Gilmore Commission Recommends Secret 'Cyber Court'

hillct writes: "Yesterday the House Committee on Science received newly released cyber security recommendations from Virginia Governor James S. Gilmore, III of the Gilmore Commission. Most disturbing among these recommendations was a call for "Establishment of a special 'Cyber Court' patterned after the court established in the Foreign Intelligence Surveillance Act"." See also the Wired story. Do we really need another secret, unaccountable court?

Comments

Great

[All Dat]

Just what we need, more people who know little about technology trying to rein in technology.

Next thing you know, I'll be needed to license my palm pilot.

Can't they just keep up instead of trying to hold everyone else back?

"* Youth"

[Hard_Code]

"Cyber Youth"
"Big Brother Youth"
"Hitler Youth"
...

I think the "Youth" should be able to make up their own minds how they want to contribute to society. Not be used as a tool for ruling elites.
Bah...that's my little rant.

We need a secret court....

[M-2]

like a fish needs a ham sandwich.

Wasn't a BIG part of the whole freedom thing supposed to be to give us a TRANSPARENT legal system, so that EVERYONE could see what was going on? Isn't that the theoretical basis of the entire judicial system of the United States?

Isn't that why the hell anyone who's actually read history understands the sheer terror that the words 'Star Chamber' means?

I'm going to change my name to something like Cromwell, I think. Oliver Cromwell. That would be a suitable name for the US of the 21st century.

Re:We need a secret court....

[M-2]

We already HAVE that option. We don't NEED a completely new set of courts - use what we already HAVE!

And yes, we need more judges who hate the very IDEA of these things and require a tremendous amount of proof to allow them. The courts themselves are helping to cause this problem.

Re:We need a secret court....

[Tackhead]

> Isn't that why the hell anyone who's actually read history understands the sheer terror that the words 'Star Chamber' means?

Well, y'see, that's British history, and us 'murricans dun fought a war t'git away from y'all limey types. This hear's America, and we gunna teach our young'uns American history, dammit!

So the sad thing is that most of our countrymen never learned what Star Chamber was, nor why it's a mistake we should strive never to repeat.

There's a place for secrecy -- for instance, I have no fundamental problem with the philosophy behind FISA's secret court - if there's evidence which, if published, would result in the dissemination of classified material or other threats to national security - then so be it. And in such cases, the judge has a need to know everything, but I'd argue that the defence doesn't. It's a fine line, but we saw the system work in the case of the FBI's keylogger -- it took a while, but ultimately, enough information was released that the defence could prepare a defence, without compromising operational security.

(That is, the purpose of FISA is to prevent the openness of the court from being used as an excuse to bring things into evidence that would compromise national security -- just think of the damage that could be done by some twit just reciting classified information into the court record as part of his "testimony".)

But for Joe Skr1ptk1ddie - where the only "security threat" I can see is the publication of security holes that become widely known to the security community within hours of the crime (and the investigation won't happen for days, and the trial won't happen for months), this is worse than overkill, it's dangerous.

Re:We need a secret court....

[tdye]

Oh, brother. Of course you don't inform the subject of a wiretap that they're being monitored. The point here is that, even though a wiretap is secret, you still have to prove to a judge, in documents that are publicly available during a trial (if any), that there was 'probable cause' to perform the wiretap. What Gilmore is proposing is that you should be able to ignore probable cause, and that the govt. should be able to use secret evidence, unavailable even to the defense in a trial, to justify the wire.

Of course surveillance should be secret. The judicial branch, however, thrives only if the people trust it, and secrecy destroys trust.

Re:We need a secret court....

[dragons_flight]

Let's get a few things clear. The FISA court is not a trial court. It does not try and convict anyone. It's primary purpose was to create a secret means by which to approve the usage of CIA, NSA, and other (supposed to be) foriegn directed intelligence technology against people residing in the US. Court records are sealed so that you never know who they are spying on or why.

In theory, having a court to keep national security issues out of the public record, while building your case, doesn't sound like a bad thing. In practice FISA is a rubber stamp. The court has been invoked a few dozen times and only once denied an application for surveillance powers, and that time was because the adminstration reversed themselves and said they no longer wanted those powers, in that case.

I would guess we are looking at a similar rubber stamp for monitoring hackers. I don't think they would try to create a secret trial court, but I can imagine the government wanting a secret court to permit breaking into and monitoring hacker computers and communications. This bothers me, because hacking and national security seem to be rather far apart in the scale of things.

The principle behind the FISA court seems sound, until you realize it's a rubber stamp. Doing the same for hacking doesn't seem to make sense even in the first case. How much programming knowledge does one need before they revoke your right to privacy?

Re:We need a secret court....

[killthiskid]

Here's what scares the crap out of me:

Instead, Gilmore told the House Science committee, the commission will recommend that a "cyber court" be created with extraordinary powers to authorize electronic surveillance and secret searches of suspected hackers' homes and offices.

