August 01, 1998
Computers and computer-dependent systems permeate everyone's daily life. From local, state, and federal government decision makers to warfighters, businessmen, lawyers, doctors, bankers, and individuals - everyone relies upon information and information systems that involve the acquisition, transmission, storage, or transformation of information. For as little as five or ten dollars a month, anyone with a computer has access to instantaneous world-wide communications and a wealth of resources on the Internet. Computerized sensing and control devices now monitor transportation, oil, gas, electrical, and water treatment systems throughout our nation instead of human watch standers. Satellites serve as the backbone of our telecommunication systems and our economic well being. The Global Positioning System (GPS) guides virtually all of the commercial aircraft in the world.
The Department of Defense is heavily dependent upon timely and accurate information, and is keenly focused on information operations and information assurance. Military commanders in Bosnia receive real-time satellite imagery. Marine warfighters are training on Wall Street to learn how to respond during information-intense situations; Navy commanders are focusing on network centric warfare; Army planners believe the use of a tactical Internet will have profound implications for battle tactics; and Air Force information warriors now have their own squadron. Over 95% of Department of Defense telecommunications travel over commercial systems, and the interdependence of our civilian infrastructure and national security grows dramatically on a daily basis. In a few short decades, the global networking of computers via the Internet will very likely be viewed as the one invention that had the greatest impact on human civilization - and perhaps the greatest challenge to our national security.
All of these computers and computer-dependent systems are vulnerable to physical and electronic attack - from the computers on which individuals store and process classified information, privileged attorney-client information, or proprietary data, to our nationwide telecommunication and banking systems. Indeed, the year 2000 problem demonstrates that we are even vulnerable to our own misfeasance and poor planning. A single non-nuclear, electromagnetic pulse can destroy or degrade circuit boards and chips, or erase all electronic media on Wall Street, in the Pentagon, or your local bank. The loss of a single satellite can terminate service for over 90% of the 45 million pagers in the United States, as well as interrupt service for thousands of cable television stations and credit card transactions. GPS signals can be spoofed or degraded, or used as part of highly accurate targeting systems. Advanced computer technology can help build nuclear weapons. Internet and computer crime is so simple that two teenagers in Cloverdale, California with a mentor in Israel can break into sensitive national security systems at the Department of Defense. Information warfare experts can use global television to selectively influence political and economic decisions or produce epileptic-like spasms in viewers. Cyber warfare of the 21st century could significantly impact the daily lives of every man, woman, and child in America.
Developing Economic Potential
Although the telephone was invented in 1876, the personal computer in 1975, and the Internet in the 1970's, the world wide web, as we know it today, was not invented until 1991. By the year 2002, Americans will spend nearly $38 billion online annually. The enormous economic potential of the world wide web was quickly recognized by the United States Government.
On 15 September 1993, President Clinton established the "United States Advisory Council on the National Information Infrastructure" by Executive Order 12864. This Advisory Council was tasked to advise the Secretary of Commerce on a national strategy and other matters related to the development of the National Information Infrastructure (Nil). The final report of the Advisory Council was transmitted to the President on 30 January 1996. The Council's report, "A Nation of Opportunity: Realizing the Promise of the Information Superhighway" (available at GPO) made a series of detailed recommendations that addressed four issues: reducing legal, regulatory, and policy barriers on the key areas of American life and work that will be impacted by the Nil; gaining universal access to the Nil for all; developing rules of the road regarding intellectual property, privacy, and security on the Nil; and identifying the roles of the key stakeholders in developing the NIL
On 1 July 1997, President Clinton approved another report entitled "A Framework for Global Electronic Commerce." This report set forth the Administration's vision of the emerging global electronic market-place with minimal regulation and no discriminatory taxes and tariffs. In developing our economic potential, however, we also increase our vulnerabilities.
Identifying National Security Vulnerabilities
As the United States Government studied the tremendous economic potential of the Internet, it began to realize the significant national security vulnerabilities inherent in our reliance on computers and computer-dependent systems. On 15 July 1996, President Clinton signed Executive Order 13010 (available at www.pccip.gov), establishing the "President's Commission on Critical Infrastructure Protection" (CIP). This Commission was the first national effort to address the vulnerabilities created by the new information age.
