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

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....

[elfkicker]

That's not even the same damn thing. I wonder if the Freedom of Info Act would allow someone that's being wiretapped to find out. But I digress. What we're talking about here is not the investigation where there is a need for secrecy. It's the hearing after the investigation, where the evidence is laid out and and you are judged by a jury of your peers.

Without examination of the procedings, the evidence, and the findings, you're giving a court far too much power. Our founders knew that because it's common sense. "Abosolute power corrupts absolutely."

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....

[ichimunki]

Although I've always been too chicken to ask for my FBI file under FOIA, it's clear from the FBI FAQ on it, that they review the file before release and will block out anything that could endanger an ongoing investigation. So no, you cannot ask for your file in an attempt to determine if you are currently being tapped. However, if you get your file and the whole thing is blocked out, you might want to implement some security measures. :)

Re:We need a secret court....

[rking]

It must be something that's not a matter of nat'l security but can still be dangerous to others, like if someone were hacking into bank systems and such. That's not typically a nat'l sec concern, but it would be of concern to individuals and companies that use that bank, and the bank itself. Sorta like those two guys in russia that the FBI lured to the US and arrested some months back

Lots of things are dangerous to others including, not surprisingly, lots of things that are illegal.

There isn't a special secret court for dealing with serial killer investigations.

There isn't a special secret court dealing with industrial pollution of water supply investigations.

There isn't a special secret court for dealing with burglary investigations.

All these things are dangerous to others. What's so special about hacking that it needs these special measures?

In the Wired article it says "Gov. James Gilmore (R-Virginia), the commission 's chairman, said Wednesday that federal judges have been far too sluggish in approving search warrants and eavesdropping of online miscreants."

The courts aren't issuing warrants as easily as the government likes so their solution is to have a secret court who's decisions can't be scrutinised act as a rubber stamp instead.

IF he really said what the Wired article claims he did then is frightening that people who think like that can be allowed to work in positions of power and responsibility.

Isn't this a bit redundant?

[weez75]

The federal courts are equipped to handle cyber-terrorism or threats. In fact, they already handle a very similar thing: mail fraud. There are a million varieties of danger posed by use of networked systems. However, the basic premis of the federal courts having authority is that 1) it generally uses and affects entities in multiple states 2) it can pose a threat to national security. That being said, why do we need another court? It seems to me the old coots that wrote this thing called the Constitution already have this covered...

Why Yes, Yes we do need another secret court.

[maggard]

For over 200 years the USA has suffered under it's impractical Constitution and the unworkable so-called "Bill of Rights". We need to move forward into a new era where we can compete with every tin-pot dictatorship and repressive regime on their own level!

Only criminals need fear this - you're not a criminal are you?

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.

Why do 'Hacker Cases' Need a Secret Court?

[Fatal0E]

I mean, come on. Realistcally I can at least empathize when the gov't says that sometimes it has to operate outside the legal system in issues of National Sec. I wouldnt want a suspected terrorist to know he's being monitored. I might fall under that same watchfull eye but that's a sacrifice I'd make.

But why would a hacker court need to be so secretive? If the gov't is afraid of a group of people being able to shut down and disrupt major networks, then those networks need to be secured, not the system for monitoring them and prosecuting them! I mean, those old farts in office invented that stupid saying of ounce of prevention, pound of cure!

Beautiful.

[dave-fu]

Forget the right to a fair trial, hackers are threatening our country's very lifeblood! Or something equally dramatic.
The good news is that they won't be high-profile cases where there's some sort of onus on the government to come through in a big, excessively punitive way (are shoplifters forbidden to walk in stores after they've served their time? are murderers forbidden to be around people after they've served their time? embezzlers forbidden to be around company books after they've done theirs? then why exactly are mitnick et. al forbidden to be around computers/electronic equipment after they've served theirs?). The bad news is that we'll have a new branch of the government with a minimum of public overview running wild on an increasingly marginalized subset of society.

if they can do it so can we

[how_would_i_know]

"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."

Well... maybe we should convice some judge to create a new 'cyber congress' with extraordinary powers of resistance to soft money.

Yeah That's Just What We Need

[Greyfox]

Secret courts and a national ID card. We also need to be able to create laws and retroactively punish people under them, be able to jail people for speaking out against the government and be able to house troops in normal peoples' houses. Oh, and tax tea at 3x its normal price.

Could be interesting

[Magumbo]

A cyber court should exist only online, and all cyber jurors should have a minimum of a BS in computer science, computer engineering or electrical engineering.

Re:Could be interesting

[Mad Marlin]

This cyber court you speak of, it already exists. We call it slashdot. All we need to do is tie it into the legal system somehow.

Yes, that is exactly what we need, a legally recognised Slashdot, where I get ``modded'' to 5 years in prison for using FreeBSD instead of the ever-so-worderfully communist Linux. Heaven help me if the court discovered that I don't want to kill Bill Gates on sight.

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?

