CISPA: Worse Than SOPA.

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CISPA: Worse Than SOPA.

Postby jestingrabbit » Sat Apr 07, 2012 7:34 pm UTC

http://www.firstpost.com/tech/introduci ... 68824.html
Spoiler:
Congress is considering legislation that would give companies a free pass to monitor and collect communications, including huge amounts of personal data like your text messages and emails, and share that data with the government and anyone else. All a company has to do is claim its privacy violations were for "cybersecurity purposes." Tell Congress that they can’t use vaguely-defined "cybersecurity threats" as a shortcut to bypassing the law.

H.R. 3523, also known as the Cyber Intelligence Sharing and Protection Act of 2011, would let companies spy on users and share private information with the federal government and other companies with near-total immunity from civil and criminal liability. It effectively creates a "cybersecurity" exemption to all existing laws.

There are almost no restrictions on what can be collected and how it can be used, provided a company can claim it was motivated by "cybersecurity purposes." That means a company like Google, Facebook, Twitter, or AT&T could intercept your emails and text messages, send copies to one another and to the government, and modify those communications or prevent them from reaching their destination if it fits into their plan to stop cybersecurity threats.

Worst of all, the stated definition of "cybersecurity" is so broad, it leaves the door open to censor any speech that a company believes would "degrade the network." The bill specifically mentions that cybersecurity can include protecting against the "theft or misappropriation of private or government information" including "intellectual property." Such sweeping language would give companies and the government new powers to monitor and censor communications for copyright infringement. It could also be a powerful weapon to use against whistleblower websites like WikiLeaks.

Congress wants to use the threat of "cybersecurity" to undermine our digital rights. Tell your lawmakers that we won’t stand for dangerous, unsupervised information sharing in this bill or any bill like it.
tl:dr
It effectively creates a "cybersecurity" exemption to all existing laws.
My fellow internetizens, this is something that we might want to worry about.
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Re: CISPA: Worse Than SOPA.

Postby sourmìlk » Sat Apr 07, 2012 7:37 pm UTC

A cursory glance of that excerpt says to me that it's blatantly unconstitutional. The government would be allowed to query any private information of your any time, without a warrant. The fourth amendment clearly prohibits unlawful searches like that.
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Re: CISPA: Worse Than SOPA.

Postby Princess Marzipan » Sat Apr 07, 2012 7:46 pm UTC

One would also think the Fourth Amendment also protects against invasive security procedures from the TSA, but it seems our legislators, executives, and judges value the amendment less than the crumbly old paper it's written on.
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Re: CISPA: Worse Than SOPA.

Postby sourmìlk » Sat Apr 07, 2012 7:52 pm UTC

Well when you go on an airline I think you explicitly give permission to be put through security, so as stupid as most of those procedures are, I don't know that they qualify as unconstitutional. At the very least, you could make a decent argument that it isn't. But using an avenue of expression protected by the first amendment, listed as a human right by the UN (in a decision I don't quite agree with, but whatever), cannot possibly qualify as consent to a search.
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Re: CISPA: Worse Than SOPA.

Postby Qaanol » Sat Apr 07, 2012 8:03 pm UTC

sourmìlk wrote:Well when you go on an airline I think you explicitly give permission to be put through security, so as stupid as most of those procedures are, I don't know that they qualify as unconstitutional. At the very least, you could make a decent argument that it isn't.

If an airline, freely of its own volition, decided “Hey, if you want to fly with us, you have to agree to a search” that would be fine.

The problem is the federal government decided, “Hey, if you’re an airline, you cannot transport any passengers unless they agree to a search.”

And that is unconstitutional, because the government cannot force people to be searched without reason or warrant.
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Re: CISPA: Worse Than SOPA.

Postby sourmìlk » Sat Apr 07, 2012 8:15 pm UTC

The thing is they're not forcing you, you just have to give consent if you want to fly on a plain. Unlike expressing yourself via whatever means are available to you, flying on a plane is not a right, and so I don't see a strict legal reason why the government doesn't have a right to make you consent to a search before flying on a plane. It's like how driving constitutes implicit consent to an alcohol test.
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Re: CISPA: Worse Than SOPA.

Postby LaserGuy » Sat Apr 07, 2012 8:21 pm UTC

sourmìlk wrote:A cursory glance of that excerpt says to me that it's blatantly unconstitutional. The government would be allowed to query any private information of your any time, without a warrant. The fourth amendment clearly prohibits unlawful searches like that.


The Fourth Amendment only applies to government, not to private individuals or organizations. Moreover, since you are using private networks or private services that you have freely chosen to use, a case could be made that you have consented to a search in much the same way that you consent to a search prior to flying.

Honestly, these days, it's not clear that the Fourth Amendment applies in any but the most trivial circumstances.
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Re: CISPA: Worse Than SOPA.

Postby sourmìlk » Sat Apr 07, 2012 8:26 pm UTC

The internet is a protected avenue of speech, and I don't think that you could make the argument that you consent to give up one right to use another. Things you have a right to you have a right to: you don't need to give something up to use them. And while I get that private networks and services can collect your information, what I don't see as legal is the government requesting it from them. That constitutes a government search.
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Re: CISPA: Worse Than SOPA.

Postby omgryebread » Sat Apr 07, 2012 8:51 pm UTC

This:
sourmìlk wrote:The internet is a protected avenue of speech,
relates to the First Amendment.

