Cybersecurity and Freedom on the Internet
Gregory T. Nojeimâˆ—
Our pursuit of cybersecurity will not â€“ I repeat, will not â€“ include
monitoring private sector networks or Internet traffic. We will
preserve and protect the personal privacy and civil liberties that we
cherish as Americans.1
Cybersecurity has become a national imperative and a government
priority. Increased cybersecurity will help protect consumers and businesses,
ensure the availability of critical infrastructures on which our economy
depends, and strengthen national security. However, cybersecurity efforts
must be carefully tailored in order to preserve privacy, liberty, innovation,
and the open nature of the Internet.2
To design an effective and balanced
cybersecurity strategy, each part of the countryâ€™s critical infrastructure3
must be considered separately. Solutions that may be appropriate for the
power grid or financial networks may not be suitable for securing the public
portions of the Internet that constitute the very architecture for free speech
essential to our democracy. Policy toward government systems can be
much more prescriptive than policy toward private systems. The
characteristics that have made the Internet such a success â€“ its openness, its
decentralized and user-controlled nature, and its support for innovation and
free expression â€“ may be put at risk if heavy-handed policies are enacted
Senior Counsel and Director of the Project on Freedom, Security and Technology
at the Center for Democracy & Technology (CDT), a nonprofit organization dedicated to
keeping the Internet open, innovative, and free. He handles much of CDTâ€™s work on
electronic surveillance, the USA PATRIOT Act, and cybersecurity, and also sits on the
Coordinating Committee on National Security and Civil Liberties of the American Bar
Associationâ€™s Section on Individual Rights and Responsibilities. The author extends his
gratitude to colleague James X. Dempsey, who provided valuable assistance and guidance in
the development of this article.
1. President Barack Obama, Remarks at Release of White House Cyberspace Policy
Review (May 29, 2009), available at http://www.whitehouse.gov/the_press_office/Remarksby-the-President-on-Securing-Our-Nations-Cyber-Infrastructure/.
2. See Cybersecurity, Civil Liberties and Innovation: Hearing Before H. Comm. on
Energy and Com., 111th Cong. (2009) (statement of Gregory T. Nojeim), available at
http://www.cdt.org/security/20090501_cybersecurity.pdf; Cybersecurity: Preventing Terrorist
Attacks and Protecting Cyberspace: Hearing Before S. Comm. on the Judiciary, Subcomm. on
Terrorism and Homeland Security, 111th Cong. (2009), available at http://www.cdt.
3. While there is no definitive list of critical infrastructure sectors, they include:
energy (electrical, nuclear, gas, oil, and dams), agriculture, food, water, transportation (air,
road, rail, port, waterways), information and telecommunications, banking and finance, the
chemical industry, the defense industry, postal and shipping, and national monuments and
icons. See John Moteff & Paul Parfomak, Critical Infrastructure and Key Assets: Definition
and Identification (Cong. Res. Serv. RL32631), Oct. 1, 2004, available at http://www.
120 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 4:119
that apply uniformly to any and all infrastructure that may be considered
Some cybersecurity proposals take a â€œone-size-fits-allâ€ approach that
ignores these nuances. This article analyzes those proposed cybersecurity
measures from a civil liberties perspective. It suggests alternative
approaches that would protect the privacy and liberty of Internet users and
promote â€“ rather than stifle â€“ innovation. The article concludes that:
$ Cybersecurity solutions that favor industry standards over
government technology mandates will enhance security more
efficiently and flexibly than those that do not.
$ â€œSelf-defenseâ€ provisions in current law already authorize
communications companies to share incident information with
the government in order to gain assistance in responding to a
cyber attack. Instead of empowering the government to seize
such information from companies or monitor private networks
for attacks, incentives should be developed to encourage
companies to share this information.
$ Identification and authentication requirements should focus on
particularly sensitive transactions and interactions, thereby
preserving user anonymity for political speech and protecting
the free flow of information on the Internet.
$ Transparency in the cybersecurity program will build the
confidence and trust that is essential to industry and public
support for cybersecurity measures.
I. THE CYBERSECURITY THREAT IS GROWING AND IS
The United States faces significant, increasing cybersecurity threats.
The Wall Street Journal has reported that computer hackers have penetrated
systems containing designs for a new Air Force fighter jet and stolen
massive amounts of information.4
The Journal has also reported that spies
have penetrated the electric power grid and left behind malicious computer
U.S. intelligence agencies, which have developed capabilities to
launch cyber attacks on adversariesâ€™ information systems, have sounded
alarms about what a determined adversary could do to critical information
systems in the United States.6
4. See Siobhan Gorman et al., Computer Spies Breach Fighter-Jet Project, WALL ST.
J., Apr. 21, 2009, at A1.
5. See Siobhan Gorman, Electricity Grid in U.S. Penetrated by Spies, WALL ST. J.,
Apr. 8, 2009, at A1.
6. See generally NATIONAL RESEARCH COUNCIL, TECHNOLOGY, POLICY, LAW, AND
ETHICS REGARDING U.S. ACQUISITION AND USE OF CYBERATTACK CAPABILITIES (William A.
2010] CYBERSECURITY AND FREEDOM ON THE INTERNET 121
The governmentâ€™s response to this threat has been woefully inadequate.
