Skating on Stilts

The SG's Egg Hatches

Not long ago I criticized the SG's submission to the Court on whether to grant cert in Chamber of Commerce v. Candelaria. I thought it was a remarkably bad brief in a bad cause. But even a bad brief from the SG can be persuasive when it asserts a federal interest in preempting a state law touching on immigration .

Today the Court granted cert.

I continue to think that this case will raise political/policy problems for the administration, which essentially has to say that there's a federal interest in keeping the penalties for hiring illegal workers so low that they don't actually deter the hiring of illegal workers. That's a perfectly respectable preemption argument, but a remarkably tone-deaf political argument.  And it's now one that the SG will have to pursue with vigor in the full glare of public view.

Perhaps more difficult still is the problem created for the Administration by the Court's decision to grant cert without limiting the questions presented. The second question -- whether E-Verify can be mandated under state law -- is far more significant than the first for those of us who'd like to see effective enforcement of immigration law. The administration tried to have that issue both ways -- saying that state mandates were a problem but that the question was not ripe for Court review and urging a limited grant so it could to avoid having to attack state mandates at this time.

Now the Administration will have to attack an Arizona law that Secretary Napolitano signed, and do its best to cripple a program in which both the last administration and this one have invested hundreds of millions of dollars. 

Blue dogs, please call your office.

Rosenzweig Reviews Skating on Stilts

OK.  It really =is= a little incestuous.  I was Stewart's Deputy when he was at Homeland Security.  I helped him write the book.  He gives me a nice acknowledgment in the introduction.  And long ago he even gave me posting privileges on his web site (though I think he probably has forgotten that).  So, naturally, if I tell you that I really like Stewart's book, you'll take it with a healthy grain of salt.  As well you should.  But maybe if I tell you why I like the book -- and what is particularly appealing about it -- that will convince on the merits, despite my obvious (and openly declared) bias.

So... why =do= I like it?  That requires a bit of explanation.  I've been reading Washington insider books for years.  Heck, I am one, so I just love the genre.  And, in the end, I've decided that they typically fall into two categories (often, a single book contains both types of memoir):  The first, and most prevalent, is of the form "How I Was Brilliant and Saved the World."  It recount all of the wonders and good deeds of the author and his (or her) remarkable ability to foresee the future with penetrating clarity.  The second, almost as frequent but a little less so, is the natural corollary:  "Why Those Who Disagreed with Me were Bleeping Idiots and What I Did About It."  This is the "score settling" portion of the story where the fools who didn't listen to our hero get their intellectual comeuppance.

Skating on Stilts has both of these -- and plenty of it.  Stewart was not know for his retiring nature and calm demeanor.  As one of our colleagues liked to say "Stewart leads with his elbows."  And that trait shows -- Stilts tells the story of many of the battles that Stewart (and I) joined at DHS.  He did so with relish, and his joy at the policy process comes through in the book.

But what makes Stilts different (at least as far as I can see, almost unique) is the candid way in which Stewart also talks about his failures; about the things he did not accomplish that remain unfinished.  When he talks about the major gaps in our bio-defenses, for example, everyone who reads the book should take notice.  It's a huge problem today and we have barely begun to figure out a solution set for the problem.  Stewart candidly admits that he tried ... and that he didn't succeed before he ran out of time.

So .. the book is a rollicking good romp.  If you want to find out why Stewart has it in for the privacy-industrial complex, you'll find it here.  But if you want something that's also a little different -- a senior leader telling you about what he couldn't fix -- then this is also the place to look.

And that makes the book well worth the read -- even if you don't come to it with my bias in favor of the author.

Another review...

Here's an excerpt from another review for Skating on Stilts, this time from Homeland Security Watch's Jessica Herrera-Flanigan:

In his upcoming book, Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism, Baker offers an intriguing view of our homeland security posture that ties back to the central theme that technology is both our savior and our enemy as it empowers not only us but our foes.  Coming from Baker, who has been described by the Washington Post as “one of the most techno-literate lawyers around,” the analysis of homeland security technology from a policy/legal prism is refreshing.  This is not a Luddite’s view of why technology harms, but an expert’s finely woven story of “how the technologies we love eventually find new ways to kill us, and how to stop them from doing that…”

Stewart Baker provides insight into a DC perspective of homeland security and the struggle of a Department to tackle technology, privacy, and information sharing. The book provides some valuable lessons for those who are on the frontlines of homeland security policy as they attempt to tackle future threats. For an observer of homeland security development, Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism is a must-read.

Privacy: Failed Model No. 3

This post excerpts my book's discussion of the third failed privacy model.  (If you just can't wait to see all three, or my idea for a better solution, I've posted a free copy of the chapter here.)     

    If requiring a predicate is the lawyer’s solution; the third failed approach is the bureaucrat’s solution. It is at heart the approach adopted by the European Union: Instead of putting limits on when information may be collected, it sets limits on how the information is used. 

    The European Union’s data protection principles cover a lot of ground, but their unifying theme is imposing limits on how private data is used. Under those principles, personal data may only be used in ways that are consistent with the purposes for which the data were gathered. Any data that is retained must be relevant to the original purposes and must be stored securely to prevent misuse.

      The EU’s negotiating position in the passenger name records conflict was largely derived from this set of principles. The principles also explain Europe’s enthusiasm for a wall between law enforcement and intelligence. If DHS gathered reservation data for the purpose of screening travelers when they cross the border, why should any other agency be given access to the data? This also explains the EU’s insistence on short deadlines for the destruction of PNR data. Once it had been used to screen passengers, it had served the purpose for which it was gathered and should be promptly discarded.

      There is a core of sense in this solution. It focuses mainly on the consequences of collecting information, and not on the act of collection. It doesn’t try to insist that information is property. It recognizes that when we give information to others, we usually have an expectation about how it will be used, and as long as the use fits our expectations, we aren’t too fussy about who exactly gets to see it. By concentrating on how personal information is used, this solution may get closer to the core of privacy than one that focuses on how personal information is collected.