Extraordinary Powers!!! Ack! I think the whole Office of Homeland Security. is malformed idea.

It doesn't fit well within the govt. already existing structure, it duplicates many efforts, and it has yet to be determined exactly how & why it will function.

Secret courts... anything secret in the Govt. scares the crap out of me... and not only that:

Rep. Vernon Ehlers (R-Michigan) suggested additional punitive measures. "I think hackers should also be considered terrorists and sentences that hackers get should be in line with terrorist sentences," Ehlers said.

First there was the blurring and redifinition of the word 'hacker' to become the word 'cracker', and now hackers ARE being called terrorists!

Beware Linux hackers... you are terrorists!

Re:We need a secret court....

[COAngler]

So you're willing to let a target know when they get wiretapped or traced, right?

I'm not entirely sure what you're talking about. It's already legal to tap or trap-and-trace someone without telling him. Changing the venue of the court that signs the court order wouldn't change that. All it would do, is make it harder for a defendant to see the evidence against him when it actually goes to trial.

Surely such a person would of course ignore the summons to the court, and simply carry on business as usual.

I'm not sure what you're talking about. It's not hard for anybody to ignore a summons-someone blows off one of mine at least once every other week. All that happens is the court puts out a bench warrant for them.

Give me a break. Yes, you need something like this. You sometimes need the ability to get a secret court order.

Um, no we don't. Taps/traps-and-traces are already secret until they get introduced into court. Having a Star Chamber only means that the defendant wouldn't be able to see the probable cause used to justify the invasion when the case goes to trial. Never mind the legal requirements of discovery in the US...

But then, I'm just a dumb-shit cop. You obviously know more than me about what we need.

Good God

[Der_Perfekt_Drog]

All this hype around terrorism is bringing some really disturbing changes in this country. People are embracing fascism in a way I'd never thought America capable of. How is sacrficing our liberty, freedom, and personal security to a bunch of shadowy government agencies and courts which can kick in our doors in the middle of the night and haul us off to jail in any way a victory over the forces of terrorism? One of the reasons we're a target is because of the freedoms we have, and our response is to become a repressive police state, like the ones that sponsor the terrorists in the first place? Every time I hear about "The Office of Homeland Security" I hear echos of "The Fatherland" and "Motherland" of Nazi Germany and Communist Russia, respectively. This is not what I want to think of when I think of "The Land of the Free and the Home of the Brave." We might lose the war against freedom in the process of winning the battle against terrorism. I'm afraid for the future. Canada's looking better and better...

Two good points, actually.

[Stonehand]

1. The article specifically mentions that one problem with putting these cases through the general court system is that the technical details are important, but often not terribly understood. A specialized court could be composed of jurists who have technical knowledge, which IMHO is something that would be welcomed instead of blasted.

2. Of course FISA is secret. Of course, if this court deals with network surveillance it should be, too. There isn't much of a point in tipping off a suspect by telling them that they're under surveillance. What, you'd rather that they use TEMPEST ELINT from vans prominently marked, "Flowers By Irene?

Re:Two good points, actually.

[BCoates]

2. Of course FISA is secret. Of course, if this court deals with network surveillance it should be, too. There isn't much of a point in tipping off a suspect by telling them that they're under surveillance. What, you'd rather that they use TEMPEST ELINT from vans prominently marked, "Flowers By Irene?

Wouldn't any investigation need to be secret? How is this different from, say, a racketeering or murder or fraud investigation? Should we have secret courts for them, too?

"If it ain't broke, don't fix it" seems to apply here.

Slippery slopes and poor logic

[raumdass]

Next time someone tries to say that the slippery slope argument is an invalid one in regards to the "adjustment" of ones liberties, remember this:

Clinton passed the Affective Death Penalty and Anti-Terrorism act, that amongst other rather non-liberal ideas made it possible to hold a non-US citizen for as long as we like, without letting them know the charges or evidence against them, and allows us to try them in what amounts to a secret court. You combine this with the legislation passed and pending referenced in the article and it doesn't take a political scientist to see a pattern.

So much for jurisprudence. Now we look to aim this thinking at "hackers"? We want to equate hacking with terrorism? To even mention someone damaging a computer system and killing thousands of innocent people in the same breath only serves to trivialize those that have died at the hands of real terrorists.
So what's next? If you protest the WTO, does that make you a terrorist? How about standing up for the rights of others, or god forbid, the planet? How about interfering with commerce by say, trafficking in copyrighted material?

Everyday I hear of more and more extreme measures to combat "terrorism". What point will there be in protecting our country if what we are left with is a government as totalitarian as those we claim to oppose?

~raum

Fascism

[wiredog]

From Merriam-Webster:
A political philosophy, movement, or regime (as that of the Fascisti) that exalts nation and often race above the individual and that stands for a centralized autocratic government headed by a dictatorial leader, severe economic and social regimentation, and forcible suppression of opposition.

That may apply on certain lefty college campuses in the US, but not in the country as a whole.

