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Cyber Security May Be The Topic of President’s Next Executive Order

WASHINGTON, D.C. – The Whitehouse is hinting that President Obama may “pursue other options” to ensure implementation of cyber security measures in spite of the Senate’s failure to pass the Cybersecurity Act.

Senate Republicans blocked recent cyber security legislation but the White House hasn’t ruled out issuing an executive order. “In the wake of Congressional inaction and Republican stall tactics, unfortunately, we will continue to be hamstrung by outdated and inadequate statutory authorities that the legislation would have fixed,” White House press secretary Jay Carney said in an email. Carney added, “Moving forward, the President is determined to do absolutely everything we can to better protect our nation against today’s cyber threats and we will do that.”

The president urged Congress to pass the Cybersecurity Act, which was co-sponsored by Senators Susan Collins (R-Maine) and Joe Lieberman (I-Conn.). The bill encouraged the government and private companies to work together in sharing information about cyber threats. However, Senate Republicans led by Sen. John McCain (R-Ariz.), were concerned the bill would burden businesses with yet another layer of ineffective regulations. The bill garnered 52 votes in the Senate but fell short of the 60 needed to overcome a filibuster.

Other opponents of the bill see yet one more inroad into the lives of private business and citizens by the Federal government. Gary Demar, of Godfather Politics, notes:

Who gets to define what constitutes a “cyber threat”? We think it means threats from foreign groups who want to bring down the United States. But there’s more to it. The . . . Cybersecurity Act . . . would have encouraged private companies and the government to share information about cyber threats and would have required critical infrastructure operators to meet minimum cyber security standards … having to defend oneself against government investigation could cripple or even bankrupt a company. Websites could be shut down until the government is “satisfied” that there is no “cyber threat”.

If President Obama issues an order on cyber security, it will not be the first time that his administration has resorted to executive action to bypass Congress. His slogan “we can’t wait” has been applied to a number of issues he says are too important to be allowed to stall in Congress.

When Congress failed to pass legislation to give legal status to students brought to the country illegally through the DREAM Act, the administration announced that it would stop deporting immigrants 30 years and younger who would have been eligible to stay under the bill.

Jim Lewis, a senior fellow at the Center for Strategic and International Studies, said that many companies managing vital computer systems are already heavily regulated. He also pointed out that the president could order agencies to require the industries they regulate to meet cyber security standards. Regulatory agencies, such as the Nuclear Regulatory Commission and the Federal Communications Commission are independent and not obliged to follow executive orders. But Lewis predicted that even the independent agencies would likely enforce an executive order on cyber security.

Lewis said that an executive order could even partially address information-sharing. The FCC, for example, has set up a voluntary system for companies to share information about cyber threats with each other, he said. An executive order could accomplish many of the goals of the Cybersecurity Act, but it could also further anger Republicans and the business groups, such as the U.S. Chamber of Commerce, who lobbied against the legislation.

Although Senator Collins was frustrated by the defeat of her bill, she is resistant to the idea of the president bypassing Congress. “I’m not for doing by executive order what should be done by legislation,” she said. Senator Dianne Feinstein (D-Calif.), one of the co-sponsors of the Cybersecurity Act, said she prefers that Congress address the problem but is open to presidential action if Congress fails. “I suppose if we can’t, the answer would be yes,” she said when asked whether she would support an executive order.

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