Bill revision addresses fear that president could gain emergency power to control Internet

A new draft of cybersecurity legislation released today by Sens. John Rockefeller (D-W.Va.) and Olympia Snow (R-Maine) would lead to the designation of specific information technology systems as critical to strategic national interests. The Senate Commerce Committee plans to start considering the bill on March 24.

Under the provision, which wasn’t part of the bill as introduced last April, the president's administration would use an administrative rulemaking process to work with privately owned critical infrastructure through sector-coordinating councils to develop criteria for designating information systems as critical and for appealing those findings. Nearly 90 percent of country’s networks are owned and operated by the private sector, according to a summary of the bill.

The bill would also give a president the power to declare a “cyber emergency” if there is an immediate threat to those critical systems. After such a declaration a president could put in place response and restoration plans to be developed by government and industry.

The newest draft of the bill also states explicitly states that it doesn’t authorize and shouldn’t be construed to authorize an expansion of presidential powers.

Related story:

U.S. would lose a cyber war, former intell chief warns

The measure’s original language said a president could declare a cybersecurity emergency and order the “shutdown” of Internet traffic to and from government systems or networks and those considered critical infrastructure, and in the interest of national security, order the disconnection of such networks or systems. Many critics took that to mean the president would be able to shut down the Internet by declaring a cybersecurity emergency.

James Lewis, director of the Center for Strategic and International Studies’ technology and public policy program, said those fears over presidential powers in the bill were always overstated.

The writers of the bill have “really gone out of their way to say that work with the private sector to come up with a response plan and to identify what is critical infrastructure so I think the presidential authorities one is still there, but it’s a much more palatable version,” Lewis said.

In addition, the newest version of the measure would also create an information clearinghouse through which government and industry would share classified or confidential cybersecurity threat and vulnerability information on critical infrastructure information systems. The bill also aims to ensure that industry officials that work on critical infrastructure have necessary security clearances.

Leisyl Franz, vice president for information security at trade association TechAmerica, said her organization is reviewing the newest version, but that they see marked improvements regarding public/private collaboration.

Meanwhile, Lewis said debate is going to come down to whether the country is ready to move to a more mature IT infrastructure. He added that of the many bills that have been proposed by lawmakers it appears to have the best chance.

“I think this bill has the best chance, but it’s a tough year for getting stuff through,” Lewis said. “We’ll pass this bill or something like this bill eventually. The longer we wait the more hurt the nation suffers.”