A proposal for new cybersecurity legislation by US President Barack Obama's administration could give the government unprecedented access to private data, critics have said.
The White House proposal, which encourages private organisations to share information about cyber-attacks with the US Department of Homeland Security, would trump limits on government access to private data found in the Wiretap Act, the Electronic Communications Privacy Act and other laws, said Leslie Harris, president and CEO of the Center for Democracy and Technology (CDT).
The proposal, released this month, "simply sweeps away all of these laws in favor of this broad information sharing," Harris said at a hearing before the US House of Representatives Judiciary Committee's oversight subcommittee.
The Obama administration proposal would give private organisations immunity from lawsuits when they share information about attacks with DHS.
While the proposal limits the information sharing to cybersecurity issues, Harris and some lawmakers suggested the language would still allow private organizations to share vast amounts of information with DHS. Under the proposal, DHS can request information and assistance from private organisations to implement cybersecurity programs, said Representative Mel Watt, a North Carolina Democrat.
"It basically says, 'if you do what we tell you to do,' then you are given immunity from any kind of liability," Watt added. "That's pretty damn broad."
The information-sharing components of the proposal, Watt said, reminded him of surveillance of US residents by the US National Security Agency and cooperation from telecom carriers, later given legal immunity by Congress.
The proposal sets limits on the type of information companies can share, said James Baker, associate deputy attorney general at the Department of Justice. "They need to act in conformance with the law, or have a good-faith belief that they're doing so," Baker said. "If they go off the reservation and do something that's not authorized, then they don't get liability protection."
The aim of the proposal is to allow private companies to seek help from DHS when they're attacked, said Greg Schaffer, assistant secretary for cybersecurity and communications at DHS. The sharing of information can be used to help "a whole range of other players who are potentially at risk," he said.
The proposal seems to leave little role for courts in overseeing whether companies should share information with DHS, added Representative Darrell Issa, a California Republican.
When Baker said the information sharing would be voluntary, Issa questioned if that was the case. "Your asking for cooperation with the force of your ability to make life miserable on private-sector companies behind closed doors is not a voluntary act," he said. "You can be very, very convincing."
Harris, Watt and other lawmakers also raised concerns about the proposal's call for minimum sentences for cybercrime. In some cases, cybercrime is due to "adolescence mischief," Watt said.
Watt also questioned the proposal's goal of creating a national data breach notification law to replace 47 state laws that now exist. A new national law may replace tougher state laws, he said. "Why would I want to do that?" he added.
Baker and Schaffer defended the proposal, saying new legislation is needed to protect the US government and private businesses from serious cyber-attacks. "In cyberspace, offense wins and defense tends to lose," Schaffer said.
Representatives of the Business Software Alliance (BSA) and the Financial Services Roundtable also spoke out in favor of the proposals. Strong cybersecurity legislation will help grow the US economy, said Robert Holleyman, president and CEO of the BSA.
"Cyber-attacks against the computers, servers and networks on which companies depend have reached unprecedented levels of sophistication, with the aim of committing extortion or stealing intellectual property and other trade secrets for the benefit of competitors," he said.