First Vote on Cybersecurity Information Sharing Act Expected Wednesday
A first procedural vote on the Cybersecurity Information Sharing Act is forecast Wednesday, following Senate Majority Leader Mitch McConnell’s, R-Ky., move Monday to file for cloture on the bill, as expected (see 1507300069). McConnell continued Tuesday to press for a Senate vote on S-754 this week, saying on the Senate floor that there will be an “opportunity for members of both parties to offer amendments.” McConnell and Senate Minority Leader Harry Reid, D-Nev., were continuing to negotiate a deal Tuesday to limit floor debate on the bill after Reid rejected McConnell's offer to give Senate Democrats and Senate Republican 10 amendments each. Several amendments were already filed or were continuing to circulate Tuesday, including a manager’s amendment from Senate Intelligence Committee Chairman Richard Burr, R-N.C., and Vice Chairwoman Dianne Feinstein, D-Calif. The proposed manager's amendment gave McConnell the cover to move forward on the bill before the impending August recess, though it doesn’t guarantee the bill will pass, an industry lobbyist told us.
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The draft manager’s amendment would place additional limits on how federal agencies can use the data collected under S-754’s provisions, including restricting sharing of that information between agencies to only “cybersecurity purposes.” The manager’s amendment would remove “serious violent felonies” as a non-cyber reason for using data gathered via CISA-authorized programs, and would eliminate the creation of a new exemption to the federal FOIA for cyber information shared by the private sector. The industry lobbyist said the draft manager’s amendment doesn’t address some key provisions in S-754 that opponents have criticized, including the bill’s allowance of information sharing between the private sector and federal intelligence agencies. The manager’s amendment said it “clarifies the types of cyber information sharing that are permitted to occur outside” of the Department of Homeland Security.
Sen. Ron Wyden, D-Ore., and other S-754 critics continued to criticize the bill following McConnell’s cloture filing, with Wyden saying Monday that the Burr-Feinstein manager’s amendment “doesn’t do a whole lot to protect U.S. networks against sophisticated hacks and it will do a lot to undermine the privacy rights of the American people.” Wyden and Senate Judiciary Committee ranking member Patrick Leahy, D-Vt., have been leading opposition to S-754 and are expected to coordinate any privacy-related amendments.
Leahy and Sen. Mike Lee, R-Utah, filed language from the 2015 Electronic Communications Privacy Amendments Act (S-356) as an amendment to S-754 Tuesday. The ECPA bill would update the law to protect Americans’ email and other data held in the cloud, require law enforcement agencies to obtain a search warrant based on probable cause before accessing emails, and replace the obsolete “180-day” rule allowing warrantless access to older emails, they said a joint news release. “The Senate must have a full, meaningful debate about the Senate Intelligence Committee’s bill and its implications for Americans’ privacy,” including email privacy, Leahy said. “This amendment ensures that the private information Americans electronically store in the cloud gets the same protections as the private information they physically store at home.” The ECPA Amendments Act is co-sponsored by more than 20 senators, more than 290 House members, and is supported by the technology industry, privacy advocates, academics and policy groups across the political spectrum, the release said.
Sen. Steve Daines, R-Mont., praised S-356 on the Senate floor Tuesday, saying that the bill's language "modernizes our nation’s electronic privacy laws and bring protections against warrantless searches into harmony with the technological realities of the 21st century.” ECPA no longer adequately protect citizens against the mass data storage that currently exists, Daines said. Any cybersecurity legislation must strike the right balance between protecting Americans from borderless cybercriminals and protecting Americans’ privacy, he said. “In the last few months, we’ve seen one of the largest cyberattacks on our nation’s technology infrastructure and other major cyber breaches affect our financial and transportation sector,” while “radical Islamic terrorists” are “infiltrating American social media networks to recruit Americans to join them as jihadists overseas,” Daines said. The response to those challenges “must be measured and thoughtful” and consider the long-term effects on U.S. national security and constitutional freedoms, he said.
Other possible amendments to S-754 may include one being circulated by Sen. Tom Cotton, R-Ark., that would add in liability protections for private sector information sharing with the FBI and the Secret Service, the industry lobbyist said. A coalition of retailer groups lent support to the proposed Cotton amendment. They said in a letter to McConnell and Senate Minority Leader Harry Reid, D-Nev., that the amendment “recognizes the reality that for non-critical infrastructure sectors, the FBI and Secret Service are our longstanding partners and primary points of contact in fighting cyberattacks. Anything that hinders essential real time communication cedes the field to our nation’s adversaries and weakens our economic security.” An amendment filed by Sen. Rand Paul, R-Ky., would restrict federal funding for sanctuary cities, states that fail to comply with federal immigration laws or that don’t require local law enforcement agencies to tell U.S. Immigration and Customs Enforcement about arrests of undocumented immigrants.