The Department of Homeland Security (DHS), which is required by statute
to develop plans for â€œsecuring the key resources and critical infrastructure
of the United States, including power production, generation, and
distribution systemsâ€ and â€œinformation technology and telecommunications
has been criticized repeatedly for failing to develop the required
plans and for otherwise failing to develop the necessary capacity for
responding to the cybersecurity challenge. 8
In recognition of these risks and challenges, President Obama ordered
his national security and homeland security advisors to examine the
cybersecurity issue and develop a policy blueprint. The review team
reported to the President on April 17, 2009, and its recommendations were
made public on May 28, 2009.9
While the Cyberspace Policy Review
(referred to as the Review) made many useful recommendations â€“ some of
which are discussed below â€“ their implementation seems to have been
slowed by the Administrationâ€™s delay in appointing an official responsible
for overseeing cybersecurity implementation.10
II. MEASURES TO ADDRESS THE THREAT
Cybersecurity measures can be broken down roughly into three
processes, each of which poses its own special challenges: (1) learning
about cybersecurity threats and intrusions; (2) hardening threat targets; and
(3) responding to attacks. Policy initiatives to deal with each are discussed
Owens, Kenneth W. Dam & Herbert S. Lin eds., 2009).
7. Homeland Security Act of 2002, Pub. L. 107-296, Â§201(d)(5), 116 Stat. 2135,
8. See, e.g., Critical Infrastructure Protection: Challenges in Addressing
Cybersecurity, Hearing Before a Subcomm. of the S. Comm. on Homeland Sec. and Gov.
Affairs (Govâ€™t Accountability Office GAO-05-827T), July 19, 2005 (statement of David A.
Powner, Dir., Info. Tech. Mgmt. Issues, GAO.), available at http://www.gao.gov/new.
items/d05827t.pdf. Last year, the Government Accountability Office (GAO) reported that
the DHSâ€™s U.S. Computer Emergency Readiness Team (U.S. CERT), which has significant
responsibilities for protecting private and government computer networks, was failing to
establish a â€œtruly national capabilityâ€ to resist cyber attacks. See GOVâ€™T ACCT. OFF., CYBER
ANALYSIS AND WARNING: DHS FACES CHALLENGES IN ESTABLISHING A COMPREHENSIVE
NATIONAL CAPABILITY 1 (2008), available at http://www.gao.gov/products/GAO-08-588.
9. CYBERSPACE POLICY REVIEW: ASSURING A TRUSTED AND RESILIENT INFORMATION
AND COMMUNICATIONS INFRASTRUCTURE 1 (2009), available at http://www.whitehouse.gov/
10. On December 22, 2009, President Obama appointed Howard Schmidt as
Cybersecurity Coordinator. Schmidt had formerly served as Special Advisor for Cyberspace
Security for the Bush administration and as Chief Security Strategist at both Ebay and
Microsoft. See Ellen Nakashima & Debbi Wilgoren, Obama To Name Former Bush, Microsoft
Official as Cyber-Czar, WASH. POST, Dec. 22, 2009, at A04.
122 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 4:119
A. Learning About Threats and Intrusions
So far, government entities attempting to learn about cyber threats and
intrusions have wisely and appropriately distinguished between government
systems and those operated by the private sector. As an owner and operator
of important computer systems and networks, the government monitors its
own systems in order to develop an awareness of intrusions into those
systems. In addition, if the government is to play a role in helping private
sector critical infrastructure operators improve their security, it must also
develop a level of understanding about those systems and the types of
threats and intrusions they face. However, as President Obama has pledged,
a clear line should be drawn so that the government is not in the business of
monitoring traffic on private networks.
1. Threats and Intrusions on Government Systems: The Einstein
Intrusion Detection and Prevention System
While the government clearly has responsibility to protect its own
systems, some methods of detecting intrusions raise more privacy concerns
than others. The Fourth Amendment may not come into play because those
communicating with government entities necessarily reveal their
communications â€“ including content â€“ to the government and therefore may
not have a claim that they have a reasonable expectation of privacy.
However, the privacy inquiry does not stop there.
Even when the government is focused on protecting its own systems,
privacy issues may be raised. Most important is the question of how likely
is it that private-to-private information may be accessed inadvertently
through the systems intended to detect intrusions into government
computers. A related question is whether there are adequate measures to
ensure that the communications carriers who play an essential role in the
system do not misuse their access to communications. The role of
intelligence and law enforcement agencies such as the National Security
Agency (NSA) and the Federal Bureau of Investigation (FBI) in the
intrusion detection enterprise must be carefully considered. Generally, the
principles of Fair Information Practices should be applied to minimize the
amount of personally identifiable information collected, limit the use of this
information, and notify users of the information collection and disposition.11
Under current law, all federal departments and agencies must adhere to
information security best practices. Generally, these practices include the
11. The DHSâ€™s Chief Privacy Officer issued a memorandum in late 2008 describing
how the DHS would apply principles of Fair Information Practices. See Memorandum from
Hugo Teufel III, Chief Privacy Officer, Dept. of Homeland Sec., The Fair Information
(Dec. 29, 2008), available at http://www.dhs.gov/xlibrary/assets/privacy/privacy_policy
2010] CYBERSECURITY AND FREEDOM ON THE INTERNET 123
use of intrusion detection systems.12 In an effort to improve security, the
government has developed and is deploying a new intrusion detection
system called â€œEinstein 2.â€13 Einstein 2 will be deployed at participating
federal agency Internet access points.14 The first full implementation was at
the DHS.15 As of March 15, 2010, nine other agencies and the Executive
Office of the President were also using Einstein 2.16
Einstein assesses network traffic against a pre-defined database of
signatures of malicious code and alerts the U.S. Computer Emergency
Readiness Team (U.S. CERT)17 to malicious computer code in network
traffic. While the signatures are not supposed to include personally
identifiable information, as defined by the DHS, they do include Internet
Protocol (IP) addresses, and the alerts that Einstein 2 generates for U.S.
CERT may include personally identifiable information.18 Einstein 2 cannot
detect previously unknown attack signatures. Even a tiny change in a
signature can evade the system. As a result, a new attack gets through the
system until the database of attack signatures is updated. In addition to
12. See DEPâ€™T OF HOMELAND SEC., PRIVACY IMPACT ASSESSMENT: EINSTEIN 2, at 1, 2
(2008), available at http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_ einstein2.pdf.
