S 602 Introduced – Cyber Sanctions

Last month Sen. Gardner (R,CO) introduced S 602, the Cyber Deterrence and Response Act of 2019. The bill would require the President to identify foreign persons or agencies of a foreign state that are ‘critical cyber threats’ and impose sanctions on such persons or agencies. The bill is very similar to S 3378 that was introduced by Gardner during the 115^th Congress; no action was taken on that bill.

Differences

This new version of the bill makes a large number of relatively minor wording and phrasing changes that would be of interest only to an English teacher. There are, however, two sanction additions found in S 602:

• Allows for the withdrawal, limitation, or suspension of non-humanitarian development assistance from the United States to the foreign state under chapter 1 of part I of the Foreign Assistance Act of 1961 {§3(b)(2)(B)}; and

• Allows the President to direct Overseas Private Investment Corporation, the United States International Development Finance Corporation, or any other Federal agency not to provide assistance to a designated critical cyber threat {§3(b)(2)(D)};

Additionally, there are two procedural measures added in the latest version of the proposed bill:

• Instead of publishing a notice in the Federal Register listing the designation of a critical cyber threat, S 602 requires a report to Congress {§3(a)(2)}; and

• Spells out actions that President should take to coordinate sanctions with allies and partners of the United States {§3(g)(2)}.

Moving Forward

Both Gardner and his cosponsor {Sen. Coons (D,DE)} are influential members of the Senate Foreign Affairs Committee, the Committee to which this bill was assigned for consideration. One would normally expect that this would mean that the bill could be expected to be considered in Committee. Last session, S 3378 did not see the light of day after introduction. This may mean that the bill will face a similar fate in this session.

Commentary

The most critical definition in this bill is for the term ‘state-sponsored cyber-activities’ since this is the key to determining whether a person or agency should be designated ‘a critical cyber threat’. Unfortunately, that term ‘state-sponsored cyber-activities’ is essentially defined as a cyber-activity that is state-sponsored. No attempt was made to establish a definition of ‘cyber-activity’.

S 3378 Introduced – Cyber Sanctions

Last week Sen. Gardner (R,CO) introduced S 3378, the Cyber Deterrence and Response Act of 2018. This bill is very similar to HR 5576 which was introduced in the House in May; no action has taken place on that bill.

Deletions

Most of the changes are grammatical or structural and are of little interest anyone but legal scholars. There are, however, some significant provisions from HR 5576 that did not make it into this bill.

The last two sub-paragraphs from §3(a)(1) did not make it into the senate bill. They allowed the President to take action against governments or persons that attempted to engage in any of the sanctioned activities listed in the bill.

The Senate bill does not include some of the sanctions provided in the House bill. These include prohibiting:

• Non-humanitarian United States development assistance under chapter 1 of part I of the Foreign Assistance Act of 1961 {§3(b)(2)(A)};

• Approval of the issuance of any guarantees, insurance, extensions of credit, or participations in the extension of credit {§3(b)(2)(D)};

• Transactions in foreign exchange that are subject to the jurisdiction of the United States and in which the government of the foreign state has any interest {§3(d)(2)(E)}; and

• Transfers of credit or payments between one or more financial institutions or by, through, or to any financial institution, to the extent that such transfers or payments are subject to the jurisdiction of the United States {§3(d)(2)(F)};

The Senate bill also removes the limited Congressional oversight provision of initial briefing to Congress required by §3(f) in the House bill.

Moving Forward

Both Gardner and his single cosponsor {Sen. Coons (D,DE)} are members of the Senate Foreign Relations Committee to which this bill was referred for consideration. Gardner is a sub-committee chair so he should have enough influence to see this bill considered in Committee. However, seeing the lack of action in the House, I suspect that the chances for this bill being considered during this session are rather remote.

Bills Introduced – 08-23-18

Yesterday with just the Senate in session there were 22 bills introduced. Of those one may be of specific interest to readers of this blog:

S 3378 A bill to impose sanctions with respect to state-sponsored cyber activities against the United States, and for other purposes. Sen. Gardner, Cory [R-CO]

I will be watching this bill for language specifically identifying industrial control system issues.