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Cybersecurity

Federalist Society Explores Legal Issues Surrounding Cyber Conflict

WASHINGTON, June 30, 2011 – The Federalist Society convened Tuesday to discuss the complex and interconnected legal and policy issues of cyber security in relation to the law of armed conflict, privacy and legislative action.

Morning and afternoon panels comprised of national security and economic security experts presented to the legal society the difficulties of applying the law of armed conflict towards cyber threats. The new threat conditions introduced by cyber intrusions and attacks do not fit the old paradigm of doing warfare. Panelists agreed, however, that the new rules should not be determined before major cyber conflicts have taken place.

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WASHINGTON, June 30, 2011 – The Federalist Society convened Tuesday to discuss the complex and interconnected legal and policy issues of cyber security in relation to the law of armed conflict, privacy and legislative action.

Morning and afternoon panels comprised of national security and economic security experts presented to the legal society the difficulties of applying the law of armed conflict towards cyber threats. The new threat conditions introduced by cyber intrusions and attacks do not fit the old paradigm of doing warfare. Panelists agreed, however, that the new rules should not be determined before major cyber conflicts have taken place.

“It is not in the United States’ interests to preempt how it will develop,” said Steven Bradbury, former Acting Assistant Attorney General for the Office of Legal Counsel.

“International law does not necessarily apply to cyber warfare,” said Bradbury, “it is largely a policy for the president, not lawyers, to decide the exercise of our national security.”

Panelists focused largely on the conflicts between nation states, but state-sponsored cyber threats are not always the issue. The conflict is asymmetric in nature: the majority of threat actors being organized crime groups targeting private networks and infrastructure systems, and the perpetrators are anonymous and invisible to their targets.

“This administration is the first of three to really try to grapple with this,” said Michael Vatis, founding Director for National Infrastructure Protection at the FBI.

The other panelists also acknowledged the Administration’s attempts to handle the problem, despite the posture of government and industry to be largely defensive in nature due to the anonymity of attackers and the sole legal authority of the government to enact justice.

Still, it is easier to attack than defend, said panelists. Laws and security measures designed to counteract network attacks are often obsolete by the time that they are implemented.

“The enthusiasm for the offense has overwhelmed planning for the defense,” said Stewart Baker, former Assistant Secretary for Policy at the Department of Homeland Security.

According to Baker, “The problem is not that they do not have the [legal] tools, they just can’t find the guys.”

Yesterday, a defense spokesperson also told BroadbandBreakfast.com to expect the Pentagon’s cyber strategy announcement in mid-July, although an exact date was still unclear.

Cybersecurity

Rep. Swalwell Says App Preference Bill Will Harm National Security

‘I just want to limit the ability for any bad actor to get into your device.’

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Photo of Representative Eric Swalwell, D-Calif.

July 27, 2022 – Antitrust legislation that would restrict the preferential treatment of certain apps on platforms would harm national security by making more visible apps from hostile nations, claimed Representative Eric Swalwell, D-Calif, at a Punchbowl News event Wednesday.

The American Innovation and Choice Online Act is currently under review by the Senate and, if passed, would prohibit certain online platforms from unfairly preferencing products, limiting another business’ ability to operate on a platform, or discriminating against competing products and services.

The legislation would ban Apple and Google from preferencing their own first-party apps on their app stores, which would make it easier for apps disseminated from hostile nations to be seen on the online stores, Swalwell said.

“[Russia and China] could flood the app store with apps that can vacuum up consumer data and send it back to China,” said Swalwell, adding that disinformation regarding American elections would spread. “Until these security concerns are addressed, we should really pump the breaks on this.”

Swalwell asked for a hearing conducted by Judiciary Committee of the House with the National Security Agency, Federal Bureau of Investigation, and Homeland Security officials to lay out what the bill would mean for national security.

“I just want to limit the ability for any bad actor to get into your device, whether you’re an individual or small business,” said Swalwell.

Lawmakers have become increasingly concerned about China’s access to American data through popular video-sharing apps, such as TikTok. Last month, Federal Communications Commissioner Brendan Carr called for Apple and Google to remove the app on the grounds that the app’s parent company, ByteDance, is “beholden” to the Communist government in China and required to comply with “surveillance demands.”

The comments follow debate surrounding the bill, which was introduced to the Senate on May 2 by Sen. Amy Klobuchar, D-Minn., on how it would affect small businesses and American competitiveness globally.

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Cybersecurity

Government Should Incentivize Information Sharing for Ransomware Attacks, Experts Say

‘Information sharing between the government and the private sector, while integral to tackling ransomware, is inconsistent.’

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Screenshot of Trent Teyema of GeoTech Center

WASHINGTON, July 27, 2022 – The federal government should incentivize the reporting of cyberattacks through safe harbor and shield laws, said experts at an Atlantic Council event Tuesday, as a recent law requiring companies in critical infrastructure sectors to report such attacks to the federal government is limited and currently unclear on who exactly it impacts.

