The Political Quagmire

Module 5

The Lesson

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• To discuss opposing viewpoints (individual rights Vs law enforcement).
• To present specific recommendations.

Information Policy - The Political Quagmire

Do we need a national information policy?

If so, what forces will influence the process?

Can we look to history for clues?

A Historical Review

Was national policy challenged by the Industrial Revolution? If so, what did we learn? Did the Cold War challenge national policy? What unique challenges does the Information Revolution pose?

It is reasonable to suggest that our society is becoming more dependent on information systems. In an effort to better understand policy challenges of the emerging Information Age, it may be useful to consider our nation's reaction as it transitioned into the industrial age. Such an analysis may yield similar policy concerns, i.e. state Vs individual rights.

Policy Challenges of the Industrial Revolution: The Lochner Period

Looking to the U.S. Supreme Court and the period of 1905-1937 (Lochner Period), we see that our nation was challenged by the industrial revolution in much the same way as the Information Revolution does today. In 1905 the Supreme Court considered the case of Lochner Vs New York, where the court struck down a New York law that prohibited the number of hours a week bakers could be contracted to work. This profound legal finding shifted the balance of rights toward free enterprise; thus, the term the Lochner Period. The essence and impact of this period cannot be understated.

Policy Challenges of the Industrial Revolution: Before the Lochner Period

Before the Lochner Period (circa 1897) our nation subscribed to a policy of laissez-faire economics. In 1897, laissez-faire became the operative policy as a result of the Allgeyer Vs Louisiana decision. Laissez-faire was basically the principle of protecting business from unreasonable regulation, i.e. to advance the Industrial Revolution. The important point is, America has and will continue to promote free enterprise. Free enterprise developed our nation's industrial strength and positioned our country for its role as a world leader. Therefore, it should come as no surprise that industry will continue to leverage considerable influence in any national debate.

The Period 1934-1996

Looking to the period between 1934-1996 and telecommunications legislation, we see that economics drove the political agenda. The national communication system (AT&T) was built upon the power infrastructure provided by the Rural Electrification Act. However, as technology and competition developed our nation witnessed the break-up of AT&T. AT&T's break-up was driven by industry as the market nature of our economy prevailed. The most recent and potentially dramatic change came with the Telecommunications Act of 1996, where competition is virtually open to all, and for the first time the operative word is information, and not television, telephone, or anything else.

Cold War Policy Challenges

The threat of complete and total destruction challenged all sectors of our civil and government infrastructure. For the first time in history a nation could completely, without notice, destroy another nation. In time, solutions were developed to protect against this danger. Most of these solutions relied upon inter-working relationships between not only nations, but between governments and their civilian sectors. The Information Revolution poses a new threat against our political, economic, and industrial infrastructure. Once we worried about national secrets; now we must be concerned with industrial secrets. Hostile forces will use the information infrastructure to extract trade secrets critical to an industry's competitive edge.

The Issue of Privacy

Privacy is one of the most interesting of individual rights. The term itself does not appear within the Constitution or the Bill of Rights and is often referred to as an implied right The balance of an individual's right to privacy has shifted with time as our courts have interpreted our founding father's intention. Today many argue that the right to privacy need not be specifically addressed by the Constitution as it is one of the most basic of rights granted by the creator of which this government was formed to protect. Nonetheless, our policy makers will be driven to accelerate the privacy debate as Americans come to realize the overwhelming capabilities of modern computer systems to gather and analyze personal data and reveal personal information many of whom do not want disclosed. What ever your personal or business perspective, this aspect of the public debate will be key to future policies. It is imperative that all viewpoints be considered and an equitable policy emerge; otherwise, our nation will experience a protracted period of legislation vs. court review which will only serve to the benefit of our nation's adversaries. Consider issues of privacy in Cyberspace using the following rule of thumb:

Currently two test exist to determine if privacy has been violated:

1. Does the individual or company expect the information to be private, (subjective expectation of privacy)?

2. Is society will to grant that expectation?

The Threat of Perception Management

Third world nations are developing a tactic referred to as the Aideed Model. This model is named after the Somalian War Lord whose unique strategy of turning a nation's information infrastructure against itself through active perception management led to the defeat of the world's best equipped military. The Aideed Model is particularly attractive as the budget for executing such an operation is typically smaller than that of an intercity street gang. This, among other recent examples, prove that factions hostile to the interests of the United States do not need to engage in traditional military force-on-force in order to exert their will upon a superpower.

Historical Conclusion

From a policy perspective, our nation is undergoing a change not unlike the Industrial Revolution, with many of the same issues reemerging for debate. This does offer a good perspective for policy makers as a benchmark. However, unlike our transition into the industrial age, the current transition challenges our policy makers much like the Cold War period in that solutions rely on cooperative efforts between government and the civilian sector. Further complicating information policy is the possibility that our form of democracy may be challenged as never before. That said, history suggests there are two great dilemmas. As in the past, two themes help to identify critical policy issues: equality for all and the power of government Vs the individual. Now, as in the past, the solution lies in a delicate balance between the people, government, and industry.

