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The Cyber Defense Review

Enter the Policy and Legal Void

By Dr. Aaron Brantly | August 21, 2016

Soldiers are down range and have suites of tools available to them that they cannot use to their full capability. They are not technically limited, but rather constrained by the authorities and pre-requisite policies established in a pre-digital age. We tell them to go and defeat ISIS, Al al’Qaeda, or pick another future adversary, but they must do so with their hands tied behind their backs. Make no mistake, as a nation we are currently involved in a global conflict. The conflict is not defined by traditional weapons, but by bits and bytes traversing fiber lines and airwaves. This global information war collides with many of the values of Western Democracies, and the societal constraints of authoritarian regimes. The robust constraints on governmental instruments serve a valuable purpose, yet at the same time our Soldiers in the field are struggling to navigate complex legal and policy waters while corporations are drowning in data that might inform or provide context for a variety of mission sets. The volume and velocity of this data is only set to grow as globally the number of Internet enabled devices increases from approximately 17 billion to 50 billion and beyond. At the beginning of the digital age it is imperative that we, as a society, begin discussing the future we are rapidly entering.

Constraints are pivotal for maintaining the fundamental civil rights Americans cherish.  Civil rights, to include various liberties such as privacy, free speech, and freedom of religion among others are challenged by data repositories that eliminate anonymity and the ability to be forgotten and to forget. Yet, we as a society are fooling ourselves if we believe that when we order Google to delete us from search results, or Facebook to remove our profile that that data ever really disappears. The vast majority of US Internet users are simultaneously consumers and products in a complex digital ecosystem that will only become more complicated with the expansion of the Internet of Things into our homes, offices, and even our bodies. We and our political elite can pretend to be neo-Luddites, but we are not. We are voracious consumers of innovation. We innovate without significant thought to consequence, and in so doing often fail to assess the risks of the world we are designing.

As we demand and consume innovation, we ignore the fact that we are retaining the policies and laws of yesterday, and in the process shackling those in our society to whom we have assigned the responsibility for protecting us. As we innovate and adapt so to do our enemies, with terrorists, states adversaries, and criminal networks preying upon our innovation and learning to innovate and adapt as we do. All the while, we tell ourselves that if we provide the military and law enforcement with the policies and legal structure to defend us that we will be entering into some Orwellian nightmare. Yet, in many respects the nightmare is of our own making. We bleed trillions of dollars a year to cyber criminals and state espionage campaigns, and willingly allow those who engage in political violence, child pornography and other nefarious behavoirs to run rampant through the systems that we once thought would usher in a bright new era for humanity.

General Michael Hayden asserted during a talk after his time at the NSA that he would go right up to the line in using every legal authority granted him and the agencies under his control, but that he would go no further. He said the agencies of the federal government were designed to operate within a rule of law system beholden to the will of the people. Edward Snowden, the EFF, the ACLU, and others have challenged the extent to which federal authorities extend control over systems used by the US and allies. They have challenged the concept of secret courts and classified policy directives. Some have even indicated that individuals from the intelligence community (IC) engaged in illegal activities beyond the scope of even secret courts and classified policies. Around the margins there will always be those who violate the intent of law and policy. However, the vast majority of members of the IC are well intentioned individuals who seek to protect their fellow citizens.

The basic distribution of relevant national security and law enforcement authorities within United States Code are divided between Title 10 (Military), Title 18 (Law Enforcement), and Title 50 (Intelligence). The U.S. Code has been evolving in various forms since World War II, and was designed primarily in a pre-digital era in which it was logical to provide clear lines of demarcation between domestic and foreign, law-enforcement, military and intelligence. These lines are blurred in a world in which terrorists recruit from abroad, and plan in both conflict and non-conflict zones operations against the Homeland. These lines are strained by states engaging in cyberattacks against critical infrastructure, and espionage environments that span military, civilian, and intelligence spheres.

I have met with police agencies asking for intelligence capabilities, and with military organizations requesting the ability to view online media accounts with known terrorist connections. In the present environment, the tools available to track and engage terrorists are robust, but authorities require the military, IC, and law enforcement to engage in a dance along a legal and policy tightrope that slows the process down and increases risks. Moreover, because each entity is so ingrained within its authorized framework they are limited in their abilities to think effectively across the lines to anticipate what other agencies and entities need. Often they are further constrained by not knowing what they are truly allowed to share, when they are allowed to share it, and under what conditions. To some extent fusion centers provide valuable bridges between stovepiped institutions. Additionally, entities often embed personnel within one another’s structures, but even these attempts provide avenues for communication fail to fully mitigate the problems faced.

The constraints imposed by the various titles within the cyber environment are particularly frustrating when one realizes that the tools available to the corporate sector for marketing and sales often in many ways exceed the capabilities of both intelligence and law-enforcement. Critics are correct in challenging the assertions of the government and its agencies that these tools are capable of preventing all attacks, but as the volume of data increases, and as the skill and efficiency of the community increases in tandem with advances in technology and volumes and types of data, it is likely that these challenges will be met head on and solutions found.

We can and must educate the citizenry about the world we are rapidly entering. The world in which we carry mobile supercomputers that far exceed the capabilities of the devices used to land astronauts on the moon. We excrete data from our phones, our watches, our credit card transactions, our communications, our homes, and soon our cars. We produce zettabytes of data, and we are only at the beginning of the digital age. We can fool ourselves into saying we can remain private, we can remain anonymous, we can remain hidden from the future, but the reality is  far different. The US is operating in a policy and legal void based on a static technological environment of yesterday. Yet the environment is not static, it is nearly exponential.

Credit needs to be given to EFF, CDT, the ACLU, and others for challenging the conversation, but this challenge needs to go further and extend to our schools, our local and state and federal legislative and legal bodies. If we want to maintain the current constraints on law enforcement, intelligence and military institutions, we must do so knowing these constraints are self-imposed and carry certain risks, just as there are risks associated with the removal of constraints. We must acknowledge that the constraints we impose are primarily limited to those to whom we have delegated responsibility for our protection both at home and abroad and not to the companies we so willingly give our data to on a daily basis. We must recognize that we will continue to generate and consume enormous amounts of data both as consumers and products in a complex socio-technical-economic ecosystem that is still in its infancy. It is only by confronting the reality of both the present and the future that we can begin to address the current status of laws and policies and determine where they need to be.

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