CISPA Renders Online Privacy Agreements Meaningless, But Sponsor Sees No Reason To Fix That

from the all-talk dept

CISPA’s sponsors insist the law is 100% voluntary—it doesn’t compel companies to do anything. But as we’ve been warning for a year and warned again yesterday, the bill’s blanket immunity provision doesn’t merely clear a “legislative thicket” of laws restricting information-sharing about cyber threats. It also bars companies from making enforceable promises to their users about how they might share users’ information with the government or other companies in the name of protecting cybersecurity. Yesterday the House Rules Committee refused to allow a bipartisan amendment, sponsored by Rep. Justin Amash to fix this problem, to be brought to the floor for a vote.

At that Committee meeting (1:01:45), the bill’s chief sponsor Chairman Rogers emphatically repeated his earlier assertions that CISPA wouldn’t breach private contracts in response to questions from Jared Polis:

Polis: Why wouldn’t it work to leave it up, getting back to the contract part, and I think again there may be a series of amendments to do this, if a company feels, if it’s voluntary for companies, why not allow them the discretion to enter into agreements with their customers that would allow them to share the information? …

Rogers: I think those companies should make those choices on their own. They develop their own contracts. I think they should develop their own contracts. They should enforce their own contracts in the way they do now in civil law. I don’t know why we want to get in that business.

And yet… CISPA will go to the House floor as written, providing an absolute immunity from “any provision of law,” including private contracts and terms of service.

Only in Congress can you swear up and down that your bill doesn’t do X, then refuse to amend it so that it really doesn’t do X—and then lecture those who note the disconnect, like Polis, with patronizing comments like “once you understand the mechanics of the bill…” (1:02:50).

It brings to mind what Galileo said after he was forced to sign a confession recanting belief in Copernicus’s heretical idea that the Earth revolves around the sun: “And yet, it moves.”

And yet… for all Rogers’ bluster, CISPA moots private contracts—and House Republican leadership won’t fix the problem, even when five of their GOP colleagues offer a simple, elegant fix.

This is the same stubborn refusal to accept criticism and absorb new information that brought us SOPA, PIPA and a host of other ill-conceived attempts to regulate the Internet. It’s the very opposite of what should be the cardinal virtue of Internet policy: humility. Tinkering with the always-changing Internet is hard work. But it’s even harder when you stuff your fingers in your ears and chant “Lalalala, I can’t hear you.”

The good news is that, as with SOPA, this fight transcended partisan lines, uniting a Democrat like Jared Polis (an openly gay progressive from Boulder) with a strict constitutionalist like Justin Amash (the “Ron Paul Republican” from Grand Rapids Michigan)—and four more traditional Republicans. This is precisely the realignment predicted 15 years ago by Virginia Postrel in The Future and Its Enemies. On one side are those profoundly uncomfortable with change, desperate to control and plan the future, and so insecure about their own understanding of technology that they inevitably perceive criticism as a personal attack. On the other are those far more humble and more willing to let the future play out in all its messy unpredictability. The first camp is always pushing for the one, right piece of legislation that will avert a crisis. The second camp admits they don’t know the one, best way to deal with a problem like encouraging sharing of cyberthreat information while protecting user privacy, so they reject static rules that can only be changed by Congress. They want simple rules for a complex world. At a minimum, they want what law Professor Richard Epstein argues in his book Simple Rules for a Complex World–the perfect slogan for this camp–“the most ubiquitous legal safety hatch adds three words to the formal statement of any rule: unless otherwise agreed.”

It’s not a battle between Left and Right, or conservatives and progressives. It’s a battle between attitudes towards the future: the stasis mentality of Congressmen like Mike Rogers and Lamar Smith (of SOPA infamy) and the dynamism of Justin Amash and Jared Polis, and SOPA foes like Republicans Darrell Issa and Jason Chaffetz and Democrats Ron Wyden and Zoe Lofgren.

The dynamists may have lost this battle. But, like Galileo, we’ll eventually win the war. The only questions are: How many more poorly crafted, one-size-fits-all laws will the stasists put on the books in the meantime? How long it will take to clear the real “legislative thicket”–all the complex laws that attempt to provide a single answer for a complex and unknowable future? And when will it finally become unacceptable for Congressmen like Mike Rogers to ram through legislation that doesn’t even do what they claim?

