When it comes to cybersecurity law, where do we draw the line on information sharing?

When it comes to cybersecurity law, where do we draw the line on information sharing?

Summary: Information sharing in law enforcement and national security is essential, but in a democracy, so is privacy. The challenge is how we balance those two factors.

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Over the past few years, the Obama administration and Congress have taken a variety of legislative runs at creating comprehensive cybersecurity law.

See Also: How cybersecurity is like Star Trek's transporter

In some of the cases (like SOPA), the legislation was killed because of public outcry over its overwhelming intrusiveness and stupidity. In other cases, legislation didn't make it because them damn-fool politicians tried to weigh down the proposed laws with unrelated riders, making the bills all but unpassable.

Now, we're hearing that President Obama may issue an Executive Order covering some of the elements that were in CISPA, the most recent bill before Congress.

One area the EO can't cover, though, is information sharing. Information sharing in law enforcement and national security is essential, but in a democracy, so is privacy. The challenge is how we balance those two factors.

For example, it's important that the government have the power to compel a private organization to turn over digital records in the event of a legitimate threat (say, for example, trying to trace down a nuke hidden in one of our cities). But it's also important that the government not have the power to just willy-nilly read our email.

Likewise, it's important that a company, say Twitter, Google, or Facebook, have the legal permission to turn over some of our records in the case of a similar national security threat, but not be permitted to just sell our personal information just so they have some sort of profit model.

Fortunately, a lot of existing case law covers this, and it's probably not necessary to add a layer of cybersecurity law on top of it all.

For example, let's say the FBI is running down a credible threat and they have reason to believe that someone's Facebook account will have messages that may provide clues to the nuke's location. That's simple. Visit a judge, get a court order, and investigate. It's no different than getting a search warrant in meat space.

The issues of privacy we're dealing with aren't hard (unless you get politicians involved). They're essentially a variant of IF/THEN coding.

  • IF there's a real threat, THEN this might be necessary, so let's go see a judge.
  • IF we just want to pry into someone's life, THEN when we see the judge, we'll get kicked out.
  • IF there's a reasonable threat, THEN we allow a company to turn over data to the government.
  • IF (there's a threat deemed valid by a judge AND we can save lives by allowing two companies to share data), THEN the law can protect the liability of those two companies.

Do you see how we can codify (i.e., code) these situations into a series of relatively clear rules?

The bottom line is this: we do need better cybersecurity guidelines and laws, but we also need to reuse the code we've already got -- laws and regulations that already do what we need.

Topics: Security, Government, Government US, Privacy

About

David Gewirtz, Distinguished Lecturer at CBS Interactive, is an author, U.S. policy advisor, and computer scientist. He is featured in the History Channel special The President's Book of Secrets and is a member of the National Press Club.

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24 comments
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  • Lawlessness

    Has President Obama, the self proclaimed constitutional scholar, heard of the separation of powers. The Executive Branch does not have the authority to legislate and I for one would appreciate him leading by example and showing respect for the law!
    I do not believe there is a single freedom in the Bill of Rights this President believes we the people should enjoy!
    As for unrelated riders, consider joining Downsize DC’s ‘One Subject at a Time’ campaign:
    https://secure.downsizedc.org/etp/one-subject/
    Repeal
  • "Cybersecurity" and information sharing

    Congratulations -- you've put your finger on the REAL issue here, which is, "the authorities want the ability to do pervasive, ad hoc spying, with no effective constraints whatsoever, even if their motive for doing so is simply to harass and spy upon 'enemies of the state', defined as, 'anyone who the authorities have taken a dislike to, for reasons good, bad or indifferent'".

    I wonder if you've checked up with (say) Julian Assange about this? I'm sure he could fill you in on what it's like to show up on the radar screen (err... more aptly, "in the evil eye of"), "God's Chosen Country" (look, don't blame ME for saying that... I'm just repeating what Mitt, Paul, Rush, Glenn, Newt, Michelle and Sarah, endlessly proclaim about "how the rest of the world needs to say 'how high', when America says, 'jump').

    Oh, and one other little tid-bit.

    Have you, maybe, perhaps, just, uhh... heard of that lil' ol' thing called the "USA PATRIOT Act"?

    Right.

    Can we say, "closing the barn door, after the horse has run free"?
    AngerNotManaged
  • Agreed "let's go see a judge"

    I believe this is an issue that everyone, including the president, is making a lot harder than it needs to be. My information is my information and it doesn't magically become something different because I type it on a computer and save it over network as opposed to getting out the old typewriter and putting it on paper. If the police could not enter my home and search the contents of my file cabinet and paper files, then why in the world should they be able to do the electronic equivalent?

    In the end I guess it just comes down to the question: What kind of country do we want to live in? Are we so fearful that we are willing to give up our basic protections against arbitrary searches? Personally I am not.
    cornpie
  • Problem solved

    The Fourth Amendment gives us the answer:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Judicial oversight through search warrants provides the balance that's missing today.
    akaltman@...
    • Judicial oversight also...

      ...gives us a chance to see who really supports the Fourth Amendment and who doesn't, as it's guaranteed the latter will complain loudly about "activist judges" and claim that the Bill of Rights only applies to people of whom they approve.
      John L. Ries
      • Judicial excess also...

        from far too many judges. Want to block popular sentiment? Find a judge, and issue a stay or some other legal block. Then let it flutter in the wind, or kick it through the court maze, ad infinitum.

