Data and Goliath (27 page)

Cybersecurity and information law researcher Axel Arnbak said about government surveillance,
“The front door governed by law; the backdoor governed by game theory.” What he meant
is that the targeted surveillance process is subject to probable cause, warrants,
limits in scope, and other laws designed to protect our security and privacy. Mass
surveillance is subject to an organization’s cold analyses of what it can collect
and how likely it is to get away with it. When we give the NSA the ability to conduct
mass surveillance by evading the warrant process, we allow NSA staff to think more
in terms of what’s possible than in terms of what’s legal. We let them grow arrogant
and greedy, and we pay the price.

Bulk surveillance turns the traditional investigative process on its head. Under a
normal sequence of operations, law enforcement has reason to suspect an individual,
and applies for a warrant to surveil that person. Bulk surveillance allows law enforcement
to surveil everyone—to develop grounds for suspicion. This is expressly prohibited
by the US Constitution, and with good reason. That’s why a 2014 UN report concluded
that mass surveillance threatens international law.

We need legislation that compels intelligence agencies and law enforcement to target
their surveillance: both new legislation and new enforcement of existing legislation.
That combination will give law enforcement only the information it needs, and prevent
abuse.

The US Supreme Court took a baby step in this direction in 2013 when it required police
officers to obtain a warrant before attaching a GPS tracking device to a suspect’s
car, and another in 2014 when it required police officers to obtain a warrant before
searching the cell phones of people they stopped or arrested.

In the US, we need to overturn the antiquated third-party doctrine and recognize that
information can still be private even if we have entrusted it to an online service
provider. The police should need a warrant to access my mail, whether it is on paper
in my home, on a computer at my work, or on Google’s servers somewhere in the world.

Many of these issues are international. Making this work is going to mean recognizing
that governments are obligated to protect the rights and freedoms not just of their
own citizens but of every citizen in the world. This is new; US legal protections
against surveillance don’t apply to non-US citizens outside the US. International
agreements would need to recognize that a country’s duties don’t entirely stop at
its borders. There are fundamental moral arguments for why we should do this, but
there are also pragmatic ones. Protecting foreigners’ privacy rights helps protect
our own, and the economic harms discussed in Chapter 9 stem from trampling on them.

FIX ALMOST ALL VULNERABILITIES

As I discussed in Chapter 11, a debate is going on about whether the US government—specifically,
the NSA and US Cyber Command—should stockpile Internet vulnerabilities or disclose
and fix them. It’s a complicated problem, and one that starkly illustrates the difficulty
of separating attack and defense in cyberspace.

An arms race is raging in cyberspace right now. The Chinese, the Russians, and many
other countries are also hoarding vulnerabilities. If we leave a vulnerability unpatched,
we run the risk that another country will independently discover it and use it in
a cyberweapon against us and our allies. But if we patch all the vulnerabilities we
find, there goes our armory.

Some people believe the NSA should disclose and fix
every
bug it finds. Others claim that this would amount to unilateral disarmament. President
Obama’s NSA review group recommended something in the middle: that vulnerabilities
should only be hoarded in rare instances and for short periods of time. I have made
this point myself. This is what the NSA, and by extension US Cyber Command, claims
it is doing: balancing several factors, such as whether anyone else is likely to discover
the vulnerability—remember NOBUS from Chapter 11—and how strategic it is for the US.
The evidence, though, indicates that it hoards far more than it discloses.

This is backwards. We have to err on the side of disclosure. It will especially benefit
countries that depend heavily on the Internet’s infrastructure, like the US. It will
restore trust by demonstrating that we’re putting security ahead of surveillance.
While stockpiled vulnerabilities need to be kept secret, the more we can open the
process of deciding what kind of vulnerabilities to stockpile, the better. To do this
properly, we require an independent government organization with appropriate technical
expertise making the decisions.

In today’s cyberwar arms race, the world’s militaries are investing more money in
finding and purchasing vulnerabilities than the commercial world is investing in fixing
them. Their stockpiles affect the security of us all. No matter what cybercriminals
do, no matter what other countries do, we in the US need to err on the side of security
by fixing almost all the vulnerabilities we find and making the process for disclosure
more public. This will keep us safer, while engendering trust both in US policy and
in the technical underpinnings of the Internet.

DON’T SUBVERT PRODUCTS OR STANDARDS

Trust is vitally important to society. It is personal, relative, situational, and
fluid. It underpins everything we have accomplished as a species. We have to be able
to trust one another, our institutions—both government and corporate—and the technological
systems that make society function. As we build systems, we need to ensure they are
trustworthy as well as effective.

The exact nature of Internet trust is interesting. Those of us who are techies never
had any illusions that the Internet was secure, or that governments, criminals,
hackers, and others couldn’t break into systems and networks if they were sufficiently
skilled and motivated. We never trusted that the programmers were perfect, that the
code was bug-free, or even that our crypto math was unbreakable. We knew that Internet
security was an arms race and that the attackers had most of the advantages.

What we did trust was that the technologies would stand or fall on their own merits.
Thanks to Snowden’s revelations, we now know that trust was misplaced. This is why
the NSA’s and GCHQ’s surveillance programs have generated so much outcry around the
world, and why the technical community is particularly outraged about the NSA’s subversion
of Internet products, protocols, and standards. Those agencies’ actions have weakened
the world’s trust in the technology behind the Internet.

I discussed in Chapter 6 that the FBI is continually trying to get laws passed to
mandate backdoors into security. I discussed in Chapter 11 how the NSA is surreptitiously
inserting backdoors into Internet products and protocols so it can spy. We also have
to assume that other countries have been doing the same thing to their own products
(and to each other’s). A number of observers have concluded that companies with Israeli
development teams, such as Verint, Narent, and Amdocs, are in bed with the Israeli
government, and that Huawei equipment is backdoored by the Chinese government. Do
we trust US products made in China? Do we trust Israeli nationals working at Microsoft?
Or hardware and software from Russia? France? Germany? Anything from anywhere?

