Two weeks ago the Senate voted 52 to 46 to filibuster the Cybersecurity Act of 2012, essentially killing the bill on the floor. Without a supermajority of 60 votes, the bill is unlikely to be authorized before Election Day.
The Senate rejected cloture largely along party lines. Out of the 52 Senators who voted to end debate, 45 were Democrats and five were Republicans. By contrast, 40 of the Senators who rejected cloture were Republicans and six were Democrats. Both of Oregon’s Senators – Ron Wyden and Jeff Merkley – were among the minority of Democrats who filibustered the Act. Two Republicans – Mark Kirk of Illinois and Marco Rubio of Florida, both freshman – did not vote.
The bill, which Joe Lieberman of Connecticut and Susan Collins of Maine co-sponsored, can be read here. Its intent was “[t]o enhance the security and resiliency of the cyber and communications infrastructure of the United States.” It would have done so by establishing regulations for the computer systems that oversee critical infrastructure, including telecommuncations, power grids, dams and transportation. Original versions made these regulations mandatory and enforceable by the federal government. In the face of powerful business interest such as the U.S. Chamber of Commerce, however, the bill’s sponsors watered down the bill and made these standards optional, rendering them unenforceable.
Despite these concessions, however, key Republican Senators such as former presidential candidate John McCain of Arizona fought the bill to the bitter end. Their main concern seems to be that the bill would’ve imposed extra costs on and become burdensome for the private sector. Leave it to the Republicans to be more concerned about corporate business practices than about either the civil liberties of American citizens or the need to protect America’s infrastructure from a hypothetical cyberattack.
Not all opposition to the bill was based on corporate lobbying, however. Merkley, for example, based his reasoning largely on what he perceived to be a false choice between keeping Americans safe and protecting Americans’ privacy. On the day of the Cybersecurity Act’s failure, Merkley posted on Facebook an explanation of his decision to break party lines:
“Our national security leaders have made it clear that potential cyber attacks are a significant security threat to our nation. The current bill, however, is flawed. It fails to require security systems for critical infrastructure, but it provides companies with broad authority to collect and monitor Americans’ internet communications. This bill needs more debate, and there are many amendments Senators have proposed that deserve consideration, and that’s why I voted against ending debate on the Cybersecurity bill.”
Consistently fighting what he perceives to be violations of Americans’ civil liberties, Merkley also proposed amendments to the Foreign Intelligence Surveillance Act (FISA) of 1978 shortly after the filibuster. The “Protect America’s Privacy Act” would affect the way FISA courts operate. If they reject a spying request, the government would be required to “immediately stop the information acquisition and that any information collected from Americans may not be used in legal proceeding.” Any data collected could not be used in court without a probable-cause warrant as authorized by the Fourth Amendment. The full text can be read here.
Despite these setbacks, President Obama has made clear his intent to implement cybersecurity measures even as Congress has failed to pass a coherent bill to address the issue. Currently there is speculation that Obama will pass individual initiatives as presidential executive orders, thereby bypassing the need for congressional approval.
Concerns about civil liberties and regulation of businesses aside, nobody disagrees on the need to address U.S. vulnerability to a cyberattack. Nobody is claiming Americans should be exposed to greater threats or that the government should give up on its job of protecting its own citizens. Yet the watered down bill Republicans pushed for only to reject would have failed to impose enforceable guidelines for everyone to follow. Obama is right to have asked for federally mandated regulations, given the federal government’s obligation to protect Americans from foreign and domestic threats. That a supposedly bipartisan effort could so easily devolve into largely partisan bickering typifies the Republicans’ strategy of blocking any and all of Obama’s initiatives only to blame him for the consequences.