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Understanding Police Reliance On Private Data

by Farhang Heydarivia Aegis Paper Series
Thursday, October 7, 2021

Private entities play a substantial and growing role across the criminal system. It is both impractical and undesirable to eliminate all private influences. Instead, policy makers can distinguish beneficial private influences from harmful ones by focusing on those private entities with the closest relationship to law enforcement. These entities have fewer incentives to guard against law enforcement overreach and thus deserve heightened scrutiny.

Private Data/Public Regulation

by Barry Friedmanvia Aegis Paper Series
Monday, October 4, 2021

This article argues that, as a matter of constitutional law, government agencies that engage in policing cannot collect digital data, particularly about individuals for whom there is no suspicion of wrongdoing, without a sufficient regulatory scheme in place. A sufficient regulatory scheme justifies collection, achieves a public end, and has adequate protections for individual rights. Unauthorized and unregulated bulk digital collection of surveillance data simply may not occur.

Modern-day General Warrants And The Challenge Of Protecting Third-party Privacy Rights In Mass, Suspicionless Searches Of Consumer Databases

by Jennifer Lynchvia Aegis Paper Series
Thursday, September 23, 2021

This article describes the problem of suspicionless searches of consumer databases, explains the threat these searches pose to privacy interests, argues that the legal arguments put forth by law enforcement in defense of these practices are flawed, and suggests what should be done about the problem, both in courts and in the legislature.

Adapting To The Cyber Domain: Comparing US And UK Institutional, Legal, And Policy Innovations

by Robert Chesneyvia Aegis Paper Series
Tuesday, May 25, 2021

This article explores the origins and evolution of the institutional, policy, and legal frameworks that define the defensive and offensive aspects of UK and US cyber strategies. There is a strong degree of convergence, particularly from a defense perspective, but there are also important variations, especially in the degree to which the countries’ most capable operators—the National Security Agency and the Government Communications Headquarters—are integrated into non-intelligence activities.

“Defend Forward” And Sovereignty

by Jack Goldsmith, Alex Loomisvia Aegis Paper Series
Thursday, April 29, 2021

This essay argues that the discrete rules articulated in the commentary accompanying Rule 4 of the Tallinn Manual 2.0 regarding state sovereignty in cyberspace do not reflect customary international law. It considers the validity of the Rule 4 commentary primarily in the context of the United States’ “defend forward” strategy for disrupting cyber threats.

Cyberattack Attribution As Empowerment And Constraint

by Kristen E. Eichensehrvia Aegis Paper Series
Friday, January 15, 2021

When a state seeks to respond to a cyberattack, must it first attribute the attack to the perpetrator responsible? This essay explores the international and US domestic laws governing cyberattack attribution and argues that attribution to another state can bolster the US executive branch’s authority to act pursuant to its Defend Forward policy and, conversely, that the absence of attribution can place the executive on less certain legal footing.

U.S. Cyber Command's First Decade

by Michael Warnervia Lawfare
Tuesday, December 8, 2020

United States Cyber Command (USCYBERCOM) turned ten years old in 2020. It is a unique institution—a military command that operates globally in real time against determined and capable adversaries and yet never fires a shot or launches a missile. The Command comprises an amalgam of military, intelligence, and information technology capabilities that came together into its present shape more by design than by fortuitous chance. That design, however, was itself a work in progress.

US Cyber Command’s First Decade

by Michael Warnervia Aegis Paper Series
Thursday, December 3, 2020

United States Cyber Command (USCYBERCOM) has implemented the theory that advanced states must operate in cyberspace at scale using military entities. The command’s growth and progress followed debates over that vision and its refinement through offensive and defensive operations. USCYBERCOM actively influenced these debates and by 2020 had become an integral element in national defense, helping shape events and force design in both friendly and adversary nations.

Cyberattacks And The Constitution

by Matthew C. Waxmanvia Aegis Paper Series
Wednesday, November 11, 2020

Contrary to popular view, cyberattacks alone are rarely exercises of constitutional war powers—and they might never be. They are often instead best understood as exercises of other powers pertaining to nonwar military, foreign affairs, intelligence, and foreign commerce, for example. Although this more fine-grained, fact-specific conception of cyberattacks leaves room for broad executive leeway in some contexts, it also contains a strong constitutional basis for legislative regulation of cyber operations.

Due Diligence And The U.S. Defend Forward Cyber Strategy

by Eric Talbot Jensen, Sean Wattsvia Lawfare
Tuesday, October 20, 2020

As its name implies, the 2018 US Department of Defense Defend Forward strategy is principally reactive. The strategy assumes that the United States will continue to suffer harm from competitors and malign actors through cyberspace. Accordingly, it outlines US reactions in order to preempt threats, defeat ongoing harm, and deter future harm. 

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Aegis explores legal and policy issues at the intersection of technology and national security.  Published in partnership with the Lawfare Blog, it features long-form essays of the Hoover Institution National Security, Technology and Law Working Group (the Aegis Paper Series), examines major new books in the field, and carries podcasts and videos or the working group’s events in Washington and Stanford.