Senators Offer to Let NSA Hunt Cyber Actors Inside the US

A bipartisan group of senators offered to help expand the National Security Agency’s authorities allowing the spy agency to hunt domestically for signals intelligence against foreign adversaries that U.S. officials have said are behind a string of recent attacks, like the recent SolarWinds hack. 

Several members of the Senate Armed Services Committee on Thursday voiced their support for expanded authorities for the NSA and U.S. Cyber Command to conduct more intelligence gathering domestically, something that the Biden administration already is exploring, according to Gen. Paul Nakasone, who leads both agencies. 

Committee members heaped praise on Nakasone for his efforts to secure the 2020 elections from foreign interference. The NSA and Cyber Command conducted some two dozen operations to protect U.S. infrastructure and target adversaries in the runup to November, Nakasone said. Eleven of those were “hunt forward” operations, taking place in networks in foreign countries, at those countries’ invitation. 

But while foreign adversaries didn’t succeed in attacking voter polls, Russia and China have, of late, achieved some dramatic wins. The massive SolarWinds hack, believed to be Russian in origin, has affected a broad swath of the government including the Department of Justice and the Department of Defense. (The Pentagon maintains that they did not lose any classified data.) The Microsoft Exchange Server attack, believed to be Chinese in origin, has also potentially compromised thousands of customers.

Nakasone told senators  that the U.S. was unable to keep up with the threat in large part because laws prevent NSA and Cyber Command from adequately observing adversaries operating on U.S. networks. “They’re no longer just launching their attacks from different parts of the world. They understand that they come into the United States, use our infrastructure, and there’s a blind spot for us not being able to see them.” 

Nakasone said there are legal barriers and disincentives for companies to share information with the U.S. government. But ultimately, to prevent such attacks the federal government must be able to respond more quickly to attacks on private networks inside the United States to understand what’s happening when they are under attack, which currently requires law enforcement and sometimes warrants or other permissions. 

“What I am identifying right now is our adversaries understand that they can come into the United States and rapidly utilize an internet service provider, come up and do their activities, and take that down before a warrant can be issued, before we can have surveillance by a civilian authority here in the United States.”

It was, he said, “something that the administration and obviously others are addressing right now.” 

Nakasone did not outright ask Congress for additional authorities for the NSA to meet that threat saying that it wasn’t “necessarily” U.S. Cyber Command that needed to be at the forefront of that. He didn’t have to. The lawmakers on hand seemed more than ready to hand them over.

“I would like to work with the committee on getting you those authorities” said Sen. Kirsten  Gillibrand, D-N.Y.

“This is a case of where we’ve made laws we think are correct and we don’t use our resources,” said Sen. Mike Rounds, R-S.D.

Former NSA general counsel Glenn Gertstell has argued that an expansion of NSA authorities to collect domestic intelligence is overdue. “It can’t possibly be the case that the Fourth Amendment ties our hands in such a way that we just have to sit there and watch the Chinese romp through our infrastructure,” he told the Wall Street Journal in March. The Fourth Amendment protects against unreasonable searches and Nakasone cited it as a key obstacle to potential expansion of the NSA’s powers domestically. 

Gerstell doesn’t support a broad expansion of authorities to collect signals intelligence in the United States for any purpose at all. On Wednesday, speaking on a Cipher Brief Summit panel on the topic, Gerstell suggested that the administration could create a package of procedures or safeguards to address Fourth Amendment concerns and that there was a way to expand NSA’s capabilities to detect or prevent hacks without imperiling the privacy of the civilian population, which could be carefully watched by the  Privacy and Civil Liberties Oversight Board or a Foreign Intelligence Surveillance Court review, as well as mandatory purging of data. 

“There's a solution; we need to find it. What's the alternative?” he said.

Sen. Ron Wyden, D-Ore., who serves on the Senate Intelligence Committee, earlier this month voiced skepticism for giving expanded authorities to foreign-facing spy agencies. 

“The government already has the authority to watch every bit of data going in and out of federal networks. [The Cyber Infrastructure Security Agency] and NSA still missed the SolarWinds backdoor calling home for further instructions. The problem here isn’t our privacy laws, but that the government is failing cybersecurity 101. Some in the government now want to ask for new, warrantless surveillance of Americans’ communications to distract Congress from asking unpleasant questions about why CISA’s $6 billion cyber shield failed to stop or detect the hacks,” he said in a March 9 statement.