Cyber Scene #11 - Views from...

Cyber Scene #11

Views from...

The Bench:  Lawyering Up.

The cyber world has long bemoaned a dearth of legal opinion on both offensive and defensive cyber issues. 11 September 2001 provided a speed-of-light thrust to improve U.S. law, but technology continues to move faster than the courts. A Harvard Lawfare Institute/Brookings duo is picking up the pace in exploring the application in the courts of misdemeanor and felony crimes to the cyber world. In light of Russian hacking issues and discussion of collusion emanating like tidal waves from NYC and D.C. over the last few weeks, a Harvard Law Review editor Helen Klein Murillo paired up with Susan Hennessey, General Counsel of the Lawfare Institute (current Brookings fellow and former Office of the General Counsel attorney at NSA), to dissect pertinent legal precedence by which our 200+year old Constitution is interpreted for cyber purposes. This includes recent case law which defines "aiding and abetting in furtherance of any criminal or tortious act in violation of the U.S. Constitution" and distinguishes a misdemeanor from a felony. Needless to say, in such a sensitive environment, what is admissible for public record entails a balance of foreign relations policy, intelligence sources and methods, Congressional involvement, particularly of the Senate Judiciary Committee, and possibly, in the final analysis,  Supreme Court engagement.

Starting 6 July Lawfare is also electronically linked with Foreign Policy which in itself is brimming with a broad spectrum of views on international affairs and legal issues that provide a backdrop for cyber security issues. But the courts, although still playing catch up, are moving forward. In a politically charged climate, readers might find this fact-based approach to US Constitutional law to be informative. The legalese should be largely digestible to this readership.

For further study, see the Lawfare cybersecurity subcommittee topic discussions on legislation in process by the Senate Select Committee on Intelligence (Senators Burr and Feinstein) and other Hill actors, the military which includes international defense issues, deterrence (with some military overlap) and crime and espionage as well as dozens of other topics that have cybersecurity components.

The UK:  The Economist Special on Terror and the Internet

Cyber issues permeate the June 10-16, 2017 across-the-pond edition of the Economist. First the cover focus, Terror and the Internet, calls upon tech giants to take more responsibility for their networks, noting that "...for every Spotify there is a WannaCry." The Economist acknowledged that perfect security is unattainable; there is more to be done with dismissing "fake news" and maintaining (or perhaps reinstating) a reputation for truth. The editorial (Leaders section), as the introduction to the special deep dive itself, calls on legislators balancing security and liberty, or trying to, to "translate offline legal norms into the cyber domain."  The Economist cautions, however, about ignoring unintended consequences in the process.

In the Britain section, the backdrop of the 3 June attack in London--one of three recent ones--gives rise to the question of how to prevent terrorist recruiting by combating on-line recruitment.

The International section discusses the early June terrorist attack from a broader perspective, looking at extremism across national borders to include IS recruiters on YouTube both in the Middle East and in the U.S. This cyber reach is linked to what a London-based counter-extremism think tank notes as "Documenting the Virtual Caliphate"--a report plus a video released 40 times a day in multiple languages. This leads to "crowdsourcing" action vice lone wolf activity. Facebook's CEO, Mark Zuckerberg, is quoted saying that he wants to develop artificial intelligence to identify and delete these terrorist tools on line, but that it will take many years to get there. Across the pond collaboration on these issues is cited as waning following the Snowden leaks. The former GCHQ chief, Robert Hannigan, adds that it is not in the public's interest to weaken encryption. Despite the gloomy immediate future, the article closes by referencing Microsoft President Brad Smith's testimony before the US Senate Judiciary Committee in May arguing for a legal framework which eases the international constraints that restrict American tech firms overseas.

Lastly, and reverting to that lone wolf issue, the special edition looks to the Israeli Defence Forces (IDF) for an example of how to marry up algorithms monitoring social media and tripwire terms to seek out "martyrs" before they strike. The article does not, however, discuss how to scale the monitoring of walled Palestinian enclaves to the "world Caliphate’s" international, borderless issues. We have looped back to legal discussions, across countries with different legal foundations (Common Law, Napoleonic Code, both, neither, etc.).

NATO: How Many Legal Systems to Counter Cyber Threats???

Given the political black eye of Russian hacking a decade ago into Estonia's Cyber Defence Centre of Excellence, NATO has applied Article 5 ("an attack on one is an attack on all") to cyber. Lately, in the wake of both the belated reference to Article 5 by the U.S. President following, not during, the May NATO Summit, NATO has emphasized as one of its 10 core principals the role of cyber defense . To that end, on April 26 2017, Estonia hosted Locked Shields 2017, "...the largest and most advanced cyber defence exercise in the world." It was organized by the same NATO Cooperative Cyber Defence Centre of Excellence in Tallinn, Estonia, involved over 800 participants and 25 nations to include leadership engagement from the US EUCOM, the British Army, Scandinavian defense universities, and industry. With NATO expansion, 29 countries are now NATO members, and an increasingly close working relationship between NATO and the EU is developing across 40 member and non-member partners to include Jordan and Iraq.

On the Hill:  The Enemy of my Enemy is my Friend?

Congress continues hearings on Russian Interference in the 2016 Election. While former FBI Director Robert Mueller and his investigative team work behind the scenes, the Senate Select Committee on Intelligence Chair Sen. Richard Burr (R. NC) and Vice-Chair Sen. Mark Warner (D. VA), made a joint statement to the press following one of the sessions with former FBI Director James Comey on 8 June underscoring the bipartisan manner in which the SSCI is proceeding as well as "how significant the Russian interference was.” Mr. James Comey's open testimony is viewable (or readable) in its entirety at C-SPAN in case readers somehow missed it.

As for the investigation itself, it will likely be considerable time before Mr. Mueller and his team engage in any open testimony but his legal team is expanding to include expertise in financial malfeasance, per the New York Times of 20 July. He is too lawyering up.