Justice Dept. Refuses to Release---or even Talk About—Secret 12-Year-Old Memo on Cybersecurity

Thursday, July 30, 2015
Sen. Ron Wyden Credit: Jacquelyn Martin/Associated Press

The Senate may be about to take up cybersecurity legislation and Sen. Ron Wyden (D-Oregon) wants to make sure his colleagues put the subject in the proper context. To do that, Wyden wants a memo produced by the George W. Bush administration on the subject to be made public.

So far, Wyden has been unsuccessful in getting the memo released before the Senate considers the Cybersecurity Information Sharing Act (CISA). He’s concerned that a future administration could use the memo, written in 2003 by Bush’s Office of Legal Counsel, to justify spying on citizens in order to prevent cyberattacks. While the Obama administration says it doesn’t use the memo, neither will it release it to the public.

“Wyden and civil-liberties advocates worry that the memo could be invoked by a future president, a concern fueled in part by the use of other Bush-era legal opinions written to justify warrantless surveillance and the [Central Intelligence Agency’s] so-called ‘enhanced interrogation techniques’ during the war on terror,” National Journal reported.

Wyden has said he remains “very concerned that a secret Justice Department opinion that is of clear relevance to this debate continues to be withheld from the public.”

His remarks came after his was the lone committee vote against CISA, which is intended to encourage companies to cooperate with the government on cybersecurity efforts.

“This opinion, which interprets common commercial service agreements, is inconsistent with the public’s understanding of the law, and I believe it will be difficult for Congress to have a fully informed debate on cybersecurity legislation if it does not understand how these agreements have been interpreted by the Executive Branch,” Wyden wrote.

-Noel Brinkerhoff, Steve Straehley


To Learn More:

What’s Inside the Justice Department’s Secret Cybersecurity Memo? (by Dustin Volz, National Journal)

The Common Commercial Services OLC Opinion Affecting Cyber Policy Is Over a Decade Old (Emptywheel)


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