Overview

2. Overview • My background & support from Glenn Institute • The lack of information sharing as a cause of 9/11 attacks • The Bush Doctrine of information sharing • A due diligence checklist for when proposed information sharing makes sense • A few comments on NSA wiretaps

3. Chief Counselor for Privacy • U.S. Office of Management & Budget, 1999-early 2001 • Trying to “build privacy in” for policies/laws • HIPAA: medical privacy • Gramm-Leach: financial privacy • FTC enforcement of privacy promises • Especially for the Internet • Federal agency web policies & privacy impact assessments • Chaired WH Working Group on how to update surveillance law for the Internet age

4. Since 2001 • As OSU professor, have written on privacy & information security • Glenn grant on “What Should Still be Secret: Lessons on Anti-Terrorism, Cyber-Security, and Privacy” • 2 papers on computer security & when disclosure helps or hurts security • “The System of Foreign Intelligence Surveillance Law” • “Legal FAQs on NSA Wiretaps” • Should the data flow or not?

5. Information Sharing • The failure of intelligence to prevent the 9/11 attacks • Belief that did not have enough information sharing • Between FBI and CIA • Between federal and first responders • Among all the “good guys” to get the “bad guys” • Today, focus on sharing, not collection

6. Encouraging Information Sharing • Several Executive Orders to encourage it • Intelligence Reform Act of 2004 & National Director of Intelligence • Markle Task Force on National Security in the Information Age • Intellectual rationale for information sharing • Says privacy, data security, and civil liberties should be built in as well

7. The Bush Doctrine of Information Sharing • Disclaimer – I often critique the Bush Administration on privacy & information sharing • First explain the logic of the position • Axiom 1: The threat has changed • Was threat of Soviet tank or missile attack • Now is asymmetric threat – a few individuals with boxcutters or home-made explosives

8. Bush Doctrine • Axiom 2: The threat is significant • The intellectual importance of WMDs • “One nuke can ruin your whole day” • Measures that are not justified by small attacks may be justified for asymmetric, large attacks

9. Bush Doctrine • Axiom 3: Progress in IT dwarfs progress in defensive physical security • Price of sensors, storage, and sharing down sharply • Useful knowledge & patterns extracted from data • The efficient mix of security measures has a large & ongoing shift to information-intensive strategies

10. Bush Doctrine • (1) The threat has changed • (2) The threat is significant • (3) Progress in IT shifts the best response • For critics, which of these assertions seems incorrect? • There is a powerful logic to this approach • Now we turn to possible responses

11. Has the Threat Changed? • Yes. • Conventional threat, typified by satellite reconnaisance of military targets, is clearly less than before 1989 • Enemy mobilization was often graduated and visible (levels of military alert) • Current threats from asymmetric attacks • No visibility of imminent attacks unless get information about the individual attackers

12. How Significant is the Threat? • This topic is controversial • I address this in 2004 article on foreign intelligence & surveillance • Perhaps threat is less than portrayed • No WMDs in Iraq • Nation states as havens likely much more dangerous than isolated individuals • Exception in my view – nuclear proliferation

13. Significance of the Threat • Within the U.S., has been difficult politically to question the threat • Republicans have been loyal to Pres. Bush • Democrats can’t appear weak • Within U.S., privacy and civil liberties advocates question the threat but have not won that argument • The debate since 9/11 has been what to do assuming a large threat: “The War on Terrorism” or “The Long War”

14. Due Diligence List for Whether Shift to Information Sharing is Efficient • Here is the battleground for each proposal • (1) Ends/means rationality – does the proposed surveillance actually improve security? • Does security measure work? Cost effectively? • E.g., carry-ons over-broad (nail cutters) and under-broad (ingenious attackers can attack) • E.g., data mining may create so many false positives that the noise swamps the signal

15. Due Diligence List • (2) Security experts’ concern about information sharing: • Imagine you are General Counsel for the CIA • Will sharing compromise our “sources and methods”? • When should we abandon “need to know”? • How often will “bad guys” infiltrate the information sharing that is intended to inform only the “good guys”? • Tell first responders in Ohio?

