Senate’s NSA skirmish stalling cyber bill

A Senate skirmish over National Security Agency (NSA) reform has stalled the upper chamber’s plan to move a major cyber bill. 

The House this week passed two complementary measures that would increase the public-private exchange of data about hackers, following a series of massive cyberattacks at Sony Entertainment, Anthem, Home Depot and JPMorgan. The bills would shield companies from liability when sharing cyber threat data with civilian government agencies.

The Senate had planned to move its companion legislation, the Cybersecurity Information Sharing Act (CISA), by the end of April, but those plans appear to been put on hold.

Senate Intelligence Committee Chairman Richard Burr (R-N.C.) — who is backing the measure, along with the panel’s top Democrat, Sen. Dianne Feinstein (Calif.) — told The Hill there was no timeline for CISA at this point.

“We have a few things to do first,” Minority Leader Harry Reid (D-Nev.) told reporters Thursday.

Chiefly, legislators have to figure out what to do about the Patriot Act, which authorizes a number of the NSA’s controversial spying powers, before portions of it expire on June 1.

And the Senate seems stuck.

Reformers are looking to a compromise bill that Sen. Patrick Leahy (D-Vt.), the Judiciary committee’s top Democrat, has worked on with House lawmakers. But Majority Leader Mitch McConnell (R-Ky.) cut in Tuesday, unexpectedly dropping his own measure to re-up the Patriot Act without changes for five years.

It’s unlikely McConnell has the support necessary to easily punch through his “clean” Patriot Act provision, given the bipartisan group calling for surveillance changes. Meanwhile, Judiciary Committee Chairman Chuck Grassley (R-Iowa) has declined to weigh in with a specific path forward, instead claiming he needs to have additional consultations with leaders of the Intelligence Committee.

Despite lawmakers’ insistence that NSA reform and cybersecurity are separate matters, the two issues have been intertwined for the past year, and that has hampered efforts to move legislation on either topic.

“It you’re not careful, they all get wrapped up into one unhappy package that doesn’t have a pretty bow on it,” said Norma Krayem, a lobbyist with Squire Patton Boggs who co-chairs the firm’s cybersecurity industry group.

The Senate’s inability to advance the surveillance-curbing USA Freedom Act in late 2014 was largely credited with killing an attempt at cyber info-sharing legislation that had already passed the House.

The fear is that without altering NSA authority first, a cyber info-sharing measure would simply shuttle more sensitive data to the intelligence agency.

Cyber info-sharing legislation “would leave the door wide open to more NSA surveillance by allowing the sharing of personal information for a raft of purposes unrelated to cybersecurity,” said Rep. Jared Polis (D-Colo.), who voted against both House bills.

Senate Democrats currently opposing CISA — including Leahy and Sen. Ron Wyden (D-Ore.) — are also some of the staunchest NSA critics.

And the longer the Senate spins its wheels on CISA, the more opposition can build, Wyden said during a Computer and Communications Industry Association panel Thursday morning.

“I think when consumers learn about this, that in effect all this information is going to be shared, that corporations’ privacy is important but individuals’ privacy doesn’t count for a whole lot, I think they’re not going to be pretty happy about it,” he said.

The Senate could be tied up for awhile. 

In addition to a battle over whether to rein in the NSA’s spying powers, the Senate is also bogged down over Iranian nuclear negotiations and trade legislation. An anti-human-trafficking bill and Loretta Lynch’s confirmation as attorney general also ate up time this week.

Meanwhile, the House is trying to quickly move its own NSA reform bill, with an eye toward spurring the Senate to action.

Next week, lawmakers are expected to introduce a much-anticipated bill that would eliminate some of the more controversial NSA surveillance authorities.

Many believe the timing is partially tied to the movement of the cyber bills.

“That was the first thing that hit my mind,” said Alex Manning, who served as staff director of the House Homeland Security Subcommittee on Cybersecurity last Congress. “I think they did that on purpose to say, ‘We’re going to address that.’ ”

House lawmakers are hoping a speedy and overwhelming vote in favor of reshaping the NSA might send a signal to senators hesitant about cyber info-sharing.

“I think it sends a good message that while there are some outstanding issues, we’re still willing to work through them,” Rep. Bennie Thompson (D-Miss.), the top Democrat on the House Homeland Security Committee and a top advocate of one of the lower chamber’s cyber bills, told The Hill. 

That’s why lawmakers say they remain confident these cyber bills will ultimately become law. 

“The Senate kind of plays by its own set of rules,” Thompson said. “One day it’s hot, next day it’s cold, next day it’s back hot. I’m sure at the end of the day they’ll be back on track.”

That day could come sooner if the Senate is able to first work some NSA reform language into its Patriot Act reauthorization bill.

“Hopefully that will take some of the edge away from that group” opposing CISA, said Manning, now the senior government relations director with Arent Fox.

Rep. Jim Langevin (D-R.I.), who co-chairs the Congressional Cybersecurity Caucus, told The Hill, “In some ways dealing with FISA reform first certainly makes sense.” 

FISA, or the Foreign Intelligence Surveillance Act, is the original law the Patriot Act altered in 2001.

“Let’s allay the public’s fears about info-sharing first, and deal with FISA reform so we know what the government can and can’t do,” Langevin said. “Next, let’s move toward addressing the need for information-sharing on cyber.” 

And most think the Senate will have to include some reform measures a Patriot Act reauthorization.

McConnell’s bill won’t have enough support to get through the upper chamber, Langevin said, “and I certainly don’t think it could pass the House.” 

If the NSA debate gets settled, Reid believes his colleagues can wrap up CISA before the Senate’s next break, at the end of May.

“I think McConnell wants to do it this work period and so do I,” he told reporters.


— Julian Hattem contributed
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