Intellectual property claims as denial & deception measures in medical intelligence

Following yesterday’s clear demonstration of the official embrace of open source intelligence comes a sharp reminder of that discipline’s limitations. The field of medical intelligence – and in particular, epidemiological intelligence – has been one of the areas in which OSINT has seen great successes. These successes are all the more important as they have involved the integration of specific scientific and technical expertise into collection, analysis, and visualization of extremely hard problems across very large scale geographies and populations. However, much of the underlying open source information and reference materials have only been made available due to the predominate ethic of free information exchange which prevails in scientific sharing and peer review. A recent Washington Post article (via Futurismic and Open the Future) highlights a new concept that may threaten the fundamental availability of those underlying materials.

This concept - viral sovereignty – immediately brings to mind the worst days of the Cold War, in which the Soviets sought to conceal information regarding large scale disease outbreaks to preserve the illusion of a superior socialized medical system, and in some cases such as the 1979 Sverdlovsk outbreak, prevent revelation of their clandestine biological warfare programs. The newest iteration of these ideas couple the same statist impulse towards censorship with a distorted view of the intellectual property market, resulting in a truly poisonous brew. One might consider such paranoia- and profiteering- driven claims a unique type of denial & deception measure aimed directly at the OSINT mechanisms of governments, pharmaceutical firms, and international organizations.

We would not wish to see a future where fundamental medical information regarding new disease outbreaks is simply not available in certain high risk countries. The potential higher order effects of such short-sighted decisions are readily considered – including the “surprise” global emergence of highly virulent new infection strains from unreported lower level outbreaks. Such a state of affairs could simply not be permitted to exist unchallenged, and as a result it is likely that a number of nations (particularly regional neighbors most likely to be impacted by such outbreaks) might then turn to clandestine collection means to acquire what previously was the open domain of science itself. This raises serious proliferation concerns, if new disease variants are obtained by BW aspirant countries (or non state actors) but are not otherwise widely known among nations which have abandoned biowarfare programs. One could also anticipate a surging demand for such clandestine collection measures for industrial espionage purposes, especially in countries where the legalities and ethics of an open competitive intelligence profession simply does not exist.

Such frictions would not only distort legitimate markets for pharmaceutical advances, but also would fundamentally impact the iterative and collaborative nature of modern medical research. And the first victims of these negative effects would likely be the unfortunate citizens of the country seeking to employ spurious intellectual property claims in this manner.

Of lawyers and hammer fixation

We have condemned the too frequent intrusion of the lawyers into the realm of foreign intelligence on many previous occasions. From a perspective of policy and of practicality, it rarely results in good outcomes – especially when it comes hand in hand with the kind of toxic politicization that has so corrupted the contemporary environment. We can think of no better example than the continuing travesty which has been the leak plagued and talking point distorted scandal that is the attempt to apply unprecedented restrictions on foreign intelligence collection, brought about by a single un-reviewed FISA court decision and the political football that has resulted over corrective legislation. We need not revisit the matter here, as other commentators have spilled countless pixels on the topic, and we think the exceptionally candid statements by the community’s most senior leadership should have laid the matter to rest. That the debate continues is bitter testament to the folly of politicization too common in today’s national security decision-making abetted by ill starred over-lawyering.

It is against this backdrop we find yet another attempt to introduce the unelected judicial branch into matters which have long been properly held to be strictly questions for the elected officials of the executive and legislative branches who are themselves accountable to voters in questions of policy. In this case, the intrusion comes in the form of a paper which presents a "modest" proposal to hold the war-making powers of the elected branches hostage to an adversarial court process, in which the case to be presented will be composed from intelligence take. We initially would have thought this a jest in very poor taste indeed, but we unfortunately see it was seriously argued.

Presumably such intelligence would be inevitably demanded in its most raw form. This is a sure prescription for even more damaging leaks than have already cost significant investments in blood and treasure through the loss of the unique capabilities that such investments had purchased. It is also a sure prescription for intelligence failure, not merely due to the loss of those capabilities to leaks, but also due to failures of analysis. Prior to World War II, a good many legal minds attempted to act as their own analysts – and failed in ways which demonstrated just about every form of cognitive bias and logical fallacy that has ever been documented in analytic tradecraft. The parsing of law and the insight required of intelligence analysis are entirely different creatures, and do not mix well – especially under the conditions of great uncertainty and implacable time constraints which are found in international crisis situations.

