Playing into the hands of our adversaries.

Jamil Jaffer: All of that plays into the hands of our adversaries, who want us tied up in knots, pointing the finger at each other instead of at them and blaming them for what they are doing to us.

Dave Bittner: Hello, everyone, and welcome to "Caveat," the CyberWire's law and policy podcast. I'm Dave Bittner. And joining me is my co-host, Ben Yelin from the University of Maryland Center for Health and Homeland Security. Hello, Ben. 

Ben Yelin: Hello, Dave. 

Dave Bittner: On this week's show, Ben looks at facial recognition technology being used on protesters. I've got the story of ICE and DHS buying up moment-by-moment mobile device location data. And later in the show, my conversation with Jamil Jaffer from IronNet Security. Prior to joining IronNet, Jamil served as the chief counsel and senior adviser for the Senate Foreign Relations Committee and senior counsel to the House Intelligence Committee, where he led the committee's oversight of NSA surveillance. He also worked in the White House during the Bush administration as the associate counsel to the president. So stick around for that. 

Dave Bittner: While this show covers legal topics and Ben is a lawyer, the views expressed do not constitute legal advice. For official legal advice on any of the topics we cover, please contact your attorney. 

Dave Bittner: All right. Let's get things going with our stories here this week. Ben, what do you have for us? 

Ben Yelin: So if you'll recall, back on June the 1 of 2020, there was a large protest, emanating out of the nationwide George Floyd protests, in Washington, D.C., right by the White House in Lafayette Square. Things got very heated there. Tear gas was used on protesters. The president of United States used that opportunity to have a photo in front of the church across the street from the White House, Lafayette Square - very scandalous. 

Ben Yelin: Another thing that happened - and I swear I'm getting to the relevant part of the story here... 

Dave Bittner: (Laughter). 

Ben Yelin: The other thing that happened is there was a protester who punched out a member of law enforcement. He was wearing a tie-dyed shirt. That's kind of all they really knew about him. They were not able to positively identify this protestor. But an officer - a law enforcement officer - found an image of this person on Twitter and put it into a facial recognition system and were able to identify him and were able to arrest him. 

Ben Yelin: So what we found out from this article is there is a database of up to 1.4 million facial recognition records that's used by law enforcement agencies across the national capital region. And this just represents, I think, the pattern we're seeing of increased use of this technology by local law enforcement. 

Ben Yelin: This was previously something that was secretive. It was only discovered because enterprising journalists did a good job reviewing court documents to see how they obtained evidence against this protester. But this is something that operates entirely outside of the public view. And 14 local and federal agencies across the D.C. area have access to this. 

Ben Yelin: So obviously, civil liberties groups are up in arms. You know, they say this has a chilling effect on First Amendment rights because people are going to be less likely to show up at protests if they know that they might be nabbed by a facial recognition system. 

Ben Yelin: And then, you know, I think it's important to note that these were protests concerning issues around racial justice. And we know - and we've talked about this a bunch of times, Dave - that algorithms used in facial recognition technology are just as racist, if not more so, than we are as human beings and make false identifications of people of color. So that's sort of the two-pronged concern here. 

Ben Yelin: So law enforcement agencies have arduously defended their use of this. They're saying, I think correctly, that this is a very effective tool. But I think it's disturbing, from a civil liberties perspective, just to see the scope of this in one geographic area. And whenever something like this becomes public, I think it really could have a chilling effect on people being willing to exercise their First Amendment rights. 

Dave Bittner: Yeah. Let me just play devil's advocate here, not that the devil needs an advocate. But in the article, they point out that this database, which consists of 1.4 million images, is drawn from mug shots supplied by the agencies who partner in this project. They say the system does not contain images from government motor vehicle departments or other public sources that would allow someone who has not been arrested to be unwittingly enrolled in the database. So I can see the argument being made here that this is merely automation applied to an image collection process that law enforcement already has underway, that is a routine part of what law enforcement does. I don't think any of us have any problem with law enforcement using mug shots. So how would this be out of bounds? 

Ben Yelin: So that's a great question. The first thing I would say is those algorithms. We know that they're fundamentally flawed. That's what you get using facial recognition that you wouldn't get by, you know, for example, having a human in a police laboratory looking through a bunch of different mug shots. It's just - you don't have that same type of bias. So that's the first thing I would say. 