What Did We Learn From the Industrial Revolution?

The major points from our brief historical review are:

• Historically, national policy has supported industrial growth through free enterprise.
• Privacy has and continues to be a major issue.
• Just as in the past, national policy makers are faced with two great dilemmas:
• Ensuring equal rights.
• Separation of individual vs. national government rights.

What Did We Learn During the Cold War?

1. Information Warfare threatens many of our national infrastructures (political, economic, and industrial), in much the same way nuclear weapons did during the Cold War. Nuclear weapons threatened loss of service through mass destruction whereas IW threatens through the net attack.
2. In both cases, the solution depends on a government, industry, and civilian joint effort. Our nation's (information/infrastructure) civil defense relies on cooperation.

What is Unique About the Information Revolution?

1. The impact of a connected America (an immediate human viewpoint sensor) on the national policy process.
2. The ability of an adversary to manage the American perspective.
3. Unlike nuclear or conventional weapons, it is often impossible to detect an Information Warfare attack until it is too late. Further, the adversary can hide within Cyberspace.
4. Government has much less influence as compared to its influence during the Industrial Revolution and Cold War period. As a result, government must lead from behind by providing sound, accurate advice to the public and industry.

The Various Perspectives of Information Warfare

These are the various perspectives of IW:

• Personal
• Corporate
• Justice
• Treasury This perspective is the same as for the Dept. of Justice.
• DoD
• Commerce

• Intelligence - this data unavailable in the beta version.

SummaryThe focus for change must come from Congress. The issues associated with defending America in the age of information can only be equitably debated through this branch of government. This is not to suggest that the President and the Judicial branch will not play a major role; they will. Congress will have to take the lead in forging new policy as our nation enters the 21st century.

Role of the President: direct the Executive branch departments and agencies to provide critical information (data) for use by Congress, Industry , and the public in forming the national debate. The Executive branch must provide a clear representation of the Threat that IW poses to our nation's infrastructure. Further, the President must ensure that any technical skills and associated knowledge resident in the U.S. Government is available to industry and Congress for their use in formulating national information policy.

Role of the Supreme Court: The Supreme Court will, as it has in the past, ensure that legislated policy does not encroach on the rights of Americans. Just as the Supreme Court played a major role in interpreting legislation as America entered the Industrial Revolution, it will do so for the Information Revolution. However, history has shown that such interpretations are molded over time as society's needs and perspectives change. For example, the balance between economic rights and the needs of business.

Role of industry: Corporate America will be called upon to provide a realistic view of industry's security needs. This view is currently not possible as most of corporate America is either fearful of disclosing the extent of the threat, or is unaware of the intentions of its adversaries. To remedy this, the President must commit America's intelligence community to directly providing relevant indications and warnings to industry. Congress must engineer a policy where industry is required to report the number and nature of IW attacks against its infrastructures. Such disclosures by industry must be protected to guard against the erosion of public confidence.

Role of the individual: The Internet is growing exponentially. Within it there are many references to the sanctuary of cyberspace. There have been declarations of cyber independence and calls for a hands-off by governments. People of the world are experiencing for the first time what Americans have taken for granted: Freedom of Speech. The ability to publicly voice one's opinion is bringing a passion to the Internet that is indescribable. Non-Americans are naturally hesitant to embrace any government association with the Internet. However it must be remembered that it was America, specifically the U.S. Department of Defense, that made the Internet possible. According to the Declaration of Independence, America's government is formed by its people to protect the rights granted by the Creator. This brings us to one of the most fundamental arguments of society (State):when do the rights of the many outweigh the rights of the few? This issue has been argued since the dawn of logical thought. Our policy makers (President and Congress) must receive a balanced view from their constituents. Often our nation has applied the oil only to the squeaky wheel. The Congress must initiate public community debates to help bring the message to Washington. When called individuals must educate themselves to the issues and voice their opinion.

Lessons from the Past

Look to our nation's transition during times of great change, e.g., the industrial revolution, the Great Depression, and the nuclear threat (Cold War). During each period the concept of free enterprise provided the technical means to a solution. Likewise, each transition required a new assessment of the balance of rights. Looking more recently to the second half of the 20th century, it can again be illustrated that free enterprise enabled America to become the global leader in technology.

Specific Lessons from History

1. Legislative actions have historically supported economic and industrial growth.
2. The mean trend of U.S. Courts has been to lean toward the rights of the individual. The right to privacy has and will continue to be at the center of such debates.
3. The technical solutions to all of America's needs have come from the industrial sector. History has shown that with the encouraging government policy the pace of development can be greatly accelerated, e.g., America's race for the moon in the 1960's.
4. Look to the benefits of AT&T's divestiture. What other aspects of America's critical infrastructure could benefit from similar considerations, i.e., electric power distribution?
5. Consider the recent cases involving free speech; for example the Philadelphia Court striking down legislation on indecency. What can be learned from this? Was Congress reactive or proactive? Were legislators responding to impulse demands of a minority? Congress must carefully consider the implications of oiling the squeaky wheel, as this may lead to action without thoughtful representation.

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