A pair of bills introduced in the U.S. Senate would grant the White House sweeping new powers to access private online data, regulate the cybersecurity industry and even shut down Internet traffic during a declared “cyber emergency.”
Senate bills No. 773 and 778, introduced by Sen. Jay Rockefeller, D-W.V., are both part of what’s being called the Cybersecurity Act of 2009, which would create a new Office of the National Cybersecurity Advisor, reportable directly to the president and charged with defending the country from cyber attack.
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First, the White House, through the national cybersecurity advisor, shall have the authority to disconnect “critical infrastructure” networks from the Internet – including private citizens’ banks and health records, if Rockefeller’s examples are accurate – if they are found to be at risk of cyber attack. The working copy of the bill, however, does not define what constitutes a cybersecurity emergency, and apparently leaves the question to the discretion of the president.
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According to Granick, granting the Department of Commerce oversight of the “critical” networks, such as banking records, would grant the government access to potentially incriminating information obtained without cause or warrant, a violation of the Constitution’s prohibition against unlawful search and seizure.
From Jay Rockefeller’s entry on Wikipedia:
“Retroactive immunity for telecommunications companies
In 2007, Senator Rockefeller began steering the Senate Intelligence Committee to grant retroactive immunity to telecommunications companies who were accused of unlawfully assisting the National Security Agency (NSA) in monitoring the communications of American citizens (see Hepting v. AT&T).[9]
This was an about-face of sorts for Senator Rockefeller, who had hand-written a letter to Vice President Cheney in 2003 expressing his concerns about the legality of NSA’s warrantless wire-tapping program. Some have attributed this change of heart to the spike in contributions from telecommunications companies to the senator just as these companies began lobbying Congress to protect them from lawsuits regarding their cooperation with the NSA[10].
Between 2001 and the start of this lobbying effort, AT&T employees had contributed $300 to the senator.[10]. After the lobbying effort began, AT&T employees and executives donated $19,350 in 3 months[10]. The senator has pledged not to rely on his vast fortune to fund his campaigns[11], and the AT&T contributions represent about 2% of the money he raised during the previous year[10].
[edit] Retroactive immunity for torture
Though publicly deploring torture, Rockefeller was one of two Congressional Democrats briefed on waterboarding and other secret CIA practices in the early years of the Bush Administration, as well as the existence of taped evidence of such interrogations (later destroyed).[12] In December 2007, Rockefeller opposed a special counsel or commission inquiry into the destruction of the tapes, stating “it is the job of the intelligence committees to do that.”[13]
On September 28, 2006, Rockefeller voted with a largely Republican majority to suspend habeas corpus provisions for anyone deemed by the Executive Branch an “unlawful combatant,” barring them from challenging their detentions in court. Rockefeller’s vote gave a retroactive, nine-year immunity to U.S. officials who authorized, ordered, or committed acts of torture and abuse, permitting the use of statements obtained through torture to be used in military tribunals so long as the abuse took place by December 30, 2005.[14] Rockefeller’s vote authorized the President to establish permissible interrogation techniques and to “interpret the meaning and application” of international Geneva Convention standards, so long as the coercion fell short of “serious” bodily or psychological injury.[15][16] The bill became law on October 17, 2006.”
