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Obama weighs executive order on cybersecurity

White House press secretary blames 'Republican stall tactics,' says president will move forward to 'better protect our nation'

By Taylor Armerding, CSO
August 09, 2012 07:39 AM ET

CSO - President Barack Obama is signaling that if Congress won't act on cybersecurity legislation, he will implement the elements he considers essential by executive order.

Senate may kill cybersecurity bill

That prospect gets mixed reviews from cybersecurity experts.

Stewart Baker, writing for The Volockh Conspiracy, said: "It is hard to fix bad laws with an executive order, but in this case I'm not sure it can't be done."

But David Inserra of the Heritage Foundation argues that an executive order "eschews such open debate and instead imposes the president's will with its weaknesses unmitigated by the legislative back-and-forth."

The signal from Obama came after the failure of a cloture vote in the Senate last week to end debate on the Cybersecurity Act of 2012 (CSA). White House Press Secretary Jay Carney blamed "Republican stall tactics" and told The Hill, "Unfortunately, we will continue to be hamstrung by outdated and inadequate statutory authorities that the legislation would have fixed."

"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," Carney said.

The president has issued more than 130 executive orders so far, frequently invoking the mantra, "We can't wait," to defend his implementation of initiatives he supports that Congress rejects. And this is one he has supported for more than a year.

Last year, the White House proposed its own cybersecurity legislation, presented more than 100 briefings and testified at 17 congressional hearings. More recently, he urged the passage of the CSA, introduced by Sens. Joe Lieberman (I-Conn.) and Susan Collins (R-Maine).

On July 19, The Wall Street Journal carried an op-ed by the president, in which he argued that without greater cybersecurity, a cyberattack could destroy financial, health care and infrastructure systems without a shot being fired.

But the CSA generated fierce opposition from privacy advocates, who opposed information sharing provisions and also from business groups like the US Chamber of Commerce, which said the proposed legislation would burden businesses with unnecessary and ineffective regulations.

The president apparently will not face many legal hurdles if he decides to bypass Congress. Jim Lewis, a senior fellow at the Center for Strategic and International Studies, told The Hill that many companies managing vital computer systems are already heavily regulated, and that the president could order agencies to require the industries they regulate to meet cybersecurity standards.

"You don't need new legislative authority to do that," Lewis said.

But he acknowledged that the president could not remove legal barriers to information sharing without the approval of Congress.

And that is apparently enough for privacy advocates like the Electronic Frontier Foundation (EFF), which opposed the CSA even after amendments had made information sharing voluntary.

Rainey Reitman, activism director for EFF said the group's understanding is that the president is considering an executive order "to shore up critical infrastructure but not to address the information sharing issues."

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