Jack Goldsmith brookings edu

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I N T R O D U C T I O N, M any corporations have intrusion prevention systems on their computers. connections to the Internet These systems scan the contents and. metadata of incoming communications for malicious code that might. facilitate a cyber attack and take steps to thwart it The United States government. will have a similar system in place soon But public and private intrusion. prevention systems are uncoordinated and most firms and individual users lack. such systems This is one reason why the national communications network is. swarming with known malicious cyber agents that raise the likelihood of an attack. on a critical infrastructure system that could cripple our economic or military. To meet this threat imagine that sometime in the near future the government. mandates the use of a government coordinated intrusion prevention system. throughout the domestic network to monitor all communications including. private ones Imagine more concretely that this system requires the National. Jack Goldsmith is Henry Security Agency to work with private firms in the domestic communication. L Shattuck Professor at network to collect copy share and analyze the content and metadata of all. the Harvard Law School,Nonresident Senior, communications for indicators of possible computer attacks and to take real time. Fellow in Governance steps to prevent such attacks. Studies Brookings This scenario I argue in this essay is one end point of government programs. Institution Member, Hoover Institution Task that are already up and running It is where the nation might be headed though. Force on Law and perhaps not before we first suffer a catastrophic cyber attack that will spur the. National Security government to take these steps Such a program would be controversial It would. require congressional approval and in particular would require mechanisms that. credibly establish that the NSA is not using extraordinary access to the private. network for pernicious ends But with plausible assumptions even such an. aggressive program could be deemed consistent with the U S Constitution. including the Fourth Amendment,The Threat, Our economy our energy supply our means of transportation and our military. defenses are dependent on vast interconnected computer and telecommunications. networks that are poorly defended and inherently vulnerable to theft disruption. or destruction by foreign states criminal organizations individual hackers and. potentially terrorists The number of public and private cyber attackers spies. and thieves is growing rapidly Their weapons are hidden inside the billions of. electronic communications that traverse the world each day And these weapons. are becoming more potent relative to our defenses in an arena where offense. already naturally dominates 1, 1See RICHARD CLARKE AND ROBERT KNAKE CYBERWAR THE NEXT THREAT TO NATIONAL SECURITY AND WHAT TO.
DO ABOUT IT 2010 FRANK KRAMER ET AL EDS CYBERPOWER AND NATIONAL SECURITY 2009. The Cyberthreat Government Network Operations and the Fourth Amendment. With the current state of technology computer system defenders cannot easily. determine when the systems are being attacked at least until the attack is. underway or complete and sometimes not even then When defenders discover. the attack the attacker s identity usually cannot quickly or precisely be. ascertained Even when the computer or geographical source of the attacks is. identified it is hard to know whether some other computer in some other place. launched the attack Even if we have certain knowledge about which computer in. which place was the ultimate source of the attack we usually do not know. whether the agent behind the attack is a private party or a state actor And even if. we know the actor s geographical location and precise identity he is usually. located beyond our borders where our law enforcement capacities are weak and. where we cannot use our military power except in the most extreme. circumstances And even if we could use military force it might not be effective in. thwarting the attack in any event, And so the mature Internet by eliminating the geographical and physical. barriers that used to protect vital American assets has empowered untold. thousands of new actors to steal or destroy these assets and at the same time has. made it difficult for the United States to find and punish and thus deter these. actors The result is that the U S government currently lacks the tools to stop the. growing attacks on and theft of its vital economic and military assets And the. government is worried President Obama thinks that the cyber threat is one of. the most serious economic and national security challenges we face as a nation. He declared in May 2009 that our digital infrastructure the networks and. computers we depend on every day will be treated as a strategic national asset. and the protection of this infrastructure will be a national security priority 2. This most serious of national security threats presents a dilemma unique in. American history The U S government has access to and potential control over. the channels of attack on the homeland from air sea land and space But it does. not have legal access to or potential control over the channels of cyber attack on. the homeland the physical cables microwave and satellite signals computer. exchange points and the like The private sector owns and controls these. communication channels This is a dangerous state of affairs because these private. firms focus on profits not national security and thus tend to invest in levels of. safety that satisfy their private purposes and not the national interest in. cybersecurity To make matters worse between 90 and 95 percent of U S. government military and intelligence communications travel over these privately. owned systems systems through which military and intelligence systems can. themselves be attacked or exploited, We have grown accustomed to thinking about computer and. telecommunication systems as private communication infrastructure and about. 