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[] Lecture Series: Balancing National Security and Civil Liberties,

Lecture Series: Balancing National Security and Civil
   Liberties in an Age of Networked Terrorism

   Wednesday, September 26, 2001

                                           Jerry Berman,
                                           Dorothy Denning
                                           and Martin Libicki
                                           discuss our current
                                           national security

                                              (Real | Windows

   About the speakers (L to R): Dorothy E. Denning is Professor of
   Science at Georgetown University and Director of the Georgetown
   for Information Assurance. She has published widely on such topics as

   information warfare, cyber-crime and cyber-terrorism, encryption and
   policies, and the impact of technology on society. Her books include
   Information Warfare and Security, Internet Besieged: Countering
   Scofflaws, and Rights and Responsibilities of Participants in
   Communities. Dr. Denning has testified before the U.S. Congress and
   advised the U.S. government on these issues. Martin Libicki is Senior
   Analyst at RAND, where he specializes in the relationship between
   technology and national security. Dr. Libicki has written extensively
on such
   topics as technology and warfare, the revolution in military affairs,
   battle space knowledge and standards policy for the digital economy.
   his publications are the monographs, "Illuminating Tomorrow's War"
and "The
   Mesh and the Net: Speculations on National Security in an Age of Free

   Silicon." Prior to joining RAND, he spent twelve years at the
National Defense
   University. Jerry Berman is the founder and Executive Director of the
   for Democracy and Technology, a leading Internet public policy
   He is also President of the Internet Education Foundation and head of
the 150
   organization Advisory Committee to the Congressional Internet Caucus.
   Berman has played a pivotal role in the enactment of landmark privacy
   freedom of information legislation, and coordinated the First
   challenge to the Communications Decency Act at the US Supreme Court.

   Rapporteur's Report

   On September 26, 2001, the Project on the Information Revolution and
   Politics convened a panel discussion on balancing national security
and civil
   liberties in an age of networked terrorism. The panel's moderator,
   Drake, Senior Associate at the Carnegie Endowment, introduced the
topic by
   placing the current national security crisis in the context of the
   interrelated meta-trends of interest to the project---the information
   and globalization. Osama bin Laden's Al Qaeda and other terrorist
   organizations have at their disposal the same technological tools
that have
   empowered businesses, nongovernmental organizations, and other
   actors to organize their activities and advance their objectives more
   than ever before. And like these other actors, they are able to
operate on a
   global scale by moving and coordinating people, money, information
and other
   assets across increasingly permeable national borders. Drake pointed
out that
   "we are at war not with a nation, but with a network" that includes
   but semi-autonomous cells in multiple countries. Tracking and
eliminating this
   sort of enemy presents challenges that are radically different from
   encountered in traditional forms of warfare.

   Drake raised four broad questions that merit consideration. First,
given the
   conflicting reports on this score, what do we really know about how
   use information and communication technologies (ICTs)---e.g. data and
   communications, encryption, videotape recorders, broadcast radio---to

   organize their activities and promote their message, and what threats
do these
   uses pose for our national security? Second, what actions should the
   States government take in response to such threats? For example, the
   September 11 attack has reignited and given new urgency to
   debates about surveillance efforts such as the Carnivore and Echelon
   programs, as well as to U.S. policies concerning encryption, privacy
   protection, and related issues. Third, and of particular interest for
this panel
   discussion, how should we balance the need to strengthen our national

   security and intelligence capabilities with the need to preserve our
   constitutionally protected freedoms? The question is critical today
because the
   U.S. Congress is moving to adopt the Bush administration's new
   legislation which, civil libertarians argue, goes too far in
   government surveillance powers within the United States. And finally,
   the globally networked nature of some terrorist organizations,
national actions
   will at times be insufficient. In what cases, then, will we need to
develop and
   enforce strong multilateral agreements, and what are the challenges
involved in
   such an effort?

   The first panel speaker, Dorothy Denning, described the various ways
   terrorists have used ICTs in the past and speculated about how they
may use
   them in the future. She began by presenting a website assembled by
   Cromwell. The site contains links to separatist, para-military,
   intelligence, and aid organizations, and it illustrates how
terrorists and their
   sympathizers have been using the Internet. She referred the audience
   particular to the sites of the Taliban, Hamas and Hezbollah groups,
   of Osama bin Laden, and sites in countries believed to be harboring
   of terrorist networks.