Given the dysfunction which has so characterized what is among the most vital and timely of national needs in this Long War, to great and unfortunately continuing loss. Not every problem in the arena of national security and international relations is amenable to the lawyer’s hammer (or more appropriately, the judge’s gavel.) There are other instruments of national power, and making these subservient to a courtroom process is a certain path towards rendering them entirely impotent in a complex, dynamic and continually evolving threat environment.



h/t Volokh Conspiracy

Rent seeking and digital media exploitation

We hear news of one of the more disturbing aspects of legal intrusion into the intelligence field – the tendency of lawmakers and regulators to craft protectionist legislation – enabling and encouraging rent seeking behaviors that would never survive in a more open marketplace.

This time around it is an area which at first blush might seem tangential to the profession of intelligence - but it is more closely associated with other issues in the field than we would like. South Carolina may force those private parties involved in digital forensics to hold a private investigation license – that hoary old document so beloved of fiction authors and scandal page writers.

The PI business has clearly been losing a lot of ground over the past few decades as business has become ever more global in nature – and not that it ever had much ground to begin with, in the more rarified professional atmospheres of major multinationals. The few top tier exceptions in the field have undergone some dramatic shifts – so much so that reporting on the industry’s turmoil became a staple of the Indigo Publication’s Intelligence Online newsletter. Major players from consulting firms and more specialized shops have emerged to carve away what might have been business opportunities, especially since most executives (and more critically, the lawyers who advise them) disdain the “hard-boiled” image that the term PI evokes. Even if in the modern business of investigations such an image is only a stereotype, it has a strong impact on business realities.

Digital forensics is a pretty wide field, even despite its relative youth. It encompasses activities as disparate as internal systems monitoring, to compliance auditing, to the full range of criminal search and seizure. What it means in a networked world is still very much being explored – particularly given the challenges posed by rapidly evolving hostile technology innovations. In its more advanced networked forms, it often begins to resemble more closely activities in the signals intelligence domain. While this is understandable from the perspective of intelligence studies theory, given that the native competencies of intelligence in the cyber domain have yet to be recognized, it is far to early to allow regulatory frameworks to disrupt the development of the discipline – especially a framework which imposes mechanisms better suited to the Industrial age of rail than the modern age of networks.

We oppose this line of thinking not only for the immediate harm it causes, but for the slippery slope it creates. With each new regulatory overreach, additional activities within the intelligence field become new marginal examples that could be brought under one’s favoured framework. From digital media exploitation it is not far to also seize upon the regulation of document exploitation, and from DOCEX it is easy to bring other aspects of OSINT under the sway of those seeking to profit from entrenched positions. How long then before simple searches within a database, or simple overt elicitation contacts, will require a licensing regime – and one ruled by a clique of established players with only the "right" kind of political connections?

This is among the reasons why we have also opposed the creation of arbitrary standards bodies seeking to define professionalism within the intelligence field – especially those composed of academics who cannot even properly conceptualize many of the key aspects of the profession as it is actually practiced, let alone standardize external measures by which practitioners might be judged. We hold no objection to bodies seeking to advance professionalization through a community of interest, a strong literature, and leadership by example. We also see no issue in individual standards being put into place in specific circumstances – such as the conditions under which a court will recognize sufficient expertise for testimony, or how a government agency will certify knowledge and experience ample for the performance of a contract it is to award, or how employees will be evaluated for promotion within a given shop. But these are far different things than the regulatory creature now rearing its ugly head.

We hope that some degree of sanity will return to these discussions, particularly should the lobbyist guns of the major consulting firm players be warmed up to play against the bush league minors that appear to be driving this process. While the South Carolina case is but one state, the precedent could create more widespread attempts at similar rent-seeking behaviors, both geographically and down that slippery slope of further overreach.

h/t Slashdot

Of PSDs and future assassinations

It is no surprise that highly visible political targets under significant threat would seek the very best protection money could buy. Thus the news that Benazir Bhutto sought to obtain the services of a Blackwater protective security detail prior to her assassination is not entirely without precedent.