13. Stephen. G. Bradbury, Principal Deputy Assistant Attorney General, Legal Issues
Relating to the Testing, Use and Deployment of an Intrusion-Detection System (Einstein 2.0)
To Protect Unclassified Computer Networks in the Executive Branch, Jan. 9, 2009, available
at http://www.justice.gov/olc/2009/e2-issues.pdf. The memo concludes that operation of
Einstein 2 does not violate the Constitution or surveillance statutes, and an opinion from the
Justice Departmentâ€™s Office of Legal Counsel affirms that conclusion. Legality of IntrusionDetection System To Protect Unclassified Computer Networks in the Executive Branch, Aug.
14, 2009, available at http://www.justice.gov/olc/2009/legality-of-e2.pdf.
14. It is unclear whether this means that Einstein 2 operates on privately owned and
operated equipment or on government equipment. More importantly, it is unclear whether
the network points at which Einstein is deployed handle only government traffic or could
carry both government and private-to-private traffic.
15. See Hearing Before the Subcomm. on Tech. and Innovation of the H. Comm. on
Sci. and Tech., 111th Cong., at 1, 5 (June 16, 2009) (statement of Dr. Peter Fonash, Acting
Dir., Natâ€™l Cybersecurity Div., DHS), available at http://democrats.science.house.gov/
16. Agencies using Einstein 2 include the Departments of State, Agriculture,
Education, Interior, Treasury, and Transportation, and Veterans Affairs, as well as the
Securities and Exchange Commission, and the Office of Personnel Management.
Correspondence between the author and Peter Sand, Director of Privacy Technology,
Privacy Office, Dept. of Homeland Sec. (March 15, 2010).
17. U.S. CERT is the operational arm of the DHSâ€™s National Cyber Security Division.
It helps federal agencies in the top-level â€œgovâ€ domain to defend against and respond to
cyber attacks. It also supports information sharing and collaboration on cybersecurity with
the private sector operators of critical infrastructures and with state and local governments.
18. Einstein 2 will collect an email address when the source of malicious code it
detects is attached to an email address. See DEPT. OF HOMELAND SEC., PRIVACY IMPACT
ASSESSMENT, supra note 12. Moreover any â€œflow recordâ€ (a specialized summary of a
suspicious communication) that Einstein routinely generates will generally include IP
address and time stamp, which are widely regarded as personally identifiable. Id.
124 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 4:119
using attack signatures, Einstein 2 also detects anomalies in network traffic
on a particular system and alerts U.S. CERT to those anomalies.
The federal government is developing a successor to Einstein 2. Like
its predecessor, Einstein 3 will rely on pre-defined signatures of malicious
code that may contain personally identifiable information.19 But while
Einstein 2 merely detected and reported malicious code, Einstein 3 will also
have the ability to intercept threatening Internet traffic before it reaches
government systems. This new capability raises new concerns.
The key questions are: where does Einstein operate â€“ on network elements
that carry only government traffic or on elements that might scan private-toprivate communications â€“ and how likely is it to scan private communications?
According to the DHS, Einstein 3 will operate inside the networks of private
telecommunications companies.20 Thus, another important question is whether
Einstein can reliably focus on communications with the government to the
exclusion of private-to-private communications. To distinguish
communications to or from the government from private-to-private
communications, Einstein 3 will rely on IP addresses. If communications
are to or from IP addresses assigned to a government agency using the
Einstein 3 system, Einstein 3 will scan them. Sometimes â€“ but rarely â€“ IP
address allocation information can be out of date; a federal agency may
think it can assign an IP address that is actually allocated to a private entity.
If Einstein were to analyze private-to-private communications, it would
likely be considered an interception under the electronic surveillance laws,
which require a court order. An independent audit mechanism should be
put in place to ensure that private-to-private communications are not
Already in 2010, the DHS and the Department of Justice have disclosed
much more information about Einstein than was previously known.
However, key information is still shrouded in secrecy. For example:
$ What is the nature of the personally identifiable information
that Einstein 2 has collected so far?
$ What have law enforcement and intelligence agencies done
with Einstein information shared with them, and, more to the
point, is the system being used to identify people who should
be prosecuted or people who are of intelligence interest?
$ To what extent are private sector operators keeping information
about communications that appear to match attack signatures?
19. DEPâ€™T OF HOMELAND SECURITY, PRIVACY IMPACT ASSESSMENT FOR THE INITIATIVE
THREE EXERCISE 3 (2010), available at http://www.dhs.gov/xlibrary/assets/ privacy/
2010] CYBERSECURITY AND FREEDOM ON THE INTERNET 125
$ How should users be notified that their visits to government
websites and their email communications with government
employees are being scanned for security reasons? 21
Congress is seeking answers to questions like these. The Senate
version of the Intelligence Authorization Act for Fiscal Year 2010 calls for
reports to Congress about the privacy impact of Einstein and other
cybersecurity programs. It also calls for information about the legal
authorities for cybersecurity programs and about audits conducted or
planned for cybersecurity programs such as Einstein.22
The need for more transparency about Einstein highlights a broader
concern about the federal governmentâ€™s cybersecurity program. In
particular, excessive secrecy undermines public trust and communications
carrier participation, both of which are essential to the success of the effort.
The government needs to disclose sufficient details about Einstein and other
programs to assure both the public at large and private sector
communications service providers that the confidentiality of personal and
proprietary communications will be respected.
