Today we stand at a crossroads. Will the internet continue to be a global system for commerce, politics, and social discourse, or will that world-girding network fracture into component parts? The road we take will help to define the vitality of the cyber network for the foreseeable future.

There are many policies that contribute to internet balkanization. Pervasive government surveillance, content limits, and even censorship all inhibit the free flow of information across the network. However, one of the most insidious causes of splintering is the phenomenon known as data localization – the all-too-reasonable-seeming idea that data about a country’s citizens should mandatorily be stored only in that country. While sensible in theory; in practice, it foreshadows the death knell of the global network as we know it.

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Over the past year, U.S. courts have grappled with important legal questions surrounding how U.S. law enforcement gains access to data stored in the cloud. On February 3rd U.S. Magistrate Judge Thomas Rueter issued a decision ordering Google to comply with two Federal search warrants compelling the company to turn over customer email data stored outside of the United States. This decision contradicts a July 2016 decision by the United States Second Circuit Court of Appeals on a similar case involving Microsoft, a decision that court declined to re-hear only a week before Judge Rueter’s decision. Both cases concern Federal search warrants issued under the authorities of the Stored Communications Act (SCA), a 1986 law that dictates how the government is able to obtain access to “stored wire and electronic communications and transaction records.” As one might expect, the law hasn’t held up particularly well over the past thirty years of technological change. Congress didn’t anticipate the invention of cloud computing technologies and never envisioned the complicated, transnational data storage and transit systems technology companies have created to serve their customers.

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Terrorism in 2016 does not pose an existential threat to the United States.  This is not to say that terrorism is not a significant security challenge, or a priority for the government, but the fact remains that Americans are far more likely to die in a car accident or from heart disease than in a terrorist attack.

In fact, one has a greater chance of being crushed to death by falling furniture than dying in a terrorist-related attack.  In spite of this relatively low probability, everyday Americans experience fear and anxiety in disproportionately high ways. In fact, roughly 42% of Americans feel they are less safe than they were just prior to the 9/11 attacks.  Another, more recent poll, shows that nearly two-thirds of Americans experience terrorism-related anxiety when riding on public transportation or congregating in public areas.  How is there such a large gap between probability and anxiety? The answer may be attributed to a relatively low level of resilience in communities, which has broad implications when it comes to incident response, terrorism, and even the delicate balance between liberty and security in America. 

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A major distributed denial of service (DDoS) attack occurred last Friday, October 21, disrupting Internet communications throughout parts of the United States in several waves.

When a DDoS attack occurs, it leverages a large volume of compromised, or poorly configured devices, to flood a victim with unsolicited Internet traffic. The attack overwhelms the targeted system and results in degraded or discontinued service availability.

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Two roads diverge in cyberspace.  In one direction lies a free and open internet, marked by the global flow of data and ideas.  In the other, lies a fractured network balkanized along national or regional lines, with restricted flows and an authoritarian character.  We must choose carefully which path to travel, lest we regret our decision in the future.

The U.S. Court of Appeals for the Second Circuit in New York took a significant but limited step along the better path in July when it ruled that the U.S. government could not force Microsoft to produce data that it stored in an Irish data center, even though Microsoft was an American corporation.  Because the data was overseas, American law enforcement demands could not reach it.

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In the early days of World War I, planes were initially used only for reconnaissance. Enemy pilots flying past each other in 1914 often waved to each other, or if feeling salty or pugnacious, would shake their fists at one another. Of course, it didn’t take long before one pilot had the bright idea to fire his revolver at another, and within a year, the first fighter planes and bombers were born – incontrovertibly changing the course of warfare for the next century.

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On October 6, 2015, The European Court of Justice (ECJ) delivered a judgement invalidating the U.S.-E.U. Safe Harbor framework. The Chertoff Group explored the implications on United States (U.S.) companies as they consider their market strategies and business operations. Because of the Safe Harbor judgement, U.S. companies can no longer rely on the Safe Harbor framework as a means to comply with E.U. data protection laws relating to the safe transfer of data on their European customers to the U.S. As a result, U.S. companies must evaluate the new policy ramifications as they review, assess, and identify new legal and technical solutions while considering their business go-to-market, channel development, positioning, and communications strategies.

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