Loudspeakers: The Winning Strategy Against North Korea? Part II

Beginning of this year, South Korea and North Korea began shouting at each other again. It was just last August when the escalated tension between two divided nations came to a halt. Then on January 6, North Korea conducted an underground nuclear test at Punggye-ri Nuclear Test Site, causing tension between the two Koreas. The United States Geological Service reported a 5.1 magnitude earthquake from the location[1]; China Earthquake Networks Center described the seismic activity a “suspected explosion.”[2] As the investigation of the test began, South Korea began blasting loudspeakers over the border again.

What is Broadcasted Over the Loudspeakers?

Propaganda has been a useful weapon to South Korea since the Korean War. North Korea is a nation where its survival is based on isolation. Information is closely monitored, and its people live in complete isolation from the world. The Juche ideology, the cornerstone of party works and government operations, emphasizes a Korea-centered revolution. The three core tenets are political independence, economic self-sustenance, and self-reliance in defense. North Korean government controls almost every aspect of its people, and this control is use to perpetuate a cult of personality surrounding Kim Il-sung and Kim Jong-il. Since its people does not have any idea of the world outside of North Korea, much of the broadcast over the loudspeakers are world news, weather, and K-pop songs, mostly intended to demoralize North Korean soldiers along the border. World news and weather is broadcasted as a strategy to gain trust of the North Koreans at the border and foster mistrust in its own government. Weather, for example, is broadcasted giving warnings of rain or snow. North Koreans who hear this broadcast soon find out the weather broadcast to be true and respond accordingly, such as carrying umbrella when they go out or collecting and taking their laundry inside their home. South Korean pop and drama are broadcasted due to its popularity in North Korea, especially because North Korea pretty much has no pop culture and to show them that the world has modernized. Moreover, North Koreans are prohibited from listening to K-pop, and are allowed to listen only to government-controlled radio stations or TV channels. Despite the restriction by the government, South Korean pop culture has crossed into North Korea. Some defectors say that South Korean music is popular in their country. [3]

How long is the broadcast and how far does the sound travel? According to South Korean military spokesperson, there were two to six hours of broadcast daily, day and night, without any set schedule. The distance of the broadcasts varies depending on the time of the day and the weather. During the day, the broadcast carries for over six miles, and on maximum power at night, it can reach as far as 15 miles. This is far enough to reach Kaesong, one of the largest cities in North Korea,

Does it work?

While it is difficult to know how much influence the broadcast has in North Korea, it seems to be an effective propaganda tool. Even though the broadcast is heard up to 15 miles from the border, it is possible that the message could spread via cell phone.[4] Ju Seung-hyeon, who served in a North Korean propaganda broadcast station on the border before defecting in the early 2000s, told a South Korean newspaper that Seoul’s messages influenced his opinions over a prolonged period. He initially believed that the broadcasts were lies. However, in a span of two years, he believed most of it.[5] Jang Jin-sung, a former North Korean propaganda official and who defected North Korea in 2004, said that the broadcast are powerful because they undermine the North Korean government and “it’s akin to a peaceful version of the nuclear bomb.”[6]

The use of loudspeakers caused exchange of artilleries between the two countries last August, before South Korea agreed to halt them. Moreover, North Korean delegates repeatedly demanded the halt of the broadcast, citing concerns that it was agitating their solders on the border. North Korea’s violent retaliation and South Korea’s loudspeakers may be an indication that it is a powerful weapon against North Korea, or at least it is a powerful bargaining chip to use in negotiations.

[1] Greg Botelho, U.N. Poised to Act against North Korea After Latest Nuclear Test, CNN Jan. 7, 2016,  http://www.cnn.com/2016/01/06/asia/north-korea-hydrogen-bomb-test/index.html.

[2] North Korea Claims Successful Hydrogen Bomb Test After Quake, Channel NewsAsia Jan, 6, 2016, http://www.channelnewsasia.com/news/asiapacific/man-made-quake-detected/2402490.html.