   Denning then pointed out some examples of terrorists' use of ICTs..
   noted that Ramzi Yousef, as associate of bin Laden who was convicted
of the
   1993 World Trade Center bombing, used encryption technology to hide
   information stored on his computer. Police found a laptop computer in

   Yousef's safe house in Manila that contained encrypted files with
   about his plans to take down 11 commercial airliners and to
assassinate the
   Pope. She also cited a USA Today article stating that U.S. officials
believe that
   Osama bin Laden's network and other Muslim extremists have been
   encrypted messages in pornographic photographs and on message boards
   help plan terrorist actions against the United States.

   Denning expressed concern that incidents of information
   warfare will grow in number in the years ahead, and that
      terrorist organizations could become more centrally
                   involved in such activity.

   Denning then turned to recent incidents involving terrorists and
   conducting cyber attacks, such as Internet viruses, worms, and
   web-defacements. One of the first reported incidents involved an
offshoot of
   the Tamil Tigers, the Internet Black Tigers, who launched a
   attack against the Sri Lankan Embassy. With automated tools, they
   roughly 800 messages per day to the embassy over a two week period.
   escalating cyber conflicts between Arabs and Jews in the Middle East
   provided further examples. With hackers on both sides attacking one
   websites, the activities have proven "extremely destructive to
companies and
   Internet service providers such as Netvision in Israel," said
Denning. Relating
   these incidents to the United States' current investigation, Denning
   attention to a January 2001 iDefense report stating that a
pro-Palestinian group
   of Internet crackers called Unity had some connections with
Hezbollah, while
   another group, al-Muhajiroun, had ties to bin Laden's network.
   expressed concern that incidents of information warfare will grow in
   in the years ahead, and that terrorist organizations could become
   centrally involved in such activity.

   Against this backdrop, Jerry Berman focused on the problem of
   national security and civil liberties, most immediately in the
   anti-terrorist legislation. While acknowledging that the current
crisis calls for
   immediate action, he cautioned against the hasty adoption of overly
   limitations on personal freedoms. The Anti-Terrorism Act proposed in
   wake of the September 11 attack requires careful consideration
because it
   covers a wide range of complex issues concerning the investigative
   of government agencies and the conduct of surveillance and
   gathering intelligence.

   "We want to solve our national security crisis, but we do
   not want to have a great deal of collateral damage to our

   Berman recalled that in 1978, as Chief Legislative Counsel at the
   Civil Liberties Union, he worked with the national security
establishment and
   policy makers to find a balance between national security and civil
   The resulting Foreign Intelligence Surveillance Act (FISA)
   classified and public guidelines for the surveillance efforts of the
   Bureau of Investigation (FBI) and the Central Intelligence Agency
(CIA). The
   FISA gives these agencies wide-ranging authority to conduct
   surveillance against both foreign powers and their agents and
   organizations at home and abroad, including U.S. persons who aid and
   such activities. However, it draws a bright line between electronic
   for law enforcement purposes and surveillance for intelligence
purposes. The
   law sets a lower standard for collecting intelligence information
than does Title
   III and the Electronic Communications and Privacy Act, which is used
   domestic criminal law cases. For example, under FISA, the government
   obtain a warrant for intelligence gathering even if there is "less
than probable
   cause" to believe that an individual-including an American-is working
with or
   is aiding and abetting terrorists. In sum, Berman recalled that "we
wanted to
   build a wall to separate the government from using intelligence
   that focus on crime to target domestic political dissent."