And this:
And while I get that private networks and services can collect your information, what I don't see as legal is the government requesting it from them. That constitutes a government search.
relates to the Fourth.

The First Amendment provides for freedom of speech, especially public speech. The Fourth provides for "The right of the people to be secure in their persons, houses, papers, and effects." Neither protects the privacy of anyone's speech, nor do they combine into a superamendment to do so.

This law is constitutional. Nothing in the constitution prevents private entities from doing anything. This law also does absolutely nothing to extend the rights of the government. (In regards to searches. It does give heads of the elements of the Intelligence Community more leeway in granting security clearances.)
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Re: CISPA: Worse Than SOPA.

Postby sourmìlk » Sat Apr 07, 2012 8:55 pm UTC

I'm concerned more with the right to protection against unreasonable searches. Is there really no precedent stating that looking up private online information constitutes a search?

Also, I'm not saying that the amendments combine or that the fourth amendment explicitly states that the right to speak privately is protected, but rather that the bill of rights isn't an either-or thing. I'm pretty sure it wasn't designed such that you have to pick between the first or the fourth amendment.
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Re: CISPA: Worse Than SOPA.

Postby omgryebread » Sat Apr 07, 2012 9:17 pm UTC

sourmìlk wrote:I'm concerned more with the right to protection against unreasonable searches. Is there really no precedent stating that looking up private online information constitutes a search?

Also, I'm not saying that the amendments combine or that the fourth amendment explicitly states that the right to speak privately is protected, but rather that the bill of rights isn't an either-or thing. I'm pretty sure it wasn't designed such that you have to pick between the first or the fourth amendment.
The law doesn't allow unreasonable searches though. If the government got some information on you without a warrant, and went to trial with the evidence, if that information was considered privileged, the evidence would be thrown out. The difference the law makes is that you couldn't pursue a civil or criminal case against the company that provided the government with the information. It doesn't, and couldn't, grant the government the right to search without a warrant.


You don't have to choose between the first and the fourth. You only get protection from the fourth amendment if you have a reasonable expectation of privacy. There's nothing protected about the internet. Almost certainly a post on these forums could be used to prosecute me, because it's available publicly, and can't reasonably expect them to be private. An e-mail from one individual to another is private, on the other hand.
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Re: CISPA: Worse Than SOPA.

Postby Qaanol » Sat Apr 07, 2012 10:20 pm UTC

sourmìlk wrote:The thing is they're not forcing you, you just have to give consent if you want to <do activity X>.

I think we have different definitions of “forcing you”.

Here’s a little exercise. Try replacing <do activity X> with each of the following:

Fly on a plane.
Drive a car.
Ride a bicycle.
Wear sneakers.
Wear a hat.
Wear no hat.

See the problem?

The federal government can regulate interstate commerce, but not in such a way that infringes on the rights of the people. The government cannot, for instance, force airplanes to be “No free speech zones”. A private airline could do so with its own planes, but the government cannot. The same applies to freedom from unreasonable searches.
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Re: CISPA: Worse Than SOPA.

Postby omgryebread » Sat Apr 07, 2012 10:52 pm UTC

Qaanol wrote:The federal government can regulate interstate commerce, but not in such a way that infringes on the rights of the people*. The government cannot, for instance, force airplanes to be “No free speech zones”. A private airline could do so with its own planes, but the government cannot. The same applies to freedom from unreasonable searches.


*Unless it can prove a compelling reason.

Depending on the right, they also might have to show their particular action is narrowly tailored to the problem and the least restrictive means of dealing with it. They may also not have to prove a "compelling reason" and instead just prove that the statute in question is "rationally related" to a "legitimate government interest."
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Re: CISPA: Worse Than SOPA.

Postby sourmìlk » Sat Apr 07, 2012 10:59 pm UTC

Qaanol wrote:
sourmìlk wrote:The thing is they're not forcing you, you just have to give consent if you want to <do activity X>.

I think we have different definitions of “forcing you”.

Here’s a little exercise. Try replacing <do activity X> with each of the following:

Fly on a plane.
Drive a car.
Ride a bicycle.
Wear sneakers.
Wear a hat.
Wear no hat.

See the problem?

The federal government can regulate interstate commerce, but not in such a way that infringes on the rights of the people. The government cannot, for instance, force airplanes to be “No free speech zones”. A private airline could do so with its own planes, but the government cannot. The same applies to freedom from unreasonable searches.


See above: flying on a plane isn't a right. Wearing a hat probably is. I think clothing that's not indecent would qualify as protected speech if challenged in court, though I can't say for sure. I suppose we here could agree that's the case?

Also, I don't get why there are different levels of scrutiny. Why shouldn't every extension of the government's power be subject to strict scrutiny?
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Re: CISPA: Worse Than SOPA.

Postby Princess Marzipan » Sat Apr 07, 2012 11:13 pm UTC

sourmìlk wrote:See above: flying on a plane isn't a right. Wearing a hat probably is.
What is the difference? My hat can hide explosives in a public place if I were so inclined. What makes the plane special?

(Oh right, peoples' fears about them are easier to manipulate.)
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Re: CISPA: Worse Than SOPA.

Postby omgryebread » Sat Apr 07, 2012 11:38 pm UTC

Princess Marzipan wrote:
sourmìlk wrote:See above: flying on a plane isn't a right. Wearing a hat probably is.
What is the difference? My hat can hide explosives in a public place if I were so inclined. What makes the plane special?