[3] Ask a North Korean, Do You Love K-pop, Guardian Newspaper, June 18, 2015, http://www.theguardian.com/world/2015/jun/18/k-pop-south-korea-ask-a-north-korean.

[4] Alexandre Dor, North Korea’s Achilles Heel: Propaganda Broadcasts, The Diplomat, Sept. 12, 2015, http://thediplomat.com/2015/09/north-koreas-achilles-heel-propaganda-broadcasts/.

[5] Alastair Gale, High-Wattage Speakers Play Role In Korean Deal, Wall St. J., Aug. 28, 2016,  http://www.wsj.com/articles/high-wattage-speakers-play-role-in-korean-deal-1440758282.

[6] Id.

Cell Site Simulator Technology Violating Fourth Amendment Rights

In the age of modern technology, the balance between individuals’ privacy rights and national security have been heavily weighed. Advances in technology have enabled government agencies to obtain cellular information without appropriate judicial review and without the individual’s knowledge. Due to public outcry and complaints made by the American Civil Liberties Union, the Federal Government felt that appropriate action should be taken to minimize the use of this rare technology and has restricted the use of cell-site simulator technology without a warrant; however, state and local governments have not been instructed to do so and many have failed to address the issue at all. 1

The Fourth Amendment protects persons’ personal privacy from government intrusion.2 When intrusion leads to the obtainment of intimate knowledge, it will be deemed unreasonable unless the need for public interest is outweighed by the privacy interest of the individual.3 For a search to be reasonable, officers generally will need to acquire a search warrant signed by a magistrate.4 If information is obtained without a search warrant and without an exception to the search warrant clause, it will be deemed inadmissible at trial.5

The use of technology, not acquirable by an ordinary person, dates back to the Supreme Court’s decision, Kyllo v. United States.6 The Supreme Court held that the obtainment of information through sense-enhancing technology into the interior of the home, that could not have been obtained without a physical intrusion, is a search.7 The Supreme Court has also determined that the monitoring of a beeper device in a private residence, not in a location open to visual surveillance, is a violation of the Fourth Amendment.8

More recently, with the storage capacity of modern cellular devices, the Supreme Court has instructed that the Government must obtain a search warrant before conducting a search of the content.9 This is because of the vast amount of intimate information such as emails, medical information, photographs and credit card information.10 The protection is placed on what a person preserves as private and in the modern era, the contents of a cellphone will be preserved as private to most individuals.

It has recently come to light that government agencies, local and federal, have been using cell-site simulator technology to obtain physical locations of suspects. A cell-site simulator, known as Stingray, acts as a substitute cell tower and awaits signals from particular cellular phones.11 Based on the strength of the signal, a general location can be determined.12 Once multiple signals and locations have been obtained, a precise location is then determined.13 The location is so precise that it can pinpoint the cellular phone to a particular room in a large building. Based on precedent, Courts are likely to hold that the use of Stingray is a search and inadmissible without obtaining a warrant. The ability to obtain tracking information from the device is in violation of the decision in Riley v. California, where the Court held that a cellular phone may  not be accessed and searched without first obtaining a warrant or consent.14 This technology is also rare technology that is not available to the general public and would physically intrude into an individual’s home.15

The Department of Justice has recently drafted and adopted a policy instructing government agencies to obtain appropriate approval before utilizing cell site simulators.16 This was in light of claims being made by organizations like the American Civil Liberties Union that the government was failing to inform the courts that they have access to this information and instead reported using criminal informants to obtain the information.17 While this was determined to be used more often local police departments, this technology allowed the ability for the Government to violate individual’s privacy rights.

After the Department of Justice drafted a policy requiring investigators to obtain warrants before using cell site simulators, state and local departments have not been forced to do the same. There are even loopholes to this policy. It merely applies to criminal investigations NOT national security or border cases. This means, that the Government has the ability to use Stingray when “monitoring” the border for national security. Has the Government failed to protect its citizens again? After the excessive collection of citizen’s information found under the United States Patriot Act, shouldn’t the Government protect individuals’ privacy rights at a higher level? Also, does this new policy prohibit the use of Stingray on suspected terrorists without a warrant? To many questions are still left unanswered after the drafting of this policy that need to be answered.