      It has another advantage, too. In the case of government databases, focusing on use also allows us to acknowledge the overriding importance of some government data systems while still protecting against petty uses of highly personal information.

      Call it the deadbeat-dad problem, or call it mission creep, but there’s an uncomfortable pattern to the use of data by governments. Often, personal data must be gathered for a pressing reason—the prevention of crime or terrorism, perhaps, or the administration of a social security system. Then, as time goes on, it becomes attractive to use the data for other, less pressing purposes—collecting child support, perhaps, or enforcing parking tickets. No one would support the gathering of a large personal database simply to collect unpaid parking fines; but “mission creep” can easily carry the database well beyond its original purpose. A limitation on use prevents mission creep, or at least forces a debate about each step in the expansion.

      That’s all fine. But in the end, this solution is also flawed. 

      It, too, is fighting technology, though less obviously than the predicate and property approaches. Data that has already been gathered is easier to use for other purposes. It’s foolish to pretend otherwise. Indeed, developments in information technology in recent years have produced real strides in searching unstructured data or in finding relationships in data without knowing for sure that the data will actually produce anything useful. In short, there are now good reasons to collate data gathered for widely differing purposes, just to see the patterns that emerge.

      This new technical capability is hard to square with use limitations or with early destruction of data. For if collating data in the government’s hands could have prevented a successful terrorist attack, no one will congratulate the agency that refused to allow the collation because the data was collected for tax or regulatory purposes, say, and not to catch terrorists.

      What’s more, use limitations have caused great harm when applied too aggressively. The conflict with the EU is a reminder that the “wall” between law enforcement and intelligence was at heart a use limitation. It assumed that law enforcement agencies would gather information using their authority, and then would use the information only for law enforcement purposes. Intelligence agencies would do the same. Or so the theory went. But strict enforcement of this use limitation ended up preventing cooperation that might have thwarted the 9/11 attacks.

      Like all use limitations, the “wall” between law enforcement sounded reasonable enough in the abstract. While no one could point to a real privacy abuse arising from cooperation between the intelligence and law enforcement agencies in the United States, it was easy to point to the Gestapo and other totalitarian organizations where there had been too much cooperation among agencies.

      What was the harm in a little organizational insurance against misuse of personal data, the argument ran. The rules allowed cooperation where that was strictly necessary, and we could count on the agencies to crowd right up to the line in doing their jobs. Or so we thought. In fact, we couldn’t. As the pressure and the risk ratcheted up, agents were discouraged from pushing for greater communication and cooperation across the wall. All the Washington-wise knew that the way to bureaucratic glory and a good press lay in defending privacy. Actually, more to the point, they knew that bad press and bureaucratic disgrace were the likely result if your actions could be characterized as hurting privacy. Congress would hold hearings; appropriators would zero out your office; the second-guessing arms of the Justice Department, from the inspectors general to the Office of Professional Responsibility, would feast on every detail of your misstep. So, what might have been a sensible, modest use restriction preventing the dissemination of information without a good reason became an impermeable barrier.

      That’s why the bureaucratic system for protecting privacy so often fails. The use restrictions and related limits are abstract. They make a kind of modest sense, but if they are enforced too strictly, they prevent new uses of information that may be critically important.

      And often they are enforced too strictly. You don’t have to tell a bureaucrat twice to withhold information from a rival agency. Lawsuits, bad press, and Congressional investigations all seem to push against a flexible reading of the rules. If a use for information is not identified at the outset, it can be nearly impossible to add the use later, no matter how sensible the change may seem. This leads agencies to try to draft broad uses for the data they collect, which defeats the original point of setting use restrictions.

      It’s like wearing someone else’s dress. Over time, use restrictions end up tight where they should be roomy—and loose where they should be tight. No one is left satisfied.

Failed Privacy Model No. 2

This post excerpts my book's discussion of the second failed privacy model.  (If you just can't wait to see all three, or my idea for a better solution, I've posted a free copy of the chapter here.) 

    The second way of protecting privacy is to require what’s called a “predicate” for access to information. That’s a name only a lawyer could love. In fact, the whole concept is one that only lawyers love.

      Simply put, the notion is that government shouldn’t get certain private information unless it satisfies a threshold requirement—a “predicate” for access to the data. Lawyers have played a huge role in shaping American thinking about privacy, and the predicate approach has been widely adopted as a privacy protection. But its value for that purpose is quite doubtful.

      The predicate approach to privacy can be traced to the Fourth Amendment, which guarantees that “no Warrants shall issue, but upon probable cause.” Translated from legalese, this means that the government may not search your home unless it has a good reason to do so. When the government asks for a search warrant, it must show the judge “probable cause”—evidence—that the search will turn up criminal evidence or contraband. Probable cause is the predicate for the search.

      Lawyers spend a lot of time thinking about the Fourth Amendment. Every law student spends weeks exploring its intricacies. Evidence from an illegal search cannot be used in a criminal prosecution. So millions of defendants have made claims under the Fourth Amendment after being convicted, giving the courts many opportunities to apply the amendment. All problems look like a nail to someone who has only a hammer. And all privacy problems tend to look like the Fourth Amendment to lawyers who have grown up parsing its protections.

      It’s been applied to cops on the beat, for example. A traffic stop is pretty close to an arrest, and a pat-down is even closer to a full-fledged search. But requiring warrants and probable cause would make it impossible to pat down rough customers in a bad part of town or to stop drivers just to check license and registration. So the courts came up with a new predicate for such intrusions on our freedom—“reasonable suspicion.” 

      When a flap arose in the 1970s over the FBI practice of assembling domestic security dossiers on Americans who had not broken the law, the attorney general stepped in to protect their privacy. He issued new guidelines for the FBI. He was a lawyer, so he declared that the FBI could not do domestic security investigations of Americans without a predicate.

