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Stewart Baker
Former government official now practicing law
Recent Activity
My latest venture in podcasting features a debate on attributing cyberattacks. Two guests, Thomas Rid and Jeffrey Carr, disagree sharply about how and how well recent cyberattacks can be attributed. Thomas Rid is a Professor of Security Studies at King’s College London and the author of Cyber War Will Not Take Place as well as a recent paper on how attribution should be done. Jeffrey Carr, the founder and CEO of Taia Global, remains profoundly skeptical about the accuracy of most attribution efforts in recent years. I question both of them, relying heavily on questions supplied by attribution aficionados via Twitter. Among the questions we dig into: Why is cyber attribution is so controversial? Is it a hangover from the Iraq war? Snowdenista hostility to the US government? Or the publicity to be gained from challenging official attributions? Is the use of secret attribution evidence inherently questionable or an essential tool for ensuring successful attribution? I also call out the security experts who heaped scorn on the FBI for its initial fingering of North Korea as the source of the Sony attack. Which of them recanted as the evidence mounted, and which ones doubled down? Details in the podcast. In... Continue reading
Posted 3 days ago at Skating on Stilts
I occasionally report here on interviews that I’ve been doing for the Steptoe Cyberlaw Podcast. This week’s guest is David Sanger, the New York Times reporter who broke the detailed story of Stuxnet in his book, Confront and Conceal: Obama's Secret Wars and Surprising Use of American Power. His appearance on the podcast is particularly timely because it allowed David to talk about his latest story for the Times. The story recounts how North Korea developed its cyberattack network, and how the National Security Agency managed to compromise that network and attribute the Sony attack. He explains that understanding the Obama White House helped him break a story that seemed to be about NSA and the FBI. I explain why I think North Korean hackers resemble East German Olympic swimmers, and we meditate on the future of cyberwar. For those who like such things, Michael Vatis and I also cover a news-rich week, beginning with capsule summaries of the President’s State of the Union proposals for legislation on cybersecurity information sharing, breach notification, and Computer Fraud and Abuse Act amendments. We touch on Europe’s new commitment to antiterrorism surveillance, which officially puts a still-Snowden-ridden United States out of step with... Continue reading
Posted Jan 21, 2015 at Skating on Stilts
I've got a short op-ed about returning American jihadis in the Room for Debate section of today's New York Times site. Here's what it says: Americans returning home from a foreign jihad pose a very real danger to this country, now and for years to come, as the Charlie Hebdo attacks reveal. One of the attackers, Cherif Kouachi, had been caught and convicted of trying to join the war in Iraq, and his brother may have trained with Al Qaeda in Yemen. Despite these warning signs, French authorities lacked the resources to keep watching the brothers. Our law is even less suited to the threat than France's. We have not made it a federal crime for Americans to join the fight against a U.S. ally. And, like the French, we cannot afford to put 24-hour tails on every returnee. We could afford to conduct electronic surveillance of the returnees, but that would require specific evidence of a new plot here at home. And new plots, the Kouachis showed, are often easy to hide from the authorities. Until we can distinguish the reformed from the continuing threats, the penalty for this new crime should at a minimum include years of probation... Continue reading
Posted Jan 13, 2015 at Skating on Stilts
Government policymakers have been hoping for twenty years that companies will be driven to good cybersecurity by the threat of tort liability. That hope is understandable. Tort liability would allow government to get the benefit of regulating cybersecurity without taking heat for imposing restrictions directly on the digital economy. Those who see tort law as a cybersecurity savior are now getting their day in court. Literally. Mandatory data breach notices have led, inevitably, to data breach class actions. And the class actions have led to settlements. And those freely negotiated deals set what might be called a market price for data breach liability, a price that can be used to decide how much money a company ought to spend on security. So, how much incentive for better security comes from the threat of data breach liability? Some, but not much. As I've been saying for a while, the actual damages from data breaches are pretty modest in dollar terms, and the pattern of losses makes it very hard to sustain a single class, something that forces up the cost of litigation for the plaintiffs. You can see this pattern in recent data breach settlements. I put this chart together for... Continue reading
