What’s Inside the Justice Department’s Secret Cybersecurity Memo?

Despite calls for its release, the government will not make public a memo that Sen. Ron Wyden says is crucial to the Senate’s looming cybersecurity debate.

Roundtable Discussion on "Expanding Health Care Coverage" Ron Wyden
National Journal
July 27, 2015, 4 p.m.

Sen. Ron Wyden has many prob­lems with the cy­ber­se­cur­ity bill that the Sen­ate may take up be­fore the Au­gust re­cess.

But he can only talk about some of them pub­licly. Oth­er re­ser­va­tions re­main strictly clas­si­fied.

Wyden, the Demo­crat­ic pri­vacy hawk from Ore­gon, claims that a clas­si­fied Justice De­part­ment leg­al opin­ion writ­ten dur­ing the early years of the George W. Bush ad­min­is­tra­tion is per­tin­ent to the up­per cham­ber’s con­sid­er­a­tion of cy­ber­le­gis­la­tion — a warn­ing that re­minds close ob­serv­ers of his al­lu­sions to the Na­tion­al Se­cur­ity Agency’s sur­veil­lance powers years be­fore they were ex­posed pub­licly by Ed­ward Snowden.

The Obama ad­min­is­tra­tion pledges that it does not rely upon the memo, which some pri­vacy ex­perts have spec­u­lated could be used un­der the aus­pices of cy­ber­se­cur­ity to al­low gov­ern­ment sur­veil­lance of Amer­ic­ans’ In­ter­net us­age. 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 CIA’s so-called “en­hanced in­ter­rog­a­tion tech­niques” dur­ing the war on ter­ror.

Wyden has railed against the in­form­a­tion-shar­ing le­gis­la­tion passed out of the Sen­ate In­tel­li­gence Com­mit­tee as a “sur­veil­lance bill by an­oth­er name.” While its boost­ers say it could help min­im­ize the dam­age wrought by hacks like those that crippled Sony Pic­tures or laid bare the Of­fice of Per­son­nel Man­age­ment’s re­cords of fed­er­al em­ploy­ees, Wyden in­sists that the Cy­ber­se­cur­ity In­form­a­tion Shar­ing Act, or CISA, is overly broad and that evid­ence is thin that it would im­prove cy­ber­se­cur­ity.

Sen­ate Ma­jor­ity Lead­er Mitch Mc­Con­nell has in­dic­ated that he hopes to move CISA, which would provide ex­pan­ded leg­al pro­tec­tion to com­pan­ies that vol­un­tar­ily share “cy­ber­threat in­dic­at­ors” with the gov­ern­ment and each oth­er, with­in the next two weeks, likely after Con­gress wraps up de­bate over high­way fund­ing. While gov­ern­ment of­fi­cials say they no longer rely on the memo, Wyden con­tin­ues to press for its de­clas­si­fic­a­tion in or­der to en­sure that fu­ture ad­min­is­tra­tions don’t re­verse course.

“I re­main very con­cerned that a secret Justice De­part­ment opin­ion that is of clear rel­ev­ance to this de­bate con­tin­ues to be with­held from the pub­lic,” Wyden said in his writ­ten dis­sent against CISA, which cleared the Sen­ate In­tel­li­gence Com­mit­tee 14-1 in March. “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.”

Last month, when Mc­Con­nell tried and failed to pass CISA by at­tach­ing it to a de­fense au­thor­iz­a­tion bill — a pro­ced­ur­al trick that lim­ited amend­ments and promp­ted a Demo­crat­ic back­lash, Wyden urged his col­leagues to read the memo in ques­tion. Any sen­at­or that voted for the bill, he said, “is vot­ing without a full un­der­stand­ing of the rel­ev­ant leg­al land­scape.”

The Justice De­part­ment would not com­ment on the con­tents of the opin­ion oth­er than to say that it is “aware of the sen­at­or’s con­cerns and [has] provided a re­sponse.” That re­sponse is clas­si­fied, Wyden’s of­fice con­firmed, adding that DOJ of­fi­cials in­dic­ated they had no plans to re­lease the leg­al memo pub­licly.