(Oh right, peoples' fears about them are easier to manipulate.)
Actually... he's closer to right than you are. Clothing can count as speech, if it displays some message, and that message would be clear to individuals. Counting as speech makes it a right. Or, of course, if the hat is a religious expression.

In no way could flying on a plane classify as speech, or any other right.

Technically he's wrong though. Just wearing a fedora is not speech.

(By right, I mean constitutionally protected action. If you're talking about natural rights, oh, whatever, argue away.)

The danger of an action doesn't make it less a right or not. It can affect the constitutional test used, though.
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Re: CISPA: Worse Than SOPA.

Postby Princess Marzipan » Sat Apr 07, 2012 11:43 pm UTC

Unreasonable search and seizure.

Exactly zero terror attacks have been stopped by the methods employed by the TSA. What exactly is the justification there again?
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Re: CISPA: Worse Than SOPA.

Postby omgryebread » Sat Apr 07, 2012 11:55 pm UTC

Princess Marzipan wrote:Unreasonable search and seizure.

Exactly zero terror attacks have been stopped by the methods employed by the TSA. What exactly is the justification there again?
You have the right not to be searched. You don't have the right to fly on a plane.

Now, of course, taking an action that isn't protected doesn't invalidate rights. The government couldn't regulate my speech on a plane any more than they could on the ground (okay they probably could, because anything dangerous would be unprotected speech, therefore subject to rational basis review, and the rational basis on the plane would be an even lower test than on the ground.) This means that an illegal search cannot be a prerequisite for flying.

However, the government could prevent you from flying. Straight up, no test required, because flying is not a right. It's obviously a regulation of interstate commerce, and saying "Princess Marzipan can't get on an airplane" isn't a search or anything else prohibited by the bill of rights. In fact, the government does do this, with the No Fly List.

The TSA has been ruled constitutional because the government has a compelling interest in stopping terrorist attacks (or illegal transportation of goods), and the TSA is narrowly tailored to prevent that (i.e. it doesn't stop you from boarding a plane if you can't dance a foxtrot. That would make it overbroad and an constitute an illegal search of your ability to dance.)

Laws don't have to be effective to be constitutional.
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Re: CISPA: Worse Than SOPA.

Postby Ghostbear » Sun Apr 08, 2012 12:34 am UTC

omgryebread wrote:However, the government could prevent you from flying. Straight up, no test required, because flying is not a right.

While I understand what you're getting at, I can not see this as a strong basis for the argument. Certainly, there's no right spelled out to fly on a plane anywhere, and as I've mentioned in another thread, the 9th amendment has basically been tossed aside by the courts. All the same, we have exactly as much right to fly a plane as we do to wear that hat (in a non speech related manner) from the earlier example. Or to put shoes on in the morning. They're the same rights, and that clothing (or other examples) can also act as, and be protected because of being, speech does not mean that we have "more" of a right to one than we do the other.

That it intersects with interstate commerce and the rights to regulate it does not mean that it is constitutional either; the right to regulate interstate commerce is still beholden to the other restrictions on the government. TSA searches are roughly as justifiable for planes as it would be for everyone attempting to drive across a state border (cars are very dangerous, after all).
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Re: CISPA: Worse Than SOPA.

Postby jimsfriend » Sun Apr 08, 2012 1:00 am UTC

You own your clothes (and your hat), or presumably have permission from the owner to be wearing them. You are free to wear my hat, so long as you submit yourself to a search by the TSA.

You do not own the airliners airplane. If you did own an airplane, you could fly on it without a search by the TSA. You can board the airliners airplane so long as you submit yourself to a search by the TSA.
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Re: CISPA: Worse Than SOPA.

Postby Princess Marzipan » Sun Apr 08, 2012 1:06 am UTC

The analogy doesn't hold. It's not the airlines subjecting their customers to invasive body scans and borderline molestation as a prerequisite for air travel - that's all the government. The government has no place requiring YOU to disallow people to wear your hat unless they are searched by the TSA (given the current definition of "searched by the TSA").
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Re: CISPA: Worse Than SOPA.

Postby Ghostbear » Sun Apr 08, 2012 1:08 am UTC

jimsfriend wrote:You do not own the airliners airplane. If you did own an airplane, you could fly on it without a search by the TSA. You can board the airliners airplane so long as you submit yourself to a search by the TSA.

I don't own their airplane, but what someone flying on that plane owns is temporary use of a seat (and accompanying storage space) on that airplane while it travels from location A to location B.

Also, forgot this earlier:
sourmìlk wrote:See above: flying on a plane isn't a right. Wearing a hat probably is.

Can you point to me where, as a US citizen, I'm granted the right to wear a hat in such a way as to not also grant me the right to fly on a plane?
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Re: CISPA: Worse Than SOPA.

Postby omgryebread » Sun Apr 08, 2012 1:32 am UTC

Ghostbear wrote:While I understand what you're getting at, I can not see this as a strong basis for the argument. Certainly, there's no right spelled out to fly on a plane anywhere, and as I've mentioned in another thread, the 9th amendment has basically been tossed aside by the courts. All the same, we have exactly as much right to fly a plane as we do to wear that hat (in a non speech related manner) from the earlier example. Or to put shoes on in the morning. They're the same rights, and that clothing (or other examples) can also act as, and be protected because of being, speech does not mean that we have "more" of a right to one than we do the other.
Agreed, with the exception of the italics. The ninth Amendment does not grant rights, and it's never been construed to. It's simply a rule for reading the constitution.

