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Lawfare › Baker on Cybersecurity Post-Snowden

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To do everything that I’ve described [to meet the cyber threat], the President will need metadata about cyber-activities.  . . . In addition to metadata, the President will also need access to the content of communications; that is, he’ll need to understand the substance, purport or meaning of the communications themselves, in addition to information about the existence of the communications and the identities of the parties to the communications.  Among other things, this is because he’ll want to understand what the malware is doing or is intended to do.   The “meaning” of the malware is content.  I note that not everyone agrees with me on that point, but I think it is correct.

If you haven’t figured it out by now, in order to provide the President with such a comprehensive picture of the cyber landscape the Intelligence Community or some other element of the Executive Branch, such as the Department of Homeland Security (DHS), will want access to, and the ability to store for later examination, a huge amount of data.  And that data will need to pertain not only to individual devices on a network, such as someone’s smartphone, iPad, or desktop computer, but also to the myriad of devices and networks that control and operate our critical infrastructure, such as our power grid and transportation system.  Moreover, in order to do everything that I have described, the President would need access to a considerable amount of data pertaining to the Internet itself, or, as some have argued, all of the data on the Internet.  Let me repeat that:  there are arguments that in order to defend ourselves, the government needs to be able to monitor all Internet communications.  All of them.  Is this possible, even if it is necessary?  Maybe.  The key limiting factors are money and access.  And you would need lots of both.

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