Security K Supplement - Michigan 2024 BEJK

K---Security Supplement---BEJJKP
Thanks to Annanth, Annika, Carl, Kailash, Pranav, and Maya for their work on these cards.
Gabe Jankovsky (gabjan@umich.edu)
Links
Links---IPR
Link---IPR---2NC
The 1ACs construction of IP theft as a “national security issue” justifies US interventions and military adventurism in the field cybersecurity. The alternative is a comprehensive analysis of securitization and a rejection of the 1AC.
Halbert ’16 [Debora; May 31; Department of Political Science, University of Hawaii at Mānoa, Honolulu, Hawaii, USA; The Information Society, "Intellectual property theft and national security: Agendas and assumptions," Volume 32; Issue 4]
U.S. national security (as opposed to economic security) is relatively new and only tangentially discussed in the literature on intellectual property (which is primarily focused on legal analysis) or the literature on cybersecurity (which deals with the concept of IP uncritically). The discourse that advances IP as a national security issue makes two important narrative moves. First, it blurs the lines between domestic economic innovation and the production of classified information. Second, it asserts that other states (with a focus on China) are responsible for the theft of IP, and not just hackers, criminals, and commercial enterprises. Contrary to the uncritical acceptance that the theft of IP constitutes a national security threat, this article interrogates treatment of IP as a national security issue and thereby a justification for enhancing security in cyberspace. It argues that despite lack of clarity on the part of security analysts and government officials about what IP actually is, the theft of IP is being used to legitimize the presence of U.S. national security interests in the new “operational domain” of cyberspace (Uzal et al. 2014, 407). In making this argument, this article does not question the threat of cyberattacks (or the threat of attacks) on U.S. computer infrastructure; such attacks are well documented and of concern (Deibert 2013; Deibert and Rohozinski 2010). It instead argues that use of IP to justify enhanced cybersecurity should be examined critically. The politics of creating a new “discourse of danger” (Campbell 1998) will have long-term ramifications for open access to knowledge and alternative models of innovation. The theft of intellectual property framed as a national security issue allows the U.S. government to justify enhanced surveillance and control over the Internet in the name of protecting American information assets, now defined as intellectual property. Such a framing, however, has consequences for future information exchange on the Internet, as well as for the future of U.S. diplomatic relations around the globe. More broadly, in building up the moral panic around IP theft and using this theft as a justification for enhanced national security measures in cyberspace, the U.S. government endorses a way of thinking about information, development, and nationalism that sees almost all exchange of information as threatening. Manjikian observes that where the utopian, and to some degree the liberal, approach to the Internet sees information sharing as a larger good, the realist sees information sharing as a threat (Manjikian 2010). In making IP a security threat, the realists are establishing the rhetorical stage for the dominance of their interpretation of cyberspace. This article is structured as follows. The next section traces the articulation of IP as a national security issue by examining the available public documents, including cybersecurity reports issued by the White House, security agencies, and other players. The subsequent section unpacks the concept of IP and shows why it is problematic to treat it as a national security threat. The final section situates this discourse in the larger debate on U.S. cybersecurity and investigates the implications of treating IP theft as a national security threat. The convergence of intellectual property and national security Ronald Reagan’s National Security Decision Directive 145 noted that “Government systems as well as those which process the private or proprietary information of US persons and businesses can become targets for foreign exploitation” (Reagan 1984). While it does not carry the language of intellectual property that is central to cybersecurity claims today, this early directive advances the convergence of private industry and public national security. In 2003 the Bush administration issued the first “National Strategy to Secure Cyberspace” report, the document that set the stage for merging issues of cyberspace with those of national security.1 It focused primarily upon the potential harms caused by insecure networks and security flaws, especially in computerized systems controlling our nation’s critical infrastructure (The White House 2003). While intellectual property was mentioned, it was not yet central to the articulation of cybersecurity in a post-9/11 world. Toward the end of the Bush administration, the Center for Strategic and International Studies (CSIS) issued a “Report to the 44th President of the United States on Cybersecurity.” This report raised the crucial cybersecurity issues the next president of the United States would need to address. It noted that as of 2008, despite over a decade of evolution and growth of the Internet, its national security implications had yet to be fully discussed or developed. Specifically, “America’s failure to protect cyberspace is one of the most urgent national security problems facing the new administration that will take office in January 2008” (Langevin et al. 2008, 11). Thus, recommendations to the new president set the stage for a more comprehensive approach to national cybersecurity. To emphasize the importance of IP, the authors argued that: The immediate risk lies with the economy. Most companies’ business plans involve the use of cyberspace to deliver services, manage supply chains, or interact with customers. Equally important, intellectual property is now stored in digital form, easily accessible to rivals. Weak cybersecurity dilutes our investment in innovation while subsidizing the research and development efforts of foreign competitors. In the new global competition, where economic strength and technological leadership are as important to national power as military force, failing to secure cyberspace puts us at a disadvantage. (Langevin et al. 2008, 11) The report never provides a definition of intellectual property in use except to say this “property” is stored on computers and thus more vulnerable than before.2 What