Washington is in the midst of debating something called “cybersecurity.” But that term actually includes several very separate and distinct problems that call for very different solutions. Not only does conflating them confuse the issue — it also has very distinct political consequences. So let’s unpack the separate meanings of the term.
1. Criminal and malicious online behavior
As every computer owner knows, internet security is a very real problem for individual households and businesses. The open architecture of computers and the internet has led to an explosion of innovation, collaboration, and creativity — but the very openness that has fuelled so much innovation has also made us vulnerable to viruses, spyware, and other forms of malware. These problems are endemic among home computers and among a surprising number of professionally managed institutional machines as well. Much of this is due to the failure to perform basic computer security.
2. Espionage
Foreign governments have always tried to steal U.S. secrets — just as we have tried to steal theirs in the endless game of spy vs. spy. And of course if they can use the internet to do so, they will. Corporate espionage, meanwhile, may also be a problem, though that too is something that has always taken place, and always will, as competitors try to erase their rivals’ advantages in the marketplace.
3. Potential attacks on critical infrastructure (“cyberterrorism” or “cyberwar”)
Entirely separate from the day-to-day malware attacks and our intelligence agencies’ efforts to keep information out of public hands is the frightening image of terrorists using computer keyboards around the world to spill blood in the streets of America. Some of the more alarmist commentators have painted pictures of nuclear meltdowns, dams sweeping away towns, or chemical clouds billowing over cities. Others have warned about the danger of cyberattacks taking down the U.S. communications or financial systems. Such an attack has never taken place, and the truth is that no one knows how real this risk is. There has been much hype and exaggeration surrounding these scenarios. That certainly does not mean the possibility should be ignored — to the contrary, sensible policies should be enacted to prevent it, such as making sure dams and nuclear power plants are not connected to the internet. But there is simply no basis for declaring that such possibilities are an “” to the nation, as a top FBI agent has asserted.
Closely intertwined with the discussion of cyberterrorism is talk of the (also hypothetical) scenario of “cyber warfare.” Cyberwar is a poorly defined concept, many aspects of which are still being debated, including the circumstances under which an attack on our critical infrastructure might be considered an act of war. But insofar as the concept involves defending against critical infrastructure attacks using the public internet, the issues raised are not significantly different from those involved with “cyberterrorism.”
The political effects of conflating separate threats
I am far from the first person to point out the entirely different meanings that make up the term cybersecurity (see for example). But it’s important to recognize the political consequences of conflating these separate problems. By doing so, the security establishment and cybersecurity industry are able to cast cybersecurity as a problem that is both very real and extremely dangerous. But problems that are real — criminal and malicious online behavior — are not a threat to the nation, and problems that are a threat to the nation — “cyberterrorism” or “cyber warfare” attacks that do significant physical damage— remain hypothetical:
Fact?
Terrifying?
Everyday criminal malware
Yes
No
Cyber-terrorism or cyberwar
No
Yes
Blended “cybersecurity”
= Yes
= Yes
Distributed denial-of-service () attacks, for example, are a genuine problem. At the same time, temporarily the Treasury Department’s web site with traffic hardly amounts to a critical threat to national security. Yet DDOS attacks, basic and unsophisticated as they may be, are frequently discussed in the grandest geopolitical national security terms, such as the alleged North Korean 2009 “” against the United States (which researchers later said actually appeared to have originated in Great Britain, or possibly ), or the over-hyped 2007 “” against the nation of Estonia.
We can’t have a rational debate or strike an appropriate balance of interests when everyday cybersecurity issues are blurred together with national security matters in this way, leading to hype and exaggeration and investing the issue with more weight and grandeur than it seems to merit.
We’ll be posting about cybersecurity all week.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.