Ben Yelin: The second thing is not everybody who gets a mug shot ends up being convicted of a crime. You get a mug shot upon arrest or indictment. I have a problem with using mug shots as a database, especially when we know that people of color, for example, are arrested with much higher proportions than white people, frankly. So there's certainly a racial justice element to that. 

Ben Yelin: I do think this is better than what we've seen from other facial recognition software instances across the country, uses by law enforcement where they are scraping records from the DMV or the MVA, as we call it in Maryland, vehicle registration records, et cetera. I mean, I do think that is more worrisome because that's everyone who drives a car. 

Ben Yelin: But I don't think we should take comfort in the fact that it's only mug shots. You know, I still think that leaves open the potential for abuse just because of the potentially biased nature of the algorithms themselves and the fact that mug shots are not necessarily indications of past guilt. And, you know, generally, a principle we have in the legal world is we shouldn't judge people based on their previous run-ins with the law. I'm not sure if that's fully applicable to the circumstances here, but it certainly is a principle. And so, you know, I think relying on the fact that people have been arrested in the past to effectuate arrests in the present is, you know, something that I'm not entirely comfortable with. 

Dave Bittner: What about the fact that they were trying to keep this under wraps, that they were trying to keep quiet the fact that they were doing this? I mean, does that - I suppose that points to the fact that they knew they were going to be brought under criticism for it? 

Ben Yelin: Yeah, yeah. I mean, I think they are fully aware that any time such a program is uncovered, there's going to be blowback from civil liberties groups. The ACLU will find out. The Electronic Frontier Foundation will find out. 

Dave Bittner: (Laughter) And they're going to be pissed. 

Ben Yelin: They are going to be pissed. 

Dave Bittner: (Laughter). 

Ben Yelin: It also potentially can disrupt cases, as it did here. I mean, the charges against this individual were dropped. We're not exactly sure why that was. The article here suggests that the algorithm itself performed well, but the investigators didn't follow proper safeguards against misidentification. 

Ben Yelin: So what that suggests to me is this is still in a trial phase. This is not something that law enforcement is well situated with. And they're not used to getting to the point in an investigation where their key form of evidence has been gleaned from facial recognition where they have to justify it in a court document. And once you get to that point, once a judge looks at it and says, all right, well, did you actually dot all the Is and cross all the Ts? - that's where they're going to be exposed. 

Ben Yelin: And, you know, for the most part, except when you're dealing with certain areas of classified information, all these court documents are public record. And so journalists are going to find out about it. So that's sort of the catch-22. I mean, it's a great tool in effectuating arrests. But if you use it, you're going to have to make it public to one degree or another, and that's going to invite the backlash. 

Dave Bittner: Right. You can't have these questions that we still have when it comes to the technology. I guess I'm still scratching my head and wondering because I would imagine that if you're running someone's picture through a mug shot database and that mug shot database comes up with a few hits, it's not like some law enforcement officer or whoever's handling the prosecution of this isn't going to then look at the picture that comes up as a hit, compare it to the picture of the guy out in public and, you know, use their human brain to decide if that's a close enough match to go forward or not. 

Ben Yelin: Right. And you know, as we've mentioned for a bunch of other surveillance programs, that's something we can accept from law enforcement because they have limited resources. There's only so many times you can do that level of investigative work. But when you have something like facial recognition, you just multiply that by an unknown factor where it's not labor intensive. You know, we don't necessarily know how cost effective this all is, but it's not something that's going to use up a lot of law enforcement resources, meaning you can use it on a much larger scale. 

Dave Bittner: Right, right. 

Ben Yelin: And that's true for everything. I mean, I think we're willing to tolerate police following cars on public roads, but we're not willing to tolerate mass cell site location information just because of the scale. 

Dave Bittner: Yeah, kind of throws the system out of equilibrium, in a way. 

Ben Yelin: Absolutely. And that is literally the - what some legal scholars have called this theory, the equilibrium adjustment theory - that if technology changes in a way that makes life easier for law enforcement, easier for them to effectuate arrests, then the law should have to change to compensate for that and should be more protective of individual rights and vice-versa. So, you know, as individuals gain advanced technological tools, end-to-end encryption, the law should reach equilibrium and allow law enforcement to have the same powers that they did prior to that technology being introduced. 

Dave Bittner: All right. Well, the article is from The Washington Post. We'll have a link to it in the show notes. 

