Lawfare Archive: Building a Bridge Between 20th Century Law and 21st Century Intelligence
Nov 26, 2023
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CIA General Counsel Caroline Krass, Orin Kerr, and Benjamin Wittes discuss legal questions raised by evolving technologies in intelligence operations. They explore the need for updated legal structures, balancing privacy, security, and innovation. The podcast also covers congressional oversight, challenges of technology and territorial divisions, and the debate on whether companies should have the legal ability to hack back against hackers.
The CIA has established a Director for Digital Innovation to address cybersecurity and intelligence analysis in the cyber age.
There are challenges in providing oversight on legal interpretations and addressing evolving technologies that outpace existing statutes.
Encryption presents benefits in protecting freedom of expression and commerce, but also hinders intelligence and law enforcement agencies in preventing crimes and terrorism.
Deep dives
The Challenges of Cybersecurity and Cover in the Digital Age
The CIA has established a Director for Digital Innovation to address the challenges and opportunities presented by the cyber age. The integration of capabilities within this directorate aims to increase cybersecurity, improve intelligence analysis, and protect undercover agents, who now face greater risks due to their online presence. Encryption is highlighted as a double-edged sword, offering benefits in protecting freedom of expression and commerce but also posing challenges for intelligence and law enforcement agencies in preventing crime and terrorism. The US government is engaging with the private sector to find a way forward on balancing security and encryption concerns.
Evaluation of Congressional Oversight and Legal Structures
The oversight mechanisms, including congressional and internal executive branch oversight, are viewed as effective in reviewing facts and actions and providing accountability for intelligence activities. However, there are challenges in providing oversight on legal interpretations and addressing evolving technologies that outpace existing statutes. The public's trust in these oversight mechanisms has been questioned, particularly after the Snowden revelations. The need to strike a balance between intelligence operations and transparency is raised, especially in light of increasing globalization and concerns from foreign countries. The question of updating legal structures to adapt to emerging technologies remains complex.
Encryption and the 'Going Dark' Issue
Encryption presents both benefits and challenges. While it protects freedom of expression and commerce, encryption can also hinder intelligence and law enforcement agencies from solving crimes and preventing terrorist incidents. The ongoing dialogue between the government and the private sector acknowledges the national security and law enforcement concerns surrounding encryption. The outcome of this conversation remains uncertain, as it involves conflicting interests in cybersecurity, privacy, and intelligence collection.
Uncertainty and Public Disclosure in the Application of Law to New Technologies
The podcast episode discusses the challenges and uncertainties that arise in applying the law to new technologies. The USA Freedom Act is presented as an attempt to address these challenges by implementing public disclosure of the activities of organizations like the FISK. However, the speaker argues that a better approach would be to prevent organizations like FISK from engaging in legal interpretation and assuming a regulatory role. The disclosure of legal interpretations through secret hearings is criticized for hindering oversight.
The Third Party Doctrine, Relevance, and Data in the Internet of Things
The podcast delves into the third party doctrine and its implications for data privacy in the digital age. The discussion highlights the case of Microsoft, where the company challenged a search warrant for data stored on a server located overseas. The question arises whether the application of the third party doctrine should be revisited given the evolving technological landscape. The analogies drawn between data in the internet of things, such as pacemaker data, and the expectation of privacy are explored, raising questions about the intrusiveness and extent of government powers in a connected world.
From November 7, 2015: Last week, George Washington University and the CIA co-hosted an event entitled Ethos and Profession of Intelligence. As part of the conference, Kenneth Wainstein moderated a conversation between CIA General Counsel Caroline Krass, Orin Kerr, and Benjamin Wittes on Bridging 20th Century Law and 21st Century Intelligence, a panel which we now present in full. What new legal questions are raised by rapidly evolving technologies and how do those questions interact with existing national security law? In response to these changes, how can the United States strike a balance between privacy, security and the economic imperatives driving innovation? The panel addresses these critical issues and more.