  1. Neema Singh Guliana, ACLU, The Four Biggest Problems With DHS’s New Stingray Policy, Oct. 22, 2015, available at https://www.aclu.org/blog/free-future/four-biggest-problems-dhss-new-stingray-policy.
  2. U.S. Const. Amend. IV.
  3. Kyllo v. United States, 533 U.S. 27, 36 (2001).
  4. U.S. Const. Amend. IV.
  5. Id.
  6. Kyllo, 533 U.S. 27.
  7. Id. at 40.
  8. United States v. Karo, 710 F.2d 1433, 1439 (1983).
  9. Riley v. California 134 S. Ct. 2473, 2494 (2014).
  10. Id.
  11. Department of Justice, Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology, Sept 3, 2015, available at https://www.justice.gov/opa/pr/justice-department-announces-enhanced-policy-use-cell-site-simulators.
  12. Id.
  13. Id.
  14. Riley, 134 S. Ct. 2473, 2494.
  15. Kyllo, 533 U.S. 27.
  16. Department of Justice, Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology, Sept 3, 2015, available at https://www.justice.gov/opa/pr/justice-department-announces-enhanced-policy-use-cell-site-simulators.
  17. Jeremy Schahill & Margot Williams, The Intercept, Stingrays: A Secret Catalogue of Government Gear for Spying on Your Cell Phone, Dec. 17, 2015,  available at https://theintercept.com/2015/12/17/a-secret-catalogue-of-government-gear-for-spying-on-your-cellphone/.

Donald Trump, Illegal Orders, and the Law of Armed Conflict

During the course of the current Republican Primary campaign, Donald Trump has made a number of jarring comments regarding American armed forces and the actions he would take as president. At a rally in Columbus, Ohio, Trump said that he approves not only of waterboarding, but also that he would bring back “a hell of a lot worse than waterboarding.” Trump elaborated on his belief that waterboarding is an effective means of extracting information from terrorists, saying, “only a stupid person would say it doesn’t work,” and that even if waterboarding were not effective, “[terrorists] deserve it anyway for what they’re doing.” Trump has also waxed nostalgic for the days “when we were strong” and Sergeant Bowe Bergdahl, who is being tried for desertion and misbehavior before the enemy, would have been summarily executed. Decrying the politically correct nature of the present conflict with ISIS on Fox News, Trump said, “The other thing with the terrorists is you have to take out their families, when you get these terrorists, you have to take out their families. They care about their lives, don’t kid yourself. When they say they don’t care about their lives, you have to take out their families.”

In response to Trump’s comments about waterboarding and killing the families of terrorists, General Michael Hayden, former Director of both the NSA and CIA, said that he “would be incredibly concerned if a President Trump governed in a way that was consistent with the way that candidate Trump expressed during the campaign.” Gen. Hayden, in an interview with Bill Maher, said that if members of the American armed forces were ordered to kill the families of terrorists, they would refuse to act. Gen. Hayden explained that members of the military are not required to obey an unlawful order and that Trump’s hypothetical order would be a violation of international laws of armed conflict. When asked about Gen. Hayden’s statement at a Republican Debate, Trump responded, “They’re not going to refuse me, believe me. If I say do it, they’re going to do it. That’s what leadership is all about.”