      The predicate wasn’t probable cause; that was too high a standard. Instead, the attorney general allowed the launching of a domestic security investigation only if the bureau presented “specific and articulable facts giving reason to believe” that the subject of the investigation may be involved in violence.

      Actually, the story of the FBI guidelines shows why the predicate approach often fails. The dossiers being assembled by the FBI were often just clippings and other public information. They usually weren’t the product of a search in the classic sense; no federal agents had entered private property to obtain the information. Nonetheless, the FBI guidelines treated the gathering of the information itself as though it were a kind of search. 

      In so doing, the guidelines were following in Brandeis’s footsteps—treating information as though it were physical property. The collection of the information was equated to a physical intrusion into the home or office of the individual. Implicitly, it assumes that data can be locked up like property.

      But that analogy has already failed. It failed for Brandeis and it failed for the RIAA. 

    It failed for the FBI guidelines, too. As clippings became easier to retrieve, clippings files became easier to assemble. Then Google made it possible for anyone to assemble an electronic clips file on anyone. There was nothing secret about the clippings then. They were about as private as a bus terminal.

      But the law was stuck in another era. Under the guidelines, the FBI and the FBI alone needed a predicate to print out its Google searches. You have to be a pretty resilient society to decide that you want to deny to your law enforcement agencies a tool that is freely available to nine-year-old girls and terrorist gangs. Resilient but stupid. (Not surprisingly, the guidelines were revised after 9/11.)

      That’s one reason we shouldn’t treat the assembling of data as though it were a search of physical property. As technology makes it easier and easier to collect data, the analogy between doing that and conducting a search of a truly private space will become less and less persuasive. 

    No one thinks government agencies should have a predicate to use the White Pages. Soon, predicates that keep law enforcement from collecting information in other ways will become equally anachronistic, leaving law enforcement stuck in the 1950s while everyone else gets to live in the twenty-first century.

Calling Bull Switch

The blogosphere is all atwitter over the Lieberman-Collins cybersecurity bill and its alleged Internet kill switch. Lots of people are still taking the whole idea of an Internet kill switch seriously.  Worse, they think that's what the Lieberman-Collins bill proposes.  

So let me say it again, this time with exegesis:

The claim that the bill contains a kill switch is, well, a bunch of bull switch. 

The epithet "Internet kill switch" was first coined to describe (to attack, really) a much different bill proposed by a different committtee.  Maybe that bill justified the term. 

But Lieberman's bill doesn't.  It is a lot more limited and careful in responding to a serious threat -- the possibility that another nation might use our increasingly networked infrastructure to disrupt phone, banking, and power service in large parts of the country.  Since those services are in private hands, the government needs some legislative authority to respond to such an attack.  (We don't usually ask private companies to respond to military attacks on their own.) 

So what authority does the bill propose to give the government? To cut to the chase, it doesn't grant authority over "the Internet."  It gives the President the power to order certain critical infrastructure owners to protect themselves in a coordinated way. Here's a more detailed breakdown of who's covered (My apologies, but this is a little complicated.)

• First, to be covered, an asset must be part of the critical infrastructure, which is defined under existing law as systems and assets "so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters."  That is pretty carefully focused on things like nuclear power plants and the New York Stock Exchange, not the Internet at large .
• Second, under section 241, even assets that arguably fit this definition are not covered unless they are identified on a list prepared by DHS (as far as I know, the list has not made public, because we don't want to give adversaries a handy list of the best targets).
• Third, the authority only applies to a portion of that list, specifically to IT systems that support (or are themselves) critical infrastructure.

So the authority doesn't extend to the Internet writ large, only to certain identified IT systems whose loss would have a debilitating effect on national security, health and safety.  It can't be used to shut down the blogosphere, not even if Secretary Napolitano finds it personally debilitating not to get a morning fix of Andrew Sullivan. 

Okay; it doesn't cover the whole Internet.  But at least it's a "kill switch" for the networks it covers, right? 

Nope, not that, either.  Under the bill, in an emergency, section 249 of the bill lets the government order owners of critical infrastructure to do two things:

• First, the government can tell them to implement their own emergency response plans, which are required by a different section (248) of the bill.
• Second, the government can "develop and coordinate emergency measures or actions necessary to preserve the reliable operation, and mitigate or remediate  the consequences" of an attack. And in developing these measures, the government must choose "the "least disruptive means feasible."

No doubt there's room for quibbling and improvement in the bill's language, but a kill switch it ain't. 

In short, if you think that a cyberattack is possible, and I've devoted big chunks of this website to explaining why an attack is highly likely, then this bill simply gives the President the minimum authority he'll need to assure protection for our most important assets -- like phones, banks, power. 

Then why is the blogosphere, right and left, full of fulmination about the kill switch?  This post is long enough already, so I'll just say that I think it's a combination of privacy ideologues who automatically condemn new government authorities, even necessary ones, and anti-regulatory business interests -- what I call the privacy-industrial complex. If you want to know more, it's a theme I develop at length in Skating on Stilts.

Compelling Accounts from a DHS Insider

Here's an excerpt from Mickey McCarter's review of Skating on Stilts. You can find the full review at Homeland Security Today.

Privacy protection has its place but putting too much emphasis on it can stop counterterrorism forces in their tracks.

At least, that's a central idea explored time and again in a new book from Stewart Baker, the former assistant secretary of policy at the Department of Homeland Security (DHS). The book--Skating on Stilts: Why We Aren't Stopping Tomorrow's Terrorism--largely deals with Baker's firsthand experiences with major developments in various elements of homeland security, ranging from cybersecurity to bioterrorism to aviation security.

Yet the book tells its tales as a means of looking forward. Baker, an infatigable intellectual, often appears to be an endless source of methodical musings on the challenges of DHS and counterterrorism measures generally in person. His book captures his ability to be proactively prescriptive while reflecting on policy debates old and new.