Dave Bittner: My story this week comes from the folks over at BuzzFeed. And it's titled "DHS Authorities Are Buying Moment-By-Moment Geolocation Cellphone Data to Track People." I would say this is sort of additional information on something that we've talked about before. The folks at the Department of Homeland Security and ICE have been buying up - this is according to a memo that the folks at BuzzFeed were able to obtain, a leaked memo. 

Ben Yelin: The second-most famous memo that BuzzFeed has been able to obtain. 

Dave Bittner: (Laughter). So BuzzFeed was able to get this memo that shows that ICE is contracting with a data broker who gathers up location data on people's mobile devices - their cellphones - and they're buying up this very finely grained information that can track people from moment to moment. And they're able to do this because they're working with a private organization, and they're working with information that this private organization has accumulated publicly, legally through the use of people giving their permission on their mobile devices to share this information, which you and I have talked about many times... 

Ben Yelin: We sure have. 

Dave Bittner: ...When you click on the EULA (laughter) - those EULAs that we all spend all that time reading. 

Ben Yelin: I just read 40 pages this morning myself, so yeah. 

Dave Bittner: Yeah, yeah. That's where they're getting the information. And because of that, they basically don't have to get a warrant for the information. 

Dave Bittner: Now, the organizations - ICE and the organizations who gather this data will say that - and they do say - that this information has been anonymized. It doesn't provide the identification of an individual user. But again, you and I know - we've discussed that if a particular mobile device spends the hours between midnight and 6 a.m. at a particular location every day... 

Ben Yelin: Yeah, we have a pretty good idea of what the situation is in that context. 

Dave Bittner: Right. And then between 9 and 5, it goes to another location and spends most of its time there. Not too hard to cross-reference who lives here and works here. That's probably who this person is. 

Ben Yelin: Although, as we've also said, easier in the COVID era when many of us aren't actually going into the office to do work. So... 

Dave Bittner: Yes. 

Ben Yelin: But yes, the general - but, you know, it will show my geolocation at my house nearly 24 hours a day. 

Dave Bittner: Right. The only point I would make there is that it would be probably more difficult, for example, to differentiate you from your wife... 

Ben Yelin: Yes, exactly. 

Dave Bittner: ...Who would be going to a different work location. 

Ben Yelin: Exactly. 

Dave Bittner: So if that was important, that could be a difference. But yeah, so the whole thing about anonymizing the data - I think that's - it doesn't really hold any water. It's so easy to deanonymize this data. It's not hard to do at all. 

Ben Yelin: Yes. 

Dave Bittner: The DHS folks say that they're aware of potential legal vulnerabilities under the Fourth Amendment. In this memo, they state that there are ways for Customs and Border Patrol and ICE to minimize the risk of constitutional violations. They point out that they could limit their searches to defined periods, require supervisors to sign off on lengthy searches, only use the data when more traditional techniques fail and limit the tracking of one device when there is individualized suspicion or relevance to a law enforcement investigation. 

Dave Bittner: Ben, your take on this? 

Ben Yelin: Oh, do I have takes. 

Dave Bittner: (Laughter). 

Ben Yelin: So first thing I'll say is in terms of the constitutional standard, there might be a relaxed standard for warrantless searches when we're dealing with actual customs and border protection, i.e. checking people when they cross the border. That's a well-recognized exception. 

Dave Bittner: OK. 

Ben Yelin: The problem here is that the technology being used is not necessarily limited to border crossings. It's being used by DHS broadly to address a number of threats. That's not an interest that's been recognized for a potential warrant exception, you know, going back to the 1970s. You don't get a warrant exception for protecting domestic security, for example. That's one element of it. 

Ben Yelin: The other element is because we've had this Carpenter case, we know that real-time cell site location information tracking of a person for a prolonged period is unconstitutional in the absence of a warrant. I think there are enough protections in place here based on the information you shared to indicate that that's not happening, that they are taking enough minimization efforts so that they're not monitoring individuals on an ongoing seven-day basis, the type of monitoring that would invoke constitutional protections. So I think they can do this in a way that complies with Fourth Amendment jurisprudence just because if they're using minimization procedures, it's less likely that a court would hold this to be an unreasonable search. 

Ben Yelin: But stepping back from the legal perspective, looking at it from a real-world view, this is something that's certainly disturbing, that - you know, it's a power that two very powerful agencies who have certainly not been immune to taking controversial actions in the past potentially have access to real-time geolocation of not just people at border crossings but potentially all across the country. So, you know, whatever your view on the legal issues are, I think we can stop and pause and express some concern about that. 