2. Sharing Intrusion and Threat Information on Private Systems
The challenges associated with the governmentâ€™s access to intrusion,
threat, and vulnerability information held by private operators of critical
infrastructure systems differ from those raised by the governmentâ€™s access
to information on its own systems. Clearly, the government cannot simply
search and seize communications content for cybersecurity reasons without
running afoul of the Fourth Amendment, the Federal Wiretap Act, and the
Electronic Communications Privacy Act (ECPA).23 Such a search in real
time would amount to a wiretap and would require judicial authorization
21. See CTR. FOR DEM. & TECH., EINSTEIN INTRUSION DETECTION SYSTEM: QUESTIONS
THAT SHOULD BE ADDRESSED 1 (2009), available at http://www.cdt.org/security/200907
28_einstein_rpt.pdf (for a fuller listing of open questions about the Einstein Intrusion
22. See Intelligence Authorization Act for Fiscal Year 2010, S. 1494 Â§340, 111th
Cong. (2009), available at http://intelligence.senate.gov/090722/2010bill.pdf; see also S.
Rep. No. 111-55, at 22 (2009) (for the Senate Select Committee on Intelligenceâ€™s Report on
the bill), available at http://intelligence.senate.gov/090722/2010report.pdf. The House
version of the bill does not include a similar provision.
23. The Federal Wiretap Act was enacted as Title III of the Omnibus Crime Control
and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197, codified at 18 U.S.C.
Â§Â§2510-2520. It established standards and procedures for law enforcement wiretaps and
bugs (hidden microphones). The Electronic Communications Privacy Act of 1986, Pub. L.
99-508, 100 Stat. 1848, codified at 18 U.S.C. Â§Â§2510-2520, amended the Federal Wiretap
Act to establish procedures and standards for law enforcement interception of electronic
communications such as email. It also added the Stored Communications Act (18 U.S.C.
Â§Â§2701-2712) to the criminal code to establish standards and procedures for law
enforcement access to electronic communications in storage, as opposed to those in transit.
126 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 4:119
based on a showing of probable cause. It would also violate the Presidentâ€™s
promise that the government will not monitor private networks.
While security on private networks is primarily the responsibility of
private sector operators â€“ and they already monitor their systems on a
routine basis to detect and respond to attacks quickly â€“ the government can
play a helpful role. For the government to do so, there will need to be a
two-way exchange of information between the private sector and the
government. To the extent that it has special expertise, the government
should share that knowledge to help the private sector develop effective
monitoring systems to be operated by the private sector. The government
should also share with private sector network operators the information they
need to determine when they are under attack, to defend themselves in real
time against attacks, and to secure their networks against future attacks.
In contrast, the sharing of information the other way, by the private
sector with the government, is problematic, as it implicates privacy rights
and competitive commercial interests. When an attack occurs, or when
events suggesting a possible attack are observed, private sector providers
may need to share with the government limited information that is
necessary to understand the attack, respond, and resist further attack. The
Federal Wiretap Act and the ECPA contain â€œself-defenseâ€ provisions that
are broad enough to permit the sharing of communications information held
by the private sector with the government to the extent necessary to respond
to an attack.24 The self-defense provisions do not authorize private sector
providers to make ongoing or routine disclosures of traffic to the
government. If construed broadly, the self-defense provisions would
swallow ECPAâ€™s promise of privacy. Thus these provisions should apply
only when companies believe that they are or might be under attack, or that
an attack has occurred.
Although laws authorize such sharing of information, actual practice
has been inadequate. Still, there has not been sufficient analysis to
determine what information that is not currently shared should be. Efforts
to improve information sharing should begin by probing why existing
structures, such as U.S. CERT and the public-private partnerships
represented by the Information Sharing and Analysis Centers (ISACs),25 are
24. For example, the Federal Wiretap Act provides that it is lawful for a person acting
under of law to intercept electronic communications of a computer trespasser if the owner or
operator of the computer authorizes the interception and there are reasonable grounds to
believe that the contents of the communication will be relevant to investigation of the
trespass. 18 U.S.C.A. Â§2511(i) (West 2000 & Supp. 2010). See also id. Â§Â§2511(2)(a)(i),
2702(b)(5), 2702(c)(3). It may be necessary to supplement these self defense provisions
with carefully circumscribed additional authority to share information for the purpose of
protecting the networks of others, as opposed to protecting oneâ€™s own network.
25. Each critical infrastructure industry sector defined in Presidential Decision
Directive 63 has established Information Sharing and Analysis Centers (ISACs) to facilitate
communication among critical infrastructure industry representatives, a corresponding
2010] CYBERSECURITY AND FREEDOM ON THE INTERNET 127
The Government Accountability Office (GAO) recently offered
suggestions aimed at improving the performance of U.S. CERT.26 For
example, the GAO suggested that U.S. CERT: be given analytical and
technical resources to analyze multiple simultaneous cyber incidents and
issue more timely and actionable warnings; develop more trusted
relationships to encourage information sharing; and establish sustained
leadership within the DHS and make cyber analysis and warning a priority.
From the standpoint of preserving civil liberties, proposals aimed at
strengthening U.S. CERT seem preferable to some others under discussion.
For example, Section 14 of the Cybersecurity Act of 2009, as introduced,
would have had the effect of transferring U.S. CERTâ€™s information sharing
function to the Department of Commerce. It would have given Commerce
the authority to override laws, regulations, and policies, including privacy
laws and laws protecting trade secrets, in order to gain access to
information held by private parties that might be useful to an information
The Federal Wiretap Act and the Stored Communications Act (SCA)28
already establish rules for government access to communications and
associated traffic data flowing through information systems that are part of
the critical infrastructure. Generally, under the Federal Wiretap Act, the
government must obtain a court order if it wants to intercept private
communications. The SCA provides similar protection for email and other
communications content stored by communications service providers.
â€œNon-content informationâ€ (for example, telephone numbers dialed) is also
protected, but under less exacting standards. Section 14 of the
Cybersecurity Act would have eliminated these privacy protections in the
interest of enhancing cybersecurity.29
government agency, and other ISACs about threats, vulnerabilities, and protective strategies.