        FINI

        The Feds have more ways to rein in and effectively fence the people than I have fingers (and patience) to spell out. It all amounts to a giant criminal scam from our sovereign shepherds, and yet it's deemed "legal" if not "kosher" into the bargain -- like so many other dual edged swords. Justice for all, go figure.
        klumper
        • Agreed

          But we also get a lot of venom about judges who appear to be calling it the way they see it.
          John L. Ries
  • We all "belong to the government"...

    and that type of ideological thought process is what drives many politicians here at home, and dictators around the world.

    To Obama, the constitution is a "living" document, which needs to be changed to the point where it ceases to resemble the original document. Obama and the democrats have indicated that, the constitution needs to be undone, so that, government will have free will to do as it pleases. That's why we have people like Obama and others continuously trying to set up barriers between our freedoms and the type of government which they envision.

    What we are seeing is just a minor part of the bigger goal, and that is to create a government with powers that take away all of our freedoms. Big government and the constitution cannot coexist.
    adornoe
    • What do you want the U.S. Constitution to look like?

      If the U.S. Constitution were frozen from its inception (1787-88), there would be no Amendments:

      o No Bill of Rights
      o African-American males would not have the right to vote
      o Women would not have the right to vote
      o Native Americans would not have the right to vote

      Just to list a few.

      What kind of country do you want the U.S. to be? Thomas Jefferson, who drafted the Declaration of Independence, believed that the Constitution should be ripped up every 20 to 30 years and replaced with something appropriate for the time. How's that for a "living" document?
      Rabid Howler Monkey
      • The last three would probably have happened

        ...but it would have been more slowly on a state-by-state basis. There was nothing in the Constitution prohibiting the states from enfranchising people other than white males, just not anything mandating it (but I would have supported all three amendments).

        Likewise, most states abolished slavery (or never legalized it) decades before the Civil War without any sort of federal mandate.
        John L. Ries
        • Correction

          Native Americans were granted U.S. citizenship by act of Congress.
          John L. Ries
      • Constitutional Paradox

        The comments from adornoe, versus your own here, simply shows how the dynamic make up of the constitution (i.e. as a "living" document) cuts both ways. Its ingenuity is also its inherent weakness. Its pulse is fleeting and subject to change, revision and reinterpretation. Good today, but possibly excised tomorrow.

        How different all that is from, say, the Ten Commandments, which, if memory serves me right, were cast in stone. Hmmm.

        Maybe Jefferson was onto something.
        klumper
      • I have no problem with the amendments, and it's the liberals who want to do

        away with even the amendments procedures.

        Amending the constitution should never be a problem, as long as the underlying principles of the constitution remain in place.

        Constitutional conventions are a process of the people and the states, and not a process in which the congress or the president have major authority.

        The people, via the states, are the ones that decide what the constitution should be and contain, thus, the amendments and the process, are constitutional in themselves.

        The liberals would like to do away with the whole constitution and the constitutional process. That is the difference between liberals and conservatives, where conservatives do believe in the original constitution, and the amendments and civil rights, which were all, again, a process which involved the people and states.
        adornoe
        • Oh, by the way, I agree with Jefferson, in that, we should hold

          constitutional conventions every 20 or 30 years.

          I believe that, were that to happen, a lot of the nonsense we see coming from government, would get codified away by constitutional changes.
          adornoe
          • As an example, we need a balanced budget amendment,

            and that would eliminate deficit spending, which has been hurting the country for a long time.
            adornoe
          • If there were enough votes to pass a balanced budget amendment...

            ...there would likely be enough fiscal discipline in Congress to make it unnecessary.
            John L. Ries
          • Forgot to mention

            The nice thing about proposed amendments to the U.S. Constitution from the political operative's point of view is that the the only way they can pass is if they are supported by large numbers of members of *both* major parties. Ergo, if you can make a constitutional amendment a partisan issue, it's guaranteed not to pass, but you can use it to energize your party's base election cycle after election cycle after election cycle.

            Thus, the prospect of enough Democrats actually supporting such a proposal to give it a realistic chance of being adopted would, no doubt, fill Republican operatives with horror. The only thing I can think of that would be worse would be the Republican candidate for President carrying the District of Columbia.
            John L. Ries
          • YOu're not paying attention to the larger issue, as involves a

            constitutional amendment.

            No issue would even be brought up for consideration if it involves a benefit to just one segment of the population, whether that segment is small or large.

            As an example, the issue of balanced budgets is one that affects everyone in the country, thus, it's something that should be considered for an amendment, since, it's quite likely that, nobody would be against balancing the budget.

            On the other hand, no amendment should ever be considered if it involves special rights for one very specific group of people, like a separate set of rights for gays or Muslims or Catholics or left-handed people.

            Most people will be looking for things that are common-sense, and that benefit the whole country. Partisan issues for specific groups, like unions, won't ever be turned into amendments to the constitution.
            adornoe
          • Not true, since there are many instances where congresspeople don't follow

            what the people want, and that applies to their own districts as well.

            As an example, the majority of people in the U.S. were against Obamacare, and yet, congress passed it, against the will and wishes of the people. The people were not represented the way they wanted to.
            adornoe
        • Liberals?

          I am always amazed at how miopic some people can be!
          The most aggrevious assault on our constitutional rights in recent history is in the "Patriot Act". Look at just who wrote and pushed it through. It affectively canceled the writ of habeas corpus, something that is specifically guatranteed in the constitution. Yet somehow in the W administration they thought it could be revoked by a simple act of congress! I don't believe anyone would call that a liberal administration.

          This right is what differentiates our great country from most others. I have yet to hear of anyone trying to challenge this loss.
          harrim47