Posted Jan 11, 2015 at Skating on Stilts
Maybe so. Compare this study: A recent study conducted at the Norwegian University of Science and Technology has revealed that being born during a period of heightened solar activity can shorten our lifespan by over five years. With this one: The plot below ... shows the size of the biggest individual spots in each year between 1900 and 2000. Notable spots include the Great Sunspot of 1947, which was three times larger than [a 1991 sunstorm]. Continue reading
Posted Jan 11, 2015 at Skating on Stilts
From an op-ed for the New York Daily News: there are widespread reports that North Korea launches its cyberattacks from the luxurious Chilbosan Hotel in Shenyang, China. Perhaps a previously unknown cyberarmy should simply take down the hotel's power and telephone service and threaten worse. There's a risk that such tactics would lead to conflict between the U.S. and China, but China can avoid that by closing the haven it has provided for attacks on America. These are not easy options to contemplate. But flinching from such conflicts will lead to escalation of another kind, as every tin-pot dictator in the world discovers that Americans can be intimidated on the cheap. Like it or not, history is calling. Continue reading
Posted Dec 20, 2014 at Skating on Stilts
From my op-ed in the Hollywood Reporter: North Korea is one of two countries that have pioneered the use of hacking not for spying but for punishment. The North's attack on South Korean banks was aimed at destroying data, not just stealing it. In addition, Iran is suspected of using malware to destroy Saudi oil industry computers and of using botnets to bring down the websites of American banks. To be blunt, these two countries are testing how far they can go in harming U.S. companies without provoking American retaliation. If the attack on Sony is connected to them and goes unanswered, companies and groups whose speech offends these countries — and, soon, Russia and China — will face the same treatment. It's a serious dilemma for the Obama administration, which is still largely paralyzed by lawyers and diplomats arguing that the U.S. cannot act against these regimes' cyberattacks, either because we don't have proof beyond a reasonable doubt or because a counterattack would be "asymmetric" — a fancy way of saying North Korea can get along without computers a lot better than we can. Even so, we can't shrug off the Sony attack. Once the evidence is collected and... Continue reading
Posted Dec 11, 2014 at Skating on Stilts
I’ve spent the last couple of days meditating on the mistakes that web journalists make, and how those mistakes differ from mainstream media's errors. The reason for the meditation is a weirdly escalating cycle of misquotation that I experienced last week. In general, I don't obsess about the mistakes that journalists make when I talk to them. If you get quoted a lot, you can expect to be misquoted a lot too, and it's best to let it go. Reporters are in a hurry; or their editors lack context; mistakes happen. Complaining feels a little whiny, and in any event, readers are likely to forget the story before a correction hits the wires. But I was struck by the way this particular misquotation bounced around the web, acquiring authority by repetition without ever being verified, and I suspect it tells us something troubling about where the press is going, even for those of us who celebrate the breaking of mainstream media's narrative monopoly. First, the background. I'm a skeptic about the Silicon Valley movement to increase the use of communications encryption that even the supplier can't undo. I think it's bad policy, and not particularly good business, for reasons I... Continue reading
Posted Nov 9, 2014 at Skating on Stilts
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The chill in the air reminds me that it’s time to open the floor to nominations for the annual awards for Dubious Achievements in Privacy Law -- the Privies for short. The prizes are an opportunity to consider why privacy laws, always enacted amid proclamations of the best motives, nonetheless turn out so badly so often. Last year we nominated candidates in three categories: Privacy Hypocrite of the Year Worst Use of Privacy Law to Protect Power and Privilege Dumbest Privacy Case of the Year You can read all the nominations for 2014 here. The winners, chosen by privacy professionals and the public, can be found here. To start things out, it’s hard to find a better candidate for Dumbest Privacy Case of the Year than the recent decision by a Quebec judge, Alain Breault, who awarded a woman $2250 for a Google Street View photo of her sitting on her front stoop in a skimpy top. Maria Grillo claimed to have suffered shock and embarrassment when she saw just how much cleavage Google had caught on camera. Embarrassing? Maybe. Worth $2250? You be the judge. The before and after clips from Google Street View are from the Journal de... Continue reading