Despite the serious nature of the subject matter, however, Baker enhances his reputation as a raconteur by enjoying himself. He is well served by his ability personalize the obstacles that continue to daunt homeland security efforts, making them seem relevant to the reader. This makes the book so easy to read that you may find yourself revisiting past chapters of policy battles fought and pondering their relevance to homeland security today, much like the author himself.
 

Drudge and Huffington Post Push the "Internet BS Switch"

Suddenly the Internet is full of chatter about Senator Lieberman (and Collins and Carper) proposing an "Internet kill switch." It's the one issue that Huffington Post and Drudge have agreed on in months: there's a kill switch coming and they don't like it. 

Personally, any time the left and the right get together to complain about government, I reach for my wallet. As I describe in Skating on Stilts, that's the same civil liberties coalition that screwed up TSA's passenger screening and then blamed TSA. 

And sure enough, this is the same old antigovernment malarkey. Recycled malarkey, actually. The notion of an Internet kill switch was first circulated about an entirely different bill proposed by a different Senator from a different committee. Now it's become a bumper sticker slogan rolled out whenever anyone proposes doing anything to fix our computer security crisis. 

 The fact is that our entire computerized economy is balanced on a knife edge (or, if you like, it's skating on stilts). It could be attacked by many countries today. And there's evidence that both the risk of attack and the scale of the damage it would cause are growing all the time. 

So there's an Internet kill switch all right, but it ain't in Washington. It's in Beijing and Moscow. And soon in Pyongyang. 

The Lieberman-Collins-Carper bill, which might take the kill switch away from our foreign adversaries, will soon have bipartisan support in the House. It gives the President basic authority to respond to an attack on our power, phone, and financial systems. 

 It's needed, badly, because the President today has less authority over the vulnerable electronic underbelly of our banks and power grid than he has over deepwater oil drilling. Of course the "kill switch" crowd don't see the need for any such authority. 

After all, why would we expect private companies ever to screw up in a way that would hurt the rest of us? 

Come to think about it, BP could have saved itself $20 billion if it had just persuaded Congress last year that trying to regulate deep sea drilling would create a crazy Big Government "Oil Supply Kill Switch." 

Nobody wants an Oil Supply Kill Switch. 

 Until, oops, they really, really do.

Privacy Fail No. 1

Lots of readers have wondered why I unload so heavily on the privacy lobby in these posts and the book. 

It's simple.  I think they're exploiting our natural, if Luddite, resistance to new technology, and they're promoting solutions that are almost always bad ideas and in some cases are going to get a lot of people killed. 

Of course I share some of their unease about the new world that technology is taking us to; that's what the book is about.  And I think there are solutions to the abuse of information technology that we ought to adopt.  But bad privacy solutions outnumber good ones by at least three to one. 

So in the last chapter of the book, I explore three privacy lobby fails -- bad ideas that the lobby keeps coming back to -- before offering one approach that I think has more promise, mainly because it works with, not against, the trend of information technology. 

This post excerpts the book's discussion of the first privacy fail -- Brandeis's notion that the courts should  entertain lawsuits against those who publish private information, treating them like intellectual property thieves or trespassers.  (If you just can't wait to see all three privacy fails, or my idea for a better solution, I've posted a free copy of the chapter here.)

***

The Brandeisian notion that we should all “own” our personal data has some appeal, of course. If I have a secret, it feels a lot like property. I can choose to keep it to myself, or I can share it with a few people whom I trust. And I would like to believe that sharing a secret with a few trusted friends doesn’t turn it into public property.

It’s like my home. Just because I’ve invited one guest home doesn’t mean the public is welcome.

But in the end, information is not really like property. Property can only be held by one person at a time, or at most by a few people. But information can be shared and kept at the same time. And those with whom it is shared can pass it on to others at little or no cost. If you ever told a friend about your secret crush in junior high you’ve already learned that information cannot be controlled like property.

As Ben Franklin is credited with saying, “Three may keep a secret if two of them are dead.” The redistribution of information cannot be easily controlled in the best of times, and Moore’s Law is making the control of information nearly impossible.

The recording and movie industries discovered the same thing. If these industries with their enormous lobbying and litigation budgets cannot control information that they own as a matter of law, the rest of us are unlikely to be able to control information about ourselves. Gossip is not going to become illegal simply because technology amplifies it.

That’s why Brandeis’s proposal never really got off the ground, at least not as he envisioned it. Buoyed by Brandeis’s prestige, the idea that private facts are private property lingered on in the courts for years, but what survived of his proposal is scarcely recognizable today.

In fact, so transformed is Brandeis’s privacy doctrine that it is now described, accurately, as a “right of publicity,” which surely would have him turning in his grave. Currently, most states honor Brandeis by allowing lawsuits for unauthorized commercial use of a person’s likeness, either by statute or judge-made law.

Over time, courts lost sight of Brandeis’s purpose. They began to take the analogy to property literally. Brandeis wanted to treat private information like property because that was the only way to give a remedy for the “mental pain and distress, far greater than could be inflicted by mere bodily injury,” that he thought a man suffered when his photo was published without permission. But as people got used to having their pictures taken, the mental pain and distress slowly drained out of the experience.

All that was left was the property analogy. And so judges began shrinking the right until it only had bite in the one set of circumstances where the right to control one’s image actually feels like a property right—when the image is worth real bucks. Thus, the courts require disgorgement of profits made when a celebrity’s name, face, voice, or even personal style is used without permission to sell or endorse products. As a result, the right to exploit a celebrity’s image really is property today; it can be sold, transferred, and even inherited.

There’s only one problem with this effort to turn privacy into property. It hasn’t done much for privacy. It simply protects the right of celebrities to make money off their fame. In fact, by monetizing things like celebrity images, it rewards those who have most relentlessly sacrificed their privacy to gain fame.

