“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…”
—Fourth Amendment to the United States Constitution

There are two Bills that are floating through the corridors of power on the Hill that could potentially change the course of civil and political rights within the United States and the world. One was introduced through the House of Representatives and the other through the Senate. The two Bills touch on a common thread that are premised on “national security” however there are interesting challenges that will surface should the Bills be passed that affect global public interest that require further examination, introspection and discussion.

Cyber Intelligence Sharing and Protection Act (CISPA)

US Representatives Mike Rogers (R-Mich) and Dutch Ruppersberge (D-Md) took the Cyber Intelligence Sharing and Protection Act (CISPA) to the floor last year, despite the threats that President Obama would veto the Bill on the version that it was then. On 25th April 2012, President Obama’s Administration released a statement saying that:

“Legislation should address core critical infrastructure vulnerabilities without sacrificing the fundamental values of privacy and civil liberties for our citizens, especially at a time our Nation is facing challenges to our economic well-being and national security. The Administration looks forward to continuing to engage with the Congress in a bipartisan, bicameral fashion to enact cybersecurity legislation to address these critical issues. However, for the reasons stated herein, if H.R. 3523 were presented to the President, his senior advisors would recommend that he veto the bill.”

The US House of Representatives approved the CISPA on a bipartisan vote of 248-168. Proponents of CISPA believed that they could get the Bill ready for the President to endorse. On 7th May, 2012, the CISPA was received in the Senate and the Bill was Read twice and referred to the Select Committee on Intelligence.

Cybersecurity and American Cyber Competitiveness Act 2013

The US Senate has introduced a new Bill called the Cybersecurity and American Cyber Competitiveness Act 2013 through Senators John D. (Jay) Rockefeller IV, Chairman of the Senate Commerce, Science, and Transportation Committee, Tom Carper, incoming Chairman of the Senate Homeland Security and Governmental Affairs Committee, and Dianne Feinstein, Chairman of the Senate Select Committee on Intelligence and recently issued a Press Release.

The two Bills are controversial because on one hand, they address an important aspect of security and it is critical that countries work towards securing cyber space through having relevant legislative framework in place but what is also equally important is that considerations such as human rights provisions such as rights to privacy and other issues such as data protection rights be a part of the equation. It is also important that lawmakers remember that the foundation of freedoms and rights is also based on the notion that individuals are protected from arbitrariness otherwise there is a devolution to a Police State. There has to be a balance.

Policy should precede legislative framework and where these factors along with other key considerations such as objectionable content are identified. Given the interdependencies of the Internet through its architecture and the series of relationships and transactions, the enforcement of US control over other states through these two Bills means that every Policy made by the global community within Multistakeholder organizations’ like Internet Corporation for Assigned Names and Numbers (ICANN) will be subject to these laws if passed.

There was much debate and controversy around the WCIT and rhetoric included “Hands off the Internet” but it would appear that they were being selective when they said that.

Last year the US Government decided to return two domain names, namely Rojadirecta.com and Rojadirecta.org which it improperly seized and held in its possession for well over a year, without so much as an explanation. These sites are Puerto 80’s popular sports streaming sites, which the government seized back in February 2011. Puerto 80 responded by petitioning the government for return of the domains. What was fascinating about this was that Puerto 80 is a Spanish company, and a Spanish court had already found the sites legal. The courts in the US disagreed holding that the US government did not have to return the domains and Puerto 80 appealed and then late last year the US Government mysteriously dropped the matter without an explanation.

Even if the Bills were to contain provisions to protect the privacy rights and civil liberties of Americans, there is no guarantee that the rights and protections would extend to non-Americans. The challenges to an open and internet are occurring within the United States. These Bills could waive all the existing privacy laws that were crafted to protect ordinary American citizens.

Will we see more domain name seizures, DNSSEC filtering etc? What would be the impact on Whois?

The thing about Pandora’s Box is once it is opened there is no going back.

Caveat – These views are solely my own and do not reflect the views of any of my affiliations.