooping” infringe on our rights. Unfortunately, the US public has such a short attention span – one day of protests and then everyone will forget about this again. It seems as though lawmakers are waiting for just that.

  2. Katie Brown says:

    I agree with Colton that we need to be especially aware of the terms in this debate, and of the risk of overbroad readings of terms like “cybersecurity” in IP legislation. In the recent SOPA controversy, proponents argued that the legislation would provide the “gold standard” of due process for websites with infringing content, while opponents argued that SOPA would trample on due process and free speech freedoms. The SOPA debate thus highlighted the wide gap between how each side defines not only the aims of the legislation, but also the constitutional issues it raises. The fact that SOPA came close to passage should make us alert to CISPA and other iterations of IP legislation likely to emerge in the future. It is important that all stakeholders make legislators aware of the immediate and collateral consequences of these bills so that the content industry lobby is not the only voice influencing the future landscape of our laws.

  3. Alex says:

    It’s more than clear that SOPA/PIPA bills are more political show then some real need. This more intended to be someones order against someone and here only financial purposes are followed. I think that there is no reason to go dark or make great protests. Politicians wait for such a reaction. Can you imagine the power that will control the web? Who will do it, just think about it!