The right of publicity is well named. It is the right to put your privacy up for sale. Not surprisingly, a lot of people have been inspired to do just that. Ironically, Brandeis’s doctrine has helped to destroy the essence of what he hoped to preserve.

Oh, and in the process, Brandeis’s approach has stifled creativity and restricted free speech—muzzling artists, social commentators, and businesspeople who want to make creative use of images that are an essential part of our cultural environment. It’s a disaster. Slowly, courts are waking up to the irony and limiting the right of publicity. 

The same “private information as property” approach has also made a modest appearance in some consumer privacy laws, and it’s worked out just as badly. At bottom, consumer privacy protection laws like the Right to Financial Privacy Act treat a consumer’s data like a consumer’s money: You can give your data (or your money) to a company in exchange for some benefit, but only if you’ve been told the terms of the transaction and have consented. Similarly, the Cable Communications Policy Act of 19842 prevents cable providers from using or releasing personal information in most cases unless the providers get the customer’s consent.

The fruit of this approach is clear to anyone with a bank account or an Internet connection. Everywhere you turn, you’re confronted with “informed consent” and “terms of service” disclosures; these are uniformly impenetrable and non-negotiable. No one reads them before clicking the box, so the “consent” is more fiction than reality; certainly it does little to protect privacy.

Indeed, it’s turning out a lot like the right of publicity. By treating privacy as property, consumer privacy protection law invites all of us to sell our privacy.

And we do.

Only for most of us, the going price turns out to be disconcertingly cheap.

UPDATE: Fixed bad link.  Thanks, Bill.

Cybersecurity hearing

I just finished testifying on cybersecurity issues to the House Homeland Security committee. The headline from that hearing is likely to be the bipartisan support that emerged for the broad thrust of the Lieberman-Collins-Carper bill that I blogged about earlier and that I supported at the hearing.

Ranking member Peter King (R-NY) announced that he would be introducing the Senate bill. Rep. Harman (D-CA) announced that she would support it; in a sweet (and too rare) moment of bipartisanship, Peter King interrupted to say that he would be glad to cosponsor the Harman bill -- essentially offering to make it the Harman-King bill rather than the King-Harman bill (and if you think that wasn't a generous sacrifice, well, you don't know Washington).

PS Those waiting for me to plug my book may be disappointed. Instead, I want to thank both Ranking Member Peter King and Rep. Dan Lungren -- both of whom plugged it far more effectively than I could have.

Skating on Stilts is Now Shipping

At least from Amazon.

9/11 and the Least Dangerous Branch

Many of my posts have criticized privacy groups and their doctrines.  How come, some of you have asked?  Aren't privacy advocates the Ewoks of the policy world -- cute and cuddly and easy to like even when they're on the other side?  After all, most of us share their overall goal.  We would all like more privacy.  We're all a little uncomfortable with the new places that information technology is taking us.  What harm is there in measures to preserve a bit of the old, comfortable sense of privacy we had before the days of cheap data?

My problem is that I used to believe that too.  I even supported a wall between intelligence gathering and law enforcement because it seemed like a nice, rather harmless way to protect criminal defendants and perhaps the rest of us from the intrusive capabilities of the intelligence community.

As it turned out, though, the wall was anything but harmless in practice.  In fact, we've never counted how much harm it caused the US in August 2001, as we stumbled in the dark, trying to piece together the September 11 plot before disaster struck.  

Much of my work in government has been devoted to undoing the harm the wall caused.  But until I started researching it for my book, I had no idea how much it had contributed to 9/11.  In particular, I had not realized that the wall in its later stages was a creature of a special intelligence court, known as the FISA court, that was itself a civil liberties innovation of the Carter years.  I was astonished to discover how aggressively the FISA court had enforced the wall, and how that aggressive stance had distrorted the priorities of counterterrorism investigators.

The 9/11 Commission didn't highlight this issue.  Perhaps in part it was political correctness; some of the commissioners were determined to show their "courage" by refusing to criticize civil liberties excesses.  A more immediate cause was Attorney General Ashcroft's accusation that former Deputy Attorney General Jamie Gorelick had been a principal architect of the wall.  The accusation was in fact a bit unfair, my research showed; it also seems to have provoked the 9/11 Commission to unite behind Jamie Gorelick and to focus much of its research on proving that she wasn't responsible for the wall.  That's too bad, because the fight over Jamie Gorelick was a sideshow that obscured the real story of the wall.  

I have tried to tell what I see as the story of the wall in the book, using interviews and official sources (including some late-declassified 9/11 commission work).  I slipped from memoir to reportage because the wall played such a role in my government service -- and because the story of the wall shows why I finally concluded that we can't treat privacy and civil liberties doctrines as harmless good-government proposals.  In fact, those proposals have the potential to get a lot of Americans killed.  In the weeks before 9/11, it was these two civil liberties innovations that did the most to cripple our effort to catch the hijackers before the attack.  

So, the story of the wall is in a sense the heart of the book, and of my career in government.  The relevant chapter has been released on www.skatingonstilts.com, and I've excerpted a bit of the story below.

The FISA Court Stages a Coup

The issue came to a head in 1998. Al Qaeda’s bombing of two U.S. embassies in East Africa had put the Southern District’s latest criminal investigation of the group into overdrive. But it also put the wall front and center. As with other al Qaeda cases, the criminal investigation was practically inseparable from the ongoing intelligence monitoring.

So what rules would govern this investigation? The intelligence review office did not want to return to New York for another chest-bumping showdown over the wall. The prosecutors were winning. If the guidelines had to be reworked for the East Africa cases, the intelligence review office would go into battle with half the department arrayed against it.

Staring defeat in the face, the intelligence review office finally played its trump card—the FISA court.

