Testimony of

Samuel Guiberson, Chair
National Association of Criminal Defense Lawyers
Committee on Technology and Law Enforcement

Hearing before the

Senate Committee on the Judiciary
Subcommittee on Criminal Justice Oversight

and

House Judiciary Subcommittee on Crime

on

Internet Denial of Service Attacks and the Federal Response

February 29, 2000

Mr. Chairman and Members of the Committees, on behalf of the National Association of Criminal Defense Lawyers (NACDL) I thank you for inviting us to participate in this hearing.

Leap years like this one occur only once every four hundred years. Opportunities for social, economic and political renaissance on the scale the Internet affords us do not happen nearly as often. This is why there is no blueprint for the wise use of our newly wired world.

Our margin for error is very narrow. If we overshoot the proper reach of government monitoring and intrusion in a digital world and sanction law enforcement to co-opt these advancing technological capabilities, our society may fall victim to a perhaps well intended but relentlessly totalitarian surveillance apparatus, whose control over the people would boundlessly surpass the people's ability to control it.

On the other hand, if we underestimate the potential threat to personal privacy, property, commerce and free speech inherent in the criminal exploitation of Internet technology, we will find ourselves at the total mercy of those who are both ruthless and technologically adept, no matter where on this planet they reside.

Without the best possible understanding of the social, economic, and constitutional consequences of advances in communications and computing, our criminal law could easily lose its good sense in so much great technology.

If we try to govern a technologically aggressive society by writing laws to respond to specific technologies, or to specific controversies that result from a particular technology, the legal framework obsolesces just as does the particular technology it addresses. The only way to avoid having legislation bypassed by the pace of technological change is to focus on the uses to which the technology is put, and not the technology being put to use.

We are all well aware that the Internet is so powerful an agent of change that it is reshaping every society in which it plays a part.  In so doing, it will require us to translate our democratic principles, constitutional guarantees and our basic tenets of individual freedom, privacy, and free association into a new vocabulary for a digital world. We must be careful in the language we choose, because if we do not well-define our digital liberties in the years to come, we will have no liberty at all.

The rise of Internet commerce has preoccupied the national attention and the economy. Yet, for all the dramatic changes that it has brought to the way we do business, provide commercial information, and market goods and services worldwide, it represents but a fraction of the Internet's potential. We have given so much attention to the Internet as an earning tool that we have overlooked the Internet as a learning tool.

While at present we struggle with the question of how many hundred websites there need to be to sell watches, you as lawmakers must not be distracted from protecting the Internet's potential for the miraculous.

A child born today will have a bounty of knowledge, literature, art and science that so far surpasses what was available to us in our youth that it will seem inconceivable that our generation and their generation were born and raised on the same planet.

If we legislate the Internet as we might do if it were no more than a forum for commerce, we might well be tempted to enact laws appropriate to markets but not to forums for intellectual, artistic and political exchange, leaving ourselves living in a wired world that has everything for sale and nothing to say.

Our priority in Internet policing should be to insure that the Internet maintain the civil order of an open and democratic society. Our citizens must have confidence that the personal and corporate information and electronic currency they convey over the Internet is secure. They must have confidence that when they express themselves on the Internet, whether through a commercial enterprise or homepage about their family life, their message, their content, will not be destroyed or overridden by anyone's whimsy of malice against them, their ideas, or their enterprise.

There is really no social benefit to turning computer criminals into long term corrections statistics if, by correcting the technology, we can diminish the opportunity for the crime to occur in the first place. The Federal Government can make the most effective gains in reducing hacking attacks by supporting research and development of more capable defensive technology and requiring greater diligence in the on-site monitoring and administration of commercial computing systems.

The investigation of crime and the apprehension of perpetrators do not run on Internet time. No professional law enforcement agency can conduct a thorough and successful investigation of any criminal offense, on or off the Internet, without applying methodical and time-consuming investigative techniques. Law enforcement's performance to date in apprehending computer hackers is far from cause for panic. With the human resources, and funding appropriate to the task, and in light of the overwhelming support and cooperation extended to them by the professional computing community, federal law enforcement can enforce computer laws and deter computer crime by employing the tried and true traditional methods of meticulous investigation for which it is well known.

But because the Internet is a computer network, an electronic apparatus, there is a temptation for us to encourage law enforcement to get its arms around the entirety, to put a policing overlay into the technical infrastructure itself, so that the government has the capability to monitor every Internet macro and micro event. While there are risks of criminal exploitation of the Internet, if we depart from the customary means of criminal investigation merely because it might be, or become, technically possible to monitor every electronic action and reaction, we put our open society at a greater risk than criminals could ever pose.

Our public dialogue about the Internet has relished its shortfalls and ignored its strengths.  The Internet itself is not fragile.  The Internet is not a crowded theater. The Internet has been brought into being by a generation of gifted and resourceful people who possessed a vision that has inspired the world. They are of many backgrounds, many beliefs, they have been motivated by many different personal and collective goals. If this description seems familiar, it is because it is written in the same inks as the history of our nation. The Internet is us. We should have the same confidence in its resilience, its fundamental virtue and its potential for greatness as we have always had in our nation and in ourselves as a people.

We have within our reach a great uplifting of our nation and of all humankind, an unprecedented opportunity to make the coming generations more free, more prosperous and possibly wiser than we were. It would be insufferable and inexplicable to our children if, out of overreaction to the risks at hand, we fail to win that prize.

Thank you.