The Cyber Incident Reporting for Critical Infrastructure Act passed in March does not cover private companies who do not operate in the critical infrastructure sectors and does not include safe harbor and shield laws that would encourage private companies to engage in the process.

Oftentimes, companies will avoid interacting with law enforcement to avoid the stigma associated with being a victim of a cyberattack and out of fear of being held liable by regulators and investors, said Trent Teyema, senior fellow at technology policy university collaborative GeoTech Center.

Teyema called for a safe harbor framework, a law that provides protection against legal liability when other conditions are met. Such a provision would decrease the risk of companies being held liable for cyberattacks from regulators, investors, and the public.

He also called for shield laws that would protect against revealing certain information to the government as a requirement for receiving law enforcement assistance.

The government needs to make it easy for the private sector to share information with law enforcement, said Teyema.

“Information sharing between the government and the private sector, while integral to tackling ransomware, is inconsistent,” read a report written by Teyema and David Bray, fellow at GeoTech Center. Information sharing across sectors allows cybersecurity experts in both sectors to learn about new vulnerabilities in software and new attack vectors. It strengthens collective resiliency and can influence the processes used to anticipate and respond to threats, continued the report.

Ransomware on the rise

Ransomware attacks in which bad actors demand money to release encrypted data are increasing dramatically, reported the White House last year. Ransomware incidents often disrupt critical services, such as banks, hospitals and schools that require constant access to data. In 2021, there was approximately $20 billion in damages from ransomware attacks in the United States, with $11 billion in 2020 and $5 billion the year before, said Bray.

This follows on the heels of the 2021 Colonial Pipeline hack that targeted the billing system and led to the shutdown of the largest fuel pipeline in the United States. The Russian-speaking cybercrime group responsible, DarkSide, received $4.4 million in ransom from Colonial, part of which was later recovered by the United States law enforcement.

Research firm Cybersecurity Ventures predicts that there will be a ransomware attack every two seconds by the year 2031 with global costs exceeding $265 billion.

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Cybersecurity

U.S. Must Go on Offensive to Address Cybersecurity Issues

A former Commerce Department official said the nation is ‘so far behind in addressing these threats.’

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Photo of Amie Stepanovich of Future of Privacy Forum, John Morris of Internet Society, Nazak Nikakhtar of Wiley, Eric Burger of Commonwealth Cyber initiative, Matt Larson of ICANN (left to right)

WASHINGTON, July 25, 2022 – The United States needs to adopt a more offensive cybersecurity posture to survive in an evolving digital world by enacting sanctions against malicious states, developing artificial intelligence capabilities to identify possible cyberthreats, and engaging in diplomacy to deter cyberattacks before they initiate, said experts at an Internet Governance Forum event on Thursday.

“The U.S. absolutely needs to bolster its response to malicious cyberactivity,” said Nazak Nikakhtar, a former assistant secretary for industry and analysis in the Commerce Department and current partner at law firm Wiley. “The United States is so far behind in addressing these threats.”

The United States is taking a defensive posture on cybersecurity by responding to threats as they come, said Nikakhtar. No one is talking about bettering our offensive capabilities in deterrence for malicious cyberattacks, she said.

Nikakhtar suggested enacting sanctions and penalties for violating privacy restrictions against hostile nation-states to deter cyber-attacks. She also suggested collaborating with allies to aggregate data to develop artificial intelligence that would identify possible cyberthreats. She called for think tanks and strategists around the world to come up with an offensive international strategy.

“I don’t think enough Americans are concerned about who has access to their data,” said Nikakhtar. “The aggregation of data by our adversaries, like China… is terrifying.” Our adversaries are finding out how they can weaponize our data and it should cause us to consider the risks and what we need to do to protect our data, she said. This follows Russian cyberattacks on Ukraine and an increase in cyberattack threats to the United States.

For example, experts say popular video-sharing application TikTok, which is owned by Chinese company ByteDance, is required by Chinese law to comply with the Communist government’s surveillance demands. Nikakhtar — who was nominated for her Commerce role by former President Donald Trump, who himself wanted to ban TikTok over national security concerns — argued that there is “no alternative” to banning TikTok.

But John Morris of the Internet Society expressed concern that banning specific apps would encourage hostile nations to respond in kind by banning American apps, eliminating free exchange of information.

Meanwhile Eric Burger, research director at Commonwealth Cyber Initiative, suggested that the United States levy its diplomatic power by gaining political support from other countries to deter hostile nation-states from initiating cyberattacks. It is powerful to get a whole chunk of the world on our side regarding cyber war are, he said.

Google executives have previously called for the Department of Defense to continue making investments in AI to protect the cyberspace. “One of AI’s critical uses is finding anomalies in activity that would indicate a new threat vector,” said Andrew Moore, vice president and director of Google Cloud in a Senate subcommittee meeting on cybersecurity in May.

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