Archive for June, 2020

America rethinks its strategy in the Wild West of cyberspace – The Economist

May 28th 2020

WASHINGTON, DC

COVID-19 HAS been a phishermans friend. Millions of professionals are at home and online, adjusting to new routines and anxious about their jobs. That makes them perfect marks: apt to click on an email that purports to be from their boss or a supplier asking for payment. Law-enforcement officials in many countries have reported a rise in cybercrime since the pandemic started.

But according to the FBI and Department of Homeland Security, not all such attacks come from gangs or individuals looking to make a quick buck. On May 13th those agencies warned that cyber-actors affiliated with China were trying to steal covid-related data and intellectual property. China is not the only worry. Russian hackers may probe for weaknesses in American electoral systems; Iranians have targeted an American drugmaker; North Koreans have gone after cryptocurrency stores.

Just as the attacks of September 11th 2001 spurred America to change its counterterrorism strategy, repeated intrusions are doing the same for its cyber-security. Yet it first has to define the problem. Terrorist attacks tend to involve carnage, a political motive and an attribution. Cyber-assaults have a range of motives, including theft (North Koreas raids on banks), digital disruption (Russias NotPetya strikes on Ukrainian and other infrastructure), sabotage (the Stuxnet attacks on Irans nuclear programme, probably by America and Israel) and political warfare (Russias interference in Americas election in 2016). Sometimes states use non-state actors to carry out cyber-attacks, much as some use terrorist proxies. Attackers may target private-sector networks in banks, hospitals or payment systems, which often appeal to the government for protection.

Defence is difficult. Potential targets are many and diffuse. Attackers identities are often obscure. They make use of vulnerabilities often unknown until exploited.

The National Defence Authorisation Act of 2019, which sets the Pentagons budget, set up a commission to rethink cyber-defence. The Cyberspace Solarium Commission, named after Project Solarium, Dwight Eisenhowers effort in 1953 to create a durable cold-war strategy, and headed by Angus King, an independent senator from Maine, and Mike Gallagher, a Republican congressman from Wisconsin, had the misfortune to release its recommendations on March 11th, just before America went into lockdown. The commission made its first public presentation to lawmakers via video conference on May 13th.

Americas cyber-defence, it argues, is hobbled by jurisdictional boundaries. Intruders are nimble; Americas defence is ponderous. Responsibilities are scattered among the FBI, the National Security Agency (NSA, Americas signals-intelligence agency), the Pentagons Cyber Command, the Department for Homeland Security, the Cyber-security and Infrastructure Security Agency (CISA), and others.

The commission recommends creating a national cyber-director within the White House, a co-ordinating role much like that of director of national intelligence, which emerged from the 9/11 Commissions report. It also recommends permanent congressional cyber-security committees and a beefed-up CISA. Yet the White House is cool on a new Senate-confirmed cyber-security post, and creating new congressional committees would mean convincing current ones to surrender jurisdiction.

More important than government structure, however, is working closely with the private sector. The commission recommends declaring some private servers, such as those for the energy, financial and telecoms industries, critical infrastructure. They would receive enhanced government monitoring in exchange for meeting more stringent security standards.

It also recommends building a platform, managed by CISA with help from other agencies including the NSA, where government bodies and private firms can share information about threats. The NSAs British counterpart, GCHQ, has a similar system. Some companies may be reluctant to let an agency that has engaged in widespread, warrantless surveillance monitor their security, but Mr King believes the proposal will have support from industry.

If one way to halt cyber-attacks is to parry the blows, another is to punch back. After Russian electoral intervention in 2016, American officials grew convinced that their country was seen as a soft touch because it had not done so hard enough. They dont fear us, lamented General Paul Nakasone, head of both the NSA and Cyber Command, in early 2018. The commission accordingly urges American hackers to strike back with speed and agility.

