In an appropriations hearing Thursday, Attorney General Eric Holder declined to say whether the Justice Department was helping devise a new legal framework for U.S. cybersecurity efforts. But a little-noticed document in the department’s fiscal 2011 budget submission suggests the Office of Legal Counsel is deeply involved in the issue.
In an exchange between Holder and Sen. Barbara Mikulski, highlighted here by Politico’s Josh Gerstein, the Maryland Democrat pressed the Attorney General on whether the department was involved in updating an area of law she described as “gray, dated or nonexistent.”
Holder did not address the question directly. “We want to make sure that the laws we have on the books are up-to-date to deal with this new reality,” he said.
Part of that task is left to the department’s Office of Legal Counsel, which plays a key role in assessing the legality of national security and intelligence reforms. In a budget document released earlier this year, OLC said that it was “providing extensive guidance on complex issues related to cybersecurity.” Moreover, the emphasis on these and other national security issues has “come at the expense of some of the rest of the office’s workload,” the document said.
The document does not elaborate on OLC’s cybersecurity-related work. OLC guidance is typically memorialized in legal opinions, many of which remain secret.
At Thursday’s hearing, Mikulski said efforts to police cyberspace were hampered by divisions between the Department of Homeland Security and the National Security Agency, and she asked whether the role of the latter needed to be enlarged in the private sector. (For instance, Google Inc. allied with the NSA after a major cyberattack targeted the company’s computer networks.)
Mikulski suggested some of the restrictions on the NSA needed to be removed, though not at the expense of privacy or civil liberties.