Now in Legal Rebels:
Posted Aug 04, 2012 06:05 pm CDT
Corrected: The digital revolution has rendered secrecy largely a thing of the past for governments and the business community, said speakers Saturday at an ABA Annual Meeting program marking the 50th anniversary of the Standing Committee on Law and National Security.
“We have to recognize that we cannot keep secrets anymore, and we have to find a new way of functioning in a transparent world,” said Suzanne Spaulding, a past chair of the committee who is a deputy undersecretary at the Department of Homeland Security.
So far, the private sector is ahead of government in thinking about how to adapt to this new environment, said Spaulding. “The shelf life of secrets is growing ever shorter,” she said, and businesses have begun to seek other ways to gain competitive advantages. Sometimes that means greater access to information is a valid trade-off for a loss of secrecy.
In a similar way, governments must understand that they can’t protect all their secrets from intruders in the cyberworld and adjust their operations accordingly, said Spaulding. Governments also need to “distinguish the ‘crown jewels’ from the stuff you just can’t protect,” she said, but the only way to protect the most vital national security secrets is to take them offline.
The committee’s outgoing chair, Harvey Rishikof of Washington, D.C., also pointed to the digital revolution as a key factor in the changing environment of national security law. Rishikof will continue to serve as chair of an advisory committee to Law and National Security.
“We have shattered boundaries between the domestic and the foreign, and the physical and virtual worIds,” said Rishikof. “The future is all about the data, and data means information.”
But an effective legal regime has not yet developed to adequately address the challenges of cybersecurity, said Rishikof. “We’re bleeding slowly now, he said, but it’s a death by a thousand cuts. Whether we like it or not, there’s going to be an event that will really focus us. We need a cyber-Pearl Harbor.”
Rishikof, Spaulding and other panelists used the program to reflect on how much the world has changed since the committee was created in 1962–the year of the Cuban Missile Crisis–by then-ABA President Lewis Powell, who later served as a justice on the U.S. Supreme Court. At that point, it was the Standing Committee on Education Against Communism .
“It sounds a little goofy now, but that was the height of the Cold War,” noted Richard Friedman, the president and chair of The National Strategy Forum in Chicago. In 1982, he said, the committee sponsored a conference on international terrorism. Five people showed up.
One of the committee’s primary contributions has been to help assure that national security issues are addressed in the context of the rule of law, said Spaulding. “Law is actually supportive of intelligence activities in a democracy,” she said. “The rule of law has been a very powerful tool of national security.”
Edited on Aug. 6 to correct Suzanne Spaulding’s name; and Aug. 8 to correctly indicate that Spaulding is a deputy undersecretary and correctly name the Standing Committee on Education Against Communism.
Edited on Aug. 6 to correct Suzanne Spaulding’s name.