Posted Nov 2, 2014 at Skating on Stilts
Episode 40 of the Steptoe Cyberlaw Podcast is done. Our guest this week is Bob Litt, the General Counsel of the Office of the Director of National Intelligence. Bob has had a distinguished career in government, from his clerkship with Justice Stewart, his time as a prosecutor in the Southern District of New York and at Main Justice, and more than five years in the ODNI job. This week in NSA: The latest fad in news coverage of the agency is a hunt for possible conflicts of interest in its leadership. And it’s having an effect. Two high-ranking NSA seniors, the CTO and the head of signals intelligence have recently left positions that drew scrutiny for getting too close to private industry. I ask him whether we should be pleased or worried about the trend toward individual converts to Islam carrying out random attacks with whatever weapon comes to hand. Prudently, he refuses to be drawn into my comparison of Islamists to the Manson Family. We debate whether the USA Freedom Act has a chance of passage in the lame duck Congress – and whether it should, focusing among other things on how the act’s FISA civil liberties advocates would... Continue reading
Posted Oct 28, 2014 at Skating on Stilts
As I mentioned, I have been doing a weekly podcast on security, privacy, government and law with a couple of my partners, Michael Vatis and Jason Weinstein. This week, in episode 39, our guest is Tom Finan, Senior Cybersecurity Strategist and Counsel at DHS’s National Protection and Programs Directorate (NPPD), where he is currently working on policy issues related to cybersecurity insurance and cybersecurity legislation. Marc Frey asks him why DHS, specifically NPPD, is interested in cybersecurity insurance, what trends they are seeing in this space for carriers and other stakeholders, and what is next for their role in this space. He is forthcoming in his responses and even asks listeners to email him with their feedback. This week in NSA: The House and Senate Judiciary chairs call for action on USA Freedom Act. And nobody cares. We conclude that the likelihood of action before the election is zero, and the likelihood of action in a lame duck is close to zero. But next week we’ll be interviewing Bob Litt, one of the prime negotiators for the intelligence community on this issue, and he may have a different view. The Great Cable Unbundling seems finally upon us, as several content... Continue reading
Posted Oct 23, 2014 at Skating on Stilts
I've spent much of this year doing a weekly podcast on security, privacy, government and law with a couple of my partners, Michael Vatis and Jason Weinstein. (The RSS feed is here.) I thought readers of this blog might like a taste of the podcast, which has attracted a substantial audience in Washington. This week, in episode 38, our guest is Shaun Waterman, editor of POLITICO Pro Cybersecurity. Shaun is an award-winning journalist who has worked for the BBC and United Press International; and an expert on counterterrorism and cybersecurity. We begin as usual with the week’s NSA news. NSA has released its second privacy transparency report. We’ve invited Becky Richards, NSA’s privacy and civil liberties watchdog, on the program to talk about it, so I’m using this post to lobby her to become a guest soon: Come on in, Becky, it’s a new day at the NSA! Laura Poitras’s new film about Snowden gets a quick review. We question the hyped claim that there’s a “second leaker” at NSA; most of the leaked information described in the film was already pretty widely known. Two more post-Snowden pieces of litigation are also in the news. We dig into the Justice... Continue reading
Posted Oct 15, 2014 at Skating on Stilts
Jonathan, It's true that the IT department should still have access to the contents of emails that go through the corporate email server, in the absence of end-to-end encryption. But an employee doesn't have to use the corporate email server to do business. He can send text messages, or he can use 3d party messaging or emailing apps. The company probably can't get access to the contents of those messages without access to the phone. If an employee wants to use texts on an iPhone to do business with customers, then, Apple or the employee needs to provide access to those texts. That's just one example. I suspect there are more, because letting an encrypted email hook to the network in any way makes it more likely that the phone will be used in ways the company doesn't like. Stewart
