Cyber Scene #37 - Letting Justice Prevail Another 230 Years

Cyber Scene #37 -
Letting Justice Prevail Another 230 Years

Lawyering Up: Supreme Justice(s)

Congress continues to be vectored on issues regarding checks and balances --the impeachment process, White House Syrian withdrawal and cancellation or withholding of funding allocated by Congress, and the sudden death of Rep. Elijah Cummings (D-MD) who chaired the House Oversight Committee in the middle of this mix. Congress will restart hearings with FACEBOOK CEO Mark Zuckerberg, a familiar thread Cyber Scene will address in November.

Meanwhile, the Supreme Court of the US (SCOTUS) kicked off its new fiscal year 2020 term on 7 October (always the first Monday of October). SCOTUS has 47 cases on its docketfrom a variety of appeals courts and states. Seven cases are pointedly on cyber, whereas others may be tangentially connected, given the ubiquitous nature of cyber underpinning our daily lives. As checks and balance issues are addressed by Congress, a few words regarding SCOTUS members and their mandate to uphold the Constitution of the US, as the third leg of US democracy, might be of use to this readership. This is not to predict where the Court may end up on the issue of cyber, nor report (not yet) what they decide, but rather to explain the process.

Order in the Court

The Justices themselves, appointed by the sitting President and confirmed by the Senate, have not feel no obligation to being pidgeonholed on any projected plot on a political spectrum. They call ‘em as they see ‘em. This spectrum includes liberals, conservatives and centrists; strict versus broad interpretations; "originalists" and "living interpreters;" and national origin, racial, gender and religious diversity since the Bush 41 administration. There have historically been some surprises as "conservatives" (Chief Justice Roberts seems to be a current example) and "liberals" move toward the middle, or even selectively, in the opposite direction. The driver is each Justice's interpretation of the Constitution and the intent of its framers relevant to the case before her/him. Unlike the acrimonious partisanship in the other two branches of government, the Justices are respectful of and collaborative with each other, even when their own interpretations of the Constitution, as viewed in their decisions (majority or dissenting), are polar opposites. There are droves of examples of them reaching across the so-called aisle, and not only during confirmation hearings. For example, Justices Scalia and Ruth Bader Ginsburg were friends despite their distant "place on the spectrum." Justices' positions have been charted, but note the frequent variations in "liberal" verses "conservative." The black lines indicate the Chief Justices’ opinions and the courts under them are referred to as "the Warren/Renquist/Roberts, etc., courts."

Traditionally, the Justices prefer to stay out of the limelight, unlike the members other two branches of US government who run for election, and rather hunker down thoughtfully on the huge docket before them. There have been some exceptions. To illustrate, look at the Justices noted above. The late Justice Antonin Scalia is the subject several books and of a play, "The Originalist" referring to his belief that the framers—mostly Hamilton, with Madison and Jay, in their 1787 Federalist Papers and the Constitutional Convention of 1787 these papers led to--said what they meant. Justice Scalia held that "distorting" the Constitution by revisionism is ill-advised. It took two years for the Constitution to be ratified in 1789; even or particularly then, Congress could get bogged down. John Jay also served the first Chief Justice role—an early framer called upon to practice what his five papers, which focused on foreign policy, proposed. Hamilton wrote 51, and Madison, who drafted the constitution itself, wrote 29.

Another exception is Justice Ruth Bader Ginsburg (RBG), about whom two recent movies ("RBG," a documentary, and "On the Basis of Sex", a Hollywood take) were released over the last two years. Other Justices attempt with greater success to step away from the lights. Justice Clarence Thomas was recently asked by a former SCOTUS clerk (as recounted to your author by this clerk), whether he is publically identifiable as he and his wife RV across the US during Court recess. The Justice replied that recently, when approached at a gas pump by someone saying, "You look a lot like Clarence Thomas," he replied, "Yea, I get that a lot." However, with the publication of two new books about him over the last 6 months, he may sacrifice his anonymity. SCOTUS itself will likely draw greater public attention as new challenges, including cyber, are addressed on the 2020 docket. You can witness this yourself: the sessions where arguments are presented are open to the public while the decisions from the Justices' opinions, decidedly not/not TV-spontaneous, are written. They serve as the Court’s historical precedent—the basis for what lies ahead into the next 230+ years. Stay tuned for the Court’s activity this 2020 term related to cyber, cybersecurity, and its entangling alliances.