In practice, though, Americas approach has already shifted from punishment to pre-emptionnot so much striking back as striking first. In April 2018 Cyber Command and the NSA announced a strategy built around persistent engagement and defend forward. The first of these reflects the belief that competition in cyberspace is not a series of set-piece battles, but a constant digital mle. The second embodies the principle that to prevent an attack, you should go to its source. Just as our naval forces do not defend by staying in port, says General Nakasone, our forces must operate against our enemies on their virtual territory as well. In August 2018 President Donald Trump rescinded Obama-era guidance and made it easier for Cyber Command to operate beyond Pentagon networks without presidential authorisation.

The more aggressive posture was road-tested during Americas mid-term elections. Cyber Command attacked servers belonging to Russias Internet Research Agency, the company that sowed social-media discord in 2016, and sent text and email messages to Russian operatives warning them that America was tracking themthe digital equivalent of a horses head in the bed. Were now opening the aperture, broadening the areas were prepared to act in, noted John Bolton, then national security adviser, last summer.

Yet taking the fight to rivals presents challenges. The internet has no clean front lines. Attacks from enemy-held cyberspace can be routed through the networks of allies, says Max Smeets of the Centre for Security Studies in Zurich. In 2016 Cyber Command irritated Germany by wiping Islamic State propaganda on German servers without asking for permission. Mr Smeets says adversaries might route attacks via particular countries in the hope of driving wedges between America and its friends.

Another problem is that if one defends far enough forward, it can look an awful lot like attacking. America is said to have secreted malicious code deep into Russian and Iranian infrastructure networks. The practice is akin to burying arms caches behind enemy lines for use in wartime: it makes it easier to strike back if Russia, which has probed Americas own power grids, crosses a line. But the same access can be used for unprovoked attack.

An alternative is to punch back by other means. America and several like-minded allies have grown bolder in publicly attributing major cyber-attacks to China, Russia, Iran and North Korea. In 2014 the Obama administration indicted five members of Chinas armed forces for hacking into American companies. The Trump administration has brought similar charges against Iranian, Russian and North Korean hackers, including a dozen officers of the GRU, Russias military-intelligence agency, who intervened in the 2016 election. Though few American officials expect that foreign hackers will turn up in the dock, legal tools are still seen as useful for several reasons.

One is shame. Most countries do not like getting caught in the act. Second, Russian intelligence officers would rather avoid a sanctions listing that would cut off shopping trips to Paris and boarding schools in Britain. Third, the forensic evidence laid out within these indictmentseven down to Google searches conducted by individual GRU officersis a powerful way for America to hint at its reach.

Exposure also helps establish norms, defining what is considered beyond the pale in cyberspace. America and its allies argue that the existing laws of war, including ideas such as proportionality and distinctions between combatants and civilians, apply in the digital world (how this squares with suspected American attacks like Stuxnet is less clear). Russia, China, Cuba and others fear that this line of thinking might legitimise American retaliation.

Double standards abound. America indicted Russian officers for hacking the Organisation for the Prohibition of Chemical Weapons, but the NSA has itself run riot in international institutions. And practical deals have not survived contact with reality. An agreement in 2015 between Barack Obama and Xi Jinping, Chinas president, to ban commercial espionage is widely deemed to have fallen apart.

These divisions play out at the United Nations, where one group of experts, favoured by America and its allies, works parallel to a larger, Russian-dominated group. What weve really seen is a kind of a fracturing of the process, says Adam Segal of the Council on Foreign Relations. There are some interesting ideas percolating through, but they will never be formalised or centralised in any important way. So cyberspace remains a Wild West.

This article appeared in the United States section of the print edition under the headline "Policing the Wild West"

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America rethinks its strategy in the Wild West of cyberspace - The Economist

The Fourth Amendment to the Constitution of the United States of America – The Suburban Times

Submitted by William Elder.

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.

