ECPA: Reality of Homegrown Violent Extremism...

In the United States, Operational Risk Management Executives in the private sector are consistently balancing the legal requirements for public safety and their customers right to privacy. The Internet Service Provider (ISP) General Counsel's duty to facilitate the rule of law within the private sector organization, has been on a collision course with protecting the homeland for over a decade since 9/11.

One of the critical tools for Homeland Security Intelligence (HSI) is the "Electronic Communications Privacy Act (ECPA) and for good reason. The law provides the tools for law enforcement and national security intelligence analysts while simultaneously protecting the privacy interests of all Americans. In a 2011 statement before the Committee on Judiciary, United States Senate, Associate Deputy Attorney General - James A. Baker outlines the basis for ECPA:

"ECPA has never been more important than it is now. Because many criminals, terrorists and spies use telephones or the Internet, electronic evidence obtained pursuant to ECPA is now critical in prosecuting cases involving terrorism, espionage, violent crime, drug trafficking, kidnappings, computer hacking, sexual exploitation of children, organized crime, gangs, and white collar offenses. In addition, because of the inherent overlap between criminal and national security investigations, ECPA’s standards affect critical national security investigations and cyber security programs."

The criminal elements and their organized syndicates are leveraging modern day technologies and capabilities of the private sector. The legal first responders for our 21st century homeland threats don't always wear a badge and drive a Crown Vic on patrol around our city streets. Many spend their hours on patrol in cyberspace or analyzing terabytes of data online with sophisticated software to determine the what, who, why and how of the current threat stream.

The US government has a fiduciary and legal duty to protect the privacy and civil liberties of all US citizens. Parallel to this task is the rapidly changing use of communications and other mobile technologies to facilitate and support the activities and operations of individuals and networks of people, who exploit the design, configuration or implementation of our countries homeland defense architecture.

Whether this architecture includes the utilization of 72 Fusion Centers or the methods for collecting "Suspicious Activity Reports" (SARS) from those first responders, the fact remains that the pursuit of national security threats is a lofty task. This is happening today, on the ground and in the digital domain. Therefore, the speed that these individuals can legally obtain the data they require to make informed decisions is at stake and so we must eliminate any new impediments put before them. From Mr. Bakers statement on "Government Perspectives on Protecting Privacy in the Digital Age" he explains further:

Addressing information associated with email is increasingly important to criminal investigations as diverse as identity theft, child pornography, and organized crime and drug organizations, as well as national security investigations. Moreover, email, instant messaging, and social networking are now more common than telephone calls, and it makes sense to examine whether there is a reasoned basis for distinguishing between the processes used to obtain addressing information associated with wire and electronic communications. In addition, it is important to recognize that addressing information is an essential building block used early in criminal and national security investigations to help establish probable cause for further investigative techniques. Congress could consider whether this is an appropriate area for clarifying legislation.

Any changes to the ECPA laws should be considered carefully with not only the government but the private sector. The combination shall work together to find the correct balance between national security requirements and the privacy of the customers of mobile communications, e-mail, and social networking entities. The time that it takes our first responders to rule-in or rule-out a person of interest in an ongoing investigation can mean the difference between a failed or successful attack on the homeland. The private sector shall determine the prudent cost to the government for providing the legally obtained information of non-telephone records such as a name, address and other metadata. By the way, has anyone noticed that the criminals, terrorists, spies and other malicious actors have decided to use Telegram, or WhatsApp instead of their mobile telephone?

Homeland Security Intelligence (HSI) first responders will be the first to tell you that the crime syndicates and non-state actors have gone underground and have stopped using the tools that leave the data more easily accessible by law enforcement. Now, they are creating and operating their own private and secure infrastructures within the confines of private sector companies. These clandestine groups have organized hierarchy and specialized skills and therefore, the US government must continue to step up the pace, legally.

What does this all mean? It means that there will be a lower chance of under cover law enforcement officers becoming members of the these organized crime syndicates that in many cases are the genesis for homegrown violent extremism (HVE).

Homegrown extremists can be individuals who become violently radicalized, perhaps after exposure to jihadi videos, sermons and training manuals available on the Internet, security officials say. Such plotters are harder for counterterrorism officials to spot because they have few links with known terrorist operatives and often don’t travel overseas for training.

Another implication is that there is a higher chance that private sector researchers will understand the new trade craft of HVE actors, long before law enforcement and national security intelligence analysts. This is because the standard approach to the "Seven Signs of Terrorism" have been focused on the physical infrastructure. Organizations in the private sector have been researching, tracking and profiling since the late 1990's on the methods and modus operandi of the digital extremists who have plagued our banks and other financial institutions with cyber crime.

The time is now for these two distinct disciplines and professionals to converge. The public as eyes and ears combined with the legal tools to extract the timely information from technology providers is part one. Part two is the integration of intelligence analytic training with the curriculum of the police and fire academies for new recruits. Providing these first responders with the methods, tools and capabilities to be more effective collectors on the street level, will provide the fusion centers with a more robust set of relevant information streams. Here is an example from a graduate certificate class in criminal intelligence analysis from AMU:

The graduate certificate in Intelligence Analysis provides you with a fundamental understanding of the issues, problems, and threats faced by the intelligence community. This online graduate program helps you develop a comprehensive knowledge of how intelligence agencies in the U.S. assess and counter international threats in order to guard U.S. global interests and protect U.S. national security from adversaries. Knowledge from this certificate program is applicable to many career fields within the military, security companies, government contractors, or federal agencies.

We have a choice to provide our first responders with the correct training and OPS Risk education for today's Homeland Security Intelligence (HSI) mission. Our national policy makers have a choice to assist them in getting the information they need to do their jobs quickly, efficiently and while protecting civil liberties. The choices that we make fifteen years after 9/11, will define the landscape for homegrown extremism and the legal framework for ensuring the safety and security of all Americans for years to come.