The New York Times asked me to comment on Apple's encryption policy on its Room for Debate page, where op-eds are half the normal size. Here's the link and here's what I said: Apple is a lot like a teenager getting Edward Snowden's name tattooed up her arm. The excitement will die, but the regrets will last. For all of us. Most Americans believe in privacy from government searches, but not for criminals. The Constitution protects a citizen's “houses, papers and effects” only until a judge finds probable cause that the citizen has committed a crime. This year, the Supreme Court ruled that the police need a warrant to search cellphones seized at the time of arrest. But with Apple's new encryption, probable cause and a warrant will be of little help to the police who seize a suspect’s iPhone and want to search it. That decision should not be left to Apple alone. And it won't be. Companies do not want to give their employees the power to roam corporate networks in secrecy. And even if they did, their regulators wouldn't let them. If Apple wants to sell iPhones for business use, it will have to give companies a... Continue reading
Posted Sep 30, 2014 at Skating on Stilts
If you think Edward Snowden and Glenn Greenwald have stopped attacking NSA, you haven't been following them closely enough. While American media have largely lost interest in Snowden and Greenwald, the pair continue to campaign outside the United States against the intelligence agency. Their most ambitious effort was in New Zealand, a member of the “Five Eyes” intelligence alliance with the U.S. and U.K. The center-right New Zealand government has been embroiled in accusations of illegal surveillance of Kim Dotcom, who grew wealthy running a file-sharing site and is now fighting extradition to the United States for copyright violations. As part of that fight, Dotcom dove into New Zealand's national elections, hoping to unseat the two-term government and, in his words, "to close one of the Five Eyes." Snowden and Greenwald dove in with him, joining eagerly in campaign events sponsored by Dotcom. Greenwald used his new Omidyar-funded news site to release a lengthy article in the last week of the campaign; it accused New Zealand of working with NSA to conduct mass surveillance. When the prime minister denied the accusation, Snowden called him a liar. The combination of carefully timed Snowden leaks and Dotcom's millions looked potent. Dotcom even... Continue reading
Posted Sep 20, 2014 at Skating on Stilts
I've done a bit more online experimentation with Google's “famous or not” algorithm, first described here. Unfortunately, one of the risks of experimentation is that it may raise more questions than it answers. That's what happened to me. So I'll simply report the results. In short, the use of quotations in name searches seems to have an effect on when Google.co.uk displays the warning tag that it uses for non-famous people. Here are the results so far for several different searches on my name (quotation marks are part of the search). Remember that Google inserts the tag, warning that some entries may have been deleted due to EU data protection law, when it concludes that someone is not famous: stewart baker = no tag (i.e., Google-famous) stewart a. baker = no tag (i.e., Google-famous) “stewart a. baker” = no tag (i.e., Google-famous) “stewart baker” = tag (i.e., not Google-famous) stewart baker steptoe = no tag (i.e., Google-famous) stewart baker nsa = no tag (i.e., Google-famous) “stewart baker” nsa = tag (i.e., not Google-famous) Just to see how Google treats a genuinely famous person, I tried Robyn Rihanna Fenty (aka Rihanna): robyn fenty = no tag (i.e., Google-famous) robyn rihanna fenty... Continue reading
Posted Sep 9, 2014 at Skating on Stilts
Three months ago, I tried hacking Google's implementation of Europe's “right to be forgotten.” For those of you who haven't followed recent developments in censorship, the right to be forgotten is a European requirement that “irrelevant or outdated” information be excluded from searches about individuals. The doctrine extends even to true information that remains on the internet. And it is enforced by the search engines themselves, operating under a threat of heavy liability. That makes the rules particularly hard to determine, since they're buried in private companies' decisionmaking processes. So to find out how this censorship regime works in practice, I sent several takedown requests to Google's British search engine, google.co.uk. (Europe has not yet demanded compliance from US search engines, like Google.com, but there are persistent signs that it wants to.) I've now received three answers from Google, all denying my requests. Here's what I learned. The first question was whether Google would rule on my requests at all. I didn't hide that I was an American. Google's “right to be forgotten” request form requires that you provide ID, and I used my US driver's license. Would Google honor a takedown request made by a person who wasn't a... Continue reading
Posted Sep 8, 2014 at Skating on Stilts