Boy, is it tough to lay down laws about communications in the early Nineteenth for application in the Twenty-First Century. Search and seizure or the probable cause amendment, to which the Fourth Amendment is often shortened, like so much of American jurisprudence, has its roots in English Common Law long before electronic devices. Common because prior judicial decisions as opposed to specific statute rulings are recognized as general guides for current decisions across all English courts making of them precedents. As an English colony, America was brought into that system and it was made a foundation for American jurisprudence by James Madison and Thomas Jefferson in 1789. Because the British had so flagrantly ignored this part of their own English law during the Revolutionary Period, the Fourth Amendment was cemented into our Bill of Rights in 1791, almost as a matter of course.

This Amendment also bans evidentiary fishing searches and seizures by authorities of citizens and their property, requiring instead a specific warrant, upon demonstrated probable cause, and stating just what the search is looking for and where it is likely to be found. In 1914, the U.S. Supreme Court unanimously ruled in Weeks v. United States that any evidence obtained by federal law enforcement officers in violation of the Fourth Amendment could not be used in federal criminal proceedings.

Mapp vs Ohio, in 1961, extended the Supreme Courts ruling that the exclusion of such evidence obtained by such methods applies also in state courts. A judicial fistfight ensued. The Fourth and Fourteenth Amendments were invoked. Justice Clark reasoned the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments is not only the logical dictate of prior cases, but it also makes very good sense. There is no war between the Constitution and common sense. He reversed the Supreme Court of Ohios judgment against Dolly Mapp (a colorful case involving Ohio anti-pornography laws). Justice John Marshall Harlan II and three others disagreed, arguing the principle of privacy which is at the core of the Fourth Amendment should only apply. Stay tuned.

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The Fourth Amendment to the Constitution of the United States of America - The Suburban Times

Carrying Out Trump’s "When the Looting Starts, the Shooting Starts" Order Would Violate 4th Amendment, Warn Legal Experts – Common Dreams

As members of Congress and advocacy groups on Friday condemned President Donald Trump's "when the looting starts, the shooting starts" threat against Minneapolis protesters as morally repugnant, legal experts also warned that law enforcement officials or military personnel carrying out such an order from the president would be in violation of the Fourth Amendment of the U.S. Constitution.

"Trump doesn't care at all about the Constitution, of course, especially when he's trying to scare voters," tweeted Orin Kerr, a law professor at the University of California, Berkeley. "But actually following a policy of 'when the looting starts, the shooting starts' would violate the Fourth Amendment, for starters."

Kerr pointed to Tennessee v. Garner, a 1985 case in which the Supreme Court ruled that the use of deadly force by law enforcement "to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable."

"Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so," the high court's ruling states.

Trump doesn't care at all about the Constitution, of course, especially when he's trying to scare voters. But actually following a policy of "when the looting starts, the shooting starts" would violate the 4th Amendment, for starters. See Tennessee v. Garner, 471 U.S. 1 (1985). https://t.co/BRWSUn8CaK pic.twitter.com/GA6dAnHwm7

Orin Kerr (@OrinKerr) May 29, 2020

I imagine Trump at his phone trying to decide whether to advocate violating the First Amendment (punishing social media for its speech) or the Fourth Amendment (shooting looters).

But then he chooses both, of course.

Orin Kerr (@OrinKerr) May 29, 2020

In a tweet early Friday morning as nationwide protests against the police killing of George Floyd intensified for the fourth straight day, Trump called Minneapolis demonstrators "thugs" and said he is prepared to send in the U.S. military to occupy the city with a green light to open fire on those who damage property and steal goods.

"Any difficulty and we will assume control but, when the looting starts, the shooting starts," Trump tweeted. "Thank you!"

Twitter posted a content warning over the tweet and said the president's message violated the platform's rules against "glorifying violence."

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As HuffPost's Sara Boboltz pointed out, Trump "did not coin the phrase 'when the looting starts, the shooting starts.' The line is half a century old, and combative Miami Police Chief Walter Headley Jr. originally used it during the height of civil rights protests in the 1960s."