Under military law, a soldier is generally subject to criminal sanctions for failing to follow a superior’s lawful order. [1] The only defense available to members of the armed forces for failing to follow an order is that “the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.”[2] More specifically, the standard is that “manifestly illegal orders must not be obeyed.”[3] Determining whether an order is manifestly illegal or not can be difficult because “[m]embers of all armed services have a right to presume the lawfulness of orders they receive.”[4]

The presumption of legality “helps maintain and promote good order and discipline . . . . Since subordinates do not risk incurring liability in most situations, the presumption effectively compensates for the subordinate’s lack of information and eliminates the possibility of hesitation and delay in carrying out orders.”[5] Thus, a soldier’s duty to disobey applies only to “a positive act that constitutes a crime [that is] so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their lawfulness.”[6] Under this standard, “a person’s conscience, religious beliefs, moral judgment, or personal philosophy” do not constitute manifest illegality “to justify or excuse the disobedience of an otherwise lawful order.”[7]

The relevant standard in determining whether an order is manifestly illegal is “would a reasonable person recognize the wrongfulness of the act or order, even in light of a soldier’s duty to obey?”[8] Thus, in cases where the legality of an order is uncertain, “the order must be presumed lawful and it must be obeyed.”[9]

If a U.S. service member believes that an order is manifestly illegal or beyond the authority of the superior issuing the command, the order should not be obeyed.[10] The service member should then “ask for clarification of the order to ensure it was correctly understood, or correctly heard, or was not merely misspoken by the senior person.”[11] Should the superior issuing the order persist, a subordinate must then report the incident to a higher authority.[12]

Under this analysis, an order from President Trump to murder the civilian family members of a suspected terrorist would most certainly qualify as a manifestly illegal order. In his interview with Gen. Hayden, Bill Maher remarked that the military would commit a coup d’etat by refusing to follow an illegal order from Trump. However, “receipt of a manifestly illegal order is not justification for a subordinate to attempt to relieve the superior of duty or, even more unwise, to take physical action, such as resorting to armed force, to stop a superior’s unlawful plan.”[13]

In an interview on CBS, Trump said that, “We have an enemy that doesn’t play by the laws. You could say laws, and they’re laughing. They’re laughing at us right now. I would like to strengthen the laws so that we can better compete.” Trump went on to say, “I happen to think that when you’re fighting an enemy that chops off heads, I happen to think that we should use something that’s stronger than we have right now.”

Trump’s concerns with fighting an enemy that eschews the laws of armed conflict were presaged by former Secretary of Defense Donald Rumsfeld. “There’s something about the body politic in the United States that they can accept the enemy killing innocent men, women and children and cutting off people’s heads, but have zero tolerance for some soldier who does something he shouldn’t do.”[14] However, the laws of armed conflict (LOAC) serve a critical purpose. “We obey LOAC because we cannot allow ourselves to become what we are fighting and because we cannot be heard to say that we fight for the right while we are seen to commit wrongs.”[15] To view weakening the standards of professional conduct of the battlefield as “strengthening” the laws is Orwellian, at best. Engaging groups such as ISIS in a competition of cruelty is beneath the dignity of the United States. The duty of members of the armed forces to disobey manifestly illegal orders serves to protect the honor of the profession of arms as well as our republic.

 

 

 

 

 

 

 

[1] Captain Robert E. Murdough, I won’t participate in an illegal war: Military Objectors, the Nuremberg Defense, and the Obligation to Refuse Illegal Orders, Army Law. Jul. 2010, at 4, 5.

[2] See id. (quoting Manual for Courts Martial, United States, R.C.M. 916(d) (2008)).

[3] Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War 359 (2010).

[4] Id.

[5] James B. Insco, Defense of Superior Orders Before Military Commissions, 13 Duke J. Comp. & Int’l L. 389, 393 (2003).

[6] Solis, supra note 3, at 359 n. 111 (citing United States v. Huet-Vaughn, 43 M.J. 105, 107 (1995)).

[7] Id. at 359.

[8] Id.

[9] Id. at 360.

[10] Id.

[11] Id. at 361

[12] Solis, supra note 3, at 361.

[13] Id.

[14] Id. at 11 n. 49 (citing Bob Woodward, State of Denial 486 (2006)).

[15] Id. at 9-10.