However, we are reminded of Mountainrunner’s admonition that private military companies play into US foreign policy overseas – and in particular, US public diplomacy – in a manner that few analysts or decision-makers take into account. Blackwater is among the most visibly associated with US engagements in the Long War – even though it plays a protective rather than offensive role. In the minds of many in the Gap, Blackwater is just another instrument of the United States itself.

In this case, there is little doubt that a more professional PSD would have likely never permitted the risk of moving the principle standing in an open sun-roof, given recent attack history and threat intelligence. The likelihood therefore that Bhutto would have survived the attack – whatever one believes about the mechanism which may have actually inflicted the lethal wound (bullet, blast, or blunt trauma impact) – seems to mark the incident down into the “missed opportunities” column, the fodder for counterfactual analysis and alternative history for a long time to come.

It has long been a maxim that any political target can be taken by a sufficiently motivated suicidal attacker. While modern protective intelligence and operational TTPs have thankfully greatly reduced the margin of success for an attack, the PIRA’s warning to Lady Thatcher after the failed 1984 IED attack still haunts every practitioner: “Today we were unlucky, but remember we only have to be lucky once. You will have to be lucky always.”

Given this backdrop, one can only imagine the consequences of a successful attack should a Blackwater PSD have been engaged to protect Ms. Bhutto. The conspiracy minded would have a field day – and such suggestions have a way of turning to riots in the global Street. Belmont Club has a few of the headlines that we might have seen run in the past few days in such an alternative history.

Any PMC which might take on such a high visibility, high threat contract in the future must be prepared for this kind of aftermath from the start. The State Department should also be planning for such contingencies, both to counter the inevitable immediate reactions as well as the potential long term impact to an American image which is inextricably tied to PMC actions abroad.

More significantly for the purposes of our profession, those engaged in providing protective intelligence support to such engagements must be exceedingly mindful of the possibility that all intelligence activities and products will no doubt come under the microscope of public examination in the days and weeks following an attack. We can think of little better fodder for the kind of damaging political grandstanding that has been favoured in the Beltway as of late, or for the kind of lawfare that has sapped critical capabilities on so many accounts. Even if such protective intelligence is provided under the auspices of official USG liaison, should contractors have been involved in the analysis and production process, we could well see the same sort of scrum develop. (This creates one of the better arguments for defining publishing and release authority as an inherently governmental responsibility, we should think – as it is done in most shops. However, there will likely always be a number of unresolved questions regarding uncoordinated products and unpublished or internal papers sufficient to keep such arguments alive for some time. The buck may stop at a government officer’s desk, but we are sure the damnable lawyers will have their day with the underlying process in any event.)

This has significant implications even in the domestic homeland security environment. Those of the numerous fusion centers and watch desks around the community that have protective intelligence for state and local officials as a secondary (and often implied) responsibility will no doubt face very similar challenges, to perhaps even a greater degree of political vitriol – including the same dynamics that arise with any degree of privatized support.

Let us be clear, though – such issues need not arise from any impropriety on the part of the private contractor capability, be they intelligence officers or PSD operators. This is an emergent property of the current political and media atmosphere that has not yet reconciled to the business of privatized intelligence or PMCs – largely because of the continued illusion that the state can (or should) somehow magically still provide the range of capabilities demanded in the Long War. In a perfect world, it might be so – but as we fight on an ever more specialized basis across increasingly far flung locations, the impossibility of the drain on high demand / low density assets that attempts to service such illusions would create should be ever more obvious, even to the outsider. That the market organizes to meet the unfilled demand should not be such a surprise – and should be rationally discussed rather than sensationalized. Unfortunately, the Beltway and media does not often function on the logic of reality, but rather according the rules of transient political advantage.

Strategic communications, public affairs, and public diplomacy professionals that will have to deal with the consequences of such an incident in the future had best start preparing contingency planning for this sort of political football. It is only a matter of time – and of adversary kinetic and IO action.

Legal intrusions into foreign intelligence activities

There has been a recent and disturbing trend of domestic courts increasingly intruding into the realm foreign intelligence activities, an area throughout American history which has been the sole operational province of the Executive Branch, funded and overseen by the Legislative. Whether concerning detainee operations, communications intelligence programs, or even assessments of the threat posed by illegal combatants – the dangerous idea that foreign intelligence (as an activity) should be treated by legal regimes in the same manner as information gathering in the law enforcement context.

