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American businesses could be required to report requests by U.S. intelligence services for data on European online users under a trans-Atlantic data-transfer pact now being negotiated, according to the European Union’s justice commissioner.

Brian Krebs is a popular reporter on the cybersecurity beat. He regularly exposes cybercriminals and their tactics, and consequently is regularly a target of their ire. Last month, he wrote about an online attack-for-hire service that resulted in the arrest of the two proprietors. In the aftermath, his site was taken down by a massive DDoS attack.In many ways, this is nothing new. Distributed denial-of-service attacks are a family of attacks that cause websites and other internet-connected systems to crash by overloading them with traffic. The "distributed" part means that other insecure computers on the internet—sometimes in the millions—are recruited to a botnet to unwittingly participate in the attack. The tactics are decades old; DDoS attacks are perpetrated by lone hackers trying to be annoying, criminals trying to extort money, and governments testing their tactics. There are defenses, and there are companies that offer DDoS mitigation services for hire. Basically, it's a size vs. size game. If the attackers can cobble together a fire hose of data bigger than the defender's capability to cope with, they win. If the defenders can increase their capability in the face of attack, they win. What was new about the Krebs attack was both the massive scale and the particular devices the attackers recruited. Instead of using traditional computers for their botnet, they used CCTV cameras, digital video recorders, home routers, and other embedded computers attached to the internet as part of the Internet of Things. Much has been written about how the IoT is wildly insecure. In fact, the software used to attack Krebs was simple and amateurish. What this attack demonstrates is that the economics of the IoT mean that it will remain insecure unless government steps in to fix the problem. This is a market failure that can't get fixed on its own.

The change in the law wrought by the Federal Circuit can also be viewed substantively through the controversy over software patents. Throughout the 1960s, the USPTO refused to award patents for software innovations. However, several of the USPTO’s decisions were overruled by the patent-friendly U.S. Court of Customs and Patent Appeals, which ordered that software patents be granted. In Gottschalk v. Benson (1972) and Parker v. Flook (1978), the U.S. Supreme Court reversed the Court of Customs and Patent Appeals, holding that mathematical algorithms (and therefore software) were not patentable subject matter. In 1981, in Diamond v. Diehr, the Supreme Court upheld a software patent on the grounds that the patent in question involved a physical process—the patent was issued for software used in the molding of rubber. While affirming their prior ruling that mathematical formulas are not patentable in the abstract, the Court held that an otherwise patentable invention did not become unpatentable simply because it utilized a computer.

Imagine you are the target of a phishing attack: Someone sends you an email attachment containing malware. Your email service provider shares the attachment with the government, so that others can configure their computer systems to spot similar attacks. The next day, your provider gets a call. It’s the Department of Homeland Security (DHS), and they’re curious. The malware appears to be from Turkey. Why, DHS wants to know, might someone in Turkey be interested in attacking you? So, would your email company please share all your emails with the government? Knowing more about you, investigators might better understand the attack. Normally, your email provider wouldn’t be allowed to give this information over without your consent or a search warrant. But that could soon change. The Senate may soon make another attempt at passing the Cybersecurity Information Sharing Act, a bill that would waive privacy laws in the name of cybersecurity. In April, the US House of Representatives passed by strong majorities two similar “cyber threat” information sharing bills. These bills grant companies immunity for giving DHS information about network attacks, attackers, and online crimes.

Sharing information about security vulnerabilities is a good idea. Shared vulnerability data empowers other system operators to check and see if they, too, have been attacked, and also to guard against being similarly attacked in the future. I’ve spent most of my career fighting for researchers’ rights to share this kind of information against threats from companies that didn’t want their customers to know their products were flawed. But, these bills gut legal protections against government fishing expeditions exactly at a time when individuals and Internet companies need privacy laws to get stronger, not weaker. 

Worse, the bills aren’t needed. Private companies share threat data with each other, and even with the government, all the time. The threat data that security professionals use to protect networks from future attacks is a far more narrow category of information than those included in the bills being considered by Congress, and will only rarely contain private information. And none of the recent cyberattacks — not Sony, not Target, and not the devastating grab of sensitive background check interviews on government employees at the Office of Personnel Management — would have been mitigated by these bills.