   Berman's concern today is that the pending anti-terrorist legislation
   breaks down that wall. Since surveillance is secret and never
disclosed under
   FISA, the primary purpose of surveillance is intelligence collection,
   opposed to criminal investigation. Berman explained that supporters
of the
   new bill propose to make intelligence gathering one of several
purposes of
   surveillance, with criminal investigation among them. This "serious
change in
   the law" would then allow criminal investigations to be conducted
under a
   statute designed for intelligence gathering under less than probable

   In addition, the new proposal allows roving wiretaps for domestic
   gathering. Such taps "may follow any device, any computer they use,
it may
   follow them into this room for electronic surveillance," he noted. In
   opinion, this change also requires careful attention because
supporters intend
   to apply FISA's low standards of "may be engaged in international
   activity" to new technologies and potentially use their findings for

   In addition, Berman pointed out that the proposed legislation weakens
   requirement for judicial supervision of surveillance activities.
Under FISA,
   investigators are required to produce business records relevant to
   investigation; now, subpoenas would be sufficient for carrying out
   surveillance. Also, proponents of the administration's bill would
like to allow
   searches and wire taps under FISA to continue for one year, rather
   subject them to frequent reviews. Since September 11, 150 new
   have been issued, Berman noted.

   Berman also said that the legislation would allow any information
that has
   national security or intelligence value, collected under any wiretap,
to be
   turned over to law enforcement officials and the administration. "It
allows the
   use of wire tap information collected under surveillance illegally
   one can imagine what it would be to be illegal abroad-where there's
   Constitution or fourth amendment in criminal prosecutions," he
   This appeases members of the law enforcement community who feel that
   current laws restrict them from sharing information gathered in a
   investigation with an intelligence agency, but it has risks as well.
   changing the primary purpose test for wiretaps under FISA may nullify
   statute on Constitutional grounds. If this occurs, both national
security and
   civil liberties are threatened; further, if the statutes are found
   criminal prosecution would suffer.

   In short, Berman worried that the rushed passage of the law in its
   form could have serious unintended consequences. Accordingly, he
   that more time is needed so that interested parties and the public
can seriously
   debate the proposed legislation. If time can be found, the
administration and
   the Congress can strike a better balance between national security
and civil
   liberties. Some elements of a new approach might be to modify
   perceived as restricting law enforcement officials to make exceptions
   for terrorist investigations, and to determine how best to share a
narrow class
   of information relating to terrorist activities with the intelligence
   without broad changes of current standards.

   The final speaker, Martin Libicki, also focused on the question of
balance, but
   did so from the standpoint of guiding design concepts rather the
   anti-terrorist legislation. He began by drawing a parallel between
   surveillance problems and the differences between carnivores and
   Carnivores are very specific in their pursuit of food and convert a
   percentage of what they eat into protein. In contrast, herbivores are
   specific and have to eat a very large amount of food to get enough
protein to
   survive. To date we have acted like carnivores by targeting
surveillance on
   known people for specific private information which we, in turn,
intend to
   make public to law enforcement. Alas, the perpetrators of the
September 11
   went undetected, suggesting that this may no longer be the correct
template to
   follow. Instead, we may want to collect a lot of information that is
not private
   to begin with and try to make sense out of what we collect.

   Libicki said that for present purposes, there are three types of
   private, local and global. Private information is undisclosed or
disclosed only
   to people close to you, e.g. family members. Local information is
   accessible to relatively small number of physically proximate
strangers, e.g.
   whether or not one hangs a flag outside of her home. Global
information can
   be collectible and knowable without restriction. Much of our privacy
   have concerned the transition between private and public, which is
very well
   protected in the Constitution by rules regarding search and seizure
and search
   warrants; and the transition from local to global, which the
Constitution does
   not strongly protect. The controversy of's creation and
   distribution of customer profiles exemplifies this latter notion.

   The challenges of implementing an enhanced surveillance
      system include determining which organizations are
      universally recognized as competent authorities to
      provide identifications and pinpointing the kinds of
        places and purposes that require identification.