That it intersects with interstate commerce and the rights to regulate it does not mean that it is constitutional either; the right to regulate interstate commerce is still beholden to the other restrictions on the government. TSA searches are roughly as justifiable for planes as it would be for everyone attempting to drive across a state border (cars are very dangerous, after all).
Of course. Nothing I said contradicted this, or was meant to. The test for constitutionality on any statute is twofold.

The first is that the government must have the power to do so. In the case of the federal government, it must be in the enumerated powers. The states have police power, so they can do anything allowed by their own constitution.

The second test is whether they are expressly prohibited. The federal government is limited by Article 1, Section 9, and all the Amendments (though some amendments don't restrict the government's powers and are just rules). The states are limited by Article 1, section 10, and because of the Fourteenth Amendment, the Amendments.

However, the court has found those rights are not absolute. Not all speech is protected, not all religious expression is allowed, not all press can be published, etc. With regards to the Fourth, it allows administrative searches that balance the public interest against the personal rights. A court could easily find that the interest of the public in preventing interstate smuggling does not outweigh the Fourth Amendment right of the person driving across state borders, while still maintaining that air travel is different and a greater concern of the public.

Ghostbear wrote:Can you point to me where, as a US citizen, I'm granted the right to wear a hat in such a way as to not also grant me the right to fly on a plane?
As I've said, you're granted a right to neither. (Though preventing the wearing of hats is not within the enumerated powers of the federal government.) Unless, of course, the hat is a religious expression or has a meaningful message.
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Re: CISPA: Worse Than SOPA.

Postby Ghostbear » Sun Apr 08, 2012 3:27 am UTC

omgryebread wrote:Agreed, with the exception of the italics. The ninth Amendment does not grant rights, and it's never been construed to. It's simply a rule for reading the constitution.

I'd disagree with "never". It appears that the default legal assumption now is along the lines of what you said, certainly, but it looks to me like it was intended to prevent having to list out "you have a right to eat oatmeal on sunday at 9:33 am, a right to jump 4 times and then walk in a clockwise circle while humming your favorite song, a right to..." into the constitution; that we can do those things, and that so long as the government doesn't have a justification from it's granted powers, it can not take them away from us.

omgryebread wrote:However, the court has found those rights are not absolute. Not all speech is protected, not all religious expression is allowed, not all press can be published, etc. With regards to the Fourth, it allows administrative searches that balance the public interest against the personal rights. A court could easily find that the interest of the public in preventing interstate smuggling does not outweigh the Fourth Amendment right of the person driving across state borders, while still maintaining that air travel is different and a greater concern of the public.

Agreed, and I think this is where the real discussion resides. I find the talk of "the TSA can exist because there's no right to fly on a plane!" silly and possibly even foolish. Though, I do think the rights in the 4th-6th amendments probably have a case for should be absolute (since you can use the other rights to interfere with the rights of others, and 4-6 are more "yes/no" rights then something that fits on a scale). Either way, I think we're left with two questions, with respect to the 4th amendment and the TSA: (1) "Are the searches unreasonable?" and (2) "Do the searches, existing as a matter of course, violate the requirement for a warrant and probable cause?".

Now, as you said, there's some leeway with those questions in practice, but considering that all evidence I have seen indicates that the TSA's contribution to security is approximately fuckall would lend me to say that they are unreasonable, because they aren't actually serving notable amount of public good in practice. I'd also say that it violates the second question -- the 4th amendment needs probable cause and a warrant to allow government searches, and neither of those are involved, but I'll admit the argument there is a bit weaker (secret service agents can pass people through a metal detector around the president or whatever, for example). I do think the lack of efficacy for the TSA is a good starting point for an argument against it.
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Re: CISPA: Worse Than SOPA.

Postby Randomizer » Sun Apr 08, 2012 3:51 am UTC

A few TSA threads:
Totally comforting news about airport security
TSA frisking babies?
Wil Wheaton on the TSA

A statement on the Ronpaul's website about the TSA:
TSA Creator Agrees with the Ronpaul About Abolishing TSA

You're welcome.

Text of the CISPA bill:
Spoiler:
H.R.3523 -- Cyber Intelligence Sharing and Protection Act of 2011 (Introduced in House - IH)

HR 3523 IH

112th CONGRESS

1st Session

H. R. 3523

To provide for the sharing of certain cyber threat intelligence and cyber threat information between the intelligence community and cybersecurity entities, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

November 30, 2011

Mr. ROGERS of Michigan (for himself, Mr. RUPPERSBERGER, Mr. KING of New York, Mr. UPTON, Mrs. MYRICK, Mr. LANGEVIN, Mr. CONAWAY, Mr. MILLER of Florida, Mr. BOREN, Mr. LOBIONDO, Mr. CHANDLER, Mr. NUNES, Mr. GUTIERREZ, Mr. WESTMORELAND, Mrs. BACHMANN, Mr. ROONEY, Mr. HECK, Mr. DICKS, Mr. MCCAUL, Mr. WALDEN, Mr. CALVERT, Mr. SHIMKUS, Mr. TERRY, Mr. BURGESS, Mr. GINGREY of Georgia, Mr. THOMPSON of California, Mr. KINZINGER of Illinois, Mr. AMODEI, and Mr. POMPEO) introduced the following bill; which was referred to the Select Committee on Intelligence (Permanent Select)

A BILL

To provide for the sharing of certain cyber threat intelligence and cyber threat information between the intelligence community and cybersecurity entities, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Cyber Intelligence Sharing and Protection Act of 2011'.