Berin Szoka (@BerinSzoka) is President of TechFreedom (@TechFreedom), a dynamist tech policy think tank.

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Comments on “CISPA Renders Online Privacy Agreements Meaningless, But Sponsor Sees No Reason To Fix That”

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AzureSky (profile) says:

Re: Re: does this really surprise anybody?

yeah I hear you, never thought i would see a pres that would make me miss gwb, but damn…..

im tired of the Fascist’s ruling this country, every pres in my lifetimes been one saddly….just gotten alot worse in recent years….

welcome to the “Incorporated States of Fascist America” as my friends father constantly puts it.

Anonymous Coward says:

It’s not a battle between Left and Right, or conservatives and progressives.

The best political axis for looking at these sort of laws and politicians attitude is one that runs from Anarchy to Totalitarianism. All too many politicians lean to the totalitarian end of the axis. This goes with an attitude that they are in charge, and have no need to listen to the public?s opinion.

out_of_the_blue says:

Re: "All too many politicians lean to the totalitarian end of the axis."

What mistaken optimism. POLITICIANS ARE ALL TOTALITARIANS, ALL THE WAY DOWN. — That flat statement isn’t wrong often enough to matter. Never believe in ’em for an instant, they’ll literally sell you into slavery, and doing so out of stupidity is the best you can hope for.

Even “Libertarian” Ron Paul went along with the rabid “privatizing” and de-regulation of the 80’s and since, letting loose the corporate monsters, and NOW when the problems of taking the controls off banks and Wall Street are yet again on verge of collapsing not only the US but Europe with PHONY debt, MORE of that will sink us for sure.

AzureSky (profile) says:

Talking to a friend who use to work in DC, from what he says, the real problem is as has been said many times, this craps being pushed by people who, enlarge dont understand what they are trying to regulate, they are inept technologically and some are even technophobic to a point of not even wanting a website or email addy.

from what I gather, many of these old people do not understand internet culture or modern culture at all, and they long for the days they grew up in where radio was a new amazing thing.

many of them have also been in office so long that they are so out of touch with the reality of living in this world/culture that they just cant relate to normal people.

they get 6 figure salaries and medical benefits for life once they enter office, how could they understand what its like to be one of “we the people” when they havent been for decades?

honestly, despite all the jokes, at least ted stevens tried to understand the modern world, even if he really didnt get it in detail, at least he got that net neutrality was important….

makes me sad, but till all these old men and technophobic troglodytes die off or are ousted from office and replaced by people who at least sort of get it….we will be stuck with this kinda BS where they are trying to regulate and control something that they have zero actual understanding of….

out_of_the_blue says:

"doesn't compel companies"? -- No, it REWARDS them!

This is about gov’t merging with spying corporations including Google and Facebook — yet again WHERE the data comes from is omitted here — and getting openly paid for their spying.

Now, “let the future play out in all its messy unpredictability”? — Sheesh, sonny! First, trillions of dollars are NOT left to chance! I already know how “the future” ends up: just read Orwell’s 1984 and substitute in Google as the “commercial” front of Big Brother.

SO, in contrast to silly notions of ever-advancing modernism driven by bright young upstarts, the problem is that new generations DON’T understand basics of how the whole system must be constantly regulated.

We The People need to roll back the clock to where gov’t and corporations are our SERVANTS, not just leave them loose to gain and use power. To hell with your damned “laissez-faire”, that just guarantees that the future will become ever more horrible.

Anonymous Coward says:

the most relevant answer is for the people to think a damn sight more carefully before they vote idiots of this caliber into office. they need to remember that all the bullshit these candidates come out with is simply that, bullshit, meant to baffle brains. it works time after time in the USA and look where it gets us? deeper and deeper in the crap, with less and less freedom and privacy, while companies and government agencies run rough-shod over what is and should be ours!

Anonymous Coward says:

I will say this.

I don’t like these spying bills, although I do understand the need for some of it and even if it was or is absolutely necessary and the government is previous to information that they are not disclosing here is the thing.

Without any fraking safeguards to guard against abuse or any transparency measures this is not a “thing” that I would consciously allow it ever.

Privacy is important, accountability is important, transparency is important without those there is no democracy.

Even if we don’t know the consequences of it or can’t predict, laws like these should come embeded with mechanisms to a) show others what it is happening so they can spot abuse and mechanisms to allow change.

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