"Headley led the Florida city's law enforcement from 1948 until his sudden death in 1968," Boboltz noted. "He attracted national attention and condemnation in December 1967, when he threatened to step up already severe policing practices that included use of tear gas and an aggressive stop-and-frisk policy."

George Wallace, the racist former governor of Alabama, also used the phrase during his 1968 presidential bid.

Former U.S. Attorney Barbara McQuade, an NBC News legal analyst, said "Trump's tweet threatening 'shooting' in Minneapolis is disgusting and repulsive to our system of laws."

"Every American should denounce this threat to use unconstitutional deadly force," McQuade tweeted.

Sen. Elizabeth Warren (D-Mass.) condemned the president's threat as a call "for violence against Black Americans."

"His advocacy of illegal, state-sponsored killing is horrific," tweeted Warren. "Politicians who refuse to condemn it share responsibility for the consequences."

Donald Trump is calling for violence against Black Americans. His advocacy of illegal, state-sponsored killing is horrific. Politicians who refuse to condemn it share responsibility for the consequences.

Elizabeth Warren (@ewarren) May 29, 2020

In a statement on Friday, Jeffery Robinson, director of the ACLU's Trone Center for Justice and Equality, urged the hundreds of National Guard members who have been activated in Minneapolis as well as the city's police force to "comply with the law and not President Trump."

"President Trump has told police officers in New York that they should feel free to use violence against 'thugs being thrown into the back of a paddy wagon,'" Robinson said. "He did not hesitate to claim to a foreign leader that there is no racial problem in America. The president's latest suggestion that law enforcement or the military should literally murder protesters is, unfortunately, no longer shocking."

"Trump's response ignores the fact that the inherent problem is not the reaction to Mr. Floyd's murder," Robinson added. "The problem is Mr. Floyd's murder."

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Carrying Out Trump's "When the Looting Starts, the Shooting Starts" Order Would Violate 4th Amendment, Warn Legal Experts - Common Dreams

Trumps Looting Tweet Violates His Oath of Office – The Atlantic

As the legal scholar Orin Kerr noted, Actually following a policy of when the looting starts, the shooting starts would violate the 4th Amendment, for starters. He cited the precedent in Tennessee v. Garner.

Evelyn Douek: Trump is a problem Twitter cannot fix

That case originated in Memphis, where two police officers, including Elton Hymon, were dispatched to catch a prowler. In the backyard of a house, Hymon saw a suspect he judged to be 17 or 18 run to a back fence. Halt, he said, police. The suspect tried to climb over the fence to escape. Hymon shot him in the back of the head and recovered a purse with $10 in it. He later cited a Tennessee statute that said, If, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.

The Supreme Courts holding in the 1985 case sets forth a different standard:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.

That is the law of the land.

The decision goes on to note that:

where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

More succinctly: Cops cant just shoot someone looting gadgets from a Target or whiskey from a liquor store.

Trump swore to protect and defend the Constitution. He just violated that oath. When he wrote when the looting starts, the shooting starts, he implicitly urged law enforcement to adopt an approach that would transgress the Constitution, violate Fourth Amendment rights, and cause unlawful deaths. Rioting is abhorrent. Trumps incendiary call for illegal acts is more likely to fuel than stop itespecially if any police act on his irresponsible words.

We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.

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Trumps Looting Tweet Violates His Oath of Office - The Atlantic

Can the president really send in the troops? | Opinion – coloradopolitics.com

Last week,Gov. Jared Polis activated the Colorado National Guard and Denvers Mayor Hancock employed curfews.After two months of COVID-19-related stay-at-home orders, Denver went back into lockdown.These moves were triggered by violence in Denver, part of nationwide unrest spreading from George Floyds death caused after a Minneapolis police officer held his knee on the mans neck as he cried that he could not breathe.