SEC. 2. CYBER THREAT INTELLIGENCE AND INFORMATION SHARING.

(a) In General- Title XI of the National Security Act of 1947 (50 U.S.C. 442 et seq.) is amended by adding at the end the following new section:

`CYBER THREAT INTELLIGENCE AND INFORMATION SHARING

`Sec. 1104. (a) Intelligence Community Sharing of Cyber Threat Intelligence With Private Sector-

`(1) IN GENERAL- The Director of National Intelligence shall establish procedures to allow elements of the intelligence community to share cyber threat intelligence with private-sector entities and to encourage the sharing of such intelligence.

`(2) SHARING AND USE OF CLASSIFIED INTELLIGENCE- The procedures established under paragraph (1) shall provide that classified cyber threat intelligence may only be--

`(A) shared by an element of the intelligence community with--

`(i) certified entities; or

`(ii) a person with an appropriate security clearance to receive such cyber threat intelligence;

`(B) shared consistent with the need to protect the national security of the United States; and

`(C) used by a certified entity in a manner which protects such cyber threat intelligence from unauthorized disclosure.

`(3) SECURITY CLEARANCE APPROVALS- The Director of National Intelligence shall issue guidelines providing that the head of an element of the intelligence community may, as the head of such element considers necessary to carry out this subsection--

`(A) grant a security clearance on a temporary or permanent basis to an employee or officer of a certified entity;

`(B) grant a security clearance on a temporary or permanent basis to a certified entity and approval to use appropriate facilities; and

`(C) expedite the security clearance process for a person or entity as the head of such element considers necessary, consistent with the need to protect the national security of the United States.

`(4) NO RIGHT OR BENEFIT- The provision of information to a private-sector entity under this subsection shall not create a right or benefit to similar information by such entity or any other private-sector entity.

`(b) Private Sector Use of Cybersecurity Systems and Sharing of Cyber Threat Information-

`(1) IN GENERAL-

`(A) CYBERSECURITY PROVIDERS- Notwithstanding any other provision of law, a cybersecurity provider, with the express consent of a protected entity for which such cybersecurity provider is providing goods or services for cybersecurity purposes, may, for cybersecurity purposes--

`(i) use cybersecurity systems to identify and obtain cyber threat information to protect the rights and property of such protected entity; and

`(ii) share such cyber threat information with any other entity designated by such protected entity, including, if specifically designated, the Federal Government.

`(B) SELF-PROTECTED ENTITIES- Notwithstanding any other provision of law, a self-protected entity may, for cybersecurity purposes--

`(i) use cybersecurity systems to identify and obtain cyber threat information to protect the rights and property of such self-protected entity; and

`(ii) share such cyber threat information with any other entity, including the Federal Government.

`(2) USE AND PROTECTION OF INFORMATION- Cyber threat information shared in accordance with paragraph (1)--

`(A) shall only be shared in accordance with any restrictions placed on the sharing of such information by the protected entity or self-protected entity authorizing such sharing, including, if requested, appropriate anonymization or minimization of such information;

`(B) may not be used by an entity to gain an unfair competitive advantage to the detriment of the protected entity or the self-protected entity authorizing the sharing of information; and

`(C) if shared with the Federal Government--

`(i) shall be exempt from disclosure under section 552 of title 5, United States Code;

`(ii) shall be considered proprietary information and shall not be disclosed to an entity outside of the Federal Government except as authorized by the entity sharing such information; and

`(iii) shall not be used by the Federal Government for regulatory purposes.

`(3) EXEMPTION FROM LIABILITY- No civil or criminal cause of action shall lie or be maintained in Federal or State court against a protected entity, self-protected entity, cybersecurity provider, or an officer, employee, or agent of a protected entity, self-protected entity, or cybersecurity provider, acting in good faith--

`(A) for using cybersecurity systems or sharing information in accordance with this section; or

`(B) for not acting on information obtained or shared in accordance with this section.

`(4) RELATIONSHIP TO OTHER LAWS REQUIRING THE DISCLOSURE OF INFORMATION- The submission of information under this subsection to the Federal Government shall not satisfy or affect any requirement under any other provision of law for a person or entity to provide information to the Federal Government.

`(c) Report on Information Sharing- The Privacy and Civil Liberties Oversight Board established under section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 (5 U.S.C. 601 note) shall annually submit to Congress a report in unclassified form containing--

`(1) a review of the sharing and use of information by the Federal Government under this section and the procedures and guidelines established or issued by the Director of National Intelligence under subsection (a); and

`(2) any recommendations of the Board for improvements or modifications to such authorities to address privacy and civil liberties concerns.

`(d) Federal Preemption- This section supersedes any statute of a State or political subdivision of a State that restricts or otherwise expressly regulates an activity authorized under subsection (b).

`(e) Savings Clause- Nothing in this section shall be construed to limit any other authority to use a cybersecurity system or to identify, obtain, or share cyber threat intelligence or cyber threat information.

`(f) Definitions- In this section:

`(1) CERTIFIED ENTITY- The term `certified entity' means a protected entity, self-protected entity, or cybersecurity provider that--

`(A) possesses or is eligible to obtain a security clearance, as determined by the Director of National Intelligence; and

`(B) is able to demonstrate to the Director of National Intelligence that such provider or such entity can appropriately protect classified cyber threat intelligence.

