Senate Rejects Cloture on Sen. Lieberman's Cyber Security Bill

August 2, 2012. The Senate rejected a motion to invoke cloture on S 3414 [LOC | WW | PDF], the "Cybersecurity Act of 2012", by a vote of 52-46. A super majority of 60 is required to pass a cloture motion. Later in the day the Senate recessed until September.

The two main causes of opposition were the inclusion of Title I of the bill, which imposes a regulatory regime on private sector entities, and the ruthlessly fast and closed process by which Sen. Harry Reid (D-NV), the Senate Majority Leader, attempted to force this bill upon the Senate.

Voting correlated with party affiliation. Most Democrats voted yes. Most Republicans voted no.

New England Republicans Sen. Scott Brown (R-MA), Sen. Susan Collins (R-ME), and Sen. Olympia Snowe (R-ME) voted yes, as did Indiana Republicans Sen. Dan Coats (R-IN) and Sen. Richard Lugar (R-IN).

Sen. Jon Tester (D-MT), Sen. Max Baucus (D-MT), Sen. Mark Pryor (D-AR), Sen. Jeff Merkley (D-OR), and Sen. Ron Wyden (D-OR) voted no. Sen. Frank Lautenberg (D-NJ) initially voted no. Sen. Reid kept the vote open long after the expiration of the voting period while he and Sen. Joe Lieberman (D-CT), sponsor of the bill, conferred on the floor with Sen. Lautenberg. Sen. Lautenberg switched his vote to yes. Then Sen. Reid voted no, to preserve his right to bring a motion to reconsider, and the vote was closed.

Privacy. The bill also would create end runs around the 4th Amendment, 5th Amendment due process, the Wiretap Act, Stored Communications Act, state wiretap laws, and generally, individuals' and business's legitimate expectations of privacy in electronic communications and stored data.

Sen. Wyden (at right) who joined with Republicans in voting no, explained that privacy was a reason for his opposition.

Sen. Wyden (at right) stated in a release that "Senators were asked to sacrifice Internet users’ privacy and civil liberties for weak proposals to improve cyber security; I voted no. In its current form, the Cybersecurity Act does not sufficiently safeguard Internet users’ privacy and civil liberties, nor would it create the correct incentives to adequately protect the nation’s critical infrastructure from cyber threats."

He noted that Sen. Al Franken (D-MN) had amendments that would have addressed privacy concerns, but that they could not have been offered. He concluded that "I hope that the Senate will return to this issue soon after addressing both the privacy and security short-comings of the current legislation."

The other Senator from Oregon, Sen. Merkley, also voted no. He stated in a release that the bill "provides companies with broad authority to collect and monitor Americans' internet communications. This bill needs more debate, and there are many amendments Senators have proposed that deserve consideration, and that's why I voted against ending debate on the bill."

Standards. The House passed a bill in April that would not impose government mandates or standards on the private sector. See, HR 3523 [LOC | WW], the "Cyber Intelligence Sharing and Protection Act" or "CISPA".

Sen. John McCain (R-AZ), a leader of the opposition to S 3414, is the sponsor of a cyber security bill without government compulsion, S 2151 [LOC | WW], the "Secure IT Act".

S 3414 lost much support in the Senate because of its compulsory standards approach.

Fast and Closed Process. The fast and closed process also generated opposition. Although, Sen. Reid was likely pursuing the very rational legislative strategy of moving a bill from introduction to passage so quickly that many affected people and businesses would not have time to study the bill, organize, develop legislative strategies, and work with Senators.

The bill was introduced just 14 days before the failed cloture vote. Moreover, it is over two hundred pages of technical and complex provisions. There were no committee hearings. There were no committee markups. Sponsors' and proponents' summaries and statements were usually cursory, and sometimes inconsistent with the content of the bill. Sen. Reid sought approval of the bill without significant floor debate, or opportunity to offer amendments.

Sen. Charles Grassley (R-IA) stated on August 1 that "The bill before us was introduced 13 days ago" and "before a real debate began the Majority Leader cut it off". He said that there is a "lack of a real process in the Senate". He added that "this is eerily reminiscent of the debate surrounding Obamacare. During that time, then-Speaker of the House Pelosi declared, ``We have to pass the bill so that you can find out what is in it.´´" See, statement.

Post Vote Comments. Sen. Reid (at right) stated in a release after the vote on August 2 that "Despite a unanimous chorus of national security leaders demanding urgent action, Republicans recklessly obstructed cyber security legislation today, filibustering it with irrelevant, political amendments that serve no purpose other than catering to the Tea Party."

Sen. John Rockefeller (D-WV), a cosponsor of the bill, issued a release promptly after the vote. He stated that "Today's political maneuvering by Republican leadership is more than disappointing. It’s reckless. We worked hard for more than three years and now because a handful of Republican Senators are afraid of crossing the Chamber of Commerce's beltway lobbyists, we may end up with nothing on this urgent issue."

Similarly, the White House news office issued a release that states that "the politics of obstructionism, driven by special interest groups seeking to avoid accountability, prevented Congress from passing legislation".

NDAA. Finally, it might be noted that not only did the Senate not approve a cyber security bill this week, but it consumed much time and energy that might have been devoted to passage of S 3254 [LOC | WW], the "National Defense Authorization Act for Fiscal Year 2013" or "NDAA", a bill with cyber warfare provisions.

The main purpose of S 3414 is to increase the capacity of critical infrastructure in the US to withstand cyber attacks.

S 3254 deals with, among other topics, US offensive cyber warfare, and supply chain threats to US cyber security. See, story titled "SASC Approves Defense Authorization Bill with Cyber Warfare and ICT Provisions" in TLJ Daily E-Mail Alert No. 2,397, June 15, 2012.