Who’s hacking whom?
U.S. Senators John McCain, R-Ariz., and Lindsay Graham, R-S.C., have joined calls by the Obama administration to investigate what is described — with no publicly disclosed evidence, mind you — as Russian government-sponsored hacking into American private servers with the intent of influencing voters in favor of President-elect Donald Trump.
Sounds menacing, doesn’t it?
But even assuming that Russians actually hacked the Democratic National Committee (DNC) and Clinton campaign chairman John Podesta and actually shared the ill-gained information with third parties who made the information public, there is a far more ominous sequence of events that’s taken place on our own shores.
After all, there is no allegation that the Russians attempted hacking any of the highly protected voter databases in any of the states — a circumstance that, if true, would undermine the validity of the election results altogether.
That distinction is reserved for our own government.
Over the last 10 months, the U.S. Department of Homeland Security (DHS) attempted to infiltrate the Georgia Secretary of State’s voter database network. It did so without Georgia’s consent and, in fact, over its explicit rejection of DHS’s offer to "help" the state check for vulnerabilities in its firewall.
DHS didn’t just try once; it made 10 attempts.
This wasn’t an accident. It was a pattern.
Who ordered the cyberattacks and who conducted them are unclear.
When confronted by Georgia Secretary of State Brian Kemp, DHS first claimed it was a rogue employee with the U.S. Customs and Border Protection. As a follow-up, DHS claimed it was an automatic scan resulting from a contractor entering the Website address into a spreadsheet. DHS Secretary Jeh Johnson’s rambling and noncommittal written response to Secretary Kemp leaves much to the imagination.
What we do know for sure is that DHS initiated cyberattacks against Georgia the day after the state’s voter registration deadline, the day before the so-called "SEC primary," the day before the general primary, the day before and day after the presidential election, and on several days around the same time Kemp testified before Congress opposing a federal plan to designate state election systems as "critical infrastructure."
Shortly before the 2016 presidential election, DHS sought to designate the election infrastructure of all 50 states as a "critical infrastructure." In other words, DHS sought federal control of the state election rolls, registration databases, websites, and voting machines.
It also sought to give the U.S. Department of Justice power to investigate, disrupt, and prosecute any "threats" to the election infrastructure.
The measure was ultimately rejected.
But that didn’t stop DHS from pursuing its trolling operation.
West Virginia and Kentucky reported what they describe as routine checks by DHS during this same period. But why were there "routine checks" going on at all?
It’s important to understand that the U.S. Constitution specifically grants states the sole power to manage the "times, places and manner of holding elections." Congress can intervene by law if it deems it necessary. In 2016, Congress did not deem it necessary.
Apparently, DHS did. And they didn’t bother to tell Georgia or other states that DHS would attempt to intervene, let alone ask their permission.
So why did they do it, over and over again?
Where Congress has spoken, in the form of nearly a dozen laws limiting or banning the use of federal power in the digital arena, DHS ignored the laws.
DHS went where it had no authority to go.
Until DHS is compelled to fully answer for the attempted hacks, we are consigned to speculate, investigate, and compare its actions with the law. In the absence of answers, we are left with the facts we know. Ten hack attempts made by a federal agency against a state-protected voter network over a 10 month period, and each attempt coinciding with an election or congressional testimony in opposition to DHS "help."
In the name of defending the integrity of the American electoral system, Congress and the current administration are vigorously pursuing investigations into alleged Russian hacking of private servers.
Meanwhile, nobody is asking about verified hack attempts made by a federal government agency against a state-protected voter database network. We are now asking, and Congress and the new administration should take up the call. The Constitution mandates it.
Todd Young serves as Executive Director for Southeastern Legal Foundation (SLF), an Atlanta-based national constitutional public interest law firm founded in 1976. In his role at SLF, he has worked closely in an advisory capacity with former U.S. Attorney General Edwin Meese III, former Independent Counsel Judge Kenneth Starr, former Speaker of the House Newt Gingrich, and various members of Congress and state governors and attorneys general. To read more of his reports — Go Here Now.
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