Se­nate de­bates pres­i­dent’s power dur­ing cy­ber-at­tack

The Washington Times Weekly - - Geopolitics - BY SHAUN WATER­MAN

Sen­a­tors squared off with Obama ad­min­is­tra­tion of­fi­cials May 23 about plans to give the pres­i­dent emer­gency pow­ers to pro­tect vi­tal U.S. elec­tronic net­works from at­tacks by hack­ers, cy­bert­er­ror­ists and for­eign gov­ern­ments.

The Se­nate Home­land Se­cu­rity and Gov­ern­men­tal Af­fairs Com­mit­tee held a hear­ing on the ad­min­is­tra­tion’s leg­isla­tive pro­posal, an­nounced two weeks ago, that would rely on a pre-World War II ra­dio emer­gency law to pro­vide the pres­i­dent with au­thor­ity to pro­tect key com­puter and com­mu­ni­ca­tion net­works, like those mainly in pri­vate hands that run power grids, phone sys­tems and bank­ing ser­vices, from a cy­ber-at­tack.

“I must say this baf­fles me,” said Sen. Su­san Collins, Maine Repub­li­can, of the ad­min­is­tra­tion’s plan to rely on the 1934 statute.

Ms. Collins ac­cused ad­min­is­tra­tion of­fi­cials of re­ly­ing on “out­moded yet po­ten­tially sweep­ing authorities granted in the Com­mu­ni­ca­tions Act of 1934” that gave the pres­i­dent the power to take over ra­dio sta­tions in a time of na­tional emer­gency.

At is­sue is one of the more con­tro­ver­sial el­e­ments of any new cy­ber­se­cu­rity law: What pow­ers the pres­i­dent should have over the In­ter­net in the event of a cat­a­strophic at­tack on vi­tal U.S. as­sets.

“The coun­try would be bet­ter off if we did cre­ate some new law re­gard­ing the au­thor­ity of the pres­i­dent to act in these emer­gen­cies,” said Sen. Joe Lieber­man, Connecticut in­de­pen­dent and the com­mit­tee chair­man.

“Clearly, if some­thing sig­nif­i­cant were to hap­pen, the Amer­i­can peo­ple would ex­pect us to be able to re­spond and re­spond ap­pro­pri­ately,” said Phillip Re- itinger, Home­land Se­cu­rity un­der­sec­re­tary for in­fra­struc­ture pro­tec­tion, dur­ing the hear­ing.

Ex­perts say that in the event of a ma­jor cy­ber-at­tack, authorities might have only a short time to re­spond and might need to tem­po­rar­ily di­vert some In­ter­net traf­fic or take it off­line.

Mr. Reitinger agreed with Ms. Collins that the pow­ers in the 1934 law “were not de­signed with the cur­rent en­vi­ron­ment that we have in mind.” Nonethe­less, he in­sisted, “There are authorities there.”

The emer­gency pow­ers ques­tion is one in a se­ries of is­sues, along with the com­pli­cated jig­saw of agency authorities and con­gres­sional over­sight re­spon­si­bil­i­ties, that have for more than two years frus­trated con­gres­sional ef­forts to pass a new com­pre­hen­sive cy­ber­se­cu­rity law.

The White House on May 12 pro­posed leg­is­la­tion in an ef­fort to break the log­jam of more than 50 draft laws cir­cu­lat­ing on Capi­tol Hill.

One of those pro­pos­als be­came no­to­ri­ous, un­fairly, its au­thors in­sist, for sup­pos­edly cre­at­ing a “kill switch” that the pres­i­dent could use in an emer­gency to shut down the In­ter­net to pro­tect vi­tal net­works from at­tack.

In fact, Ms. Collins told the hear­ing, the com­mit­tee’s draft law “care­fully con­strain[s] and de­fine[s] ex­actly what au­thor­ity the pres­i­dent would have.”

By con­trast, she said, the legal ba­sis the ad­min­is­tra­tion claimed for the pres­i­dent’s power was “far broader.”

“Dif­fer­ent peo­ple have dif­fer­ent views about how the gov­ern­ment ought to be em­pow­ered and what the con­straints on the gov­ern­ment ex­er­cise of authorities ought to be,” re­sponded Mr. Reitinger, adding he hoped “there would be fur­ther dis­cus­sions” with Congress “to fig­ure out the right set of mech­a­nisms, if any, that were nec­es­sary to move for­ward.”

Ms. Collins also crit­i­cized ad­min­is­tra­tion plans to make se­cu­rity as­sess­ments of the nation’s most vi­tal com­puter net­works pub­lic, an ef­fort at sham­ing the pri­vate sec­tor com­pa­nies that own them into pro­vid­ing bet­ter de­fense against at­tacks.

“I’m re­ally sur­prised that you want that to be pub­lic,” she said.


Sen. Su­san Collins, Maine Repub­li­can, and Sen. Joe Lieber­man, Connecticut in­de­pen­dent, mem­bers of the Home­land Se­cu­rity Com­mit­tee, were part of the de­bate Mon­day on pres­i­den­tial pow­ers in the even of a cy­ber-at­tack on vi­tal sys­tems.

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