`(2) CYBER THREAT INTELLIGENCE- The term `cyber threat intelligence' means information in the possession of an element of the intelligence community directly pertaining to a vulnerability of, or threat to, a system or network of a government or private entity, including information pertaining to the protection of a system or network from--

`(A) efforts to degrade, disrupt, or destroy such system or network; or

`(B) theft or misappropriation of private or government information, intellectual property, or personally identifiable information.

`(3) CYBERSECURITY PROVIDER- The term `cybersecurity provider' means a non-governmental entity that provides goods or services intended to be used for cybersecurity purposes.

`(4) CYBERSECURITY PURPOSE- The term `cybersecurity purpose' means the purpose of ensuring the integrity, confidentiality, or availability of, or safeguarding, a system or network, including protecting a system or network from--

`(A) efforts to degrade, disrupt, or destroy such system or network; or

`(B) theft or misappropriation of private or government information, intellectual property, or personally identifiable information.

`(5) CYBERSECURITY SYSTEM- The term `cybersecurity system' means a system designed or employed to ensure the integrity, confidentiality, or availability of, or safeguard, a system or network, including protecting a system or network from--

`(A) efforts to degrade, disrupt, or destroy such system or network; or

`(B) theft or misappropriation of private or government information, intellectual property, or personally identifiable information.

`(6) CYBER THREAT INFORMATION- The term `cyber threat information' means information directly pertaining to a vulnerability of, or threat to a system or network of a government or private entity, including information pertaining to the protection of a system or network from--

`(A) efforts to degrade, disrupt, or destroy such system or network; or

`(B) theft or misappropriation of private or government information, intellectual property, or personally identifiable information.

`(7) PROTECTED ENTITY- The term `protected entity' means an entity, other than an individual, that contracts with a cybersecurity provider for goods or services to be used for cybersecurity purposes.

`(8) SELF-PROTECTED ENTITY- The term `self-protected entity' means an entity, other than an individual, that provides goods or services for cybersecurity purposes to itself.'.

(b) Procedures and Guidelines- The Director of National Intelligence shall--

(1) not later than 60 days after the date of the enactment of this Act, establish procedures under paragraph (1) of section 1104(a) of the National Security Act of 1947, as added by subsection (a) of this section, and issue guidelines under paragraph (3) of such section 1104(a); and

(2) following the establishment of such procedures and the issuance of such guidelines, expeditiously distribute such procedures and such guidelines to appropriate Federal Government and private-sector entities.

(c) Initial Report- The first report required to be submitted under subsection (c) of section 1104 of the National Security Act of 1947, as added by subsection (a) of this section, shall be submitted not later than one year after the date of the enactment of this Act.

(d) Table of Contents Amendment- The table of contents in the first section of such Act is amended by adding at the end the following new item:

`Sec. 1104. Cyber threat intelligence and information sharing.'.

The EFF has a thing on this, asking people to speak up against it. They also talked on RT's Alyona show about it on YouTube.
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Re: CISPA: Worse Than SOPA.

Postby sourmìlk » Sun Apr 08, 2012 6:15 am UTC

Ghostbear wrote:Can you point to me where, as a US citizen, I'm granted the right to wear a hat in such a way as to not also grant me the right to fly on a plane?

I think clothing probably counts as protected speech, although omgryebread says that's only the case if it's intended to carry a message or if it's for religious purposes.
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Re: CISPA: Worse Than SOPA.

Postby mike-l » Sun Apr 08, 2012 6:28 am UTC

Freedom of movement between states is a constitutional right http://en.wikipedia.org/wiki/Freedom_of ... States_law

The 4th amendment only protects against unreasonable searches though, and good luck convincing the supreme court that security screening is unreasonable. (Not saying that the TSA is reasonable, just that the supreme court would probably say so)
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Re: CISPA: Worse Than SOPA.

Postby PossibleSloth » Sun Apr 08, 2012 6:33 am UTC

Thanks Randomizer.

To get back to the Bill...
sourmilk wrote:I'm concerned more with the right to protection against unreasonable searches. Is there really no precedent stating that looking up private online information constitutes a search?

The bill does not grant the government any authority to demand information. It gives exemption from liability to companies who share customer data with each other or with the government. I'm not saying it's a good thing, just that it's not the same as a warrantless government wiretap.

omgryebread wrote:There's nothing protected about the internet. Almost certainly a post on these forums could be used to prosecute me, because it's available publicly, and can't reasonably expect them to be private. An e-mail from one individual to another is private, on the other hand.


This bill does nothing to distinguish between public and private data. There's plenty of my personal data stored on corporate servers out of my control. Under this law, if Google decided it was in the interest of cybersecurity, it could share private emails with the government without the user's consent. One more reason to encrypt EVERYTHING.

I do like that they specified that data collected in this manner is exempt from Freedom of Information Act requests.
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Re: CISPA: Worse Than SOPA.

Postby sourmìlk » Sun Apr 08, 2012 7:03 am UTC

PossibleSloth wrote:Thanks Randomizer.

To get back to the Bill...
sourmilk wrote:I'm concerned more with the right to protection against unreasonable searches. Is there really no precedent stating that looking up private online information constitutes a search?

The bill does not grant the government any authority to demand information. It gives exemption from liability to companies who share customer data with each other or with the government. I'm not saying it's a good thing, just that it's not the same as a warrantless government wiretap.

I don't get it. Can't companies with your information already reserve the right to do these things?
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Re: CISPA: Worse Than SOPA.