See Memorandum from President William Clinton on Critical Infrastructure Protection
(Presidential Decision Directive/NSC-63) (May 22, 1998), available at http://www.fas.org/
irp/offdocs/pdd/pdd-63.htm. The ISACs are linked through an ISAC Council, and can play
an important role in critical infrastructure protection. See, THE ROLE OF INFORMATION
SHARING AND ANALYSIS CENTERS (ISACS) IN PRIVATE/PUBLIC SECTOR CRITICAL
INFRASTRUCTURE PROTECTION 1 (Jan. 2009), available at http://www.isaccouncil.org/
26. See GOV. ACCT. OFF., supra note 8.
27. See Cybersecurity Act of 2009, S. 773, 111th Cong., Â§14(b)(1), available at
http://www.opencongress.org/bill/111-s773/text. The provision, which the authors stripped
from the bill at a mark-up on March 24, 2010, at the Senate Committee on Commerce,
Science and Transportation, could have been interpreted to authorize seizure of
constitutionally-protected communications content without a court order based on probable
cause. This would have created serious constitutional concerns.
28. See Federal Wiretap Act and SCA,supra note 23.
29. As amended on March 24, 2010 by the Senate Committee on Commerce, Science
and Transportation, Section 403 of the Cybersecurity Act also empowers the President or his
designee to issue rules and procedures that detail the criteria by which private sector owner
of critical infrastructure will share cybersecurity threat and vulnerability information with
128 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 4:119
To facilitate a threat clearinghouse function, it is not necessary to
override existing laws. Instead, new information-sharing initiatives should
be developed within the context of existing statutes and regulations that
protect information, with limited exceptions when both necessary and
appropriate to facilitate the sharing of critical information. In such
exceptional cases, there should be descriptions of the information to be
shared and statutory protections imposed on any information shared with
the government, including use limits and restrictions on the circumstances
in which information could be shared with other private sector
organizations or with law enforcement and intelligence officials.
It seems that information sharing is best served by enhancing industry
self-interest, rather than imposing a broad government mandate. Congress
should explore whether additional incentives need to be adopted to
encourage private sector providers to share threat and incident information
and solutions. Since such information could be shared with competitors
and might be costly to produce, altruism should not be expected. One
option would be to compensate companies that share with the government
(and with their competitors) cybersecurity solutions in which they had to
invest substantial resources. At the least, Congress could require a study of
how such a program would work and whether it would be effective.
Currently, companies have little incentive to report network
vulnerability information to the government. Who, after all, would
voluntarily tell anyone that the lock on their back door is broken? Thus,
additional measures should be considered to encourage the sharing of
vulnerability information. The experience addressing the Year 2000
millennium software problem might be relevant. Companies could receive
immunity from liability if they disclose vulnerabilities.
Other approaches, including a mandatory reporting requirement, should
not be ruled out. With safeguards, Congress could require periodic
reporting of significant cybersecurity vulnerability information by private
sector operators of critical infrastructure information systems. Congress
could also support a market for cybersecurity risk management that would
include civil liability, insurance, and government reinsurance.30 This
market-based approach to cybersecurity could create incentives for industry
to increase the level of security that providers implement for critical
the government. The marked up version of the bill is available at http://commerce.
scope of this mandate is left unclear. See Cybersecurity Act of 2009, supra note 27.
30. Section 15 of the Cybersecurity Act as introduced recommended a study of such
measures (stating that within one year after the date of enactment, the President or the
Presidentâ€™s designee, must report to Senate and House committees on the feasibility of
â€œcreating a market for cybersecurity risk management, including the creation of a system of
civil liability and insurance (including government reinsuranceâ€). See Cybersecurity Act of
2009, supra note 27, at Â§15(1). The provision was watered down at mark-up to require only
a report on the feasibility of creating a market for cybersecurity risk management.
2010] CYBERSECURITY AND FREEDOM ON THE INTERNET 129
infrastructure information systems â€“ without imposing mandates that could
have unintended consequences for security and liberty.
Reporting of significant threat and attack information might become
necessary. In such cases, the information reported would not include
personally identifiable information. Proprietary information would have to
be protected against disclosure by the government. Congress would need to
take particular care in defining the vulnerability, threat, and attack
information that would have to be reported if reporting would establish a
safe harbor from liability, or if failure to report adequately would expose a
company to fines.
B. Hardening Targets
While a variety of measures can be adopted to make critical
infrastructure systems more difficult to attack, two issues have received
extensive attention: raising software and network security standards, and
requiring authentication for access to sensitive systems. However,
mandating standards for all critical infrastructure systems and their software
building blocks would threaten both privacy and innovation. Similarly,
requiring authentication for routine Internet interactions could
unnecessarily hinder e-commerce and reduce user privacy.
1. Software Security Standards
Perhaps in no other cybersecurity area is the need to distinguish
between public and private networks more apparent than for software
security. Certainly, the government can and should set standards for its
own systems. Congress provided a comprehensive framework for such
standards in the Federal Information Systems Management Act (FISMA) of
2002.31 While the FISMA empowered the National Institute of Standards
and Technology (NIST) within the Commerce Department to issue
standards for information systems used by the federal government,32 there
are no mechanisms for ensuring the effectiveness of measures once
implemented.33 Congress is currently considering legislation to rectify the
31. Federal Information Security Management Act of 2002, 44 U.S.C. Â§Â§3541-3549
32. The GAO recently summarized the NISTâ€™s extensive activities in this area.
Cybersecurity: Continued Federal Efforts Are Needed To Protect Critical Systems and
Information, Hearing Before Subcom. on Tech. and Innovation of the H. Comm. on Sci. and
Tech. (Govâ€™t Accountability Office GAO-09-835T), June 25, 2009, at 15-20 (2009)
(statement of Gregory C. Wilshusen, Dir. Info. Sec., GAO), available at http://www.gao.