Executive Order 13010 declared that certain "national infrastructures are so vital that their incapacity or destruction [by either physical or cyber attack] would have a debilitating impact on the defense or economic security of the United States." The Executive Order detailed eight categories of critical infrastructures: telecommunications; electrical power systems; gas and oil storage and transportation; banking and finance; transportation; water supply systems; emergency services (including medical, police, fire, and rescue); and continuity of government. The President acknowledged in the text of the Executive Order that because so many of these critical infrastructures are owned and operated by the private sector, "it is essential that the government and private sector work together to develop a strategy for protecting them and assuring their continued operation."
The President's Commission was chaired by retired Air Force General Robert T. Marsh, and was comprised of members of the federal government and industry. Its work was guided by a Steering Committee of senior government officials and an Advisory Committee of key industry leaders. The Commission was tasked to develop a comprehensive national strategy for protecting critical infrastructures from physical and electronic threats. Because threats to our nation's critical infrastructure were considered very real, the Executive Order also established an "Infrastructure Protection Task Force" (IPTF) as an interim coordinating measure. The IPTF
was created within the Department of Justice to increase the "coordination of existing infrastructure protection efforts in order to better address, and prevent, crises that would have a debilitating regional or national impact."
A hundred-page unclassified version of its report entitled "Critical Foundations: Protecting America's Infrastructures" (available at GPO and www.pccip.gov) was released on 13 October 1997. The President's Commission found no evidence of an "impending cyber attack which could have a debilitating effect on the nation's critical infrastructures." It did, however, find a widespread capability to exploit our infrastructure vulnerabilities that is real and growing at an alarming rate for which we have little defense. The Commission also identified potential threats that included insiders, recreational and institutional hackers, organized criminals, industrial competitors, terrorists, and states. Because our nation's critical infrastructures are mainly privately owned and operated, the Commission concluded that "critical infrastructure assurance is a shared responsibility of the public and private sectors," and the only sure way to protect infrastructures is through a real partnership between infrastructure owners and the government.
The Commission made a series of seven findings. First, information sharing is the most immediate need. Second, responsibility is shared among owners and operators and the government. Third, infrastructure protection requires integrated capabilities of diverse federal agencies, and special means for coordinating federal response to ensure these capabilities are melded together effectively. Fourth, the challenge is one of adapting to a changing culture. Fifth, the federal government has important roles in the new infrastructure protection alliance with industry and state and local governments. Sixth, the existing legal framework is imperfectly attuned to deal with cyber threats. Seventh, research and development are not presently adequate to support infrastructure protection. To prepare a policy framework for its recommendations, the Commission also adopted seven principles: build on that which exists; depend on voluntary cooperation; start with the owners and operators; practice continuous improvement; coordinate security with maintenance and upgrades; promote government leadership by example; and minimize changes to government oversight and regulation. The Commission's recommendations addressed what actions it believed the federal government should take, what actions industry should take, and what actions that government and industry must take in partnership.
Key to the Commission's national strategy is the international and domestic legal regime required to protect against cyber threats. The objective of the Commission's legal initiatives was to sponsor legislation to increase the effectiveness of federal infrastructure assurance and protection efforts. Eighteen specific recommendations were made by the Commission that were intended to strengthen existing legal frameworks for federal response to and deterrence of incidents and the adequacy of criminal law and procedure, as well as to change those laws that inhibit protective efforts and information sharing.
The report of the President's Commission has been criticized by some in government and industry for not providing complete or detailed solutions to our infrastructure vulnerabilities after fifteen months of work. It is, however, an extraordinary effort that gives our national leadership a recommended conceptual and organizational framework to analyze, manage, and defend against the threats to our critical infrastructure. It is also the template upon which the President has designed his plan for critical infrastructure protection.
Defending our Critical Infrastructure
On 22 May 1998, President Clinton issued two Presidential Decision Directives (PDD) that will build the interagency framework to strengthen and coordinate our critical infrastructure defense programs. PDD 62, Combating Terrorism, is the broader of the two directives and focuses on the growing threat of all unconventional attacks against the United States such as terrorist acts, use of weapons of mass destruction, assaults on critical infrastructures, and cyber attacks. It establishes the position of National Coordinator for Security, Infrastructure Protection and Counter-Terrorism. Richard Clarke has been appointed to fill this National Security Council position, which is intended to bring a more systematic, program management approach to counter-terrorism, protection of critical infrastructure, preparedness, and consequence management. The National Coordinator will report to the President through the Assistant to the President for National Security Affairs.