Dave Bittner: So what would be a potential way to put a stop to this? How could - I mean, is this the kind of thing, you know, where the ACLU, folks like that are going to push back? 

Ben Yelin: So a couple ways you could stop this. The first is potentially a change in administration. We'll see what happens there. As we're recording, the election result is still in doubt. You know, this is an internal administration policy, so it could always be reversed if there is a change in administrations. 

Ben Yelin: I think the legal avenue is going to be difficult for a number of reasons. For one, finding a plaintiff who has standing is going to be difficult. You know, a plaintiff would have to have a particularized injury. And most people who are going to be surveilled under this program are going to have no idea that they're being surveilled unless they're prosecuted for a crime, which could happen, but the ACLU would have to wait for that to actually become a case and/or controversy. 

Ben Yelin: And then, like I said, you know, I just think this type of collection, because it is potentially related to border security and because there are these protections in place to protect against overbroad surveillance, I think would probably pass constitutional muster. 

Dave Bittner: What about the collection itself? I mean, I see we're starting to get more momentum, I suppose, from people saying that we need to put a stop to this kind of collection overall. 

Ben Yelin: Yeah, I think there's an absolutely valid criticism that government agencies writ large have endowed themselves with unacceptable powers as it comes to surveillance. And, you know, whatever the ends are - and the ends might be justified - the means aren't justified. Even if you believe in the mission of ICE and DHS, potentially collecting location information on millions of Americans is, you know, not a price that many of us are willing to pay. 

Ben Yelin: As always, the problem here is that these programs are secretive until they're uncovered in BuzzFeed. And it's just so hard these days for a story like this to permeate the public consciousness where there'd be a backlash and congressional investigations. I just feel like that's very 2013, 2014... 

Dave Bittner: (Laughter). 

Ben Yelin: ...And kind of not where we are as a country right now, given the breadth of problems. 

Dave Bittner: Yeah, I suppose it's easy for something like this to feel kind of far away, you know, particularly if you're not in one of the border states where this is more of a local issue. 

Ben Yelin: Yeah, and I think a lot of people have the attitude - and, you know, we've criticized this attitude, but a lot of people have it - is, hey, I'm not doing anything wrong. If you want to look, go ahead and look. You and I know why that's not an acceptable answer because oftentimes, people are caught up in a dragnet, even if they weren't doing something that would make them guilty of a crime. But, you know, I think that's kind of the perspective of a large portion of the general public. 

Ben Yelin: I mean, I see it with some of my students when I ask them, how would you feel potentially affected by this broad surveillance program? And every semester, I get half of the students or more saying, well, I don't do anything wrong, so what do I care? I think that's a pretty pervasive attitude. 

Dave Bittner: All right. Well, we've got to stay vigilant, right (laughter)? 

Ben Yelin: Stay vigilant. That's the message of the day. 

Dave Bittner: (Laughter) Stay vigilant. That's right. Stay vigilant. All right. Well, that is my story this week. Of course, we'll have a link to that in the show notes. We would love to hear from you. If you have a question for us - and by that, I mean a question for Ben... 

Ben Yelin: Don't put that on me. 

Dave Bittner: (Laughter) You can call in. I'll offer opinions. Ben will offer expertise. You can call in. The number is 410-618-3720. That's 410-618-3720. You can also email us. It's caveat@thecyberwire.com. 

Dave Bittner: Ben, I recently had the pleasure of speaking with Jamil Jaffer. He's from a company called IronNet Security. But before IronNet, he was the chief counsel and senior adviser for the Senate Foreign Relations Committee and the senior counsel to the House Intelligence Committee - your old job - where he led the... 

Ben Yelin: I wish. 

Dave Bittner: ...(Laughter) where he led the committee's oversight of NSA surveillance. And he also worked in the White House during the Bush administration as the associate counsel to the president. Interesting conversation here. Here's my talk with Jamil Jaffer. 

Dave Bittner: As you and I record this, we are weeks away from the upcoming U.S. presidential election. Can we start off by just sort of taking stock? Where do you think we find ourselves? 

Jamil Jaffer: Well, look. Obviously, we're in a very tough situation. The election is going to be conducted in a manner different than any other election ever in the context of a global pandemic. A lot of people will be voting early, voting from home, by mail-in ballot, more than probably ever before. A number of states have teed up sending ballots to all of their registered voters. 