How do hackers = terrorists?

[tdye]

I, for one, and appalled and disgusted that anyone would suggest that any computer hack could possibly rise (or sink, as it were) to the level of a terrorist act. I challenge the Senate to ask the people of New York if they feel that 'Code Red' is a threat of the same, or even slightly similar magnitude.

It is an insult to the memory of all those that have died to suggest that any hacker could cause enough destruction and fear to be labelled 'terrorist' and treated accordingly. Anyone who says otherwise should be forced to try and explain their case to the family of a dead NYC fireman.

For more in this vein (and just in case you don't hate the RIAA enough yet) check out this editorial:

Jesus, here we go again

[Jennifer Ever]

So, run this by me one more time...

We need to bend the rules to get these "hackers" because..?

a) My AOL password is of greater importance than the guy who got shot down by the river.
b) Current courts are too slow in dealing with hackers, who we all know move at incredible speeds, often using 5 keyboards--Matrix-style--to gain access to both secret CIA files and ICBM launch codes in a matter of minutes.
c) Government is in the pocket of corporate America, and corporate America will never be able to convince people to hand over control of their lives and money if there's concern that someone other than the good folks at MS will have access to it.

Well, figure it out for yourself.

Anyway...

The problem with laws like these is that they're pushed as being a response to a specific threat, but once in place, are never limited to dealing with that threat. So this is to protect our national security? How many "hackers" in this country are threats to national security? Wouldn't it be safer to say that the actual threat is the vulnerability in government systems? After all, if someone in America can gain access to classified information, it stands to reason that someone in China or Iraq could do the same. And what constitutes a threat anyway? Someone who gets into systems that are secured tighter than the government's is a potential threat--even though that person has never acted against the government, will they be tried and jailed as a threat to national security simply for what they can do, not what they've done?

And does anyone in a position of power consider these sorts of things?

Ye Flipping Gods!

[bill.sheehan]

What's next? An anonymous denunciation hotline for turning in your neighbors? "His attic light is on. He's probably up there with his computer again. He's one of those strange quiet types - keeps to himself. Can't be trusted."

I'm reminded of two lessons from my wasted youth. The first was a book called, "It Can't Happen Here," by Sinclair Lewis in 1935. It chronicled the creation of a totalitarian state in America. An excellent cautionary tale, I recommend it.

The second was a lesson I received in group dynamics from my high school theater group's director, a guy named Lou. About a hundred of us kids had gathered together in the gym, doing warmup exercises. Lou got up and introduced a new exercise. We were going to count up from one to ten, slowly adjusting our attitude and appearance from utter dejection to triumphant at ten. One... We were slumped over and suicidal. Two... we straighted a little... Three... perhaps I shall not hang myself today. And so on to a hearty, confident, triumphant roar of TEN! "TEN!" shouted Lou. "TEN!!" we yelled back. "SEIG HEIL!" shouted Lou. "SEIG HEIL!!" we roared. "SEIG HEIL!!! SEIG HEIL!!! SEIG..."

Lou clapped his hands sharply for attention. He looked at us for a long moment. "Never forget," he said softly, "how easy it was for one man to make you do that."

I never will.

Remember Peter McWilliams

Wow..

[Mike Schiraldi]

Who would have ever thought that Mitnick got off easy?

Two ways this could go-- both bad

[einhverfr]

With "Hackers" sentensed like terrorists and whose search warrants are overseen by some shadowy court, I can see this going two ways. Because, unless the Constitution was amended, these would still be tried by jury, it may make it harder to get convictions in these cases, and a jury may be FAR more inclined to allow for reasonable doubt if the sentense is harsh than they would if the sentense was not.

If your mother was on a jury, would she be able to convict someone guilty of industrial espionage as a terrorist? This recomendation could essentially pardon all the sc121p7 k1dd13s out there and make this sort of crime MUCH harder to prosecute because a jury may not be as likely to call them terrorists...

OTOH, if this sort of case did not become harder to prosecute, then it could create a chilling effect in the security industry, sort of like the DMCA is doing how.

Re:Why Yes, Yes we do need another secret court.

[maggard]

1.) Terrorism only thrives in a Democratic government. Simple Terrorism and Guerilla Warfare Theory teaches that. If we are a Dictatorship, terrorism would die extremely quickly.

Really? For much of the world the exact opposite is true. Where there is democracy you've an enfranchised public. Under an oppressive dictatorship you've not and terrorism is one of the few means of protest or causing change.

I think your lecturing us on your opinions is well intentioned but poorly thought out.

Where are the senior system administrators, etc?

[browser_war_pow]

Why is it that elected idiots with law degrees are the ones that do "fact finding" for the government? Wouldn't it be easier to make good decisions that will get respect and not create strife by having experts in a field make the suggestions only?

Usual comments about them not caring don't necessarily apply. Any good congresscritter wants respect and very bad proposal like this certainly does not engender such a sentiment in our country among the electorate