- Andrew McCarthy, National Review Institute
As behavior in the cyber domain has perhaps become the most ubiquitous asymmetric threat to modern life, governments, companies, and individuals each have unprecedented exposure to theft and sabotage. Home networks are compromised through connected thermostats; commercial airliners’ flight controls have been hacked through in-flight entertainment systems; passwords and credit card data are stored on servers that are the targets of daily hacking attempts, with that data often appearing for sale online.
This Teleforum will examine the complex mechanics and ethics of cyber partnerships. Should government agencies be enlisting private security firms to help prevent hacking into their own systems? On the other hand, should insurance companies require private company customers to do the same? Should private corporations, particularly financial institutions, be required to report hacking incidents to the federal government, and, if so, to what agency, for what purpose? Consumer protection? Economic security? What are the lawful responses to being hacked for government or industry? Is the best defense a good offense? How effective are today’s consumer-level encryption algorithms? Does public/private cooperation on the cybersecurity front impact private companies’ willingness and ability to cooperate with intelligence investigations under the supervision of the Foreign Intelligence Surveillance Court?
Over the last fifteen years, homeland security has become a field unto itself. The United States Department of Homeland Security (DHS) has become the second-largest federal executive department in the number of people it employs, and includes three law enforcement agencies and a military service (the United States Coast Guard). But the heavy responsibility of keeping Americans safe at home extends well beyond the jurisdiction of that department alone. Still at the federal level, the Department of Justice has four law enforcement agencies of its own, the Department of Defense is authorized to support domestic law enforcement and disaster response operations under certain circumstances (consistent with the Posse Comitatus Act), and the Departments of State, Treasury, Interior, Transportation, and Energy all have components that perform some domestic security-related functions.
Vertical integration has also been a strategic focus. DHS-led intelligence fusion centers, and Federal Bureau of Investigation (FBI) led Joint Terrorism Task Forces (JTTF) each include non-federal, that is state, local, or tribal personnel to help accomplish their missions, and surplus military-grade equipment has increasingly proliferated into local law enforcement. Each of these measures is controversial, with some municipalities attempting to limit by legislation their police forces’ participation in JTTFs, and many observers criticizing the increased “militarization” of law enforcement. Further, the rise of so-called “sanctuary cities” also pits some localities against federal immigration laws in ways that may have significance for counterterrorism efforts.
This first episode in our Security Partnership Teleforum Series explored the limits of federal, state, local, and tribal cooperation. Can and should federal authorities commission local law enforcement to surveil potential threats, and compel compliance with immigration enforcement efforts? How blurred is the line now between “domestic surveillance” for “domestic security” purposes (to which the Fourth Amendment applies) and broader national security concerns that have a foreign intelligence nexus that might be governed by the Foreign Intelligence Surveillance Act? Are there limits on how technologies developed for intelligence gathering purposes may be used in law enforcement missions? What limits should there be on the military’s supplying equipment and training to law enforcement agencies?
On February 21, the Supreme Court will hear argument in Hernandez v. Mesa. In July of 2010, a 15-year-old adolescent named Sergio Adrian Hernandez Guereca and his friends were playing along a concrete structure on the border of the U.S. and Mexico. When Jesus Mesa, Jr., a U.S. Border Patrol Agent arrived, he detained one of the youths on the border, and shot and killed Hernandez, who was hiding behind a pillar of the Paso Del Norte Bridge on the Mexican side of the border. Hernandez’s parents sued Agent Mesa under the Fourth and Fifth Amendment for the use of unlawful and disproportionate force. Agent Mesa argued that the Fourth and Fifth Amendments did not apply because Hernandez was not a U.S. citizen. The District Court found for Agent Mesa, while the U.S. Court of Appeals for the Fifth Circuit held that the Fifth Amendment Protections against deadly force applied but the Fourth Amendment did not, and that Agent Mesa should not receive qualified immunity.
Professor Andrew Kent of Fordham University School of Law and Professor Stephen I. Vladeck of UT Austin Law School joined us to examine the case and its implications for extraterritorial application of the Bill of Rights and for qualified immunity.