Jamil Jaffer: And, of course, this all takes place in the context of a 2016 election that was beset by a significant amount of election interference by a foreign nation-state - the Russians - and a sense from the intelligence community and the Department of Homeland Security and others that not only will the Russians interfere and get involved in this year's election but that the Chinese and perhaps even the Iranians might play a role in this year's upcoming election. 

Jamil Jaffer: So it takes place in a very difficult situation, a very difficult context and, of course, a hotly contested election between former Vice President Joe Biden, current President Donald Trump and at least one of those candidates - the current president - being very out front about his view that this election will be, potentially, as he's put it, rigged. 

Dave Bittner: That seems to align with what we're hearing about, I suppose, the Russian playbook - that it is as much about chaos as anything. 

Jamil Jaffer: So that's exactly right. I mean, the goal of the Russians is not necessarily to elect one candidate or another. I realize it's a hotly debated thing and has been a hotly debated thing since 2016. But what they benefit from and, frankly, what all of our foreign nation-state adversaries benefit from is an undermining of the American people's trust in the election system, in the results of the election, in our rule-of-law institutions. 

Jamil Jaffer: And on that front, the Russians have been wildly successful since 2016 because they have managed to raise questions about whether President Trump was supported by them. They've managed to raise questions about whether - if Hillary Clinton had been elected, whether she was corrupt on issues. They've managed to raise questions about Joe Biden and his son and Ukraine. And all of that - they've made us question our FBI, our intelligence community, our own outcomes, the president, Congress, everybody. We've had an impeachment effort ongoing. I mean, it is amazing. 

Jamil Jaffer: The Russians, you know - if there were - if anybody was toasting in the Kremlin, it is Vladimir Putin and all of his cronies who have run what I predict will be viewed as the most successful covert influence operation probably in history. 

Dave Bittner: I want to check in with you on this story that came out recently about the intel official from the Department of Homeland Security - the whistleblower - and the story about them being ordered not to distribute this report on Russian election interference. Can you sort of start by giving us a quick overview of the story? And I'd love to hear your take on it. 

Jamil Jaffer: Yeah. So look. This is not the first time we've heard allegations made that there was an effort to suppress discussions coming out of the intelligence community or Department of Homeland Security or elsewhere about election interference. This has been a running theme for the last four years. 

Jamil Jaffer: But look. At the end of the day, we've seen, actually, the intelligence community and the head of the National Counterintelligence Center come out very clearly and talk about who's involved the election, who might get involved, whether it's the Russians, the Iranians or the Chinese, what their approach might be. So the intelligence community is out there talking about it. The Department of Homeland Security has put out a number of bulletins about Russian activities on our systems and the like and others, not just election interference, but other activities, also. 

Jamil Jaffer: So, you know, whether this whistleblower is correct or telling the truth or - you know, or their perception of what happened is accurate is sort of beside the point. What we do know - right? - is that the Russians absolutely were involved and, frankly, were involved on both sides of a lot of issues, trying to create this dissension and anger and frustration among the American body politic in the 2016 election. 

Jamil Jaffer: And what we know for sure, is they will do so again, and, likely, others will, also, because to be candid, they have not paid a price for what they did in 2016. We've indicted some folks in Russia with the Internet Research Agency, you know, in indictments that will not be effective because we're never going to get our hands on those people. Congress implemented some sanctions on the Russians that haven't been particularly effective but were there and at least did something. But they fundamentally haven't paid a price. 

Jamil Jaffer: And frankly, you know, we've even heard politicians, including the president, go out publicly and say that he's skeptical of whether the Russians did this and, you know, at that famous meeting with Vladimir Putin, where he said, you know, I know what the intelligence community says, but Vladimir is telling me they didn't do it, you know? And so, you know, that creates noise in the system, also. 

Jamil Jaffer: And I think that's one of the challenges we face because, you know, regardless of whether it's Joe Biden saying that - you know, or his team saying that Donald Trump was - has some weird relationship with Russia or Donald Trump saying, I think the election is going to be rigged or, you know, whatever it might be - all of that plays into the hands of our adversaries who want us tied up in knots, pointing the finger at each other instead of at them and blaming them for what they are doing to us. 

Dave Bittner: What sort of options would be available? I'm thinking if we had an administration in office that didn't have this - you know, this peculiar deference that the Trump administration seems to have for Vladimir Putin. Regardless of Republican, Democrat, you know, just any administration, what sort of tools would they have available to them to push back on this, to be able to say to the Russians, knock it off? 