16. Due Diligence List • (3) “Security theater” & Bruce Schneier • Perceive, and critique, measures that are taken for the sake of “doing something” • E.g., show ID to get into office buildings; this is worthless in a world of pervasive fake IDs • Important to have credible and effective technical critiques of proposed surveillance • U.S. State Dept. RFIDs on passports as “terrorist beacons” readable at 10 meters

17. Due Diligence List • (4) Point out unprecedented nature of proposed surveillance – a Burkean, conservative point • E.g., library records and chilling the right to read • “Gag rule” on foreign intelligence orders to get library and other databases • Some greater due process in Patriot Act revisions • E.g., national ID cards and build coalition of libertarians on left and right

18. Due Diligence List • (5) Invoke historical abuses & ask for checks and balances • Prevention was tried by Hoover & the FBI • The theory of “just a bit more data” • Prevention led, over time, to vast expansion of surveillance but little proven prevention • Political and other abuses from that expansion • Therefore, oversight and limits on new surveillance because human nature hasn’t changed

19. Due Diligence List • (6) Fairness, discrimination, and effectiveness • If single out groups, such as young Arab males, then that can backfire • Is unfair, and perceived as unfair, by many • Risk of creating resentment by communities whose cooperation is needed – better to build bridges to communities than to treat everyone as a suspect

20. Due Diligence List • (7) Show how proposed measures make the problem worse • E.g., trusted traveler programs will give greater powers for harm to the terrorists who get the credential • E.g., racial profiling that undermines assistance from the well-informed

21. Due Diligence List • (8) International reaction to U.S. measures • E.U. & other countries are more regulatory on many privacy issues • Not politically popular in U.S. to do it just because, say, the French want it • Having allies, though, is actually a good thing • Concerns from outside the U.S. may require a more fully developed policy process within U.S.

22. Conclusion:Summary on Bush Doctrine • Significant moral & political logic to: • New threat • The threat is large • IT and information sharing will help • More IT and information sharing is often a logical response to changing conditions

23. The Due Diligence List • Issues to consider include: • Does proposal work? Cost-effectively? • Risk to sources & methods and other security • It may be “security theater” • Unprecedented surveillance and not needed • Historical abuses show need for checks • Fairness and non-discrimination • Proposed measures may make the problem worse • International ramifications

24. What Have We Learned? • Description: the types of arguments used in information sharing debates • Prescription: • Do the due diligence • Empirical assessment of each item on the list • Institutions to screen proposals for sharing • Institutions for oversight of the programs that go forward • In that way, use new IT if, but only if, that actually makes sense

25. NSA Wiretaps • The talk to this point has listed rational policy critiques of new information sharing programs • Is that the way to debate each next proposal for information sharing? • NSA wiretap revelations, and concern that the government is simply not being honest about how it collects & uses data • “This program” only does limited wiretaps • What are the “other programs”?

26. NSA & Loss of Trust • Pres. Bush in 2004: “Nothing has changed on wiretaps. You still need a court order.” • Response to DeWine proposal in 2003: “No reason to amend FISA. It provides the flexibility we need.” • In this setting, it becomes much harder for those outside the government to accept statements that we should simply trust the government to use the data well

27. How Secrecy Can Undermine Security • What will be the response to new proposals to increase surveillance and information sharing? • The secrecy of recent years now creates a basis for lack of trust in the Administration as it describes new proposals • This secrecy undermines our ability to adopt even the most sensible new proposals for information sharing and collection • Secrecy thus can undermine security

28. NSA Wiretaps & Due Diligence • NSA wiretap program intended to help security • Not authorized by statute, so controversy now • Unclear whether it has been effective and cost-effective : “Another visit to Pizza Hut” • History of abuses in secret programs • Secrecy of program, once it is revealed, undermines trust and future ability to adopt new information sharing programs • In sum, short-term security gains but risk of long-term security losses • The importance of due diligence list for creating these systems – perhaps can help the debate going forward

29. Contact Information • Professor Peter P. Swire • Phone: (240) 994-4142 • Email: peter@peterswire.net • Web: www.peterswire.net • This talk presented Feb. 7, 2006