The Slippery Slope of Creating an iPhone Backdoor

Gregory Coutros

The Slippery Slope of Creating an iPhone Backdoor

            The FBI’s request that Apple provide an electronic backdoor into the iPhone used by the San Bernardino shooters is, on its face, a reasonable request. The government’s need to access the phone is undoubtedly important for national security so as to protect against terrorist attacks similar to the San Bernardino shooting. The problem is that by creating a backdoor into the iPhone a dangerous precedent is set and a powerful technological tool is created.

To put it bluntly, destroying something once created in cyberspace is nearly impossible.[1] The FBI argues that it is only requesting access to a single phone; the Bureau does not want or expect Apple to create a backdoor to all iPhones. However, Apple points out a flaw in the FBI’s argument that the process used to create the backdoor “. . . could be replicated. Thus, [the code] would not be truly destroyed.”[2] Meaning, that this code creating a backdoor could be recreated and applied to other mobile devices. This would completely eliminate any security measure the original operating system had in place for any phone that operates it.[3] The code used to create the backdoor would result in a sort of skeleton key floating around which could potentially be a major cyber security threat. However, because of the nature of the Intelligence world, the information on the phone could be more valuable than a potential cyber security threat against an aging Operating System.

Information in the Intelligence community is passed from agency to agency in a way that is designed to help piece together information to form a picture of what is happening.[4] For instance, the “. . . FBI can share information with . . . the CIA,” because one agency has information that the other needs.[5] This flow of information can easily be used to help create a clearer picture of a potential threat. By gaining access to the content, not just the metadata, of the San Bernardino shooter’s phone the FBI could potentially create a very clear picture for many different agencies as to how the attack was orchestrated and who else was involved.[6] By gaining this valuable information, the FBI and other agencies could work to prevent anything like the shooting from happening again. Unfortunately, the way in which it is being asked to be done can set a very dangerous precedent that impacts people’s privacy for the sake of potentially stopping a threat.[7]

This is now a fight that will be played out in court and will inevitably set a precedent for courts to follow on similar issues.[8] Currently, there is a Manhattan prosecutor waiting to learn how the iPhone case will play out, because he currently has “175” locked iPhones he wants access to.[9] If the court finds that Apple is required to create this backdoor for the FBI, prosecutors around the country will begin to act in kind. Every prosecutor in the country who stumbles upon a cellphone in the possession of a suspect can request the content of the phone be provided simply by citing to the Apple case.[10] Even if there is no guarantee that the content on the phone is crucial to the case, the argument will be made that the potential of the threat exists as an attempt to justify the request.

Creating a backdoor is dangerous. It creates a slippery slope, both in the legal world and the technological one. Legally speaking, a precedent will be set that could make it very easy to access the content of a person’s phone impacting, and effectively changing, privacy rights with cellphones. Technologically speaking, a skeleton key will have been created that could potentially be used to access anything that runs the same operating system. No one would argue that trying to prevent another San Bernardino-type attack isn’t important; but is it important enough to allow for the creation of a skeleton key, or setting a dangerous precedent? It is truly a hard question to answer, and it is hard to say what answer would be correct.

 

 

 

[1] Chris Smith, An iPhone backdoor like the FBI wants is even more dangerous than you think, (Feb. 26, 2016), http://bgr.com/2016/02/26/apple-fbi-iphone-hack-backdoor//

[2] Id.

[3] Id.

[4] Christina Sterbenz, Ex-FBI officials explain why the government wants Apple to provide access to the San Bernardino shooter’s iPhone, (Feb. 22, 2016),  http://www.businessinsider.com/what-ex-fbi-officials-think-about-apple-2016-2

[5] Id.

[6] Id.

[7] Spencer Ackerman et al., FBI director admits Apple encryption case could set legal precedent, The Guardian (Feb. 25, 2016),  http://www.theguardian.com/technology/2016/feb/25/fbi-director-james-comey-apple-encryption-case-legal-precedent

[8] Id.

[9] Id.

[10] See Id.