Judge Lamberth remembers Kornblum suggesting that the guidelines be turned into FISA court orders. “He felt, and we agreed, that if you have rules, you should follow them,” says the judge.

The idea had understandable appeal from a civil liberties viewpoint, too. Unlike the attorney general, who was, after all, a prosecutor at heart, the court would be an honest broker. It could give the rights of defendants their due weight, without a conflict of interest and without yielding to the importunings of the prosecutors.

And so it was done. The FISA court simply annexed the attorney general’s guidelines, making the wall a matter of court order.

It was as simple as that; a quiet coup on the top floor of the Justice Department. From now on, the court would decide what was needed to prevent misuse of FISA taps, and the rules it settled on would simply be imposed as a condition on any antiterrorism wiretaps approved by the court.

For the prosecutors it was check and mate.

The FISA court had the department over a barrel. The government had to keep the wiretaps up; an attack could occur at any time, and the government could not afford to be deaf to the planning. If the department wanted the taps, it had to accept that the FISA court was making the rules.

Skating on Kindle

All things come to those who wait.  A Kindle version of Skating on Stilts is now available for $9.99.  You can preorder it here.

Louis Brandeis -- Wuss or Snob?

A few people on the Volokh Conspiracy have complained that some of my posts seem to be deriding privacy advocates.  I think that's close, but not quite right.  We all believe in privacy, certainly I do.  But as I see it, today's privacy advocates, often in alliance with industry (what I called the "privacy-industrial complex"), have begun to do real harm to our ability to respond to new technological threats, and when they do, they deserve at least good-humored criticism. 

My run-ins with the privacy community have also led me to spend some time thinking about why privacy advocates are the way they are.  Poking around in the history of privacy was actually quite illuminating.  I'm excerpting below a passage from Skating on Stilts.  In it, I conclude that privacy advocates have always been Luddites at heart, and that a reactionary Luddism is an inextricable part of the privacy movement, at least when it deals with new technology.

(And, for those who think I'm flogging my book with too much enthusiasm, I can offer one defense:  at least it's free.  The chapter that this excerpt comes from is now available under a Creative Commons license at the Skating On Stilts website.)

***

In the 1880s, Samuel Dennis Warren was near the top of the Boston aristocracy. His father was a self-made paper-manufacturing tycoon. His wife, Mabel Bayard Warren, was the daughter of a U.S. senator and secretary of state.

Warren himself was no slouch. He had finished second in his class at Harvard Law School. He founded a law firm with the man who finished just ahead of him, Louis Brandeis, and they prospered mightily. Brandeis was a brilliant, creative lawyer and social reformer who would eventually become a great Supreme Court justice.

But Samuel Dennis Warren was haunted. There was a canker in the rose of his life. His wife was a great hostess, and her parties were carefully planned. When Warren’s cousin married, Mabel Warren held a wedding breakfast and filled her house with flowers for the event. The papers described her home as a “veritable floral bower.”

No one should have to put up with this.

Surely you see the problem.

No? Well, Brandeis did.

He and Warren both thought that, by covering a private social event, the newspapers had reached new heights of impertinence and intrusiveness. The parties and guest lists of a Boston Brahmin and his wife were no one’s business but their own, he thought.

And so was born the right to privacy.

Angered by the press coverage of these private events, Brandeis and Warren wrote one of the most frequently cited law review articles ever published.

In fact, “The Right to Privacy,” which appeared in the 1890 Harvard Law Review, is more often cited than read—for good reason, as we’ll see. But a close reading of the article actually tells us a lot about the modern concept of privacy.

Brandeis, also the father of the policy-oriented legal brief, begins the article with a candid exposition of the policy reasons why courts should recognize a new right to privacy. His argument is uncompromising:

The press is overstepping in every direction the obvious bounds of
propriety and of decency. Gossip is no longer the resource of the
and of the vicious, but has become a trade, which is pursued with
industry as well as effrontery . . . To occupy the indolent, column
upon column is filled with idle gossip, which can only be procured
by intrusion upon the domestic circle. The intensity and complexity
of life, attendant upon advancing civilization, have rendered necessary
some retreat from the world, and man, under the refining
influence of culture, has become more sensitive to publicity, so that
solitude and privacy have become more essential to the individual;
but modern enterprise and invention have, through invasions upon
his privacy, subjected him to mental pain and distress, far greater
than could be inflicted by mere bodily injury . . . Even gossip apparently
harmless, when widely and persistently circulated, is potent
for evil . . . When personal gossip attains the dignity of print, and
crowds the space available for matters of real interest to the community,
what wonder that the ignorant and thoughtless mistake
its relative importance . . . Triviality destroys at once robustness of
thought and delicacy of feeling.

What does Brandeis mean by this? To be brief, he thinks it should be illegal for the newspapers to publish harmless information about himself, his partner, and their families. That, he says, is idle gossip, and it distracts “ignorant and thoughtless” newspaper readers from more highminded subjects. It also afflicts the refined and cultured members of society—like, say, Samuel Dennis Warren and his wife—who need solitude but who are instead harassed by the fruits of “modern enterprise and invention.”

What’s remarkable about “The Right to Privacy” is that the article’s title still invokes reverence, even though its substance is, well, laughable.

Is there anyone alive who thinks it should be illegal for the media to reveal the guest-list at a prominent socialite’s dinner party or to describe how elaborate the floral arrangements were? Today, it’s more likely that the hostess of a prominent dinner party will blog it in advance, and that the guests will send Twitter updates while it’s under way. For most socialites, what would really hurt is a lack of media coverage. To be blunt, when he complains so bitterly about media interest in a dinner party, Brandeis sounds to modern ears like a wuss.

Equally peculiar is the suggestion that we should keep such information from the inferior classes lest they abandon self-improvement and wallow instead in gossip about their betters.

That makes Brandeis sound like a wuss and a snob.