33. See id at 23.
130 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 4:119
situation by strengthening the FISMA to require adequate security
Section 204 of the Cybersecurity Act, as reported by the Senate
Committee on Commerce, Science, and Transportation, would empower the
NIST to recognize and promote industry risk management measures and
techniques, as well as best practices, for critical infrastructure information
systems in the government and private sector. These measures, techniques,
and best practices would have to be auditable, and each owner and operator
of a critical infrastructure information system would be required to report
semiannually the results of an independent audit of its compliance with this
NIST-recognized industry standard. If the NIST can move quickly enough,
this collaborative approach is likely to yield substantial benefits in terms of
security, without the downsides of the original version of this provision.
As introduced, Section 6 of the Cybersecurity Act would have required
the NIST to specify configuration of software widely used by the federal
government, government contractors and grantees, and private sector
operators of critical information systems and networks. It would have
required all software built by or for the entities operating these systems to
be tested against these standards, with the results provided to the federal
government prior to deployment. Finally, it would have empowered the
director of the NIST to enforce compliance with these standards by
software manufacturers, distributors, and vendors, and would also have
required operators of critical infrastructure information systems to
demonstrate their compliance.35
While the NIST can and does establish software standards for use by
the federal government, it would stifle innovation if it imposed mandates on
software for systems used in the private sector. Standardization could
actually worsen security because a vulnerability in a standardized system
could affect many entities. In addition, a requirement that all software
products used in the private sector be tested against government standards
could slow deployment of software designed to enhance security. The
approach taken by the Senate Committee avoids these risks to innovation
by requiring the NIST to recognize the standards set by industry, rather than
coming up with standards independently.
The Senate Committeeâ€™s approach can account for the enormous
amount of work that industry has already done to establish best practices.
The Information Technology ISAC has collected many of the best practices
standards already adopted.36 It would be impractical for the NIST to issue
such comprehensive best practices. Industry is most likely to adopt â€“ and
adopt rapidly â€“ the best practices it has developed itself.
34. See U.S. Information and Communications Enhancement (ICE) Act of 2009, S.
921, 111thCong. (2009).
35. See Cybersecurity Act of 2009, S. 773, 111th Cong., Â§Â§6(a)(5), 6(a)(7)(B), 6(d).
36. See ISAC, Industry Best Practices, available at http://www.fsisac.com/news/
2010] CYBERSECURITY AND FREEDOM ON THE INTERNET 131
2. Building Privacy into Identity and Authentication Measures
One of the most frequently discussed approaches to preventing cyber
attacks is to improve the authentication37 of the identities of those seeking
access to systems that must be protected. While identity authentication
measures are important elements of cybersecurity, their effect can be either
to promote privacy or put it at risk, depending on how they are designed
To illustrate, the fact that a transaction or interaction cannot be traced to
an identifiable individual may enhance privacy. The right to speak
anonymously enjoys constitutional protection.38 On the other hand,
authentication can enhance privacy. For example, authenticating a party to
a transaction may strengthen privacy by preventing identity fraud.
Disclosing personally identifiable information might put privacy at risk, but
it might also protect privacy if the data are used to establish trusted
credentials that can be used for many online transactions, thereby
eliminating the need to provide such information for each transaction and
for many different vendors.39 Instead of submitting personal information to
ten websites in order to make ten purchases, the information could be
submitted once to a credentialing organization, which would perform the
authentication necessary to the other transactions.
Identity authentication requirements should adhere to the principles of
proportionality and diversity.40 Under the proportionality principle, if a
transaction is rated highly significant and sensitive and potential
37. â€œAuthenticationâ€ is the process of establishing confidence in usersâ€™ identities
electronically presented to an information system. See NATâ€™L RES. COUN., WHO GOES
THERE? AUTHENTICATION THROUGH THE LENS OF PRIVACY (Stephen T. Kent & Lunette I.
Millett eds., 2003), available at http://www.nap.edu/openbook.php?isbn=0309088968.
â€œIndividual authenticationâ€ is the process of establishing an understood level of confidence
that an identifier refers to a specific individual. Id.
38. See McIntyre v. Ohio Elections Commâ€™n, 514 U.S. 334 (1995).
39. See CENTER FOR STRATEGIC AND INTâ€™L STUDIES, SECURING CYBERSPACE FOR THE
44TH PRESIDENCY 1, 63 (2008) [hereinafter CSIS Report], available at http://csis. org/files/
media/csis/pubs/081208_securingcyberspace_44.pdf. The CSIS report advocates strong
authentication of identity for these sectors: information and communications technology,
energy, finance, and government services. See id. It also recognizes that authentication
requirements should be proportional to the risk they address and that consumers should have
choices about the authentication they use. See id.
40. The Center for Democracy & Technology, the authorâ€™s employer, has outlined these
and other Privacy Principles for Identity in the Digital Age. See CTR. FOR DEM. & TECH.,
PRIVACY PRINCIPLES FOR IDENTITY IN THE DIGITAL AGE 1 (2007), available at http://www.
cdt.org/security/identity/20080108idprinciples.pdf (version 1.4 of the principles). The privacy
principles for identity that extend beyond proportionality and diversity are based on Principles
of Fair Information Practices and include specifying the purpose for the system being used,
limiting the use and the retention period of personal information collected, giving individuals
control and choice over identifiers needed to enroll in a system to the extent this is possible,
and providing notice about collection and use of personally identifiable information, security
against misuse of the information provided, accountability, access, and data quality.
132 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 4:119
authentication failure as high risk, it may be appropriate to require the
collection of additional sensitive information in order to authenticate
identity. This principle applies to both private and public sector operators.
Private sector operators know their systems best and thus are best qualified
to decide the level of identity authentication appropriate for systems and
transactions. Determination of appropriate levels of authentication requires
knowledge of the degree of risk posed and degree of trust that is called for.
