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Analysis: U.S. domestic spying controversy complicates cybersecurity efforts

By Andrea Shalal-Esa and Joseph Menn

WASHINGTON/SAN FRANCISCO (Reuters) - The Obama administration's cybersecurity agenda, which includes expanding the military's Cyber Command and beefing up protection for critical infrastructure, faces more intense scrutiny after two vast domestic surveillance programs were exposed this week.

Civil liberties groups say the revelations give new life to several privacy lawsuits against the National Security Agency, which hit the headlines twice in two days for secretly monitoring Americans' phone records and internet activity.

Renewed concerns about the spy agency's domestic surveillance programs could also hamper efforts to give it a broader role in defending the country's infrastructure, and put pressure on lawmakers to update laws protecting online privacy, say congressional aides and defense and security experts.

"They're going to make it harder to do the work that is now going on," said former chief Pentagon weapons buyer Mike Wynne, who also served as Air Force secretary from 2005 to 2008.

Wynne said growing unease about domestic surveillance could have a chilling effect on proposed cyber legislation that calls for greater information-sharing between government and industry.

Republican Mike Rogers and Democrat Dutch Ruppersberger, who are top lawmakers in the House of Representatives Intelligence Committee, had rewritten the cyber bill to designate the civilian Department of Homeland Security, and not the NSA, as the hub of information exchange between the government and private sector.

But the bill still allows sharing of information with the NSA, which could prove troubling to some lawmakers disturbed by the scope of the intelligence agency's surveillance powers.

The Democratic-controlled Senate already represented a steep obstacle for the cyber bill, which has been passed by the Republican House, even before this week's revelations.

While support for strong national security measures is one of the few issues that crosses Washington's party lines in the aftermath of the September 11, 2001, attacks on the United States, a few lawmakers did call for probes or closed-door hearings on the NSA's surveillance programs.

"Our investment in protecting American lives and liberties simultaneously is not a blank check," said Republican Senator Lisa Murkowski, who called on Friday for a "thorough vetting of this policy."

President Barack Obama on Friday staunchly defended the sweeping U.S. surveillance of Americans' phone and internet activity, calling it a "modest encroachment" on privacy that was necessary to defend the United States from attack.

Since news of the surveillance programs broke in the Guardian and Washington Post, more lawmakers have signed on to legislation that would strengthen privacy protections in the Electronic Communications Privacy Act in 1986, according to the offices of the bill's backers.

Republican Senator Rand Paul became the latest supporter of the Senate version of the bill, co-sponsored by Democratic Senator Patrick Leahy and Republican Senator Mike Lee.

Leahy and Lee have said the law should be strengthened so that law enforcement authorities need a search warrant if they want to read personal emails stored with third-party providers.

Currently, government investigators only need a subpoena, which has a lower threshold than a warrant because it does not need a judge to sign off. A subpoena can give investigators access to emails that are more than 180 days old, and sometimes newer emails if they are already opened by recipients.

Companion legislation in the House garnered 16 co-sponsors this week, said Matt Manda, spokesman for the bill's co-author, Republican Kevin Yoder.

CYBERSECURITY CHALLENGES

Some security industry insiders said this week's news could also increase pressure on the Pentagon to appoint separate officials to head Cyber Command, the military command that oversees offensive and defensive operations in cyberspace, and the NSA. Both hats are now worn by Army General Keith Alexander.

"This concept of civilian control over the military applies here," Wynne said.

Alexander has pushed to elevate Cyber Command to an independent military entity and to quadruple its size. But the latest controversy could make officials skittish about what some already see as a dangerous power grab.

"It's definitely going to make people think twice about expanding and elevating Cyber Command and new cyber legislation," said Jesselyn Radack, a lawyer who represented NSA whistleblower Thomas Drake. "People are going to take a more careful look now, and those overreaching laws will be blocked."

Civil liberties groups that have sued the government over suspected call-record programs and wiretapping, said they would use this week's new disclosures to bolster their cases.

In particular, they plan to argue against two of the main defenses used by the Justice Department to date - that a full trial on the issues would be impossible without revealing "state secrets" and that consumers lack standing to sue because they cannot show impact from the spying programs.

But privacy advocates say such arguments have been punctured by the disclosures of the surveillance programs, which have been largely confirmed by federal authorities and lawmakers.

"I hope it means that the court will agree that we need to get to the bottom of this," said Cindy Cohn, legal director of the Electronic Frontier Foundation, which is suing the NSA in a San Francisco case.

"It would be a terrible tragedy if we can talk about it in the press and in the halls of Congress, and the courts decide they can't hear it."

(Reporting by Andrea Shalal-Esa and Alina Selyukh in Washington and Joseph Menn in San Francisco; Editing by Karey Van Hall, Tiffany Wu and Peter Cooney)

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