The Week that Was: All of Lawfare in One Post

Coming off of the heartbleed scare, attention this week still focused on internet vulnerabilities. Jack parsed some administration statements in the New York Times about how the government handles cyber vulnerabilities, and explained that it is still unclear whether President Obama’s policies represent a change to the preexisting status quo. Relatedly, Joel Brenner observed that the policy tension between NSA’s signals intelligence and defensive roles will not be going away anytime soon, and he noted that in recent years, the balance has shifted markedly toward defense. Jack also flagged a recent paper from Steve Bellovin, Matt Blaze, Sandy Clark and Susan Landau advocating that law-enforcement exploit zero-day weaknesses to “wiretap” internet communications. The authors argue that this is preferable to expanding CALEA to Internet-based communications, which would create security risks for everyone. This morning, Jack also linked to a criticized a statement from two members of the President's Review Group on the exploitation of zero-day vulnerabilities. Carrie Cordero reflected on a panel she moderated, entitled “Exploring the effects of NSA disclosures on the US technology industry,” and she suggested that it is likely too early to tell what precisely these effects will be. In the latest Steptoe Cyberlaw podcast, the usual gang discuss the NSA court-cases, this year’s Pulitzer awards, cyberdiplomacy and FTC privacy actions. The guest: Dan Sutherland, chief lawyer for the DHS component charged with cybersecurity, biometrics, and telecommunications. Alas, NSA controversies are, for Lawfare, the gift that keeps on giving. Ritika posted this week’s Lawfare Podcast, a lecture from the Berkman Center’s Bruce Schneier on technology, privacy and the big picture emerging from this year’s NSA disclosures. The talk was originally delivered last week at Bobby’s recent “NSA at the Crossroads” conference. Ben stirred the pot a bit when he “dissented” from the Pulitzer Board’s decision to give its highest award to the Guardian and the Washington Post for their Snowden/NSA work. And he defended Lawfare after his original post drew scathing criticism from Conor Friedersdorf. And in case that controversy wasn’t enough, Ben concluded from a recent television interchange between Snowden and Putin that “at this point at least, Snowden—by his own volition or against his will—is very clearly working for the Russians.” In Guantanamo news, Wells provided daily coverage of motions hearings in United States v. Mohammed et. al from the closed circuit connection at Fort Meade. As the week began, he posted a statement from the Chief Prosecutor, Brig. Gen. Mark Martins, responding to allegations that the Guantanamo trial proceedings are too secretive. And he updated us as the defense argued that their status had been compromised by FBI contacts. Wells followed up with a statement on the subject from the defense team of Ammar al-Baluchi, and in subsequent posts, he traced the increasingly complicated legal and procedural effects of this particular plot twist. Finally, he posted additional statements from the two sides after Judge Pohl’s decision to appoint a special trial counsel. In this week’ Foreign Policy Essay, Cornell’s Sara Kreps argued that drone technology is a destabilizing force and that that the United States ought to create new non-proliferation institutions to regulate and control its spread. John analyzed the history of American interpretation of, and adherence to, the UN Headquarters Agreement obligating the US to admit all representatives of UN nations to travel to the UN. He explained that the US has long relied on a “security reservation” to deny visas to certain individuals, including other Iranian officials involved in the 1979 hostage crisis. In a slight flashback to his previous role, Ben commented on an appeal in a Virginia abduction case. The Lawfare hook: metadata evidence and cellphone geolocation tracking may play a key exculpatory role in the case. Paul flagged the 4^th Circuit’s decision in the Lavabit case. The court upheld a contempt citation against the email service that shut down rather than cooperate with the government's investigation of Snowden’s emails. Observing that the defendants had failed to raise the substantial statutory and constitutional arguments at the right time, Paul noted that the decision proves that bad lawyering loses every time. Finally, Ben let a would-be hacker know that we know he exists. And that was the week that was.