Postby LaserGuy » Sun Apr 08, 2012 7:21 am UTC

sourmìlk wrote:I don't get it. Can't companies with your information already reserve the right to do these things?


I think the difference has to do with the liability exemption. Basically, if Google decides that your email looks suspicious, it is allowed to pass those on to certain government authorities. If it turns out that your email was perfectly harmless, but it causes you some harm in doing so, you can't sue Google over it.

It also means that even if the transmission or storage of such data were illegal under some other law (eg. privacy laws), Google would be basically free to ignore the other law as long as it was doing so in the name of cybersecurity. And it would not face criminal liability for doing so.
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Re: CISPA: Worse Than SOPA.

Postby PossibleSloth » Sun Apr 08, 2012 7:58 am UTC

sourmìlk wrote:I don't get it. Can't companies with your information already reserve the right to do these things?

Not exactly. There are federal laws which require "financial institutions" to securely store and safeguard customer data and many states have laws that private customer data must be stored and transmitted using encryption. Maybe they could get away with sharing your info if that was written in the license agreement, but even that might not be enough to prevent a lawsuit if it's something like a home address or credit card number.
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Re: CISPA: Worse Than SOPA.

Postby Proginoskes » Sun Apr 08, 2012 8:04 am UTC

What is it with Congress??? Every week, they seem to be writing a new bill designed to make life more difficult for us (who elected them in the first place).

Maybe they'll run out of acronyms and this idiocy will stop ... (I can only hope)
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Re: CISPA: Worse Than SOPA.

Postby Ghostbear » Sun Apr 08, 2012 9:34 am UTC

sourmìlk wrote:I think clothing probably counts as protected speech, although omgryebread says that's only the case if it's intended to carry a message or if it's for religious purposes.

So the answer is "No, I can't"? Yes, speech is a protected right; however, not all clothing is going to be speech, and even if it was, you can turn anything into speech, even the act of flying on a plane (or murder or any score of horrible things). Anything can be speech -- but just because you can turn something into speech does not make it a protected right. So I reiterate: can you point to where, as a US citizen, i am granted the right to a hat without also being granted the right to fly on a plane? (Hint: What I'm getting at is that you can't. We aren't granted a "right" to wear hats.)

PossibleSloth wrote:The bill does not grant the government any authority to demand information. It gives exemption from liability to companies who share customer data with each other or with the government. I'm not saying it's a good thing, just that it's not the same as a warrantless government wiretap.

In the grand scheme of things, I expect it would effectively become a warrantless wiretap. If you remove any liability a company has for improperly releasing that data to the government, then it has no reason to say no. It wouldn't be legally required, and it wouldn't be financially required. It'd work out to be cheaper to just say "yeah sure, here's the data" then to go on a back and forth of "no, your data request has been denied because..." and "yes, it's still denied". After that happens, you might as well just let them skip the process of asking for it and give them their own private access to anything they want; you'd pass on the cost of paying people to collect the data to them instead of you.

It just adds administrative headaches in the way, while presenting the same dangers.
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Re: CISPA: Worse Than SOPA.

Postby sourmìlk » Sun Apr 08, 2012 9:45 am UTC

Ghostbear wrote:So the answer is "No, I can't"? Yes, speech is a protected right; however, not all clothing is going to be speech, and even if it was, you can turn anything into speech, even the act of flying on a plane (or murder or any score of horrible things). Anything can be speech -- but just because you can turn something into speech does not make it a protected right. So I reiterate: can you point to where, as a US citizen, i am granted the right to a hat without also being granted the right to fly on a plane? (Hint: What I'm getting at is that you can't. We aren't granted a "right" to wear hats.)

Why would protecting clothing as speech imply that getting on a plane would be protected speech?
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Re: CISPA: Worse Than SOPA.

Postby Ghostbear » Sun Apr 08, 2012 10:01 am UTC

sourmìlk wrote:Why would protecting clothing as speech imply that getting on a plane would be protected speech?

You're missing the point. Clothing isn't protected as speech. It can be, but not all clothing is speech; some of it is just to stay warm or to protect the body. Flying on a plane can be speech, but not all flying on a plane is; some of it is just to travel from point A to point B. Wearing a hat is not by default an act of speech, even though it can be.

All you've pointed to is that we have a right to speech. That's wonderful, great, and grand all at once, but it isn't relevant to the supposed right to wear hats with the non-right to fly on a plane.

So, third time I'm asking you: Can you point to a right to wear hats (as applicable to US citizens), or prove that all (100%) of acts of wearing hats will count as speech and do so in a way is likely to be recognized as valid by a court? Can you also do so in such a way that also logically precludes the inclusion of flying on a plane? I don't think you can.
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Re: CISPA: Worse Than SOPA.

Postby sourmìlk » Sun Apr 08, 2012 10:38 am UTC

I think you're confused as to what my argument is. I'm not saying that clothing is or should be protected because it can be used as a means of expression.
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Re: CISPA: Worse Than SOPA.

Postby Ghostbear » Sun Apr 08, 2012 10:57 am UTC

sourmìlk wrote:I think you're confused as to what my argument is. I'm not saying that clothing is or should be protected because it can be used as a means of expression.

So then your statements have no relevance to the question I have asked you. You stated that wearing a hat is "probably a right" while flying a plane "isn't". I asked you if you could back this up with facts, and your response was to say that clothing "probably counts as protected speech". Can you answer my actual question, or do you intend to just dance around it indefinitely?