is significant is that intellectual property generally described, which is vital to our economic strength, is deemed as important as military force.3 The report goes even further, saying this is “a strategic issue on par with weapons of mass destruction and global jihad” (Langevin et al. 2008, 15). Here we see just how far the policy discourse on IP moved from early economic concerns to those of national security. The CSIS report, including language on the importance of intellectual property, was cited in one of President Obama’s first forays into cyberspace policy—his 2009 “Cyberspace Policy Review” (The White House 2009). President Obama took up the call of cybersecurity and has made addressing the theft of intellectual property a top priority. In the May 2011 report “International Strategy for Cyberspace,” the follow-up to the 2003 Bush administration report, Obama details the threat facing the United States in this integrated and networked world.4 The report lists several principal cyber threats to national security—cyberattacks that disrupt service; criminal behaviors such as fraud, identity theft, and child exploitation that undermine trust in the digital world; and theft of intellectual property that “threatens national competitiveness and the innovation that drives it” (Obama 2011, 4). According to the report, these challenges emerge because the anonymity of the Internet creates “safe havens” for criminals who pose cybersecurity threats that can even “endanger international peace and security” (Obama 2011, 4). In other words, the anonymity of the Internet, which is celebrated in many quarters, is now also a threat to the U.S. government. In contrast to those calling for collective determination of cyber norms premised upon prevailing social norms (Mueller, Mathiason, and Klein 2007; Hurwitz 2015; Svensson and Larsson 2012; Larsson 2013), this report establishes government mandated international norms that respect intellectual property. Furthermore, the report goes on to outline the U.S. response should the norms now articulated be violated. Specifically, the United States will first continue to pursue diplomacy, it will also work to dissuade potential actors from engaging in norm violating behavior, and, finally, the United States will seek to deter any possible threat to its national and economic security (Obama 2011). The report is clear that violence is an acceptable response to threats to U.S. cybersecurity. It notes that: THE INFORMATION SOCIETY 257 When warranted, the United States will respond to hostile acts in cyberspace as we would to any other threat to our country. All states possess an inherent right to selfdefense, and we recognize that certain hostile acts conducted through cyberspace could compel actions under the commitments we have with our military treaty partners. We reserve the right to use all necessary means— diplomatic, informational, military, and economic—as appropriate and consistent with applicable international law, in order to defend our Nation, our allies, our partners, and our interests. (Obama 2011, 12) Also in 2011, the Office of the National Counterintelligence Executive issued its report to Congress covering acts of economic espionage for the 2009–2011 period (Office of the National Counterintelligence Executive 2011). This report provides specific examples of industrial and economic espionage and defines what constitutes the theft of trade secrets. While often overlooked in discussions of intellectual property (that focus primarily on copyrights, patents, and trademarks), trade secrets are a protected form of IP nationally and internationally via the TRIPS (The Agreement on Trade-Related Aspects of Intellectual Property Rights) agreement; Pooley 2013). The 2011 report focuses upon industrial espionage in cyberspace instead of the general cybersecurity threats discussed in other documents and provides additional justification for government intervention to make the Internet a secure place for business and government. The report noted that it is difficult to assign value to things stolen from industry computers. After all, how much value should be placed on an internal memo listing business talking points (Office of the National Counterintelligence Executive 2011, 3)? That being said, the report offers several insights into how both industry and government entities perceive IP as a national security issue. First, the report recounts that in a 2010 conference hosted by the Office of the National Counterintelligence Executive (ONCE), it emerged that industry actors did not see a significant difference between “cybercrime—for example, identity theft or the misappropriation of intellectual property such as the counterfeiting of commercial video or audio recordings—and the collection of economic or technology information by intelligence services or other foreign entities” (Office of the National Counterintelligence Executive 2011, 1). In effect, industry saw the theft of their intellectual property as the same thing as the theft of state secrets. Second, the report discusses what the authors consider to be non-cyber methods of generating valuable knowledge through economic espionage, including the use of open source materials—meaning published information in scholarly journals and websites. Given that increasingly these materials are available via online sources, often with some sort of pay-wall, it is not a huge step to see how the U.S. government could reconfigure hacking an academic database, such as JSTOR, into a crime of industrial espionage.5 More broadly, however, the notion that even acquiring knowledge through opensource materials can be interpreted as a threat to U.S. economic security implies a significantly different approach to scholarly production than what is found in the academy and the growing open access movement. Finally, to capitalize on the “hactivist” threat posed by Wikileaks, the report argues that future threats may come from activists seeking to make a lifesaving drug available more cheaply or antiwar activists interested in averting the deployment of a new U.S. weapons system. In either scenario, these activists would leak proprietary information to the public and thus undermine U.S. economic and/or national security. In other words, potential security threats are threats coming from intellectual property violations. These activists, along with the emergence of possible regional state actors, are perceived as possible “game changers” in the increasingly complex world of industrial espionage and U.S. national security The report of the Office of the National Counterintelligence Executive provided the data for the