This mistrust is poison. Security has to come first, eavesdropping second. Law enforcement
can obtain a warrant and attempt to eavesdrop, but should not be able to force communications
companies to guarantee that eavesdropping attempts will be successful. What we actually
need to do is repeal CALEA and get back into the business of securing telephone networks
and the Internet.

The response to this from law enforcement people is to try to frighten us with visions
of kidnappers, pedophiles, drug dealers, and terrorists going scot-free because they
can’t decrypt their computer and communications. We saw this in late 2014 when Apple
finally encrypted iPhone data; one after the other, law enforcement officials raised
the specter of kidnappers and child predators. This is a common fearmongering assertion,
but no one has pointed to any actual cases where this was an issue. Of the 3,576 major
offenses for
which warrants were granted for communications interception in 2013, exactly one involved
kidnapping—and the victim wasn’t a child. More importantly, there’s no evidence that
encryption hampers criminal investigations in any serious way. In 2013, encryption
foiled the police nine times, up from four in 2012—and the investigations proceeded
in some other way.

Law enforcement organizations have a huge array of investigative tools at their disposal.
They can obtain warrants for data stored in the cloud and for an enormous array of
metadata. They have the right and ability to infiltrate targeted suspects’ computers,
which can give them the data they need without weakening security for everyone. Good
security does not put us at risk.

Our intelligence agencies should not deliberately insert vulnerabilities into anything
other than specialized foreign military and government systems, either openly or surreptitiously;
and they should work with the academic and business communities to ensure that any
vulnerabilities inserted by more hostile parties are discovered, revealed, and disabled.

We’ll never get every power in the world to agree not to subvert the parts of the
Internet it controls, but we can stop subverting the parts we control. Most of the
high-tech companies that make the Internet work are US-based, so our influence is
disproportionate. And once we stop playing the subversion game, we can credibly devote
our resources to detecting and preventing subversion by others—thereby increasing
trust worldwide.

SEPARATE ESPIONAGE FROM SURVEILLANCE

In 2013, we learned that the NSA eavesdropped on German chancellor Angela Merkel’s
cell phone. We learned that the NSA spied on embassies and missions all over the world:
Brazil, Bulgaria, Colombia, the European Union, France, Georgia, Greece, India, Italy,
Japan, Mexico, Slovakia, South Africa, South Korea, Taiwan, Venezuela, and Vietnam.
We learned that the NSA spied on the UN. Naturally, these revelations strained international
relations, but was anyone really surprised? Spying on foreign governments is what
the NSA is supposed to do.

Government-on-government espionage is as old as government itself. It’s an important
military mission, in both peacetime and wartime, and it’s not
going to go away. It’s targeted. It’s focused. It’s actually stabilizing, reducing
the uncertainty countries have about each other’s intentions.

Espionage is fundamentally different from the NSA’s mass-surveillance programs, both
in the US and internationally. In Chapter 5, I noted that this shift in the NSA’s
activities was a result of a shift in its mission to terrorism prevention. After 9/11,
the primary mission of counterterrorist surveillance was given to the NSA because
it had existing capabilities that could easily be repurposed, though the mission could
have gone to the FBI instead.

Because the NSA was given the counterterrorist surveillance mission, both the military
norms and the legal framework from its espionage activities carried over. Our surveillance
efforts against entire populations (including our own) were kept as secret as our
espionage efforts against governments.

We need to separate these two missions. Government espionage should stay within the
purview of the State Department and the military. The president, as commander in chief,
should determine which embassies and whose cell phones to eavesdrop on, and the NSA
should carry out those orders. Mass surveillance, whether domestic or foreign, is
almost never justified. Government surveillance of private citizens sometimes is,
but only as a criminal investigative activity. These surveillance activities should
move outside the NSA and the military. They should instead come under the auspices
of the FBI and Justice Department, which will apply the police rules of probable cause,
due process, and oversight to surveillance activities—in regular open courtrooms.

This isn’t to say that we don’t need major police reform in the US. We’ve already
discussed police secrecy in Chapter 7. The increasing militarization of the police
and many departments’ tendency toward racially discriminatory practices are also serious
problems. But that’s a topic for another book. Counterterrorism was, and still is,
primarily the mission of the FBI.

In January 2014, President Obama gave a speech about the NSA in which he made two
very important points. He promised that the NSA would no longer spy on Angela Merkel’s
cell phone. And while he didn’t extend that courtesy to the other 82 million citizens
of Germany, he did say that he would extend some of the US’s constitutional protections
against warrantless surveillance to the rest of the world. Putting government-on-population
surveillance under a civilian head and police rules would go a long way towards achieving
that ideal.

LIMIT THE MILITARY’S ROLE IN CYBERSPACE

One of the great political achievements of the late nineteenth century was the separation
of civilian government from the military. Both history and current politics have demonstrated
the enormous social damage that occurs when generals are in charge of a country. Separating
the two, as many free and democratic countries worldwide do, has provided space for
liberty and democracy to flourish.

The problem is that cyberspace doesn’t easily lend itself to the traditional separation
into civilian and military domains. When you’re being physically attacked, you can
call on a variety of organizations to defend you: the police, the military, whoever
does antiterrorism security in your country, your lawyers. The legal regime justifying
that defense depends on two things: who’s attacking you, and why. Unfortunately, when
you’re being attacked in cyberspace, the two things you don’t know are who’s attacking
you, and why.