PDD 63, Critical Infrastructure Protection (a PDD 63 White Paper is available at www.pccip.gov), builds upon the recommendations set forth in the report of the President's Commission on Critical Infrastructure Protection. It calls for immediate action by the federal government and a national effort between government and industry to swiftly assure the continuity and viability of our critical infrastructures. The National Coordinator for Security, Infrastructure Protection and Counter-Terrorism designated pursuant to PDD 62 is responsible for coordinating the implementation of PDD 63. The President's first, and perhaps most important, of ten principles set forth to guide the interagency in addressing and eliminating potential vulnerabilities is for those involved to consult with and seek input from the Congress on approaches and programs to meet the objectives of PDD 63.
President Clinton has declared in PDD 63 a national goal of significantly increased security for government systems by the year 2000 and a reliable, interconnected, and secure information system infrastructure by the year 2003. To achieve this goal, PDD 63 organizes the federal government around four components: lead agencies for sector liaison, lead agencies for special functions, an interagency working group for critical infrastructure protection coordination, and a National Infrastructure Assurance Council. Unlike most Presidential decision directives which focuses only on government organization and interagency coordination, PDD 63 is remarkable in its efforts to organize a public-private partnership to reduce critical infrastructure vulnerability.
For each of the eight major sectors of our economy that are vulnerable to infrastructure attack, a single U.S. Government department is designated to serve as the lead agency for liaison to cooperate with the private sector. These sector liaisons will coordinate with private sector representatives to address problems related to critical infrastructure protection, to develop a sector component of the National Infrastructure Assurance Plan, and to develop and implement a Vulnerability Awareness and Education Program for their sector. By way of example, the Department of Commerce is the lead agency for the information and communications sectors, and the Department of Treasury is the lead agency for the banking and finance sectors. A National Plan Coordination (NPC) staff will integrate these sector component plans into the comprehensive National Infrastructure Assurance Plan and coordinate the analyses of the U.S. Government's own dependencies on critical infrastructure. PDD 63 specifies that the NPC shall be an office of the Department of Commerce beginning fiscal year 1999. On 22 May 1998, the Secretary of Commerce named Jeffrey Hunker, formerly Deputy Assistant to the Secretary of Commerce for economic policy development and special initiatives, as Director of the national Critical Infrastructure Assurance Office (CIAO). The Director of the CIAO will report to the PDD 62 National Coordinator and will be responsible for the duties assigned by PDD 63 to the NPC staff.
Similarly, for each of the functions that must be chiefly performed by the federal government, four lead agencies for special functions have been designated. The Department of Justice is the lead agency for law enforcement and internal security, the Central Intelligence Agency is the lead agency for foreign intelligence, the Department of State is the lead agency for foreign affairs, and the Department of Defense is the lead agency for national defense. The departmental representatives from these twelve lead agencies, as well as representatives from other relevant departments and agencies, will meet to coordinate the implementation of PDD 63 under the auspices of the Critical Infrastructure Coordination Group (CICG), which will be chaired by the PDD 62 National Coordinator.
The National Infrastructure Assurance Council will consist of a panel of major infrastructure providers and state and local government officials. Its purpose is to enhance the partnership of the public and private sectors, and it is authorized to make reports to the President as it believes appropriate. The Chairman of the Council will be appointed from industry, and the PDD 62 National Coordinator will serve as the Council's executive director.
Every department and agency of the federal government is responsible for protecting its own critical infrastructure, and must develop a plan to do so within 180 days from the issuance of PDD 63. The PDD 62 National Coordinator is responsible for coordinating the analyses required by the departments and agencies, and the CICG will sponsor an expert review process for those plans. These plans must be fully implemented no later than 22 May 2000, and are supposed to serve as a model to the private sector on how best to protect critical infrastructure. Also within 180 days, the Principals Committee must submit to the President a schedule for completing the National Infrastructure Assurance Plan.
PDD 63 also authorizes the Federal Bureau of Investigation to establish a National Infrastructure Protection Center (NIPC) to provide a national focal point for gathering information on threats to critical infrastructures. The NIPC will serve as a national critical infrastructure threat assessment, warning, vulnerability, and law enforcement investigation and response entity. It will also provide the principal means of facilitating and coordinating the federal government's response to an incident, mitigating attacks, investigating threats, and monitoring reconstitution efforts. Should the threat be foreign, then the President may place the NIPC in a direct support role to either the Department of Defense or the Intelligence Community. The NIPC was actually created on 27 February 1998, and Michael Vatis was appointed to serve as its chief.
