The Covert Passage of CISA and the Gutting of the American Right to Privacy

In December of 2015, news media outlets reported substantially on the omnibus spending bill that was then before Congress. A small chance of a government shutdown related to the bill and the partisan political divide over spending priorities inherent in the modern American system were widely covered. Less covered, however, was a small section of the bill that had been tacked on with neither pomp nor circumstance. This section was designated CISA, the Cybersecurity Information Sharing Act, and is perhaps the greatest affront to American privacy and civil liberties since the passage of the Patriot Act.

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CISA, like many other surveillance measures passed against the general will of the American people in the last decade and a half, was introduced with a lofty goal behind it, namely that of increasing the ability of the United States government to respond quickly and effectively to hacking threats that might constitute a danger to national security. The bill, however, creates the ability for government agencies, including the NSA, FBI and Department of Homeland Security to gather massive amounts of personal data from internet service providers without the need for a warrant of any kind. Furthermore, the version of CISA that was passed in the omnibus bill, amended from an earlier version to make it even more extreme, allows for the creation of direct channels of information sharing that would require service providers of all varieties to give user data directly to these organizations.


The bill itself broadly defines the cases in which this information may be used in the section as follows: “The bill limits the purposes for which the government may use shared information to certain cybersecurity purposes and responses to imminent threats or serious threats to a minor. The crimes that may be prosecuted with such information are restricted to offenses relating to fraud and identity theft, espionage, censorship, trade secrets, or an imminent threat of death, serious bodily harm, or serious economic harm, including a terrorist act or use of a weapon of mass destruction.” Here, we see that the data is no longer restricted to use in cases of imminent threats to national security, as earlier versions of the bill provided for, but instead may be used in instances of domestic criminal activities. While the crimes specified are, of course, deplorable and worthy of prevention,  they do not justify the destruction of the right to privacy in America.


Perhaps the most incredible testament of all to the folly of this bill is the fact that even the Department of Homeland Security, a government institution that does not hold the cleanest record when it comes to the protection of privacy, has stated that the provisions of CISA destroy privacy rights without providing a great deal of benefit. A statement issued by the DHS earlier in 2015 indicated that the volume of data that CISA collection channels could send in would be so great that it would become difficult to make effective use of it. In other words, CISA violates American privacy rights while providing little to no added security in doing so.


More incredible yet is the method of passage that was eventually used to ram CISA down the throats of the American people. Debate over the bill in the Senate when it was proposed as an independent measure brought about a firestorm of opposition from Senate leaders, internet service providers and civil liberties groups alike. Prominent among the Senators standing in opposition to the bill were senior Democratic Sen. Ron Wyden of Oregon and Republican Sen. Rand Paul of Kentucky, currently also a candidate for the Republican presidential nomination. It was this opposition that led to the changes in the bill and its subsequent insertion into the omnibus budget bill.


While it was an underhanded and undemocratic method of ensuring passage of the act, the inclusion of CISA into the budget bill demonstrates what even its most vehement detractors must recognize as a stroke of Machiavellian genius. By carefully burying CISA in the more than 2,000 pages that made up the budget bill, the lawmakers that introduced it circumvented even the remotest possibility of it being blocked. To do so would have required a government shutdown, a move for which there was no popular will and which would have been poorly perceived by the American electorate. Furthermore, the covering bill ensured that little attention would be drawn specifically to this comparatively small section. It is for this reason that most Americans are not even aware of the new surveillance measures that are now in place and removing much of what little privacy was left to them from a government that has become too large, too overbearing and too intrusive.


Following, verbatim, is the text of the 4th amendment to the United States Constitution, informed by traditions of the English Common Law from which much of our legal system is derived and written and introduced for discussion and eventual ratification by James Madison in 1789:


The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.

   With the covert passage of CISA, we as a nation have strayed farther from the provisions of protection from government that are ensured by this and other amendments in the supreme law of our country. The passage of this act, though done in a manner inconsistent with democracy, cannot truly be blamed on its sponsors in the Congress, nor the surveillance institutions that stand to improve their hold on America by its provisions, nor even the very real threats that CISA, like the Patriot Act and the subsequent USA Freedom Act, was ostensibly introduced to combat and guard against. Instead, the blame lies with we, the people  of these United States. Fear and paranoia, often justified by the increasingly dangerous world in which we live, have led us to cherish safety over liberty and attempt to exchange the latter for the former. Liberty is not a currency, and its forfeiture does not buy security. In what may only be described as a national mood similar to an adrenaline-driven irrational reaction to a threat, we have given away our liberties in the belief that we are safer without them, when nothing could be farther from the truth. Until we as a nation recognize this and use the power of our votes to demand a return to the guarantees of individual freedom and privacy that our Constitution provides, our liberties will continue to erode, and there may come a day when they are too far gone to be regained from the government to which we have relinquished them. Rest easy and feel secure, my fellow Americans. After all, Big Brother is watching.




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