He does sound quite up-to-date when he complains that “modern enterprise and invention” are invading our solitude. That is a familiar complaint. It’s what privacy advocates are saying today about Google, not to mention the NSA. Until you realize that he’s complaining about the scourge of “instantaneous photographs and newspaper enterprise.”

Huh? Brandeis evidently thinks that publishing a private citizen’s photo in the newspaper causes “mental pain and distress, far greater than could be inflicted by mere bodily injury.”

If we agreed today, of course, we probably wouldn’t have posted 3.5 billion photographs of ourselves and our friends on Flickr.

Anachronistic as it seems, the spirit of Brandeis’s article is still the spirit of the privacy movement. The right to privacy was born as a reactionary defense of the status quo, and so it remains. Then, as now, new technology suddenly made it possible to spread information more cheaply and more easily. This was new, and uncomfortable. But apart from a howl of pain—pain “far greater than . . . mere bodily injury”—Brandeis doesn’t tell us why it’s so bad.

I guess you had to be there.

...

Emergency Powers to Respond to a Computer Attack?

When Senators Lieberman, Collins, and Carper proposed legislation last week to deal with the risk of a large-scale attack on our computer infrastructure, the libertarian-privacy attack was not long in coming. 

Declan McCullagh, a committed libertarian journalist for Cnet, posted a long story full of angst about the bill. It would, he said, ""grant the president far-reaching emergency powers to seize control of or even shut down portions of the Internet." 

He claimed that, under the bill, "companies such as broadband providers, search engines, or software firms that the government selects 'shall immediately comply with any emergency measure or action developed' by the Department of Homeland Security. Anyone failing to comply would be fined." Only warrantless wiretapping is excluded as an emergency power. 

"Because there are few limits on the president's emergency power, which can be renewed indefinitely," McCullagh predicted (and pretty obviously hoped) that "the bill is likely to encounter stiff opposition." He cited concerns expressed by TechAmerica, the Center for Democracy and Technology, and the Cato Institute. 

On one technical but important point, Declan may have misread the bill.  He seems to think (judging from a post of his on Dave Farber's list) that the bill would impose obligations on any company for which the telephone system or Internet is "essential." I assume that's why he says that search engines are covered by the bill.  I doubt that they are, because the bill in fact applies to a relatively limited set of critical facilities -- and to the information infrastructure on which those facilities depend. 

So, if operators of our power grid are dumb enough to run their systems by relying on the Internet and Windows XP, then the bill's authority to order emergency measures would apply to the providers of electric power, to their ISPs, and to Microsoft.  Otherwise the ISPs and Microsoft are in the clear.  As for the rest of us, including our search engines, we're in the clear from the start. 

The broader issue is whether Declan is right to hate the bill.  Certainly the privacy-industrial complex is gearing up for a scare campaign.  

But I think it's fair to ask the privacy campaigners two questions before joining them in chanting "Internet kill switch." 

First, do they believe that foreign governments can't attack networks that are essential to our lives? Frankly, I don't think there's anyone with an ounce of technical savvy who thinks such an attack is impossible, or even improbable.  I laid out the case for that risk in chapter 9 of Skating on Stilts:

If you’re a foreign government, breaking into U.S. networks is a twofer. You can start by stealing secrets. But if push comes to shove, you can use your access to destroy the same systems you’ve been exploiting. Corrupt the backup files, then bring the whole system down. Or start randomly changing data and emails until no one can trust anything in the system. It wouldn’t take much to create chaos. The financial crisis of 2008 became a panic when bankers began to disbelieve each other. No one trusted the other guy’s books, so they stopped lending, and theworld crashed. Could that same mistrust be created by modifying or destroying a few firms’ computer accounting and trading records? We probably don’t want to find out. 

It’s no secret how to fight a war against the United States. Slow us down, then cause us pain at home and wait for antiwar sentiment to grow. Cyberattacks are ideal for that strategy. Everything in the country, from flight plans and phone calls to pipelines and traffic lights, is controlled by networks susceptible to attack. A determined, state-sponsored attacker could bring them all down—and blame it on some hacker liberation front so we wouldn’t even know whom to bomb.

(I have posted all of chapter 9 in an easily accessible archive " for www.skatingonstilts.com. The excerpt is licensed for free copying and distribution.)

So if the answer to my first question is yes, an attack is possible, my second question is "Who do you think will need to take action in response to the attack?"  Cato Institute?  TechAmerica? CDT?

Fat chance. 

As the BP oil spill shows, companies are quite capable of setting the stage for catastrophes well beyond their ability to remedy.  We properly expect the government to regulate companies to address risks that can't be internalized by the companies taking the risks.  And when disaster strikes despite those efforts, we expect the President to have the authority to respond. 

If another country launches a computer network attack on US infrastructure, do we want the President to look as helpless as he looks today in response to the BP spill?  Remember, he won't be looking  helplessly at a few tarballs on the beach; in a worst-case emergency, he might be looking helplessly at a country that lacks power, working phones, and maybe even a reliable financial system. 

If that happens, Declan McCullagh, the Cato Institute, and TechAmerica won't even be returning your phone calls.

Releasing Skating on Stilts under Creative Commons License

Hoover has agreed to release Skating on Stilts under a Creative Commons Attribution-NoDerivs License 3.0.  

This means you can copy it as many times as you like, send it to your friend, and post it on line.  But there are a few limitations:  You must give me credit as the original author, and you may not alter, transform, or build upon this work without permission.  

Finally, for any reuse or distribution, you must make clear to others the license terms of this work.  Since the terms are reproduced at the end of each chapter, and my name is on the cover, you are safe if you copy each chapter as you find it.  

(The sticklers among you may notice that the copyright notice says that the publisher "publisher has made an online version of this work available" under a CC license.  The publisher assures me that the version I'm posting here is the online version, so you don't need to go looking for a version that says "this is the CC version."  You've already found it.)