North Korea and The Outer Space Treaty

On February 7, 2016, North Korea fired a rocket into outer space. Within minutes, the United States received news from North Korea’s media announcing it had in fact launched a satellite into orbit. Many nations expressed fear and concern believing the “satellite launch” acted as a cover for “developing an intercontinental ballistic missile capable of delivering a nuclear bomb.” 1. To this day, North Korea has continuously advertised its launching success with its “newly developed earth observation satellite, Kwangmyongsong-4.” 2. The alleged purpose of the satellite is to “monitor the weather and to map the location of natural resources and forests.” 3. However, many skeptics still consider North Korea’s program a pretext for nuclear bomb development.

Under a series of Security Council resolutions, North Korea is prohibited from developing nuclear weapons or ballistic-missile technologies. United Nation’s Resolution 1718 expresses the UN’s “firm conviction that the international regime on the non-proliferation of nuclear weapons should be maintained and recalling that [North Korea] cannot have the status of a nuclear-weapon state in accordance with the Treaty on the Non-Proliferation of Nuclear Weapons.” 4. This resolution stemmed from national security concerns related to threats sent by North Korea to South Korea, the United States, and other nations. North Korea is regarded as the “rogue” nation, and known for projecting itself as a powerful country through its violence and threats.

Disregarding any negative opinions, North Korea’s satellite launch does fall within the legal parameters of The Outer Space Treaty of 1967. 5. So long as the nation’s satellite purpose is true, launching a satellite into orbit to survey land is a peaceful action. Article III of the Treaty articulates, “Parties to the Treaty shall carry on activities in the exploration and use of outer space…in the interest of maintaining international peace and security and promoting international co-operation and understanding.” 6. North Korea became a interested party to the Treaty in 2009, and therefore is liable to any and all legal ramifications if found in violation of any one article.

If, however, skeptics discover evidence demonstrating North Korea’s launch acted as a precursor for future nuclear launches, then the UN can find the nation in violation of the Treaty. Evidence of this could include identifying a nuclear missile within the satellite, missiles launched from any other outer space vehicle or, any action found not to progress the peaceful purposes of the Treaty. Unfortunately, a senior Defense Department official said it appeared that “the satellite was tumbling in orbit, and thus not able to carry out its Earth observation mission.” 7. Kwangmyongsong-4 “appears to be in orbit, but it hasn’t yet transmitted anything detectable.” 8. It’s apparent that transmission is key. If North Korea’s satellite isn’t transmitting, it “likely means it doesn’t work, and turns a space launch from a technological triumph into an expensive way to dump waste in orbit.” 9. If this result is true, then all that is apparent is North Korea’s failed attempt at launching a satellite.

It is possible the satellite is transmitting and just hasn’t been heard yet. At North Korea Tech, Martyn Williams writes, “So far, there have been no reports of transmissions from the satellite. We also don’t know what we’re listening for. In the past, North Korea claimed its satellites were broadcasting the Song of Kim II Sung and Song of Kim Jong and Morse code. This time we’re not sure. The only stated mission is earth observation.” 10. Time may eventually reveal evidence that exposes North Korea’s “true” mission, but until that time comes, the satellite launch is deemed a failure and harmless.

The skeptic’s theory behind North Korea’s satellite mission focuses on its launch process. The rogue nation recently tested a hydrogen bomb, and announced “spectacular success.” 11. Then weeks later, Korea launched it’s Kwangmyongsong-4 satellite for earth observational purposes. Taking these controversial events into account, why would North Korea risk international sanctions? Samuel Ramani’s answers, “to strengthen Kim Jong Un’s totalitarian grip on power, at a time when the regime has been losing its ability to reward loyal elites with revenues.” 12. Demonstrating North Korea’s power is why the nation is risking international sanctions. Advertising a successful launch or test unites the Korean people and strikes fear across the world. In essence, if North Korea launched their satellite, risking international sanctions, to create an image of fear and strength, then their true mission is a success, even if their land-surveying mission was a failure. The North Korean government may be truthful with their satellite-imaging goal, but the fear they have instilled across the globe has people worried in fear they are up to no good.