   Libicki proceeded to weigh the pros and cons of an enhanced
   system that turns local information into global information in order
to facilitate
   the tracking of certain activities. To frame his discussion, he
defined hard
   identification as the coupling of an electronic record with biometric

   identification such as photographs, signatures, fingerprints, or DNA.
   challenges of implementing this type of enhanced surveillance system
   determining which organizations are universally recognized as
   authorities to provide identifications, and pinpointing the kinds of
places and
   purposes that require identification. In this context, he also
revisited the
   controversial question of whether a national identification card
would be

   Certain situations and places, such as airplanes, dictate the need
for identifying
   people. Yet, Libicki wondered if the government should also collect
   information to identify people engaged in "intrinsically hazardous
   [such as] flight schools, crop dusters [and] truck rentals" or those
who use
   credit cards. Asking for identifications at specific and predictable
times and
   places, he speculated, proves less useful for police work than
seeking it "at
   random times in random places." But police officers' ability to ask
   identification in this manner is the defining characteristic of a
police state, he
   reminded the audience. Finally, Libicki tackled the very
controversial issue of
   targeting populations based not only on their activities but also on
   characteristics. The challenge lies in attempting to monitor target
   including non-US citizens and people that are in institutional care,
   avoiding everyone else.

   Libicki identified two primary advantages of surveillance in the form
of an
   extensive network of checkpoints. First, surveillance may inhibit or
   people who do not want to be identified from carrying out their
   Second, it may provide security officials with a warning-provided
that they
   have a template to follow, which seems uncertain at this point.

   During the subsequent question and answer period, the discussion
   from technical to philosophical considerations. Several audience
   raised questions about the efficacy of restrictive encryption
policies, given that
   the technology is already widely available all over the world.
   answered that the administration's proposed antiterrorist act does
not intend to
   change encryption policy. She also mentioned her work on the
   Export Council Subcommittee on Encryption to liberalize export
   stating that she did not expect changes.

   Another attendee asked about the ability of the National Security
Agency and
   other intelligence agencies to handle the information load received
   satellites and fiber optic cables. Berman said that the Attorney
General raised
   this very issue in the morning. Lacking a sufficient number of
analysts and
   translators to process information gathered from abroad, the
   must address these needs quickly, Berman opined. Berman added that
   intelligence agencies' over-reliance on signal intelligence has
created an
   unwieldy amount of information.

   The next question directed to Berman elicited his opinion on the
   implementation of a government identification card, in light of
   remarks. Berman replied that terrorists probably would evade such
   and noted that a mandatory program would be very controversial.
   Nevertheless, a voluntary opt-in approach might be desirable if it
   convenience and citizens had faith that the information involved
would not be

   One audience member asked about the role of business in the balancing

   national security and civil liberties. Berman pointed to the
coalition of
   businesses and civil libertarians who passed the Electronic
   Privacy Act, worked on the redesign of the telephone network in 1994
and on
   the more recent encryption policy. He believes that the business
   strong interest in protecting privacy guarantees adequate debate for
   controversial issues.

   A question concerning targeting non-American citizens, directed to
   resulted in extensive comments from the panel. Given that citizens of
   European Union member countries do not have to have a Visa to stay in
   United States for three to four months, an audience member asked,
"Are we
   going to just identify those that come from the so called Third
World? Are we
   going after the usual suspects, the Arab countries?" Libicki
responded to the
   question by claiming that he does not advocate targeting non-American

   citizens. He went on to mention problems inherent in the view that
people with
   "norms" similar to those of the United States belong on the inside of
   figurative border and those who do not share those norms belong on

   The current crisis introduces many sovereignty issues. In Libicki's
view, the
   United States is "starting to come close to saying that you cannot
hide people
   that are wanted from our laws," urging countries to have similar
notions of
   crime and justice. A further paradox is "that a would-be terrorist is
safer in the
   United States where he would have to be proven to be a terrorist than
   would be in other countries, if we could lean on them to pick up

   Berman also offered his opinions in response to the question of
   non-Americans. "We live together. The next sleeper might be an
   You cannot profile on the basis of ethnic and racial background. [If
you do], it
   will reverberate around the world and the President's coalition would
fall apart.
   We're all in this together. We're talking about a relatively small
number of very
   very crazy people and I just don't think you can target whole
   Berman said.


Olivier Minkwitz___________________________________________
Dipl. Pol., wissenschaftlicher Mitarbeiter
HSFK Hessische Stiftung für Friedens- und Konfliktforschung
PRIF Peace Research Institute Frankfurt
Leimenrode 29 60322 Frankfurt a/M Germany
Tel +49 (0)69 9591 0422  Fax +49 (0)69 5584 81
Mobil   0172  3196 006
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