Fourth time: Can you show that, in the US, wearing a hat is a right, and that fly a plane isn't? Yes or no? (Your response should answer this question.)
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Re: CISPA: Worse Than SOPA.

Postby jestingrabbit » Sun Apr 08, 2012 11:31 am UTC

Isn't the question "is this constitutional?" a red herring compared to the question "is this a good thing?"

I think that giving private corporations the ability to monitor and store personal communication is a bad thing, and giving them immunity from prosecution for doing such is worse. A company could easily abuse this power to spy on its employees and customers. What's more, they can share this information with others, creating black lists of people that they believe to be pirates or hackers and will not do business with. And there won't be any come back, because they are immune if they say they are doing it for "cybersecurity".

This is a bad thing, constitutional or not.
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Re: CISPA: Worse Than SOPA.

Postby omgryebread » Sun Apr 08, 2012 2:50 pm UTC

Ghostbear wrote:
omgryebread wrote:Agreed, with the exception of the italics. The ninth Amendment does not grant rights, and it's never been construed to. It's simply a rule for reading the constitution.

I'd disagree with "never". It appears that the default legal assumption now is along the lines of what you said, certainly, but it looks to me like it was intended to prevent having to list out "you have a right to eat oatmeal on sunday at 9:33 am, a right to jump 4 times and then walk in a clockwise circle while humming your favorite song, a right to..." into the constitution; that we can do those things, and that so long as the government doesn't have a justification from it's granted powers, it can not take them away from us.
That's kind of what I said. The constitution works under the assumption that people (and the states) have all the rights, except which the constitution takes from them and gives to the government through enumerated powers. If you accept that assumption, like every jurist ever, you don't need Amendments 9 and 10 to add rights, they're just there to remind people.

Agreed, and I think this is where the real discussion resides. I find the talk of "the TSA can exist because there's no right to fly on a plane!" silly and possibly even foolish. Though, I do think the rights in the 4th-6th amendments probably have a case for should be absolute (since you can use the other rights to interfere with the rights of others, and 4-6 are more "yes/no" rights then something that fits on a scale). Either way, I think we're left with two questions, with respect to the 4th amendment and the TSA: (1) "Are the searches unreasonable?" and (2) "Do the searches, existing as a matter of course, violate the requirement for a warrant and probable cause?".

Now, as you said, there's some leeway with those questions in practice, but considering that all evidence I have seen indicates that the TSA's contribution to security is approximately fuckall would lend me to say that they are unreasonable, because they aren't actually serving notable amount of public good in practice. I'd also say that it violates the second question -- the 4th amendment needs probable cause and a warrant to allow government searches, and neither of those are involved, but I'll admit the argument there is a bit weaker (secret service agents can pass people through a metal detector around the president or whatever, for example). I do think the lack of efficacy for the TSA is a good starting point for an argument against it.
Let's assume TSA is 0% effective. Doesn't matter. The efficacy of a program has nothing to do with whether or not it's unreasonable. The fact is, the TSA is narrowly tailored towards preventing contraband from getting on board planes. It's the fact they are only attempting to do so that makes it a reasonable search, not how good they are at actually finding it. To frame the question differently, it would be stupid and unconstitutional to have judges rule on the efficacy of things. Deciding if laws are smart and effective is the job of the legislature.

You answered the second question yourself. Administrative searches are constitutional without probable cause and a warrant if the public interest (preventing terrorist attacks) is properly balanced against the individual right (to privacy). I agree the lack of efficacy is a good argument against the TSA, but in legislative, not judicial arenas.

Ghostbear wrote:So the answer is "No, I can't"? Yes, speech is a protected right; however, not all clothing is going to be speech, and even if it was, you can turn anything into speech, even the act of flying on a plane (or murder or any score of horrible things). Anything can be speech -- but just because you can turn something into speech does not make it a protected right. So I reiterate: can you point to where, as a US citizen, i am granted the right to a hat without also being granted the right to fly on a plane? (Hint: What I'm getting at is that you can't. We aren't granted a "right" to wear hats.)
No. The court has straight up rejected what you're saying (that everything can be speech.) First the easy thing: Not all speech is protected. If for some reason murder could be speech, it would fall under unprotected speech like obscenity or fighting words, and the only restriction there is rational basis review. Pretty much nothing ever fails rational basis review. (Latest I can think of is Perry vs. Schwarzenegger, in which the district court decided that Proposition 8 did not meet rational basis review, although that was irrelevant as he also held that Prop 8 should be tested on strict scrutiny.)

Secondly, speech must meet the following criteria: It must carry a message, and it must be a message that could be understood by others. Good luck arguing that flying on a plane is speech.

jestingrabbit wrote:Isn't the question "is this constitutional?" a red herring compared to the question "is this a good thing?"
100% agree. It's a really terrible law.
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Re: CISPA: Worse Than SOPA.

Postby Panonadin » Sun Apr 08, 2012 6:58 pm UTC

Going back to some earlier posts, I'm curious about something when it comes to the constitution and private companies.

Lets take your ISP for example, if they say "Hey when you use our service we monitor everything and will give out any info the government requests of us ("requests", not forces) if you use our service". Wouldn't that be considered not violating our constitutional right since they are a private company and you are agreeing to that when you sign up to use them? Further, what if every ISP decided that was ok?

I'm not asking "What would you do" I'm honestly asking by your own personal view of our rights, since they are a private company, would they be within their rights? (Obviously dick move, noted)
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