Security & Privacy After Snowden: The Review Group &

the USA Freedom ActGartner Security & Risk Management Summit

Peter Swire

Senior Counsel, Alston & Bird LLP

Huang Professor of Law and EthicsScheller College of Business

Georgia Institute of Technology

June 10, 2015

Overview of the Talk

USA Freedom Act passed last week Link between President’s Review Group and USA

Freedom NSA reform has gone surprisingly far That story at www.peterswire.net

Technology issues raised by the Review Group report Tension between cyber offense and defense, for

crypto and zero days The role of IT professionals

This happened last week: coincidence?Last Triple Crown Winner: Affirmed (1978); American Pharaoh (2015)

Last Foreign Intel Reform: FISA (1978); USA Freedom (2015)

Creation of the Review Group

Snowden leaks of 215 and Prism in June, 2013 August – Review Group named Report due in December 5 members

December 2013: The Situation Room

Our assigned task

Protect national security Advance our foreign policy, including economic

effects Protect privacy and civil liberties Maintain the public trust Reduce the risk of unauthorized disclosure

Our Report

Meetings, briefings, public comments 300+ pages in December, 2013, republished Princeton

University Press 46 recommendations

Section 215 database “not essential” to stopping any attack; recommend government not hold phone records

Pres. Obama speech January 2014 Adopt 70% in letter or spirit

USA Freedom Act & RG Recommendations

Section 215 order only with judicial approval and heightened standard (Rec 1)

End government storage of bulk telephone data and have records held in private sector, accessible only with a judicial order (Rec 5)

Similar limits on bulk collection: National Security Letters (Rec 2) and FISA pen/trap

General rule limiting bulk collection (Rec 4) – the new law as a message to agency lawyers to watch out

Greater transparency by government about foreign intelligence orders (Rec 9 & 10)

Congressional approval of public interest advocates to represent privacy and civil liberties interests before the FISC (Rec 28)

Administration Measures

In 2014, Administration already required judge before looking at a phone number under Section 215

Transparency, including FISC opinions, company transparency reports

Some limits on “incidental collection” under Prism (Section 702)

National Security Letters Previously stayed secret 50 years (or longer) New rule that secret no longer than 3 years, unless

senior DOJ official finds essential

Administration Measures (2)

White House oversight of the intelligence community: More on this later in the talk Sensitive intelligence collection Surveillance of foreign leaders Zero-day equities process

Funding increases In place for Privacy & Civil Liberties Oversight Board Pending for Mutual Legal Assistance Treaty staffing

and tech upgrades (current topic of my research)

Measures Affecting Non-US Persons

Presidential Policy Directive 28 History of spying – open season on foreign nationals

outside your boundaries New human rights-style declaration that will treat non

US persons the same as US persons for foreign intelligence purposes, except where that won’t work For Germany? Syria?

Minimization and dissemination rules apply. Privacy recognized as an integral part of intelligence process.

Hard to assess scope from the outside but a change in philosophy

Measures Affecting Non-US Persons (2)

US Privacy Act reform History that applies to US persons (citizens and lawful

permanent residents), but not to non-US persons Dept. of Homeland Security treats the same Administration support for this in statute, including

judicial redress for non-US persons. Good step, although limited scope of Privacy Act

protections

Summary on NSA Reform

What we have seen: Biggest pro-privacy legal reform in intelligence since

enactment of FISA in 1978 The administration’s multiple reforms USA Freedom sends a democratic message for

agencies to be thoughtful about privacy RG factual finding of strong compliance system in

NSA Tech companies have strengthened encryption &

security for users in multiple ways To me, an encouraging response compared to the

debates immediately after 9/11

Part 2: One Internet, Multiple Equities

The same Internet for: Intelligence, law enforcement E-Commerce Free speech & political dissent All the fun stuff – cat videos Military theaters of combat

One Internet -- Outline

Effects are larger due to convergence of: Domestic and civilian communications, with Foreign, intelligence, and military communications

One major area of debate for IT: Larger tensions between offense and defense in

cybersecurity

IC: Convergence of Communications Cold War

Soviet systems separate from U.S. systems Main threat from nation states U.S. citizens rarely made “long-distance” or

“international” calls Today

One global Internet Main threat from terrorists and others who swim in a

sea of civilian communications U.S. citizens have many communications that route

outside of the U.S., where FISA rules are different Mayer: “pervasive” information from U.S. browsing

goes outside of U.S.