Finally, PDD 63 encourages the owners and operators of the critical infrastructures to create a private sector Information Sharing and Analysis Center (ISAC). The design of the ISAC, and its relationship to the NIPC, was left to the determination of the private sector, however, the PDD 63 National Coordinator is required to identify possible methods of providing federal assistance to facilitate the startup of an ISAC.
Implications for the Legal Community
The implications for the legal community are profound. In many respects, international and domestic law has been overwhelmed by a revolution in technology that is driving an unparalleled evolution in national security and online commercial law which involves state and local governments, industry, and individual citizens at all levels.
Americans have felt safe at home during the 20th century from foreign attack, and armed conflict has been the province of the federal government and the military industrial complex. Wars were fought elsewhere because the United States has the ability to project its great military power overseas and protect American soil from attack. Our economy has thrived and computer technology has flourished. As the United States became the world's greatest military and economic power, its computer-dependent infrastructure also became the world's most vulnerable and lucrative target. Our military and economic strength forces those who wish to do us harm to attack our soft underbelly – the computer and computer-dependent systems throughout our nation that were initially built with an open architecture and without security foremost in mind. This soft underbelly that supports a war effort may have always been a lawful target under the laws of armed conflict, but without today's Internet technology, enemy states could not reach these targets on American soil. Today, however, hostile states can easily target America's heartland with a $900 computer and techniques readily available on the Internet. Given that over 95% of Department of Defense telecommunications travel over commercial systems, and the growing interdependence of our civilian infrastructure and national security complex, lawyers must evaluate whether the rules of military necessity and collateral damage under existing laws of war, jus in bello, are adequate in the information age.
National security lawyers must also try to define what is a use of force in cyberspace. An unauthorized intrusion by individuals or terrorists into a national security system is criminal activity under the jurisdiction of the Department of Justice. In contrast, the same type of intrusion by a state, or a state sponsored individual or terrorist, may be an unlawful use of force under the Charter of the United Nations that gives rise to a state's inherent right of self-defense. Lawyers must define when espionage and intelligence gathering by a state within a national security computer system, otherwise lawful under international law, becomes a hostile act or a demonstration of hostile intent that authorizes either an electronic or a conventional, steel-on-target response. The law of conflict management, jus ad bellum, should be reviewed and refined to prevent future conflict.
Lawyers throughout the federal, state, and local governments must review existing legislation, and propose new legislation if necessary, to ensure that the United States has a coordinated approach toward the prevention, mitigation. response, recovery, and reconstitution of damage to our critical infrastructure. Department of Justice lawyers and prosecutors in all fifty states must initiate legislative changes that will strengthen our ability to investigate, prosecute, and deter computer crime. Multinational mutual legal assistance treaties are needed to enhance international cooperation and eliminate safe havens that may exist around the world. While we strengthen these laws, we must also ensure that we protect the privacy rights of all consumers and operators, and that we do not restrict an online free market by overregulation. We must also ensure that existing and new legislation clearly provides for procedures for the government and industry to test their own systems without fear of violating the law.
Lawyers are also challenged with the new application of commercial law to online and electronic storage applications. Liability for the buying and selling of goods and services online raises many issues involving online contracts, digital signatures, and electronic payments. Internet provider liability issues based on theories of direct infringement, contributory infringement, and vicarious liability abound because of the ease with which copyright protected works can be duplicated and distributed on the Internet. The trend in the courts appear to limit the liability of Internet service providers (ISPs) for content-based liability in defamation suits, but ISPs need to be careful about the nature of their service contracts with publishers to ensure they keep their distance from an editorial role that may give rise to liability.
Business lawyers and trial attorneys must consider the trustworthiness and admissibility of electronic records and emails in an online world. Corporate lawyers must be concerned about the liability of their principals and board of directors for failing to maintain legally acceptable standards of care in protecting their computers and information systems from theft, data manipulation, or destruction. Similarly, lawyers for insurance companies should be proactive and develop standards of care and security practices that are prerequisites to coverage. Intellectual property lawyers must be concerned about the unauthorized and misleading use of similar domain names and URLs. Civil rights lawyers must address online First Amendment issues raised in recent legislation attempting to protect children from sexually explicit materials and predators, and privacy issues that arise when employers track Internet usage and electronic communications of their employees.
