JOGINDER s DHILLON [*] ROBERT I.

JOGINDER s DHILLON [*]

ROBERT I. SMITH [**]

I. INTRODUCTION

Our society is becoming through all ages more reliant on the Internet and our national information infrastructure. As is belonging to all in this country, our laws have been inert to develop in this just discovered venue. Unlike commercial enterprises that may make choice of to take advantage of gaps and apertures in the law, those engaged in protecting our national security face a tougher challenge. The protectors of our national security should not be unrestrained to take advantage of these gaps and way of escapes as they are charged not solely with ensuring that their manner of life is consistent with the literal meaning and spirit of our laws, if it were not that that they also act consistent with our constitutional values. While a commercial enterprise may make choice of to act in the absence of legislation prohibiting a given act, the maintainers of national security not solely must ask "may" they legally perform this act, yet they also must ask whether they "should" perform the act. This additional constraint becomes critically important in the area of electronic surveillance, where evolving technolo gy threatens individual rights and liberties.

However, while the information age instants tremendous promise of benefits to our nation, in this way too does it bring increased vulnerabilities. Our infrastructures used to be fostered by physical distance or isolation from threats, the availability of effective defense and the belief of our contrarys that we were likely to retaliate. Today's weapons limit the effectiveness of all of these layers of defense Our increasingly wired world is becoming increasingly vulnerable to numerous threats, including malicious hackers, curious teenagers, terrorists, organized crime, and foreign powers. Anonymous Internet users may attempt to gain access to our infrastructures while physically abstracted from the site of the intrusion, and they act with reduc threats of detection and little risk of retaliation.

This article consists of three parts. Section II reviews the nature of the critical information infrastructure. The discussion disguises some of the recent directives from the President, as well as a discussion of the Internet in general. Section III discusses the nature of threats against that infrastructure. The discussion includes a review of any actual and some simulated intrusion attempts against the computer arrangements and the known results of those incidents. Section IV of the article reviews the relevant domestic laws and the constraints they place upon those charged with defending these infrastructures. The discussion overlays Fourth Amendment law, the Computer Fraud and Abuse Act, the Electronic Communications Privacy Act, the Foreign Intelligence Surveillance Act, and the Posse Comitatus Act.

II. THE IMPACT OF INFORMATION TECHNOLOGY

A. The President's Response

Life is righteous in America because things work. When we flip the switch, the lights arise on. When we turn the tap, clean water be deriveds When we pick up the phone our call goe end We are able to assume that things will work because our infrastructures are highly disentangleed and highly effective. [1]

In order to make secure that Americans may continue to rely forward our critical infrastructures, President Clinton created the President's Commission forward Critical Infrastructure Protection (PCCIP). [2] The PCCIP is charged with reviewing physical and cyber threats to eight critical infrastructures. These infrastructures include transportation, production and storage of fossil material for burnings water supply, emergency services, continuity of rule service, banking and finance, electrical power, and information and communications. [3]

Historically, many of these critical infrastructures were "physically and logically separate theorys that had little interdependence." [4] However, the combination of advances in technology and the push for ever-increasing flushs of efficiency has driven these methods to a state of increased automation and interdependence. [5] This networking and interlinking of our critical infrastructures has "created fresh vulnerabilities to equipment failures, human error, weather and other natural causes, and physical and cyber attacks." [6]

In the past, "[t]he physical breadth of the infrastructures made it difficult for a potential malefactor to cause anything other than an isolated disturbance." [7] However, the networking and interdependence of the critical infrastructures today places almost no limit forward the damage that may be worked by a sophisticated potential malefactor. Furthermore, these threats are real, and an inability to fitly respond to the threats could confirm very costly. [8] The President has mad clear that he does not intend to allow these threats to remain unchallenged.

It has extended been the policy of the United States to assure the continuity and viability of critical infrastructures. President Clinton intends that the United States will take all necessary measures to swiftly eliminate any significant vulnerability to the two physical and cyber attacks forward our critical infrastructures, including especially our cyber schemes [9]