Cybersecurity & Tech Surveillance & Privacy

White House Shoots Down NSA Efforts to Protect Private Domestic Networks

Jack Goldsmith
Tuesday, February 28, 2012, 6:19 AM
Ellen Nakashima of the Washington Post reports that the White House thwarted NSA attempts to seek legislation that “would have required hundreds of companies that provide such critical services as electricity generation to allow their Internet traffic to be continuously scanned using computer threat data provided by the spy agency,” and more generally has told the NSA to pipe down about the need for more authorities to protect domestic netwo

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Ellen Nakashima of the Washington Post reports that the White House thwarted NSA attempts to seek legislation that “would have required hundreds of companies that provide such critical services as electricity generation to allow their Internet traffic to be continuously scanned using computer threat data provided by the spy agency,” and more generally has told the NSA to pipe down about the need for more authorities to protect domestic networks.  I think what she is describing is NSA’s attempt to extend aspects of the EINSTEIN intrusion detection and prevention system to the private sector.  I have written in the past about NSA’s (and DOD’s) efforts to do more in the domestic realm to secure private networks from cyber-attack and cyber-exploitation.  As I explained here, I don’t think legal or constitutional objections are the ultimate hurdles to these efforts.  Rather, the main problem, I think, is that the nation, and many in the government, do not trust the NSA to be involved in such activity in private domestic networks, and, relatedly, don’t think the cybersecurity benefits of such NSA involvement outweigh the attendant privacy costs.  Nakashima’s story seems to support this view, but it is hard to tell.  For a paper that is skeptical of the benefits of the EINSTEIN project generally and of the extension of it to the private network specifically, see Can It Really Work? Problems with Extending EINSTEIN 3 to Critical Infrastructure, by several acclaimed cybersecurity experts.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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