| Hi, this is Alyza. Cybersecurity is often difficult to balance with privacy. More government visibility into user behavior might mean we catch attackers faster, but it also exposes innocent peoples' data. Now, after a spate of sprawling hacks that have been linked to China and Russia, privacy experts are worried that the U.S. government's response will fall too close to the security side of the scale. Top American officials have argued that the country's privacy laws, which protect domestic networks from surveillance, were partly to blame for officials' failure to spot the SolarWinds Corp. cyber-attack. That hacking campaign infiltrated approximately nine government agencies and 100 private sector companies. Critically, the attackers used U.S. infrastructure to carry out the hacks, staying mostly hidden from view until a private security firm reported a breach. Right now, officials aren't suggesting fixes that would directly expand their surveillance powers. Proposals to prevent the next attack include relying on the private sector to watch networks and report back. And the Biden administration is working on an executive order that would require companies doing business with the federal government to disclose breaches. Still, privacy lawyers have grown increasingly alarmed at the tenor of some U.S. statements on security.
U.S. officials appear to be "floating trial balloons," to gauge public sentiment around additional government surveillance of U.S. networks before moving to garner support for it, said the American Civil Liberties Union's Jennifer Granick. "Every time something happens, more surveillance is always the first stop shop," said Granick, a cybersecurity lawyer. "That raises huge civil liberties concerns." American officials are adamant that the country's actions don't amount to a surveillance state expansion. "I want to be clear: We believe the model for the U.S. government in addressing cybersecurity issues involves working closely with the private sector," said one, who spoke under the condition of anonymity. "We're not looking at additional authorities for any government agencies to do additional monitoring within the U.S. at this time." Privacy advocates' trepidation dates back to public remarks about the SolarWinds hack earlier this year by Anne Neuberger, the top cyber official at the White House, and another statement by Paul Nakasone, the head of the National Security Agency and U.S. Cyber Command. In February, Neuberger told reporters at a press briefing that "as a country, we choose to have both privacy and security," and that "the intelligence community largely has no visibility into private sector networks." She also noted that "the hackers launched the attack from inside the United States, which further made it difficult for the U.S. Government to observe their activity." That included federal networks, she added, where rules and culture "inhibit visibility, which is something we need to address." Last month, that sentiment was echoed by Nakasone: "Adversaries understand that they can come into the United States and rapidly utilize an internet service provider, come up and do their activities, and take that down before a warrant can be issued, before we can actually have surveillance by a civilian authority here in the United States," he said at a Senate committee hearing. "That's the problem we have right now." Some legal experts aren't buying it. They told me that the government has significant tools for hunting foreign hackers inside U.S. networks, including the NSA's ability to quickly obtain warrants for additional surveillance when needed. Besides, experts say that the SolarWinds attack was enabled by the failure of U.S. cyber defenses—which did not detect intrusions across the government—undercutting the argument that a lack of visibility into private networks was to blame. "Law enforcement tends to always want more information," Daniel Weitzner, the research scientist who founded the MIT Internet Policy Initiative, told me. "There is this kind of myth that we would know what to look for if we only had more." This is a conversation that's likely to come up more frequently as severe hacks keep surfacing. "It's not surprising to me that law enforcement thinks that constitutional and technical provisions are preventing them from their investigations," said Gautam Hans, an assistant clinical law professor at Vanderbilt University. "Law enforcement will always have a very good story to tell about how they need greater capabilities." —Alyza Sebenius | 
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