President’s February 2013 national strategy to deal with the theft of U.S. trade secrets (and is attached at the end of the President’s document). Focused on industrial and economic espionage, the President’s February 2013 report tells the public that the full scope of the U.S. administrative infrastructure will be deployed to fight against IP theft. Gone are the days when the FBI had bigger criminal plots to unravel than intellectual property theft—this is now central in the FBI mission.6 The report’s analysis is limited to trade secrets instead of constructing and using a generic concept of “intellectual property” as a foil against which to pitch an argument for increased cybersecurity. That being said, what constitutes a trade secret in the context of this report and of course in the U.S. assessment of damage done to American industry and national security is everything that might be held on a computer. Thus, no matter how banal or irrelevant, as long as it is on a computer, it is a trade secret and must be protected against theft.7 While Russia is considered a serious offender in terms of industrial espionage, the reports on trade secrets and cybersecurity all point to China as the most aggressive cybersecurity threat. According to Schmidt and Sanger, recent federal indictments of Chinese hackers were directed at positioning U.S. claims about intellectual property theft at the center of United States–China diplomacy (Schmidt and Sanger 2014). In 2011, Bloomberg reported that at least 760 companies had been hacked, primarily by Chinese sources, calling China’s efforts an “undeclared cyber war” (Riley and Walcott 258 D. HALBERT 2011). While the reporting was short on specifics, Scott Borg, director of the U.S. Cyber Consequences Unit, noted, “We’re talking about stealing entire industries.” He said, “This may be the biggest transfer of wealth in a short period of time that the world has ever seen” (Riley and Walcott 2011, online para. 16).8 The issue of state-based Chinese hacking emerged again in March 2012 when the Department of Defense issued a press release on what it called “the greatest wealth transfer in history.” According to this press release, this wealth transfer resulted from the Chinese hacking of critical resources in U.S. industry, universities, and government (Daniel 2012). Here the security firm Mandiant noted that while it may be possible that the Chinese hackers acted without state sponsorship, by far the most likely scenario is that they were deployed by the Chinese state to appropriate U.S. intellectual property (Mandiant Intelligence Center 2013). The Commission on the Theft of American Intellectual Property recommended that the national security advisor be designated as the “principle policy coordinator for all actions on the protection of American IP” (Blair and Huntsman 2013, 4). While cybersecurity is already within the scope of the National Security Council mandate, such a designation would shift some of the interests in intellectual property protection from its civilian host in the U.S. Intellectual Property Enforcement Coordinator’s office, itself only a few years old, to a new position within the National Security Council. The Department of Homeland Security (DHS) is also in the picture when issues of cybersecurity and intellectual property converge. While the DHS is a vast federal bureaucracy with widespread duties from border control to domestic terrorism, its recent report to Congress did not leave out the threats posed by intellectual property theft. Acting Secretary Rand in his report to the Senate Committee on Homeland Security and Government Affairs on the State of the Homeland told the committee that the cyberworld is fraught with dangers: This is critical, time-sensitive work, because we confront a dangerous combination of known and unknown cyber vulnerabilities, and adversaries with strong and rapidly expanding capabilities. Threats range from denial of service attacks, to theft of valuable trade secrets, to intrusions against government networks and systems that control critical infrastructure. These attacks come from every part of the globe, every minute of every day, and are continually increasing in seriousness and sophistication. (Beers 2013, online para. 66) Other aspects of the threat to the homeland included hackers testing our networks, the sale of counterfeit goods via the Internet, and ongoing attacks on the network from foreign and domestic sources alike (Beers 2013). These dangers were part of the justification used by the Acting Secretary to request additional funding for DHS in the next fiscal year. Other reports come closer to linking national security and the protection of American lives to IP theft. Attached to the 2013 report by the Obama administration about trade secret theft is yet another report about the importance of protecting U.S. intellectual property. This report for 2012, part of a yearly endeavor by the Defense Security Service, begins by stating that: The stakes are high in the battle against foreign collection efforts and espionage that target U.S. technology, intellectual property, trade secrets, and proprietary information. Our national security relies on our collective success at thwarting these persistent attacks. Every time our adversaries gain access to sensitive or classified information and technology, it jeopardizes the lives of our warfighters, since these adversaries can exploit the information and technology to develop more lethal weapons or countermeasures to our systems. Our national security is also at risk in the potential loss of our technological edge, which is closely tied to the economic success of the cleared contractor community and the well-being of our economy. (Defense Security Service 2012, 5) The language equivocates between stolen national secrets and whatever is meant here by intellectual property, where trade secrets and proprietary information are separate categories. However, with each report linking intellectual property to the national security state, the importance of intellectual property is enhanced, even as what constitutes intellectual property is never clarified. The Center for a New American Security also issued a 2013 report on cybersecurity that further enforces the growing link between cybersecurity, national security, and intellectual property theft. The new turn, as the report author Irving Lachow notes, is that an active cyberdefense (ACD) is necessary because the threat now comes from state-sponsored spies and sophisticated criminals who create what he calls an advanced persistent threat (APT)

Preview shortened. Download the file for the full document.