July 26th, 2002
By Thomas C. Green
The Register
There was a fabulous explosion Wednesday during an otherwise typical
cyberterror dog-and-pony show on the Hill when House Government Reform
Subcommittee Ranking Member Jan Schakowsky (Democrat, Illinois) lost her
composure during a discussion of new Freedom of Information Act (FOIA)
modifications proposed by the GB Junior Administration as part of its Homeland
Defense initiative.
After a couple of hours filled with warnings about widespread infrastructure
vulnerabilities and exploitable bugs in numerous control systems, it came
time for Critical Infrastructure Assurance Office (CIAO) Director John
Tritak and National Infrastructure Protection Center (NIPC) Director Ronald
Dick to make the pitch for a controversial exemption from the FOIA applying
to all government records submitted by the industry.
The government has been disappointed in the amount of critical information
flowing to it from the Information Sharing and Analysis Centers (ISACs)
which the Clinton Administration set up for private-sector vulnerability
shoptalk. Industry fears that government records of their incompetence
could end up in the hands of outraged citizens and journalists, leading
to an unfortunate tarnishing of the sterling reputations enjoyed by the
nation's mega-corporations.
Uncle Sam would like to be told more about vulnerabilities and risks
and terrorist targets in the real world out there, and is perfectly willing
to gut the FOIA if that's what it takes to get brought up to speed.
Schakowsky just about had a fit on hearing this. Why, she wondered,
if the terrorist threat is as real as the government claims, are we kissing
big business' ass and essentially pleading with them to cooperate? Why
not just force them?
"This is a time of a war on terrorism; we're calling on individuals
and businesses to be patriotic," she said. "Because this is so critical
to our national security, we could simply require this rather than pander
to the desires of businesses to keep information secret, an item that has
been on their agenda for many years."
"It astounds me that at a moment in history when transparency in business
is in the headlines every day -- the need for us to know what is going
on in our private sector, which has deprived many of our citizens of their
ability to retire, and employees of their retirement plans, set the stock
market diving because of this lack of transparency, cooking the books --
that now we want to offer...not a narrowly-constructed exemption, but a
loophole big enough drive any corporation and its secrets through," she
sputtered.
"If a company wants to protect information from public view, they can
dump it into the Department of Homeland Security and say, 'we don't want
anyone to have access to it because it's critical information,' yet it
could be something that communities need to know."
She wanted to know if the government had given businesses any assistance
in dealing with sensitive data under the FOIA as it exists.
NIPC Director Ronald Dick rushed to defend the proposed amendments.
"If there is a request for [trade secrets information] the industry would
have to come forward and discuss in court what it had done to protect that
information," he explained. "So therefore they would have to go into court
and prove, I assume beyond some standard, that they had adequately protected
it in the first place."
That was a bit of a slip, that bit about how the new FOIA will essentially
protect information the companies haven't bothered to protect for themselves.
But the government often rewards incompetence, so it's hardly surprising.
"We're talking about information that the private sector believes is
sensitive and are concerned about it being disclosed," Dick continued.
"And they have questions as to whether the government can adequately protect
it. What we're recommending is not some broad loophole, but a measured
response in the language that will provide some of the assurances that
will provide better information sharing."
Schakowsky read from the Junior Administration's proposed language,
making it clear that Uncle Sam is prepared to exempt from public knowledge
absolutely anything that relates to infrastructure vulnerabilities in any
way.
Asked why such broad language should be needed, Dick made the mistake
of answering, "the private sector is concerned that if they share [vulnerability
information] then it will become public, and therefore the bad guys will
know it and attack them."
Schakowsky tore into the logical flaw. "So they believe that if they
provide information that's critical to terrorists, this government under
its current laws is just going to let that information out," she said sarcastically.
"It is precisely for that reason that the existing exemptions were crafted."
Dick never quite replied to that one. It's obvious to any fool that
the government would never willingly release any such information. The
private sector is of course solely concerned with embarrassing revelations
of how badly they're managing their security defenses, and the liabilities
their publication would invite.
Schakowsky knows that Uncle Sam needs and desperately wants this data
and will bend over backwards to coax it from business while steamrolling
the rights of citizens to sue for it, regardless of public interests buried
along the way. She had a couple of good rants; and I have to say it was
refreshing to see a Member of Congress actually understand something for
a change. But the government rationale is fairly well accepted on the Hill,
and these days the word 'terror' works absolute magic in all political
negotiations. It looks like the FOIA is set become another casualty of
the war on terror.
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