The 2020-2022 Counterintelligence Strategy and Its Relevance for Courts’ Participation in a Whole-of-Society Approach to Threats to Our Safety and Security

This is the second in a series of blog posts beginning on February 4, 2020 focused on judicial systems’ response to the coronavirus pandemic -- SARS-CoV-2 is its technical name; Covid-19 is the disease it causes --and the justice systems’ active participation in a whole-of-society-approach (WOSA) to national security and safety threats such as Covid-19.

On February 10, the National Counterintelligence and Security Center (NCSC) published the National Counterintelligence Strategy of the United States of America 2020-2022, outlining “a new approach” to counterintelligence to address threats that have  become more aggressive, complex, diverse, and harmful. The new approach in the 2020-2022 counterintelligence strategy represents a new perspective on the threat landscape. 


Past counterintelligence strategies categorized the threats by foreign nation-state adversaries and non-state actors by the nature the threat – nuclear, chemical, biological, cyber, and natural and man-made disasters. The  new approach  focuses on “five key areas where foreign intelligence entities are hitting the U.S. hardest and where we need to devote greater attention – critical infrastructure, key U.S. supply chains, the U.S. economy, American democratic institutions, and cyber and technical operations,” said NCSC Director William Evanina. 

The five key areas where foreign intelligence threats are most damaging to our national security interests translate to the NCSC’s five strategic objectives:

• Protect the nation’s critical infrastructure (both hard infrastructure like bridges, roads, and water supply, and digital infrastructure like cloud computing) from foreign intelligence entities seeking to exploit or disrupt national critical functions.

• Reduce threats to key U.S. supply chains to prevent foreign attempts to compromise the integrity, trustworthiness, and authenticity of products and services purchased and integrated into the operations of the U.S. Government, the defense industrial base, the private sector, and academia.

• Counter the exploitation of the U.S. economy to protect our competitive advantage in world markets and our economic prosperity and security. Because the U.S. is a global leader in high-technology research and innovation, America is a tremendous target for the theft or acquisition of critical technology and intellectual property, costing the U.S. hundreds of billions of dollars annually and reducing U.S. economic and military competitive advantage globally.

• Defend American democracy against foreign influence threats to protect America’s democratic institutions and processes and preserve our culture of openness. Foreign intelligence entities are conducting influence campaigns to undermine confidence in our democratic institutions and processes, sow divisions in our society, exert leverage over America and weaken our alliances. Foreign adversaries regard deception or manipulation of the views of U.S. citizens and policymakers to be an effective, inexpensive, and low-risk method for achieving their strategic objectives.

• Counter foreign intelligence cyber and technical operations that are harmful to U.S. interests. This critical objective applies to all the other objectives of the strategy. The development of next generation technologies such as the Internet of Things, 5G technology, quantum computing, and artificial intelligence will present new opportunities for foreign adversaries to collect intelligence and conduct cyber operations against the United States.

The 2020-2022 Strategy updates the last NCSC counterintelligence strategy released in 2016 and offers new viewpoints and methods for dealing with foreign intelligence. Two of these viewpoints and methods bear on courts’ active participation in coordinated responses to threats to our security and safety discussed in previous posts here. 


From a Whole of Government to a Whole of Society Approach


In its 2016 Strategy, the NCSC advocated for a “whole of government” approach, as my colleagues and I did in a paper in the most recent issue of the Court Manager, Courts Have a Significant Role to Play in the Whole-of-Government Approach (WGA) to Our Safety and Security. As the Court Manager article was in press but before it was published in December 2019, I posted a blog on November 26, 2019, An All-of-Society Approach to Existential Threats We Face Today, in which I advocated for a broader approach and argued  that national and transnational threats to our safety and security require a much broader approach including diverse disciplines across all of society. 

Such an all-of-society approach is rooted in common-sense, most notably that the complex  threats to our national and transnational safety and security defy solutions by the actions of just a few entities such as the military and intelligence communities. Rather, an all-of-society approach stresses unity of action and a wide range of viewpoints and perspectives on threats and risks in an increasingly complex and uncertain world…. Today’s threats and risks demand coordinated and rapid responses by many diverse actors in and out of government including ethicists, moral philosophers, scientists, economists, and futurists.

In its latest Strategy, the NCSC has expanded its whole-of-government to a whole-of- society approach. “With the private sector and democratic institutions increasingly under attack, this is no longer a problem the U.S. Government can address alone. It requires a whole-of-society response involving the private sector, an informed American public, as well as our allies,” wrote NCSC Director Evanina in the press release of the 2020-2022 Strategy. 


Bankruptcy Proceedings


According to the NCSC strategy, three trends characterize today’s counterintelligence threat landscape.

·       The number of threat actors targeting the U.S. is growing, ranging from state actors like Russia, China, Iran, Cuba, and North Korea; to non-state actors like Lebanese Hizballah, ISIS and al-Qa’ida; to so-called “ hacktivist,” and “ leaktivists,” who may have  no formal ties to foreign intelligence services.

·       These threat actors have increasingly sophisticated intelligence capabilities and technologies at their disposal, including advanced cyber tools, biometric devices, high-resolution imagery, enhanced technical surveillance equipment, unmanned systems, advanced encryption and big data analytics.

·       Threat actors are using these enhanced capabilities against an expanded set of targets and vulnerabilities. While foreign intelligence entities are targeting most federal agencies in the U.S. -- including those without a national security mission -- they are also targeting a broad array of private sector and academic entities and seeking to influence U.S. public opinion.

The NCSC viewpoint reflected in the last of these trends, especially, captures a vulnerability of court bankruptcy proceedings outlined in a blog posted here February 10, 2020,  Courts Vulnerable to Exfiltration of National Security Technology and Sensitive Intellectual Property Through Bankruptcy Proceedings. 

 The problem is that in bankruptcy proceedings, sensitive data and intellectual property are exposed to potential buyers, bidders, creditors, and even the general public. This is especially problematic for so- called “dual-use” technologies -- equipment, software, and intellectual property, items that may have benign private  applications, but also have  applications that, in the hands of foreign adversaries with malicious intent, pose threats to national security. As Stewart warns [in a recent article in the Journal of National Security Law and Policy] the “lure of these cutting-edge technologies makes bankruptcy proceedings a vehicle for exfiltration of national security-related technology and IP by U.S. adversaries.”

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