Offense & Defense in Cybersecurity in Era of Converging Communications

Offense was easier when there was a target “there” (in Warsaw Pact or military theater)

Convergence means we are often targeting the same hardware, software, and systems that the good guys use

Strong intelligence and military reasons for offensive capabilities Intelligence advantages if can access bulk data, globally, with

lower risk of casualties than physical entry Historical role of full-throttle offense for the military: crack

Enigma and save the convoys Military in the future - Cyber Command, analogous to the way

the Air Force became key to offense Where more critical infrastructure is online, then offense against

it more valuable

Defense and Cybersecurity Old days:

Military (and NSA) have long had “information assurance,” to protect own codes and communications

Where find a flaw, then use chain of command to fix it Command and control, so “patch” is installed Operational security, with goal that only the defenders

learn of the patch Today:

Over 90% of critical infrastructure privately held If install a patch, then tip off outsiders: can’t defend the

“good guys” and still attack the “bad guys” Cybersecurity has daily attacks against civilians, so

defense is more important No magic bullets to target only “them”; the offense also

works against “us”

Review Group and Defense

With convergence, much bigger effects on civilian-side defense if IC & military lean toward offense

RG: Areas to strengthen defense: Improve security of government systems

Address insider threat, etc. Zero days Encryption

Zero Days & the Equities Process

A “zero day” exploit means previously unused vulnerability, where defenders have had zero days to respond

Press reports of USG stockpiling zero days, for intelligence & military use

RG Rec 30: Lean to defense. New WH equities process to ensure vulnerabilities are blocked for USG and private networks. Exception if inter-agency process finds a priority to retain the zero day as secret.

Software vendors and owners of corporate systems have strong interest in good defense

WH adopted this this year

Strong Crypto for Defense

Crypto Wars of the 1990’s showed NSA & FBI interest in breaking encryption (offense)

1999 policy shift to permit export globally of strong encryption, necessary for Internet (defense)

Press reports of recent NSA actions to undermine encryption standards & defeat encryption (offense)

RG Rec 29: support strong crypto standards and software; secure communications a priority on the insecure Internet; don’t push vendors to have back doors (defense)

No announcement yet on this recommendation

Strong Crypto for Defense: The 90’s

Crypto Wars of the 1990’s showed NSA & FBI interest in breaking encryption (offense)

1999 policy shift to permit export globally of strong encryption, necessary for Internet, to protect civil liberties (defense) Clipper Chip: proposal to build a back door (key escrow)

into the hardware chips Prohibit export of strong encryption because crypto was a

“munition” A lesson learned: key escrow doesn’t work because the

method of entry used by the “good guys” is a vulnerability to exploit for the bad guys

Plus, other governments will insist on the keys – the least trusted country

Strong Crypto for Defense: Today

Press reports of NSA actions to undermine encryption standards & defeat encryption (offense)

RG Rec 29: support strong crypto standards and software; secure communications a priority on the insecure Internet; don’t push vendors to have back doors (defense)

FBI Director Comey: criticize Apple & Google when they decided not to have a “master key” for phones He worries about “going dark” due to strong crypto

A & G: this is good defense, good protection for our customers

“Going Dark” vs. “Golden Age of Surveillance”

“Going Dark”: when have the phone, no way for FBI to open it May be true, in small number of cases

Golden Age of Surveillance: We all carry tracking devices Meta-data of email, text, phone, SNS shows the co-

conspirators LOTS of other databases that didn’t use to exist

If compare 1990 to 2015, the FBI has far greater capabilities today. Not “dark.”

My view: better to have effective defense against attackers with effective encryption

Internet Policy: Addressing Multiple Risks

In addition to strengthening cyber-defense, there are multiple risks/equities in addition to national security: Privacy & civil liberties Allies Business and the economy Internet governance

RG Recs 16 & 17: Weigh the multiple risks New process & WH staff to review sensitive

intelligence collection in advance Senior policymakers from the economic agencies

(NEC, Commerce, USTR) should participate

Summary on One Internet, Multiple Equities

In addition to national security, have crucial other equities: Strengthen cyber-defense Privacy & civil liberties Allies Business and the economy Internet governance

IC decisions in the context of these other equities Strong crypto for defense more important than broken

crypto for surveillance access Fix zero days for defense more important than having

a shelf full of attacks

Part 3: The Role of IT Professionals

You are at the center of all of the equities of the “One Internet, Multiple Equities” clash of goals

ACM code of ethics – confidentiality & security New Internet Society/IETF security efforts, with ethics for

IT professionals Lean toward defense for your own systems Inform the policy makers of what can be done and

should be done=

The 3 Themes

NSA reform has out-performed the skeptics A democratic affirmation of privacy checks and

balances on surveillance One Internet, multiple equities

The IC cannot decide for all these equities The role of IT professionals

You build these systems

Conclusion

There was no optimizing algorithm for the multiple tasks of the Review Group

There is no optimizing algorithm for your tasks as IT professionals, to conduct surveillance, prevent intrusion, govern the Internet, etc.

You are in the center of the great moral issues of our time

We all need your participation and insights Let’s get to work