The Office of Management and Budget explained in 2003 how federal
agencies should implement the proportionality principle in connection with
operations involving users accessing government services online.41 The EAuthentication Guidance for Federal Agencies directs federal agencies to
organize their online transactions and interactions with the public into four
risk levels that reflect the degree of harm that could result in case of an
authentication failure and the likelihood of an occurrence. According to the
Guidance, level one interactions require no authentication and include such
activities as participation in online discussions on whitehouse.gov. Level
three interactions include submissions of confidential information, such as
to the Patent and Trademark Office. If improperly disclosed, such
information would cause harm by giving competitors an unfair advantage.
The Guidance applies only to interactions on government systems.
Operators of private critical systems make similar risk assessments for their
own systems and interactions, and impose authentication requirements
The diversity principle for privacy in identity management schemes
holds that it is better to have multiple identification solutions, because use
of a single identifier or credential creates a single target for privacy and
security abuses. A single identifier also enables multiple transactions and
interactions to be tied to that identifier, thus potentially making invasive
data surveillance possible. Under the diversity principle, identification and
enrollment options would function like keys on a key ring, with different
identities for different purposes.42
The Cyberspace Policy Review recognizes the diversity and
proportionality principles. The Review calls for the federal government to
build a security-based identity management vision and strategy for the
nation in collaboration with industry and civil liberties groups. This would
be a significant undertaking. It should build on existing systems and
privacy measures. The Review embraces the diversity and proportionality
principles by calling for an array of interoperable identity management
systems that would be used only for â€œhigh valueâ€ activities, like certain
â€œsmart gridâ€ functions (aimed at energy efficiency), and then only after
explicit user acceptance. While some have called for broader
41. See Memorandum from Joshua R. Bolten, Dir., Off. of Mgmt. and Budget, EAuthentication Guidance for Federal Agencies (Dec. 16, 2003), available at http://www.
42. See CTR. FOR DEM. & TECH,supra note 40.
2010] CYBERSECURITY AND FREEDOM ON THE INTERNET 133
authentication mandates across the Internet, the Review expresses no
support for such proposals. Authentication mandates would compromise
user privacy and could slow routine online interactions and transactions to
the point of impacting utility.
C. Presidential Authority To Shut Down Networks in Response to Attacks
Once an attack is detected, what forms of defense are appropriate?43
One of the most troubling proposals in the Cybersecurity Act as introduced
would have given the President the power to shut down or limit Internet
traffic to federal government and private critical infrastructure information
systems and networks. Section 18(2) of the Act would have permitted the
President to limit or shut down Internet traffic to and from any
compromised critical infrastructure information system or network in an
emergency.44 It would have permitted the President, acting unilaterally, to
determine the circumstances that constitute an emergency and to decide
which information systems are â€œcriticalâ€ and therefore subject to this
power.45 Section 18(6) of the same bill would have gone even further by
giving the President the power to â€œorder the disconnection of any Federal
government or United States critical infrastructure information systems or
networks in the interest of national security.â€ No emergency would be
required; the term â€œnational securityâ€ probably encompasses an ill-defined
array of U.S. economic and political interests, as it has in other contexts.
The President would determine what systems or network â€œdisconnectionsâ€
would serve national security.
Providing the President with such powers involves risk. While the
President should have clear authority to limit or shut down Internet traffic
to and from government systems in an emergency, exercising such power
over privately operated systems could have far-reaching unintended
consequences for the economy and for the critical infrastructures
themselves. Shutting down Internet traffic could interfere with the flow of
43. The Pentagon recently announced that it will establish a new U.S. Cyber
Command that will develop offensive as well as defensive capabilities. It is beyond the
scope of this article to examine the civil liberties implications of a full scale cyber war and
of affirmatively mounting a cyber attack. See, e.g., Lolita C. Baldor, Pentagon Cyber
Command To Create Force for Future, ASSOCIATED PRESS FINANCIAL WIRE, May 5, 2009.
44. The President is empowered to â€œdeclare a cybersecurity emergency and order the
limitation or shutdown of Internet traffic to and from any compromised Federal government
or United States critical infrastructure information system or network.â€ Cybersecurity Act
of 2009, S. 773, 111th Cong., Â§18(2).
45. The President would determine which private information systems are part of the
critical infrastructure. At a minimum, these information systems include financial and
banking systems, transportation systems, and systems that govern the electric power grid,
but there is nothing in the bill requiring the President to develop for the computers in a
nuclear power plant shutdown approaches different from those he might apply to the servers
supporting the Google search engine.
134 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 4:119
billions of dollars necessary for the daily functioning of the economy. It
could deprive doctors of access to medical records and manufacturers of
supply chain information. Even if the power were exercised only rarely, its
mere existence poses other risks, enabling the President to coerce costly,
questionable â€“ even illegal â€“ conduct by threatening to shut down a system.
There is no demonstrable need to provide the President with such
powers. Critical infrastructure information system providers in the private
sector already have control over their systems and have financial incentives
to protect them from cyber attacks. They already limit or cut off Internet
traffic to particular systems when they need to do so. No example has been
cited when operators have refused to shut down systems that clearly needed
to be shut down. As a result, it is difficult to justify giving the President
power to order such a shutdown.
Moreover, there is no special expertise in the government. Proposals to
give the President shutdown authority assume that government officials will
be in a better position than operators of private sector systems to determine
when a system or component needs to be taken offline. The governmentâ€™s
abject failure to date to protect its own systems gives reason to question this
Finally, such authority might create perverse incentives. Granting the
President authority to shut down networks could discourage information
sharing. Private sector operators will be reluctant to share information
about vulnerabilities and possible attacks if the government could use that
information to shut them down. Private operators might become hesitant
and prefer to wait to see if the government will act. Fearing liability,
private sector operators might be reluctant to act independently, and they
could lose precious time while waiting for a government directive.