Pri­vacy ad­voc­ates say that re­fus­al is un­set­tling, in part be­cause the opin­ion was writ­ten by the Of­fice of Leg­al Coun­sel in 2003 — a date re­vealed in con­gres­sion­al testi­mony a dec­ade later and first high­lighted by in­de­pend­ent journ­al­ist Marcy Wheel­er. At that time, the same group of law­yers work­ing in the Bush ad­min­is­tra­tion also was writ­ing secret memos that jus­ti­fied war­rant­less wiretap­ping by the Na­tion­al Se­cur­ity Agency and the cre­ation of the CIA’s for­eign black sites, where sus­pec­ted ter­ror­ists were de­tained and sub­jec­ted to bru­tal in­ter­rog­a­tion meth­ods such as wa­ter­board­ing and sens­ory depriva­tion.

“Tor­ture and mass sur­veil­lance are our ex­per­i­ences with secret law,” said Nath­an White, seni­or le­gis­lat­ive man­ager with the di­git­al rights group Ac­cess, which Monday joined oth­er pri­vacy ad­voc­ates to launch a “week of ac­tion,” lob­by­ing sen­at­ors to vote down CISA.

White, in ad­di­tion to sev­er­al oth­er civil-liber­ties act­iv­ists, said he did not know spe­cific­ally what the Justice De­part­ment memo could be re­fer­ring to. But these memos can be sig­ni­fic­ant, he ad­ded, not­ing that two oth­er secret Justice De­part­ment memos from 2012 first pub­lished in June by The New York Times and ProP­ub­lica re­vealed that the NSA had ex­pan­ded the breadth of its sur­veil­lance to in­clude the cross-bor­der In­ter­net traffic of Amer­ic­ans, in an ap­par­ent at­tempt to un­cov­er and mon­it­or for­eign hack­ers.

“Wyden is not a sky-is-fall­ing kind of guy,” White said. “He is very clear and tar­geted when he is warn­ing about stuff.”

The ob­lique warn­ing from Wyden is re­min­is­cent of in­sinu­ations that he and former Sen. Mark Ud­all made about NSA sur­veil­lance pri­or to the Snowden dis­clos­ures that began two years ago. Both Demo­crat­ic law­makers sat on the Sen­ate In­tel­li­gence Com­mit­tee and ex­pressed grave con­cerns about the NSA’s bulk col­lec­tion of U.S. phone re­cords, but said they were re­stric­ted in their abil­ity to re­veal clas­si­fied in­form­a­tion.

“The Amer­ic­an people will also be ex­tremely sur­prised when they learn how the Pat­ri­ot Act is secretly be­ing in­ter­preted,” Wyden said dur­ing a floor speech in 2011, more than two years be­fore the Snowden dis­clos­ures, which re­vealed that a pro­vi­sion of the law known as Sec­tion 215 was be­ing used to jus­ti­fy the NSA’s drag­net phone sur­veil­lance. “And I be­lieve one con­sequence will be an erosion of pub­lic con­fid­ence that makes it more dif­fi­cult for our crit­ic­ally im­port­ant na­tion­al in­tel­li­gence agen­cies to func­tion ef­fect­ively.”

Ud­all’s de­feat to Re­pub­lic­an chal­lenger Cory Gard­ner last year has of­ten left Wyden as the sol­it­ary voice of dis­sent on the In­tel­li­gence pan­el, though he is oc­ca­sion­ally joined by Sen. Mar­tin Hein­rich, a New Mex­ico Demo­crat, on press­ing for more pri­vacy pro­tec­tions. On CISA, and on the Justice De­part­ment memo spe­cific­ally, Wyden has been on a largely lonely cru­sade. Two sim­il­ar info-shar­ing bills eas­ily passed the House this year, and in the shad­ow of massive hacks on private com­pan­ies and gov­ern­ment, fi­nal pas­sage ap­pears more likely than in pre­vi­ous Con­gresses.

Wyden, for his part, re­mains un­deterred. Over the past sev­er­al years, he sent let­ters to former At­tor­ney Gen­er­al Eric Hold­er ex­press­ing his con­cern that the memo re­mains clas­si­fied. In a rare open Sen­ate In­tel­li­gence Com­mit­tee hear­ing in Decem­ber 2013, Wyden peppered Car­oline Krass, then the nom­in­ee for CIA gen­er­al coun­sel, with ques­tions about the leg­al opin­ion, ex­tract­ing an as­sur­ance that she would not in­voke it dur­ing her ten­ure due to its age. She also said the memo was is­sued as a “first im­pres­sion” on a then-nov­el tech­no­logy in 2003 and that case law has evolved since.

Wyden said those prom­ises were in­suf­fi­cient, however. “What con­cerns me is, un­less the opin­ion is with­drawn, someone else might be temp­ted to reach the op­pos­ite con­clu­sion,” he said at the hear­ing.

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