At War Over CISPA: Towards a Reasonable Balance between Privacy and Security

Abstract:     
“[T]he consciousness of being at war, and therefore in danger, makes the handing-over of all power to a small caste seem the natural, unavoidable condition of survival." George Orwell, 1984.

Congress has recently begun attempting to address cybersecurity threats. Whenever the topic is raised, alarms sound from both sides of the political aisle. On one side, the intelligence community stresses that protection from cybersecurity threats is essential to national security, even if some personal liberties are sacrificed. On the other side, adamant proponents of personal privacy online seem to view themselves as some incarnation of Cassandra, announcing prophecies of the demise of privacy that fall on deaf ears.

Relying solely on these alarmist reactions leads to a conclusion that the Cyber Intelligence Sharing and Protection Act (CISPA) is either the most essential piece of legislation ever introduced, or the most abhorrent that will obliterate privacy and cause a decline into fascism and a Big Brother state. A reasonable median must be found.

In this essay, we examine the controversies surrounding CISPA, placing CISPA into what we argue is the proper legal context. We analyze and explain some of the trends in modern information privacy law, explain how CISPA could be aligned with this privacy law, and make recommendations for how CISPA’s language should be amended.

The above quote from 1984 is offered as a criticism of both sides of the CISPA debate. The fictional book-within-a-book that this quote is drawn from, The Theory and Practice of Oligarchal Collectivism, reads as a guide to totalitarianism, and this passage emphasizes the need for an “other” to unify the population. But the essential “other” required for union by conflict can be found inside or outside the government. While the anti-CISPA contingent might view this quote as applying to the danger of the government using CISPA as a tool to strip privacy rights, the pro-CISPA contingent could just as easily view this quote as applying to the binary, black and white view of security legislation taken by privacy advocates who argue against letting security concerns limit privacy. The discourse seems to almost paint the conflict as a war between the conflicting ideologies of protecting privacy and securing the nation. However, privacy and security are not mutually exclusive. A balance can be achieved, even if trade-offs and compromises must occur. Currently, CISPA does not achieve this balance, but we are optimistic that the recommendations contained in this essay would mitigate potential abuses under CISPA’s current language while retaining the value offered by this proposed legislation.

Number of Pages in PDF File: 35

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