I am not a big fan of the EU's "right to be forgotten," but it has one silver lining. I was noodling around with Google's ever-more-baroque implementation of the principle this weekend, and I discovered that it offers a quick and cheap way to discover just how famous Google thinks you are. To understand how Google got in the "famous or not" business requires a dive into the search engine's stutter-step implementation of the EU requirement. In China, of course, when Google is required to suppress a link, it includes a warning on the results page, saying in essence that the results have been censored. Google originally planned to do the same in response to European censorship. But the European data protection censors didn't like that kind of transparency. They thought that the notice, even if it didn't actually say what had been suppressed, would stigmatize Europeans who invoked the right to be forgotten. (That, and it might remind searchers that their access to data was being restricted by European law.) Google caved, mostly. But it left in place a vestige of its original policy. Now, it includes the following warning on its European results pages whenever any name is... Continue reading
Posted Aug 31, 2014 at Skating on Stilts
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The evidence is mounting that Edward Snowden and his journalist allies have helped al Qaeda improve their security against NSA surveillance. In May, Recorded Future, a predictive analytics web intelligence firm, published a persuasive timeline showing that Snowden's revelations about NSA's capabilities were followed quickly by a burst of new, robust encryption tools from al-Qaeda and its affiliates: This is hardly a surprise for those who live in the real world. But it was an affront to Snowden's defenders, who've long insisted that journalists handled the NSA leaks so responsibly that no one can identify any damage that they have caused. In damage control mode, Snowden's defenders first responded to the Recorded Future analysis by pooh-poohing the terrorists' push for new encryption tools. Bruce Schneier declared that the change might actually hurt al Qaeda: “I think this will help US intelligence efforts. Cryptography is hard, and the odds that a home-brew encryption product is better than a well-studied open-source tool is slight.” Schneier is usually smarter than this. In fact, the product al Qaeda had been recommending until the leaks, Mujahidin Secrets, probably did qualify as “home-brew encryption.” Indeed, Bruce Schneier dissed Mujahidin Secrets in 2008 on precisely that ground,... Continue reading
Posted Aug 3, 2014 at Skating on Stilts
I've long been an advocate for fewer restraints on how the private sector responds to hacking attacks. If the government can't stop and can't punish such attacks, in my view the least it could do is not threaten the victims with felony prosecution for taking reasonable measures in self-defense. I debated the topic with co-blogger Orin Kerr here. I'm pleased to note that my side of the debate continues to attract support, at least from those not steeped in the "leave this to the professionals" orthodoxy of the US Justice Department. The members of the 9/11 Commission, who surely define bipartisan respectability on questions of national security, have issued a tenth anniversary update to the Commission's influential report. The update repeats some of the Commission's earlier recommendations that have not been implemented. But it also points to new threats, most notably the risk of attacks on the nation's computer networks. No surprise there, but I was heartened to see the commissioners' tentative endorsement of private sector "direct action" as a response to attacks on private networks: Congress should also consider granting private companies legal authority to take direct action in response to attacks on their networks. This "should consider" formulation... Continue reading
Posted Jul 27, 2014 at Skating on Stilts
HIPAA is an arguably well-intentioned privacy law that seems to yield nothing but "unintended" consequences. I put "unintended" in quotes because the consequences are often remarkably convenient, at least for those with power. I'm not sure you can call something that convenient "unintended." The problem has gotten so bad that even National Public Radio and the Pro Publica organization -- hotbeds of bien pensant liberalism -- have started to notice. This story, for example, could be mined for a host of Privy nominations for Dubious Achievements in Privacy Law: In the name of patient privacy, a security guard at a hospital in Springfield, Mo., threatened a mother with jail for trying to take a photograph of her own son. In the name of patient privacy, a Daytona Beach, Fla., nursing home said it couldn't cooperate with police investigating allegations of a possible rape against one of its residents. In the name of patient privacy, the U.S. Department of Veterans Affairs allegedly threatened or retaliated against employees who were trying to blow the whistle on agency wrongdoing. When the federal Health Insurance Portability and Accountability Act passed in 1996, its laudable provisions included preventing patients' medical information from being shared without... Continue reading