Jamil Jaffer: Yeah. So to be clear, the Trump administration has done some very aggressive stuff when it comes to Russia. The president has apparently - if we believe the newspaper reporting, has authorized a much more forward-leaning engagement by the U.S. Cyber Command - right? - what we call persistent engagement or defend forward. This is the first time that we've had that as a matter of doctrine. And it's the first time that the president - any president - has delegated the authority down to operational commanders to take actions against our enemies, whether it's election interference or otherwise. 

Jamil Jaffer: And so there's no question that this administration has gotten aggressive and has punched back in some way. The question is, is it enough, right? And clearly, because we know that the Russians are doing more, and the Chinese and Iranians are thinking about getting involved, it hasn't been enough to deter them. And so there are reasons to be critical of the administration and say we haven't done enough. But they have - it is worth noting they have leaned forward, and Congress has gotten involved with these sanctions. 

Jamil Jaffer: What more could we do? It's not just about offensive activity or more forward-leaning activity on foreign systems in cyberspace. We can use other tools, right? If the sanctions aren't effective, let's get more effective. Let's put more sanctions in place. 

Jamil Jaffer: If sanctions aren't the only tool, you know, we could implement all sorts of trade measures with respect to Russia, including against their oil exports, which they rely upon, and not just to us or to our allies, right? We could leverage them the way we did against the Iranians. We put maximum pressure on the Iranians to force their economy into a tough position, right? The president knows how to do that. We could be doing more of that. 

Jamil Jaffer: And frankly, if there was more bipartisanship between the White House and Congress - and both are responsible for this, right? - you would see, potentially, a more effective effort. So I think that's part of the challenge - is we haven't used the full suite of tools we could to punch back. We often - this is often the case, by the way, in cyberactivities where we don't do enough to deter cyber offense by others, and that's when it becomes a problem. And in this case, we just haven't really engaged in full-blown deterrence the way we should. 

Dave Bittner: As the election comes closer and closer, you know, day by day, what sort of things should people be doing to counter this information narrative, to counter this disinformation? 

Jamil Jaffer: So a few things. One, we've really got to think about our election - the threats to our election system as - from a collective defense perspective, right? Today, when it comes to cyberspace, we expect every state, every locality to defend itself. We expect every company in the economy to defend itself. And yet that's never what we've thought about should happen when it comes to a nation-state attack on us. 

Jamil Jaffer: We've always thought, you know, if the Russians were to fly a Bear bomber over Minneapolis or Wisconsin or whatever it might be, you know, we would expect the U.S. government to have surface-to-air missiles to defend against that. And yet today, whether it's election interference or theft of corporate IP, like the Chinese have been doing to the tune of billions of dollars a year, trillions of dollars across the last decade and a half they've been doing it, the U.S. government is not defending against those things, right? And we've left it to private sector companies and individual states and individual localities. 

Jamil Jaffer: Now, the government has done some things. They've engaged more persistently overseas. DHS has provided some funding to states and localities - not enough, to be clear. But they've been trying to get more, and Congress needs to do more on that front. 

Jamil Jaffer: But frankly, we need to think about defending as a nation. And what that means is localities need to come together with one another and with states. States need to come together with one another. Companies and states need to work together. And companies need to work with the federal government and with each other across industries - across multiple industries to really create a whole nation defense. That's the first and most important thing. 

Jamil Jaffer: And then second, as individual citizens who are hearing all this noise and all this discussion about election interference and the like, we have to be critical consumers of information. 

Jamil Jaffer: We have to recognize that it is in the benefit of the Russians, the Chinese and the Iranians to take very real debates in American society about - you know, about who the president should be, about whether, you know - and what a problem the killing of George Floyd was, and recognize that, while these are fair, legitimate debates we should have in this country, they are being gaslighted by foreign nation-states like the Russians, like the Chinese, who like nothing more than to see these disagreements in our society. 

Jamil Jaffer: And we've got to reject that. We've got to come together as a nation. We're going to have an election. We should respect the results of that election, whatever they are, and we should move forward as a nation in a bipartisan manner. 

Jamil Jaffer: There's been a lot - been a real lack of that today. And we need to get on board with that. And that's a problem on the Democrat side. It's on the Republican side. It's a problem with the president. It's a problem with Congress. We all need to come together as a nation. 

