Electronic Surveillance in an Era of Modern Technology and Evolving Threats to National Security
Young, Mark D., Stanford Law & Policy Review
The world isn't run by weapons anymore, or energy, or money. It's run by little ones and zeroes, little bits of data. It's all just electrons. (1)
Linking hundreds of individual computer networks has created a virtual space on which much of the world's commerce and communication now depends. Electronic mail, peer-to-peer data sharing, Voice-over-Internet Protocol (VoIP), and wireless networks are examples of the technology that enables almost unlimited access to information. This access comes with significant risk. Criminals, terrorists, hostile nation-states, and foreign industrial competitors share this ubiquitous access to information. In the industrial age, we protected ourselves with high walls and long-range weapons; in the digital age, the availability and rapid development of cyber weapons requires layers of defenses and improved awareness of adversarial capabilities and intentions.
Since the first Internet transmission on October 29, 1969 we have been deepening our dependence on digital communications. (2) There are almost two billion users of the Internet. (3) The United States economy depends on it; our critical infrastructure is controlled by it; and our national security is empowered by it, yet vulnerable because of it. Despite our digital dependence, our policy framework, our legal authorities, and our judicial precedent remain underdeveloped.
The cyber security legal landscape is a patchwork of federal and state statutes, federal regulation, and executive branch policy that evolved to address technologies that may no longer exist. Federal government "capabilities and responsibilities are misaligned within the U.S. government." (4) There is no shortage of threats to our information infrastructure. The media has reported that computer-controlled electric power grids are "plagued with security holes that could allow intruders to redirect power delivery and steal data...." (5) Other reports claim that the Chinese military is responsible for the highly sophisticated January 2010 attack against Google's corporate network that sought to access the company's source code. (6) According to the Congressional Research Service, "[t]hreats to the U.S. cyber and telecommunications infrastructure are constantly increasing and evolving as are the entities that show interest in using a cyber-based capability to harm the nation's security interests." (7)
This Article will review the history of electronic surveillance authorities, explain how these authorities are relevant to today's cyber security issues, identify the insufficiencies of the three specific laws on this topic, and recommend discrete amendments to these statutes. The text highlights the deficiencies in the authorities governing U.S. government action in cyberspace and argues that specific sections must be amended to enhance cyber security and enable information sharing between the public and private sector. This Article does not address the federal statutes that govern cybercrime. It focuses on cyber security authorities in the national security context, but the legislative changes recommended here will also benefit law enforcement operations.
I. EVOLUTION OF ELECTRONIC SURVEILLANCE AUTHORITIES
The use of computer technology to gain intelligence or as a vector to deny, degrade, or disrupt an adversary's capabilities presents new questions for the laws of electronic surveillance, intelligence collection, and war. (8) In the context of the Fourth Amendment, Professor Orin Kerr of George Washington University Law School notes, "Courts have only recently begun to address these questions, and the existing legal scholarship is surprisingly sparse." (9) What is true of the scholarship in the Fourth Amendment criminal context is doubly true in the national security realm. Current scholarship is either "highly abstract or else focuses only on discrete doctrinal questions." (10)
Since computers and networks are by nature electronic devices, electronic surveillance authorities play an important role in state surveillance for both law enforcement and national security investigations. …