I've put the first few chapters up already.  Just click on the link to the right that says "Download free chapters here."  I'll post another chapter tomorrow, along with a blog post.

Going Wobbly on Russia's Cybersecurity Disarmament Proposal?

The Wall Street Journal reported on Friday that the Obama Administration was ready to engage in talks with Russia about on cyberspace disarmament. I finally had a chance to read the remarks, by the new head of Cyber Command, Gen. Keith Alexander, also the head of the National Security Agency. (In a revealing typo, the House Appropriations committee once described this status as being "dual-hated.") The actual Q&A leading to the story was pretty tepid:

Q: Good morning. ...The question I have is regarding Russia’s proposal, with significant support in the U.N. General Assembly, for a cyberwarfare arms limitation treaty. And the question is whether you think something like that is possible. The other part of their proposal is to create, basically, sovereignty on the Net. And how would that – do you think that can work? And how would that impact your functions? GEN. ALEXANDER: ...I do think that we have to establish the rules and I think what Russia’s put forward is, perhaps, the starting point for international debate – not at my level, but at levels above me. And I think when they put that on the table, I think the secretary of defense, the secretary of state, the administration would take those, carefully consider those and say: Now, what’s the counterproposal from the United States, from China, from Russia, from Europe, from the Middle East? How do we put that on the table? And I think we do have to establish that in the lanes of the road. With respect to sovereignty, that’s much more complicated. And the reason is, well, look at our businesses as an example. They are multinational in nature. And as a consequence, working with business and industry – industry and business working with government – we have opened up a set of vectors that don’t easily drop to geographic nation-state boundaries. So I think the first may be the way to helping the second, the first part of your question. And I do think it’s something that we should and probably will carefully consider. You know, I think those are the kinds of things that need to be put on the table, talked through and start out as a – call it version 1.0.

Now, that's an extemporaneous answer, not a proposal for talks.  But it does mark a shift.  Up to now, the Pentagon has been clear -- and correct -- in saying that a cybersecurity treaty is equivalent to unilateral disarmament.  

I explain why in my book.  The rise of JAG authority over every detail of warfighting means that the Pentagon would be exquisitely sensitive to arguable violations of international law in carrying out operations in cyberspace.  Our guys would sit with their fingers poised over the "return" button for hours while the JAGs were trying to figure out whether the Belarussian remarks in committee were a consensus or an individual interpretation of article 42bis.  And nobody else would give a damn what the treaty said, because they wouldn't expect to get caught and because even implausible deniability can't be rebutted with the certainty needed to make a legal case, let alone send missiles in response. 

Gen. Alexander isn't endorsing the Russian proposal, or even talks about the Russian proposal.  But the WSJ was right to read between the lines.  For months now, there's been a bit of a thaw on the question of international engagement over cybersecurity.  The State Department has been staffing up a cyber negotiations office.  And it's almost certainly been pushing for international cyber security talks, because, well, because pushing for international talks is what State does.  So Gen. Alexander's remarks are a sign that State is winning the internal fight over whether to talk at all with other nations about these issues. 

My guess is that State is winning because the President is convinced of the goodness of nuclear talks, and it's an easy step from there to believing in the goodness of talks about cyberwar.  If so, he's making a big mistake.  Computer attacks are nothing like nuclear war, except for the part where they cripple the country.  They're untraceable, the technology has already proliferated to the point where we have to worry about the capabilities of at least fifty countries, and we're the principal target for roughly forty-five of those countries, so we'll be outvoted 45 to 1, with four abstentions, on everything that matters.  After all, why should any of them agree to give up the network espionage and attack capabilities that are their most cost-effective deterrent against the US?  Multilateral talks -- or even bilateral talks with the nations we fear most -- aren't likely to do us much good if they start from a disarmament model. 

That's not to say that international talks are completely lacking in value.  If pressed for what kind of talks might actually do some good, I'd say that getting countries to accept responsibility for effective policing of networks inside their national boundaries would be a good first step.  We need to be able to tell other nations that, if they can't attribute and stop an attack coming from their territory, we're going to assume that they're sponsoring it. 

 Of course, before we can do that, we have to be able to attribute and stop attacks coming from our territory.  That's not easy.  But if we don't find a way to take that minimal step, the tools being used today by nation states will be used next year by criminal gangs; and sooner or later crooks will take down a big bank's record-keeping system  just to see how much we'll pay to bring it back up. T

he best negotiation is one where your main concession is to do something you should do anyway, and controlling cybercrime at home is definitely something we should do.  Remarkably, that might turn out to be a concession that other nations would value, too.  Being as how we're the biggest source of certain kinds of network attacks. 

So if we can get the Russians off their lame attempt to replay the disastrously unverifiable scam that the Biological Weapons Convention turned into, maybe there is something to talk about.

Skating on Stilts in the Mail

I've actually held the hardcover edition of Skating on Stilts in my hand.  Several boxes of the book arrived last week; so it should be available in stores soon.

Smallpox in the garage

My new book, Skating on Stilts, is mostly a meditation on how the technologies we love eventually find new ways to kill us, and how to stop them from doing that. I talk about three technologies -- jet flight, computers, and biotech. Anticipating the release of the book next week, Huffington Post is hosting an excerpt from the biotech chapter on its site this week.

A Venn diagram of blogger ideology would show only the tiniest sliver of common readership between this blog and HuffPo -- probably Hollywood conservatives. So clicking on the link is a testament to your broadminded liberality, and it will confuse the heck out of the link diagram engines.

Actually, there's a serious point buried there. Worries about the future are inevitably colored by ideology. Libertarians are more likely worry about the ways new technology will empower the state. Huffington Post readers probably worry more about the ways new technology will permit business misconduct. People like me worry about the ways new technology will empower terrorists.

But biotech is so protean and powerful that it's likely to empower all three kinds of misuse. So unease about biotech brings everyone together. It's the Richard Nixon of future technologies!