Dave Bittner: Do you suspect that the aftermath of this is going to be long-lasting? Is it going to take a long time to build back the trust of voters? 

Jamil Jaffer: Look; I do worry that that's to be a challenge. But the American voter and the American citizen is very resilient, right? One of the things that's so amazing about our country is the way that we can pivot and turn on a dime and innovate and change things and move forward, regardless of what's happened to us in the past, regardless of how tough times might be economically or if there's an attack, whether a cyberattack or a terrorist attack or otherwise. That's really been the hallmark of America. It's been in our toughest times that we've come together as a nation and accelerated and succeeded beyond the wildest expectations of anybody in times of challenges. 

Jamil Jaffer: You look at what happened after the 1919 Spanish flu. You see what happened after World War I, World War II. America saw tremendous rates of growth and success. And I think the same is true - whether it's election interference or this pandemic, we have an opportunity to innovate and move rapidly. That is what makes this country great, and that's what we should focus on. 

Jamil Jaffer: But to do that, we have to come together as a nation, put aside all the other stuff, recognize that a lot of what's happening in our country today is being stoked by foreign nation-states and push forward. And so the key to that in terms of cyber would be collective defense, and the key to that politically will be coming together in a bipartisan manner across the aisle, reaching out and really getting the job of the American people - the working American people - done. 

Dave Bittner: Wow, you actually sound optimistic (laughter). 

Jamil Jaffer: Look; I am. I am. I'm optimistic because as Americans, this is what we do. We take tough times, and we make a success out of them. That is what is great about this country. It is what has made us the most successful nation in the history of the world. It's made us the most successful economy in the history of the world. And we forget that at our peril. 

Jamil Jaffer: You know, we look around too often as Americans, and we say, boy, man, things are so much better over there, or they've got better health care, or they've got better this or better that. Let's be candid. We are the world's greatest nation. We should take responsibility for that and action that. And we have to recognize that we have not been our best selves in the last, you know, four or five, six years. We need to be better, and now's the opportunity to do that. 

Dave Bittner: All right, Ben, what do you make of that? 

Ben Yelin: It was a really interesting and surprisingly inspiring discussion because the message at the end was one of optimism, despite all of these national security threats we face. 

Ben Yelin: I will note, I mean, we're recording this the day after the election, and a lot of my absolute - we still don't know what's going to happen. But a lot of my absolute worst fears that were invoked in this interview have not come to pass. And, you know, I think that's a credit to us and maybe to the sustainability of our system. So that's kind of the positive message I took from this interview, that in the face of Russian disinformation and doubts about election security, dereliction of duty and confronting the Russian threat, we're still standing. And I think there's something to be said about that. 

Ben Yelin: We still had an election where there's, you know, the highest level of turnout that we've seen since 1900. We've exercised our right to vote. There weren't any large-scale problems with our voting systems. So he didn't know this when the interview took place, but I think he might be reflecting some optimism that we have now. 

Dave Bittner: Yeah. Yeah, it's interesting to me, again, you know, talking about the election, that, you know, we had briefs throughout the day at the CyberWire with some of the people from Homeland Security and, you know, the folks who are protecting the election systems. And they said it was just like any other day. You know, they weren't seeing - like, as you say, the things that they feared, they weren't seeing. But they also felt like the hard work they had done ahead of time had gone a long way to, you know, making our adversaries aware that best to stand down on a day like this. 

Ben Yelin: Yeah. And I can't emphasize enough they're just an incredible class of people out there who have spent years protecting against these types of threats. They're unheralded. You know, they're career employees of federal agencies or, you know, state election offices. They're CISOs in local government agencies. But they are - you know, in a situation like this, we need them, and they're heroes. 

Dave Bittner: Yeah, yeah. Absolutely. All right, well, again, my thanks to Jamil Jaffer for joining us. Really interesting conversation, and we appreciate him taking the time. 

Dave Bittner: That is our show. We want to thank all of you for listening. 

Dave Bittner: The "Caveat" podcast is proudly produced in Maryland at the startup studios of DataTribe, where they're co-building the next generation of cybersecurity teams and technologies. Our coordinating producers are Kelsea Bond and Jennifer Eiben. Our executive editor is Peter Kilpe. I'm Dave Bittner. 

Ben Yelin: And I'm Ben Yelin. 

Dave Bittner: Thanks for listening.