Defense bill elevates debate on tech security issues

The House-Senate compromise bill for authorizing Defense Department programs in fiscal 2004 contains provisions that have raised questions about software security requirements, as well as abuse of the right to keep intelligence information secret.

One provision calls for the department to ensure that its recent emphasis on using commercial, off-the-shelf software will not make sensitive command, control, communications and intelligence for Defense more vulnerable. The measure says the department "must be more proactive" in protecting its information systems and urges implementation of an "architecture or blueprint" for all of its information technology systems.

The provision would specify that the blueprint protect against unauthorized modifications or insertions of malicious code into critical software and against "reverse engineering" of intellectual property within that software. Reverse engineering involves taking a product apart to see how it works in order to duplicate or improve its functions.

The provision also would direct the department to assess the usefulness of tamper-resistant security software and other security tools. It says tamper-resistant software inserts "security-related functionality directly into the binary level of software code."

Ronald Lee, a partner at the law firm of Arnold and Porter, said that while the concept of increasing Defense security is not new, what is new is that "the authorizers are sufficiently concerned and unified about it to come up with a provision like this."

"They clearly put down their marker here," Lee said. "I think it's a way of opening dialogue and elevating" the issue. He added that the language could benefit vendors working on high-end assurance products and affect procurement and research and development of defense products.

Lee said the language could lead appropriators to back the idea of an assessment and technology blueprint and possibly attach conditions on future funding related to security. And because Defense is seen as a bellwether for the federal government on some issues, it also could extend to other agencies.

Another provision would give the National Security Agency (NSA) an exemption it requested from the Freedom of Information Act (FOIA) for so-called "operational files." Those files are intended to involve the technical collection of intelligence, according to Steve Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists.

But the exemption could be abused if extended to other types of intelligence, he said. The provision would relieve NSA from having to search or review documents for FOIA requests if they are considered operational.

Aftergood said such documents probably would not have been released anyway, so the provision "makes some administrative sense." However, "openness" advocates worry because they say a similar clause has been abused by other agencies such as the National Reconnaissance Office (NRO), which builds spy satellites, and the CIA.

The NRO rejected a request for budget documents, calling them operational, but Aftergood is challenging that rejection.

The compromise version of the provision is narrowed to two NSA directorates: signals intelligence, which intercepts electronic signals, and research associations.

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