Posted Jul 26, 2014 at Skating on Stilts
When you're in the business of pointing out how often privacy law ends up protecting power and privilege, you never run out of material. Everyone remembers Lois Lerner, the IRS official who pleaded the fifth amendment and refused to testify about her role in the agency's scrutiny of Tea Party nonprofits. And everyone remembers her mysterious computer crash making years of emails unavailable in 2011. Could the messages be recovered with advanced forensics? We'll never know, because the IRS so systematically nuked Lerner's drives that no one could ever recover anything from them. Why? According to The Hill, "the agency said in court filings Friday that the hard drive was destroyed in 2011 to protect confidential taxpayer information." I'm sure the taxpayers will find a way to show their gratitude. Continue reading
Posted Jul 19, 2014 at Skating on Stilts
It's time once again to point out that privacy laws, with their vague standards and selective enforcement, are more likely to serve privilege than to protect privacy. The latest to learn that lesson are patients mistreated by the Veterans Administration and the whistleblowers who sought to help them. According to the Washington Post: Citing patient privacy, managers have threatened VA employees or retaliated against those who complain about agency misconduct, according to a key congressman and the union that represents most of the department’s employees. “VA routinely uses HIPAA as an excuse to punish into submission employees who dare to speak out,” said Rep. Jeff Miller (R-Fla.), chairman of the House Committee on Veterans’ Affairs. He is leading a probe into the coverup of long wait times for VA patients. David Borer, the American Federation of Government Employees’ top lawyer, listed a number of cases involving a VA claim of patient privacy used to stifle whistleblowers in a June letter to the department. The Office of Special Counsel (OSC), which investigates whistleblower retaliation cases, is “very concerned about the misuse of HIPAA,” said Eric Bachman, an OSC deputy special counsel. “The potential chilling effect of even a small number of... Continue reading
Posted Jul 18, 2014 at Skating on Stilts
China seems to have found a reliable legal tool for suppressing dissent. A prominent Chinese human rights lawyer, Pu Zhiqiang, has been arrested after a meeting in a private home to commemorate the 25th anniversary of the killings at Tiananmen Square. The charge? “Illegal access to the personal information of citizens,” a crime punishable by three years in prison. Clearly, China is on its way to earning a second Privy nomination for “Worst Use of Privacy Law to Protect Power and Privilege.” But where are EFF and EPIC and CDT and the ACLU? This is not the first time China has brought privacy charges against politically disfavored defendants. Why haven't these advocates of more privacy law vocally condemned China's use of privacy law to foster oppression? The same question might be asked of the Article 29 Working Party in the European Union, along with a second one: How is China’s law different from the data protection laws that Europe has been urging the world to adopt? Continue reading
Posted Jun 16, 2014 at Skating on Stilts
Vodafone put out a highly informative report on the intercept practices of the countries where it does business. The greatest news interest was spurred by its statement that some countries tap directly into the provider's infrastructure and take what they want without notice to the provider: In a “small number” of countries, Vodafone said in the report, the company “will not receive any form of demand for communications data access as the relevant agencies and authorities already have permanent access to customer communications via their own direct link.” Vodafone refused to name the countries. But I can't help thinking that the report provides some pretty clear clues about two of them. I suspect we'll soon discover that they are France and Belgium. The reason is buried in the footnotes to the report. The report gives reasons when it does not disclose the number of lawful intercept warrants the company received in a particular country. Sometimes reporting on wiretaps is prohibited by law. But in eight cases, the report doesn't cite legal restrictions on disclosure. Instead, it says that it has no intercept numbers because there is “no technical implementation” of lawful intercept capabilities in those countries. In one country, Kenya,... Continue reading
Posted Jun 7, 2014 at Skating on Stilts