Of course we don't

[alewando]

There is precisely one justification for the secret courts established under the Foreign Intellgence Surveillance Act: national security. The secret courts that meet in that jurisdiction concern themselves with matters of espionage and highly sensitive information that would jeopardize national security if made public.

I personally can't stand it. The 5th amendment and 6th amendments clearly lay out due process and the rights of the accused who stands trial, and few if any of these guarantees are honored by these secret tribunals. There is no textual basis for a national-security exception to any of the Bill of Rights, and it flies in the face of fundamental principles of fairness.

However, at least with national security, we have a really damn important interest being protected; if anything would justify tearing up the Bill of Rights, it would be on the level of national security. But what in tarnation is there to protect in a cyber court? Trade secrets? The integrity of corporate networks? Is this truly something so pernicious and of such overriding importance? Hardly.

They've got their national-security exception. If it's "terrorism" and it's conducted by foreign agents, then the Foreign Intelligence court already has jurisdiction. If we go down this path, then nothing will remain protected under the Bill of Rights and the Constitution in general, and that is a very scary prospect.

Hooray for corporate interests, indeed.

Ummm... already in place.

[FortKnox]

Do we really need another secret, unaccountable court?

I'm assuming you aren't including the courts of judgement under the juristiction of the trilateral commission? Icarus is already watching you, and soon you'll be in the secret court of the illuminati. The US government is just trying to mimic this.

If we could only locate the aquantus hub and destroy it...

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

Time for Sesame Street again.

[Tackhead]

From Wired:
> 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,"

Let's see here...

• Scanning port 137.
  
• DDOSing eBay.
  
• r00ting j00r b0x3n and writing 4LL J00r B4$3 R B3L0NG 2 US on your website!
  
• Flying three 767s, fully-loaded with fuel, into office buildings, murdering 6000-7000 people in the process.

"One of these things is not like the other. One of these things does not belong."

I'm gave up expecting wisdom out of our Congresscritters years ago. As for their ability to grasp complex technological and constitutional issues, that's also hoping too much.

But at the moment, I'd settle for a demonstration that they're capable of understanding Sesame Street.

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.

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

what is Star Chamber

[onepoint]

For those that don't know what Star Chamber is please go to
http://www-2.cs.cmu.edu/~altmann/star-chamber.ht ml

it's a quick summary.

-onepoint

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.

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

Obediance to authority

[bigdavex]

Stanley Milgram ran an experiment that explored this topic. The basic idea was that he took volunteers for a "teaching experiment". The volunters who were the "teachers" would agree to shock the crap out of people, simply because an authority figure told them to.

Quoted from the link:

When Milgram conducted the study, he found that with a little bit of coaxing, the majority (60%) of subjects would administer shocks right through to 450 volts. The people administering the shocks were not "pathological sadists" as the psychologists had described them, but normal everyday people. At this point I think I should point out that nobody actually received electric shocks... the learner was a confederate of the experimenter and was pretending to be in pain. The only real subject in the experiment was the "teacher".

(I think I first saw this on Slashdot or Kuro5hin. Thanks to whoever posted it first.)

Secret hearing != Secret trial; NO Star Chamber

[Paul Bain]

&nbsp&nbsp&nbsp&nbsp&nbsp The poster (hillct) and Slashdot employee Michael state that

"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 [FISA]." . . . . Do we really need another secret, unaccountable court?

I am a lawyer-shyster. I think that hillct and Michael (in addition to everyone mentioning the term "Star Chamber," a synonym for a secret trial) may have overreacted or misinterpreted this news. First, secret trials contravene the U.S. Constitution. Any statute (federal or state) purporting to empower a court to hear and decide crimial liability in secret would be unconstitutional. A judicial hearing is not a trial, however, and the hearings contemplated under FISA are only those relating to whether law enforcement agents may surveil a particular communication or party/parties.

&nbsp&nbsp&nbsp&nbsp&nbsp And secrecy in the judicial branch is not always undesirable. Nearly ALL grand juries meet, hear evidence (while a judge presides), and deliberate in secret. But they make no determination as to criminal liability. They simply indict (or fail to indict), a step necessary to having a person tried. Secrecy in certain judicial proceedings is absolutely necessary -- secrecy is not always undesirable.

Gilmore is my Governor

[ca1v1n]

He won the election because he promised eliminating the personal property (car) tax. This is a local tax, which he was going to reimburse the localities for out of state funds coming from the temporary budget surplus. This means that localities with a high personal property tax, generally the rich ones, get more money, while the poorer localities get the shaft, as they always have. Now we have a budget crisis in Virginia.

Whatever Gilmore claims about being tech-savvy is a load of BS. He's politically savvy, and he tried to get through a bunch of laws that would give Virginia jurisdiction over the whole internet because of the traffic that gets routed through Northern Virginia. The man wants power and knows how to get it while convincing a lot of people they'll be better off for it.

Curious why Gilmore would be interested in more police powers? Because he's being groomed to be the next Attorney General of the US. I'd personally prefer him over Ashcroft because he doesn't seem to harbor any ethnic biases, but that's about it. Watch out for this man. You'll probably hear from him again.