Sizing Up Cyber's Future

On the same track of supremacy, the "Economist's" (28 Sep) accolades to Google's quantum computing power in "Supreme Achievement" underscore the global impact of this cyber-linked achievement. Starting with Feynman's predictions in 1981 with "blackboard squiggles," the article celebrates the fact that Google's new quantum computing power can perform in 3 minutes a task that would take the world's greatest computers 10,000 years to execute. That is one giant step for man delivering the future today. Of course, the cautious British-based "Economist" curbs its enthusiasm by returning to its theme of who is going to "seize the Holy Grail of computing." Visions of "Raiders of the Lost Ark" come to mind. Moreover, such powerful, state-of-tomorrow's-art computing requires "clever” (British English for brilliant) mathematicians and programmers. The "Economist" clearly states: "A world with powerful quantum computers, in other words, is one in which much of today's cyber-security (sic) unravels." Moreover, it likens this power to the Sputnik launch, which proved a concept. In this case, the journal believes that sceptics about the power and future of quantum computing should be won over, and the practical applications of this achievement will arrive much sooner than had been anticipated.

This harkens back to an earlier discussion by the "Economist" related to who grabs the "grail," in its series on AI and War (7 Sep). Specifically looking at warfare with the US and China as the lead comparison, both countries are concerned about the other's misuse of AI-enabled weapons and the general dangers to we humans that could devolve. The overview, "Mind Control," cites long-standing arms control expert Henry Kissinger as saying that "adversaries' ignorance of AI-developed configurations will become a strategic advantage." Meanwhile, in "Battle Algorithm" the issue of AI transforming warfare is explored in considerable detail. What good is theory without action, it wonders. It analyses various AI applications for warfare purposes, and charts the success rates of AI image. per detection and object segmentation, and language processing, per sentence parsing and translation. It concludes, however, that human intervention or direction, as in China, will make a difference.

Not Child’s Play

As if to counter this influence, its "Masters of the Universe" edition (5 Oct) takes the position that the world capital market is increasingly driven by computers. Its flippant "Hey Siri, can you invest my life savings?" resonates with a Bluetooth quiver. The focus is largely on New York City as the hub of world financial activity, and graphs both institutional trading and the rise of assets in indexes, cleverly labeled "passive aggressive." Needless to say, the backbone is cyber.

As the US 2020 presidential election heats up, cybersecurity issues are now impacting the White House incumbent as well as the Democrats, but seemingly from different vectors. The latest breaking story from"Wired" delves into Iranian hacking targeting President Trump. The attacks were focused on 241 individuals, but only 4 were successful. The perpetrator is known by Microsoft, which identified and thwarted the attacks through its Outlook, as Phosphorous, aka APT 35 and Charming Kitten. The hackers attempted to take over the accounts of these individuals by using certain personal information, but were unsuccessful. They had been involved in US Treasury attacks in 2018 per "Wired"and Reuters, which was responsible for publishing the story picked up by Wired.

For hackers, 2018 was a very good year. On 10 October 2019, "Wired" reports on "The Untold Story of the 2018 Olympics Destroyer Cyberattack" in Seoul. The events are painstakingly chronicled, beginning with the Olympic countdown when the technology chief of the Pyeongchang Olympics organizing committee discovered that “…something was shutting down every domain controller in the Seoul data centers, the servers that formed the backbone of the Olympics' IT infrastructure.” Although the attack was thwarted, “the incident immediately became an international ‘whodunit.” Attribution has been increasingly challenged by sophisticated “false flags” and this article addresses several significant ones, including Russia’s attempt to hoist such a false flag when it hacked the Democratic National Committee and Hillary Clinton’s 2016 campaign. Some disbelievers persist, particularly as there was plenty of evidence to implicate other perpetrators as well as the Russians. However two cyber experts working completely separately, and two Intelligence Community agencies, NSA and CIA, working together came up with the same solution. In fact one of the experts was able to connect the Olympic Destroyer attack to a specific GRU unit. The protocol of historic seafaring false flag usage to confuse the enemy was resolved by the user “coming clean” but in cyberwarfare, the onus is on the cybersecurity experts to properly attribute the attack.