Abstract

http://ssrn.com/abstract=1950677
 
 

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Virtual Checkpoints and Cyber-Terry Stops: Digital Scans to Protect the Nation’s Critical Infrastructure and Key Resources


Scott J. Glick


National Security Division; Maurice A. Deane School of Law

October 28, 2011

Journal of National Security Law and Policy, Vol. 6, No. 1, 2012

Abstract:     
The cybersecurity risks to the nation’s critical infrastructure and key resources are significant and increasing every day. While a sound legal basis exists for the government to use computer intrusion detection technology to protect its own networks, critical infrastructure and key resources which are primarily owned by the private sector are governed by a different set of constitutional principles and laws. This Article explores the potential for a new cybersecurity exception to the Fourth Amendment’s warrant and individualized suspicion requirements. By viewing cybersecurity through a protective Fourth Amendment lens, as opposed to a criminal, intelligence, or military lens, fairly well established legal frameworks from the physical world can be applied to cyberspace to enable the government to use technology to identify malicious digital codes that may be attacking the nation’s critical infrastructure and key resources without running afoul of the Fourth Amendment. The Article argues that reasonable and limited digital scans at virtual checkpoints in cyberspace, which are binary and do not initially expose the contents of the communications to human review, are a constitutional and effective way to minimize the cybersecurity risks to the nation. The Article proposes that the Congress consider and enact sensible new legislation that will specifically enable the government to take remedial and other protective actions in cyberspace within the constitutional framework that has enabled this nation to prosper.

Number of Pages in PDF File: 33

Keywords: Cybersecurity, Virtual Checkpoints, Cyber-Terry Stops, Digital Scans, Malicious Digital Codes, Fourth Amendment

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Date posted: October 29, 2011 ; Last revised: September 6, 2012

Suggested Citation

Glick, Scott J., Virtual Checkpoints and Cyber-Terry Stops: Digital Scans to Protect the Nation’s Critical Infrastructure and Key Resources (October 28, 2011). Journal of National Security Law and Policy, Vol. 6, No. 1, 2012. Available at SSRN: http://ssrn.com/abstract=1950677

Contact Information

Scott J. Glick (Contact Author)
National Security Division
U.S. Department of Justice
Washington, DC 20530
United States
Maurice A. Deane School of Law ( email )
121 Hofstra University
Hempstead, NY 11549
United States

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