2President Barack Obama Remarks by the President on Securing on Securing Our Nation s Cyber Infrastructure. May 29 2009 transcript available at http www whitehouse gov the press office Remarks by the President on. Securing Our Nations Cyber Infrastructure hereinafter National Archives Speech. The Cyberthreat Government Network Operations and the Fourth Amendment. data storage media as presumptively immune from government scrutiny. vigorously protected by both the Fourth Amendment and an array of complex and. demanding statutory restrictions But in the coming decades and probably much. sooner this understanding will change perhaps radically because these systems. are also channels of attack on our nation s most valuable military intelligence and. economic assets Only the government has the incentive and the responsibility to. maintain network security at levels appropriate for national security And only. with the government s heavy involvement will the United States have the. resources and capacity to make the network secure, The government will need to take many politically difficult and legally. controversial steps to address the cybersecurity problem One such step and the. focus of this essay involves the active monitoring of the private communications. network When someone enters the United States physically at the border by air. sea or land or when someone physically enters a government building or a sports. stadium the government has the authority to inspect the visitor to ensure that he. or she does not present a threat and to take steps sometimes proactive ones to. ensure that a threatening visitor does not do harm The government asserts similar. authorities at airport screening stations and highway safety checkpoints It also. asserts has the power to intercept air sea and land attacks on U S critical. infrastructure components the Twin Towers or a nuclear power plant or the. banking system The cyberthreat is no less serious than these kinetic threats and. indeed may be more serious in our wired society Citizens will demand that the. government keep these systems secure and will punish the government if the. systems are successfully attacked or exploited in ways that do serious harm The. government knows this and it will act, We know a bit about what the government is doing in this respect already and. what we know permits reasonable inferences about what it might try to do in the. future as the cyberthreat grows and becomes more public. The Government in the Network What Is Happening Now. Begin with the government s little known sensor and software system EINSTEIN. 2 This system is installed in Internet connection points between government. computer systems and the public Internet It scans a copy of all Internet traffic to. and from government computers including traffic from private parties It then. examines both the content and metadata of these copied communications for. known signatures of malicious computer code viruses spyware Trojan horses. exploitation agents and phishing exploits that seek usernames passwords and. social security numbers that might be used to gain access to or harm a. government computer system When EINSTEIN 2 identifies a communication. with a malicious signature it automatically acquires and stores the entire message. including for example the content of emails It also deletes copied messages that. do not contain a malicious signature The identified and stored messages are then. reviewed by government officials charged with computer network defense All of. The Cyberthreat Government Network Operations and the Fourth Amendment. this takes place without a warrant from a court or any other review by any party. outside the Executive branch 3, The government is planning to supplement EINSTEIN 2 an intrusion detection.
system with EINSTEIN 3 an intrusion prevention system A summary of the. Comprehensive National Cybersecurity Initiative CNCI states that EINSTEIN 3. will have the ability to automatically detect and respond appropriately to cyber. threats before harm is done providing an intrusion prevention system supporting. dynamic defense 4 Former Homeland Security Secretary Michael Chertoff said. that if EINSTEIN 2 is the cop who is on the side of a road with a radar gun who. can say if someone is drunk or speeding and they can phone ahead and warn that. that person is coming then EINSTEIN 3 is the cop who make s the arrest and. stop s the attack 5, EINSTEIN 3 will reportedly use active sensors to detect malicious attack. agents and take real time steps most of which will be computer automated to. prevent the attack from reaching the government system In Chertoff s words it. would literally like an anti aircraft weapon shoot down an attack before it hits its. target 6 Many people believe EINSTEIN 3 will involve operations by the. government or by private backbone providers and Internet service providers. ISPs acting at the behest of the government in private telecommunication. channels or on copies of such communications before the malicious. communication reaches or adversely affects government computers 7. The National Security Agency NSA plays an important role in the. EINSTEIN projects NSA is America s signals intelligence and government. information assurance agency It is technically a component of the Department of. Defense DoD and it is typically headed by a lieutenant general or vice admiral. While the NSA s collection capabilities are mostly directed outside the United. 3 This description of EINSTEIN 2 0 is drawn from Mem Op from Steven G Bradbury Principal Deputy Assistant. Att y Gen to the Counsel to the President Jan 9 2009 2009 WL 3029765. 4 The Comprehensive National Cybersecurity Initiative http www whitehouse gov cybersecurity comprehensive. national cybersecurity initiative, 5 Brynn Koeppen Former DHS Sec y Michael Chertoff says NSA s Einstein 3 is Where We Have to Go in Cyber. Security Calls for International Cyber Security Cooperation EXECUTIVEBIZ Aug 7 2009. http blog executivebiz com former dhs secretary michael chertoff says nsa s einstein 3 is where we have to. go in cyber security calls for international cyber security cooperation 3882. 6 Homeland Security Seeks Cyber Counterattack System CNN COM Oct 4 2008. http www cnn com 2008 TECH 10 04 chertoff cyber security. 7 For accounts of EINSTEIN 3 see generally Behind Project 12 NEWSWEEK Mar 7 2008 available at. http www newsweek com id 119902 page 1 Ellen Nakashima Cybersecurity Plan to Involve NSA Telecoms DHS. Officials Debating The Privacy Implications WASH POST July 3 2009 available at. http www washingtonpost com wp dyn content article 2009 07 02 AR2009070202771 html wprss rss nation. Koeppen supra note 5 Siobhan Gorman Troubles Plague Cyberspy Defense WALL ST J July 3 2009 at A1 available. at http online wsj com article SB124657680388089139 html Chris Strohm Official Says Einstein Security System. Won t Read E mails NEXTGOV Oct 15 2009, http www nextgov com nextgov ng 20091015 6734 php oref rss zone itsecurity Cybersecurity Preventing. Terrorist Attacks and Protecting Privacy in Cyberspace Hearing Before the Subcomm on Terrorism and Homeland Security. of the S Comm on the Judiciary 111th Cong 2009 statement of Philip Reitinger Deputy Under Sec y Nat l. Protection and Program Directorate U S Dept of Homeland Security available at. http kyl senate gov legis center subdocs Reitinger pdf. go in cyber security calls for international cyber security cooperation 3882 The Cyberthreat Government Network Operations and the Fourth Amendment network

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