Peter Swire, last year:

CISPA would override decades of carefully crafted laws about when the government must use a warrant, or have another lawful basis for accessing the personal information of the American people.

Moving too fast on cybersecurity - The Hill - covering Congress, Politics, Political Campaigns and Capitol Hill | TheHill.com

Interestingly, despite the fact that the push for Tsarnaev to be held as an enemy combatant is coming from GOP officials, Republican respondents to the poll are even more strongly tilted towards worrying about government compromising constitutional rights, by 56-34. Conservatives tilt this way by 46-41. Democrats also agree by 48-43.

Americans don’t believe in shredding Constitution to fight terror

It’s also important that the key 2011 provision in which Congress said whom the president can detain “exempts U.S. citizens entirely,” as Benjamin Wittes explained at the time. Similarly the 2009 Military Commission Act—which Graham wrote—states that American citizens may not be tried by military commission.

Tsarnaev an enemy combatant? John McCain and Lindsey Graham’s harmful campaign to undermine American justice. - Slate Magazine

NOT a political prerogative?

Its worth noting that an alternative view is that Tsarnaev cannot be detained as an enemy combatant because he is not a member of Al`Q and therefore the Congression "Authorization for the Use of Military Force" does not apply to him. Were he an actual member of Al'Q, the Obama Admin might have handled this differently:

"I am not aware of any evidence so far that the Boston suspect is part of any organized group, let alone al-Qaida, the Taliban, or one of their affiliates–the only organizations whose members are subject to detention under the Authorization for Use of Military Force, as it has been consistently interpreted by all three branches of our government," Levin noted. "In the absence of such evidence I know of no legal basis for his detention as an enemy combatant."

4 GOP lawmakers push for Boston bombing suspect to be declared an enemy combatant - ABA Journal

A political prerogative:

I agree that treating an American citizen as an enemy combatant is an extraordinary step. But it is an option. What is disturbing is that President Obama and Attorney General Holder are so in the grips of their ideological belief that terrorism is a law-enforcement, rather than military, problem that they made this decision with insufficient information.

Obama’s Priorities: Ideology over Security | National Review Online

A political prerogative:

This is why we elected Obama. To bring America back. To defend this country without betraying its core principles.

Padilla vs Tsarnaev; Bush vs Obama « The Dish

I'm glad to see that a normal judicial process is being used to try Mr. Tsarnaev. Past terrorism cases globally have been fraught with both false suspicion and false convictions, even in contexts where a normal judicial process was used. (Google, for example, "Guildford Four.") I wish that I could say that this resolves the significant issues that were first raised when Jose Padilla was detained in 2002, but it does not. The significant difference between the way those two people were handled appears to be a consequence of political prerogative.

Boston Bombing Suspect’s Bedside Hearing - Document - NYTimes.com

“During the last election, I admittedly got really excited when Obama proposed things like a high-speed rail system, a modernized and more efficient national power grid, and affordable college educations for every American,” said physical therapist Chris Donner, 42, of Wilmington, DE. “But now that I’ve had a chance to sort of step back and calmly assess where we are as a country, I can say with full confidence that we’re not taking any bold leaps into a bright future anytime soon.”

Nation Starting To Realize New Era Of American Innovation Never Gonna Happen | The Onion - America's Finest News Source

Many privacy advocates are emboldened by the threat by the Whitehouse to veto CISPA. However, a careful read of the Whitehouse memo on CISPA reveals that many of the core problems that the Whitehouse has with CISPA are not, necessarily, civil liberties concerns. In several places the Whitehouse states that their objections to CISPA rise from the view that CISPA places too many constraints on information sharing.

The administration does start off by stating that they want to require that irrelevant personal information be removed from data shared under CISPA.

The Administration, however, remains concerned that the bill does not require private entities to take reasonable steps to remove irrelevant personal information when sending cybersecurity data to the government or other private sector entities.

This is an important civil liberties concern with CISPA. However, it isn't the only one.

The Whitehouse then goes on to complain that another problem they have with CISPA is that it allows private companies to place constraints on how the government will use the information that has been shared.

Intra-governmental sharing and use should not be subject to undue restrictions by the private sector companies that originally share the information.

This is an obvious reference to the following section of CISPA:

USE AND PROTECTION OF INFORMATION- Cyber threat information shared in accordance with paragraph (1)--

‘(A) shall only be shared in accordance with any restrictions placed on the sharing of such information by the protected entity or self-protected entity authorizing such sharing, including appropriate anonymization or minimization of such information and excluding limiting a department or agency of the Federal Government from sharing such information with another department or agency of the Federal Government in accordance with this section;

I think this section speaks volumes about the way that our government puts the interests of institutions before those of individuals. If I, as an individual person, enter into a contract with a company and share my personal information with them under that contract, no term of that contract can constrain that company from sharing that information with the government under CISPA. However, under the current text of CIPSA, that company can constrain the government's use of that information when the company shares the information with the government. The government has to uphold the company's terms, but no one has to uphold my terms.

The problem that the Obama Whitehouse has is that the government would have to uphold the company's terms. They want fewer restrictions regard... [ Read More (0.2k in body) ]

The Whitehouse is NOT on the side of civil liberties advocates regarding CISPA

I had an interesting conversation with Prof. Orin Kerr on Twitter yesterday. An op-ed at ZDNet proclaimed the passage of CISPA to be the death of the Fourth Amendment. Kerr tweeted that CISPA has nothing to do with the Fourth Amendment, and I countered that laypersons don't understand the difference between Fourth Amendment warrant requirements and statutory warrant requirements. (As a corollary, I also think that laypersons don't understand the difference between Fourth Amendment warrant requirements and statutory requirements for court orders, such as §2703(d) orders.)

Kerr asked what statutory warrant requirements CISPA eliminates. This is a complicated question, and although I attempted to answer via twitter, I think a blog post would detail the various issues more clearly. I've performed this analysis to the best of my abilities given my knowledge of CISPA and the law. I am not an authoritative source, and in fact I hope that the concerns that I am raising here are completely unwarranted, but I think that they are worth raising.

The primary concern with CISPA is that it allows service providers to disclose cyber threat information to the government notwithstanding any other law. Is this a good idea or not? Because this provision is so broad it is difficult to be sure that one has considered every law that could possibly prohibit such an information disclosure and determined whether or not one agrees that exceptions to each are acceptable.

Statutory warrant requirements (and court order requirements)

One category of statutory requirements for either warrants or court orders that I think CISPA implicates are requirements for compelled access to certain kinds of data that may not be well protected by the Fourth Amendment, such as the requirements created by the Stored Communications Act. There are a variety of similar privacy laws that raise the same concerns, but for the sake of simplicity I'm going to focus this analysis on the SCA.

The SCA's warrant and court order requirements have to do with compelled information disclosure. CISPA does not create a process for the government to compel service providers to disclose information to them. CISPA does allow these service providers to voluntarily disclose any information they find that directly pertains to efforts to commit a computer crime, but the Stored Communications Act already allows service providers to disclose any information pertaining to the commission of any crime, so CISPA does not appear at first blush to create any new voluntary information disclosure power beyond what the SCA already affords.

However, one open question re... [ Read More (0.9k in body) ]