Wednesday, December 19, 2012

The Cyber Threat To American Rights and Liberties

By Karen J. Greenberg,

Cyber is “a new terrain for warfare,” Panetta tells us, a “battlefield of the future.” So perhaps it’s time to ask two questions: In a world of cyber fear, what has the war on terror taught us about protecting ourselves from the excesses of government? What do policymakers, citizens, and civil libertarians need to think about when it comes to rights that would potentially be threatened in the wake of, or even in anticipation of, a cyber attack?
Here, then, are several potential threats to constitutional liberties, democratic decision-making processes, and the rule of law to watch out for in this new cyber war era:
The Threat to Privacy: In the war on terror, the government — thanks to the Patriot Act and the warrantless surveillance program, among other efforts — expanded its ability to collect information on individuals suspected of terrorism. It became a net that could snag all sorts of Americans in all sorts of ways. In cyber space, of course, the potential for collecting, sharing, and archiving data on individuals, often without a warrant, increases exponentially, especially when potential attacks may target information itself.
A recent FBI investigation illustrates the point. The Coreflood Botnet utilized viruses to steal personal and financial information from millions of Internet users, including hospitals, banks, universities, and police stations. The focus of the Coreflood threat — which also means its interface with the government — was private information. The FBI got warrants to seize the command-and-control servers that acted as an intermediary for the stolen information. At that point, the government was potentially in possession of vast amounts of private information on individual American citizens. The FBI then offered assurances that it would not access or make use of any of the personal information held on those servers.
But in an age that has become increasingly tolerant of — or perhaps resigned to — the government’s pursuit of information in violation of privacy rights, the prospects for future cyber-security policy are worrisome. After all, much of the information that might be at risk in so many potential cyber attacks — let’s say on banks — would fall into the private sphere. Yet the government, citing national security, could persuade companies to turn over that that data, store it, and use it in various ways, all the while claiming that its acts are “preventive” in nature and so not open to debate or challenge. And as in so many post-9/11 cases, the courts might back such claims up.
Once the information has been shared within the government, who’s to say how long it will be held and how it will be used in the future? Or what agency guidelines exist, if any, to ensure that it won’t be warehoused for future uses of quite a different sort? As former Department of Homeland Security head Michael Chertoff put it, “You need to have a certain amount of accountability so government doesn’t run roughshod [over people’s right to privacy] and that’s been a hard thing to architect.”
Enemy Creep: If you think it’s been difficult to reliably distinguish enemies from the rest of us in the war on terror (as in the 600 Guantanamo detainees that the Bush administration finally declared “no longer enemy combatants” and sent home), try figuring it out in cyber space. Sorting out just who launched an attack and in whose name can be excruciatingly difficult. Even if, for example, you locate the server that introduced the virus, how do you determine on whose behalf such an attack was launched? Was it a state or non-state actor? Was it a proxy or an original attack?
The crisis of how to determine the enemy in virtual space opens up a host of disturbing possibilities, not just for mistakes, but for convenient blaming. After all, George W. Bush’s top officials went to war in Iraq labeling Saddam Hussein an ally of al-Qaeda, even when they knew it wasn’t true. Who is to say that a president won’t use the very difficulty of naming an online enemy as an excuse to blame a more convenient target?
War or Crime?: And what if that enemy is domestic rather than international? Will its followers be deemed “enemy combatants” or “lawbreakers”? If this doesn’t already sound chillingly familiar to you, it should. It was an early theme of the war on terror where, beginning with its very name, “war” won out over crime.
Cyber attacks will raise similar questions, but the stakes will be even higher. Is a hacker attempting to steal money working on his own or for a terrorist group, or is he essentially a front for an enemy state eager to take down the U.S.? As Kelly Jackson Higgins, senior editor at the information security blog Dark Reading, reminds us, “Hackers posing as other hackers can basically encourage conflict among other nations or organizations, experts say, and sit back and watch.”
Expanding Presidential Fiat: National security professionals like Defense Secretary Panetta are already encouraging another cyber development that will mimic the war on terror. Crucial decisions, they argue, should be the president’s alone, leaving Congress and the American people out in the cold. President Bush, of course, reserved the right to determine who was an enemy combatant. President Obama has reserved the right to choose individuals for drone assassination on his own.
Now, an ever less checked-and-balanced executive is going to be given war powers in cyber space. In fact, we know that this is already the case, that the last two administrations have launched the first state cyber war in history — against Iran and its nuclear program. Going forward, the White House is likely to be left with the power of deciding who is a cyber attacker, and when and how such enemies should be attacked. In Panetta’s words, “If we detect an imminent threat of attack that will cause significant, physical destruction in the United States or kill American citizens, we need to have the option to take action against those who would attack us to defend this nation when directed by the president.”
Given the complex and secretive world of cyber attacks and cyber war, who is going to cry foul when the president alone makes such a decision? Who will even know?
Secrecy Creep: While government officials are out in full force warning of the incipient cyber threat to our way of life, it’s becoming ever clearer that the relationship between classified information, covert activities, and what the public can know is being further challenged by the new cyber world. In the war on terror years, a cult of government secrecy has spread, while Obama administration attacks on government leakers have reached new heights. On the other hand, Julian Assange and WikiLeaks made the ability to access previously classified information a household premise.
So the attempt to create an aura of secrecy around governmental acts is on the rise and yet government secrets seem ever more at risk. For example, the U.S. intended to keep the Stuxnet virus, launched anonymously against Iranian nuclear facilities, a secret. Not only did the attacks themselves become public knowledge, but eventually the American-Israeli ownership of the attack leaked out as well. The old adage “the truth will out” certainly seems alive today and yet the governmental urge for secrecy still remains ascendant.
The question is: Will there be a heightened call — however futile — for increased secrecy and the ever more draconian punishment of leakers, as has been the case in the war on terror? Will the strong arm of government threaten, in an ever more draconian manner, the media, leakers, and those demanding transparency in the name of exposing lawless policies — as has happened with CIA leaker John Kiriakou, New York Times reporter James Risen, and others?

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