The Senate Committee substantially modified the provisions at markup. As amended, Section 201 of the Cybersecurity Act requires the
President to work with industry to develop and rehearse emergency
response and restoration plans that clarify the roles, responsibilities, and
authorities of the government and private sector actors during a
cybersecurity emergency. The President would still have discretion to
decide whether there is an emergency that triggers implementation of these
plans. Whether or not the President would have the power in such an
emergency to shut down or limit Internet traffic to a critical infrastructure
information system is left unclear. The bill indicates that the emergency
planning provision does not expand the Presidentâ€™s existing authorities.
But it does not indicate whether those existing authorities include the power
to shut down or limit Internet traffic to a critical infrastructure information
system in a cybersecurity emergency.
2010] CYBERSECURITY AND FREEDOM ON THE INTERNET 135
III. TRANSPARENCY AND THE ROLE OF INTELLIGENCE AGENCIES IN
CIVILIAN CYBERSECURITY EFFORTS
The government should disclose more than it has to date about the
measures being taken to protect networks and their potential effects on
business interests and the privacy of individual users. Transparency is
important to two essential elements of cybersecurity: private sector
cooperation and public trust.
Over eighty-five percent of critical infrastructure information systems
that must be secured are owned and operated by the private sector, which
also provides much of the hardware and software on which government
systems rely, including the governmentâ€™s classified systems. The private
sector has valuable information about vulnerabilities, exploits, patches, and
responses. Private sector operators may hesitate to share this information if
they do not know how it will be used to enhance security and whether it
will be shared with competitors. Private sector cooperation with the
government cybersecurity effort depends on trust, and a lack of
transparency undermines trust, something that has plagued cybersecurity
efforts to date.
For many reasons, openness is an essential aspect of any national
cybersecurity strategy. Without transparency, there is no assurance that
cybersecurity measures adequately protect privacy and civil liberties and
adhere to fair information practices and due process principles.
Transparency is also essential if the public is to hold the government
accountable for the effectiveness of its activities and for any abuses that
Not every aspect of the program needs to be made public. In fact, there
are many details that should remain classified to ensure that those
attempting to breach sensitive networks are not provided with information
that could aid them. For example, information collected by intelligence
agencies that describe the attack signatures of foreign adversaries or their
capabilities must be handled very carefully.
However, by imposing high levels of secrecy about cybersecurity, the
Bush administration put the success of the program at risk. It withheld
information that the public needed in order to understand the respective
roles of the government and private sector, and privacy concerns. Indeed,
the former Assistant Secretary for Policy at DHS under the Bush
administration, Stewart A. Baker, has said that secrecy surrounding the
Bush administrationâ€™s cybersecurity initiative inhibited public
understanding and reinforced mistrust of the intelligence community.46
46. Ellen Nakashima, Cybersecurity Plan To Involve NSA, Telecoms; DHS Officials
Debating the Privacy Implications, WASH. POST, July 3, 2009, at A1.
136 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 4:119
Transparency is implicated in the question of which government agency
should lead cybersecurity efforts. When an intelligence agency such as the
NSA takes a lead role in securing civilian systems, it almost certainly
means less transparency, less trust, and less corporate and public
participation. It also increases the likelihood of failure or ineffectiveness.
The NSA is committed â€“ for legitimate reasons â€“ to a culture of secrecy that
is incompatible with the kind of information sharing necessary for the
success of a cybersecurity program.
Distrust of the NSA relates in part to its recent involvement in secret
eavesdropping activities that failed to comply with statutory safeguards. In
the Terrorist Surveillance Program (TSP), the NSA eavesdropped on
communications between parties in the United States and abroad when one
party was thought to be an agent of al Qaeda or an affiliated terrorist
organization. The Foreign Intelligence Surveillance Act (FISA) generally
requires a court order for such surveillance when it targets persons in the
United States. 47 Because no court orders were obtained, many believe that
some surveillance under the program violated the FISA.48 The TSP placed
private sector companies that were asked to assist with the surveillance in
an extremely difficult position, and those that provided assistance were
exposed to massive potential liability. Given the NSAâ€™s very recent history
of acting outside statutory limits, the private sector and the public at large
may not trust the NSA with an expanded role in monitoring domestic
The concerns with the NSA go beyond the recent activity. The NSA
has long had a dual role. It spies on adversaries, cracks their computer
networks, and breaks their codes. It also protects U.S. government
communications from interception. These two roles tug in opposite
directions because the United States and its adversaries frequently use the
same technology. As a result, if the NSA finds security vulnerabilities in a
widely used product, it may be inclined to keep the loophole a secret so it
can exploit those vulnerabilities against its targets. The effect would be to
deprive other government agencies and private operators of information
they could use in defending against attacks.
This does not mean that the NSA should not play a cybersecurity role.
Certainly, it can and does play a direct role in securing military and
classified systems. To the extent that the NSA has developed special
expertise, the government should establish a process to ensure that such
47. See Foreign Intelligence Surveillance Act, 50 U.S.C. Â§Â§1801-1871 (2006), as
amended by Pub. L. No. 110-261, 122 Stat. 2436 (2008).
48. For example, fourteen former government officials and constitutional law scholars,
including a former FBI Director and former attorneys in the Department of Justice Office of
Legal Counsel, wrote a letter to Congress arguing that the program violated FISA. See
Letter from Curtis Bradley et al., to Congress on NSA Spying, N.Y. REV. BOOKS, Feb. 9,
2006, at 2, available at http://www.nybooks.com/articles/18650.
2010] CYBERSECURITY AND FREEDOM ON THE INTERNET 137
expertise is available to any civilian agency leading cybersecurity efforts
for civilian systems.
While cybersecurity is a significant problem, solutions should not
threaten user privacy and liberty or the innovation that is essential to
technology development. A cybersecurity program will succeed to the
extent it accomplishes the following three objectives:
$ Accounts for differences among critical infrastructure systems.
$ Promotes industry participation and cooperation rather than
using government mandates.
$ Provides transparency.
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