A resolution to the national debate over encryption will have significant ramifications for law enforcement and private industry - in the meantime, international travelers must be careful carrying common software packages, such as AOL 4.0 or PGP, because United States law prohibits their export from the United States without an export control license. Depending upon the jurisdiction where they practice, lawyers must be concerned about breaching their ethical duty of confidentiality when sending electronic mail over the Internet. They must also be aware of issues that involve the unauthorized practice of law that may arise when advising clients with a multistate presence. Similarly, lawyers who have a federal practice such as immigration law that market over the Internet must be concerned about the unauthorized practice of law when they advise clients in another state via email. Lawyers who advertise on the web must also be concerned about unethical advertising issues in some states when using key words that suggest specialties. The new national security and online commercial law issues that are evolving have the potential to touch every lawyer, regardless of whether they are in government service or private practice - and the burden is on the entire legal profession to help create a plan that will protect our critical infrastructure while protecting individual and business rights in cyberspace.
Analysis and Conclusion
The President's Commission on Critical Infrastructure Protection concluded that our vulnerability to cyber attack by criminals, terrorists, and hostile states is real and growing. The Commission's report provided a series of detailed recommendations that would provide a strategy to defend our critical infrastructures. PDD 63 embraces the Commission's report by establishing a public-private partnership, and the structure within the federal government to lead industry by example as to how best to protect our critical infrastructure. The President has demonstrated by his actions and PDD 63 his commitment to working with the private sector and Congress.
In fact. Congress deserves as much of the credit as any government agency or office for identifying the vulnerabilities of our infrastructure and shaping the solution we now see in PDD 63. Many of the initiatives and conclusions of the Commission's report and PDD 63 were shaped and influenced, if not originated, by Congressional hearings. Without the leadership and initiative of Senator Jon Kyl and Congressman Porter Goss, to name only two who have been actively involved, the United States would be much further from developing a plan to protect our nation's critical infrastructure.
The two most difficult issues facing the United States concern information sharing and encryption. Information must flow both ways between the government and private industry to ensure the United States has an effective early warning mechanism against an organized cyber attack. Private industry must have encryption to ensure the integrity of electronic transactions, and United States companies must have the economic and competitive advantage of being able to enter the international market. Encryption will also help make our critical infrastructure more secure. Law enforcement and intelligence agencies, however, have a legitimate need to be able to conduct electronic surveillance in the age of sophisticated digital encryption. Within very carefully crafted constitutional, statutory, and regulatory safeguards and procedures, both the law enforcement and intelligence communities already have the right to conduct electronic surveillance as a matter of law under appropriate circumstances - but with the technology of digital encryption, they will not have the technical capability to do so without a system in place that allows them access to a key.
Unfortunately, the principal reason why there is not yet a solution for either the information sharing or encryption issue is in the lack of trust that private industry has in government oversight. There has also been disagreement as to who will bear the cost to private industry of implementation. The solutions will not be easy. What is clear, however, is that both the government and private industry have competing equities in developing a solution to each of these issues, and that both government and private industry will have to compromise to reach a solution. What is also clear, is that not having a solution to the information sharing issue leaves critical infrastructures more vulnerable, and not having a solution to the encryption issue places American businesses at an economic and competitive disadvantage.
Just as with the report of the President's Commission, many people in government and industry will, undoubtedly, criticize and find what they view as faults with PDD 63. Indeed, it is not perfect, and perhaps never intended to be. As always, hindsight and experience will likely prove there was a better approach. The report of the President's Commission and PDD 63 is, however, an extraordinary accomplishment. Together, they have given us the ability to grasp an extremely complex problem and have given us a solution that assigns relatively clear responsibilities within the government. PDD 63 will move the Executive, Congress, and private sector forward in partnership to define the National Infrastructure Assurance Plan that will effectively protect our great nation's critical infrastructure.
*Walter Gary Sharp, Sr., an Adjunct Professor of Law at Georgetown University Law Center, is the Director of The Aegis Center for Legal Analysis, Aegis Research Corporation, Falls Church, Virginia. The opinions and conclusions expressed herein are those of the author and do not necessarily reflect the views of any governmental agency or private enterprise.