Currently, Colorados National Guard reports to the governor, deployed in a law enforcement function, and isunarmed, carrying only defensive weapons.However, over the weekend, President Trump inserted himself into the National Guard discussion bytweeting:just spoke to [the Governor of Minnesota] and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts the shooting starts . . .Then on Monday afternoon during a teleconference with governors, Trump reportedly stated: I wish we had an occupying force.After the teleconference, President Trump speaking from the Rose Garden declared if governors were unable to end the violence, he would send in the military to do the job for them.

Are Americans ready for federal troops regardless of which party controls Washington to occupy our cities and use force on our citizens to quell disorder?After months of state and local governments utilizing expanded authorities to essentially quarantine their citizens in response to COVID-19, the latest crisis begs the questions: 1) does the president have the authority to order a military response to domestic unrest, and 2) what are the militarys rules for use of force domestically can the military use deadly force in response to looting?

Does the president have authority to use military force domestically?Yes, but it rarely has been utilized in U.S. history and is subject to both the Posse Comitatus Act and the Insurrection Act.While the president is the commander-in-chief of the armed forces, this authority is constrained by Congress and the courts by the separation-of-powers doctrine established by the U.S. Constitution.

Congress limited the presidents authority to use active-duty military forces (so called Title 10 forces) for domestic law enforcement purposes in the Posse Comitatus Act by making it unlawful for the military to execute the laws . . . except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.Thus, the president must point to a Posse Comitatus Act exception before deploying federal military forces or federalizing a states National Guard to respond to domestic unrest.

One such Posse Comitatus exception is the Insurrection Act, which authorizes federalizing the National Guard or ordering active-duty forces to put down civil disturbances subject to three key conditions.First, after receiving a request for assistance from a governor or state legislature to suppress [an] Insurrection pursuant to10 U.S.C.251.This provision was last invoked 28 years ago during the Los Angeles riots.While current unrest is a rapidly developing situation, it is unclear whether any governor or state legislature will make such a request.The next two provisions allow a president to act absent a request from a governor or state legislature.First, when the president finds it necessary to suppress an insurrection, domestic violence, unlawful combination or conspiracy.Second, the president may use military force when unrest impedesfederal or state law.But, no president has federalized National Guard forces or utilized active-duty forces domestically absent a request from a governor or state legislature since Presidents Eisenhower and Kennedy used these provisions to enforce civil-rights laws in the 1950s and 1960s.This includes past unrest in Ferguson, Baltimore or after Hurricane Katrina.Ultimately, presidents rarely invoke the Insurrection Act, limited to extraordinary circumstances.

If active-duty forces or federalized National Guard units are deployed into American cities, are troops authorized to use force on looters?Not likely.The military utilizes Standing Rules for Use of Force (SRUF), not Standing Rules of Engagement (SROE), when responding to civil unrest.SROE govern military operations where either law enforcement and civil authorities are nonexistent or resistant to U.S. military presence (e.g., combat).SRUF, conversely, govern law enforcement and self-defense missions allowing for domestic legal considerations such as search, seizure, arrest and detention.Clearly, constitutional standards such as the Fourth Amendment apply during unrest on U.S. soil, and any government actions violating constitutional protections could jeopardize criminal prosecutions.SRUF restricts force to be used only as a last resort and minimized as much as possible.To be sure, deadly force is only utilized after all lesser means have failed or cannot be reasonably employed.Lastly, SRUF imposes a reasonable requirement requiring force used to be reasonable in intensity, duration and magnitude to counter the treat.

While SRUF limits force to self-defense or protecting specific assets, such as national security assets or national critical infrastructure, shooting looters clearly violates the governing rules for the use of force on U.S. soil.

Toren Mushovic, a health care attorney and chief operating and compliance officer ofIMMUNOe Health & Research Centers in Centennial, also serves as a judge advocate for the United States Navy Reserves.The views expressed here are the authors personal views and do not necessarily reflect those of the Department of Defense, the United States Navy, or any other department or agency of the United States Government.

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Can the president really send in the troops? | Opinion - coloradopolitics.com