This is a damningly difficult concept to combat. Intelligence activities should and must always take place within the framework of a rule of law, and subject to the control and oversight of the elected branches of government. Reviewing intelligence activities on a case by case basis within a judicial framework is precisely the wrong approach when attempting to maintain situational awareness at the national level in a complex and dangerous world.

In recent weeks we have been particularly troubled to see a number of items which point towards the intellectual foundations of a potentially radical expansion in the scope of judicial overreach into foreign intelligence activities. The continued political furor over the recent leaks regarding the “Terrorist Surveillance Program” has shown just how damaging such intrusions can be, and how terribly frequent the improper discussion of sensitive programs by those who so callously break their most sacred oaths. When the DNI himself indicates that the political fights and legal wrangling has had operational impact, it is more than time to worry.

Worse yet, we detect a discernable strain of legal thinking which now seeks to impose restrictions not only on the collection of information, but on its use. The idea that a warrant might be required to search against previously accumulated foreign intelligence materials sounds absurd, but recent legal opinions appear to have laid the groundwork for such an argument in future cases. This would also be very nearly absolutely fatal in the context of fusion and collaboration for homeland security intelligence purposes (particularly if critical elements of the intelligence picture are obtained from foreign intelligence activities of DOD and other agencies, as if often the case.)

We have long maintained that the mindsets of the lawyer and the intelligence professional are diametrically opposed. The first seeks to present a structured picture through adversarial argumentation, and by training attacks to exclude evidence from the picture to support a particular viewpoint. The latter struggles to understand puzzles and mysteries, and to assemble a coherent narrative in the face of incomplete, conflicting, and deceptive information in order to support the decision-maker’s choices regarding courses of action. Allowing the lawyers to dictate further the key aspects of the world of intelligence – and allowing intelligence activities to be framed into an “investigative” basis rather than continuing inquiry into matters of standing interest – will be the death of the profession.

In part, we come so near to such a state of affairs due to the lack of formalization of intelligence activity as a profession in its own right. It is too easy for those without a long term stake in the process to formulate “reform”, and in the current hyper-politicized environment, see those measures implemented without regard to their effect within the community. What few efforts we have seen to move towards professionalization have been far too much in the character of rent-seeking, and too little towards establishing an articulable and defensible basis for the actions and requirements which allow for the successful understanding of the difficult accounts and hard targets with which we are faced.

We have but a little time for the intelligence studies academia to step up and meet this challenge, before too much is lost to those who pursue studies of the field from a perspective which is distinctly alien to the history and the effective practice of the art and science of intelligence.

Lawfare and readiness

Via In From the Cold and Eagle Speak, we find two fascinating examples of the use of legal and political means to systematically degrade US military training and readiness through limiting exercises and other pre-operational activities.

The profit motive, both political and financial, is examined in depth in both cases by our esteemed (virtual) colleagues.

These are the tactical innovations that will be exploited in coming 5GW, whether a puppeteer emerges to orchestrate them, or even if only a part of the parasitic marketplace that is developing around the blunting of US influence.

The unbearable lightness of the bench

We do not normally comment on active cases or current intelligence matters, but this news item from the United Kingdom simply beggars belief. Apparently, the judge which is responsible for perhaps the most significant trial testing the civilized world’s response to the proliferation of terrorism support activities in the Parallel World is completely unfamiliar with even the most basic features of the environment.

We find it amazing that in this day an age, a system can be so flawed as to assign the responsibility of objective and balanced discernment to an individual who lacks even a layman’s understanding of the substance of the issues at hand.

This however underscores even more clearly the abject failure of the legal approach in counter-terrorism operations. In the Long War, the network is just another element of the battlespace, and it is futile to attempt to use structures designed centuries ago to obtain victory in this new age. Moving forward, deeper into the 21st century evolution of 4th and 5th generation warfare, it will no longer be merely futile but, like this incident illustrates, entirely absurd.

The judge is a national embarrassment for a key US ally. Regrettably, it is equally likely had such a case been brought on this side of the pond that a similar clueless individual would have been the one to hear arguments.

Our enemies have no doubt taken note. It is precisely this sort of event which provokes "lawfare" and other 5GW attempts to use our most revered Western institutions against us.

h/t Slashdot, LGF