Entries Tagged "courts"

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Apple’s Device Analytics Can Identify iCloud Users

Researchers claim that supposedly anonymous device analytics information can identify users:

On Twitter, security researchers Tommy Mysk and Talal Haj Bakry have found that Apple’s device analytics data includes an iCloud account and can be linked directly to a specific user, including their name, date of birth, email, and associated information stored on iCloud.

Apple has long claimed otherwise:

On Apple’s device analytics and privacy legal page, the company says no information collected from a device for analytics purposes is traceable back to a specific user. “iPhone Analytics may include details about hardware and operating system specifications, performance statistics, and data about how you use your devices and applications. None of the collected information identifies you personally,” the company claims.

Apple was just sued for tracking iOS users without their consent, even when they explicitly opt out of tracking.

Posted on November 22, 2022 at 10:28 AMView Comments

Regulating DAOs

In August, the US Treasury’s Office of Foreign Assets Control (OFAC) sanctioned the cryptocurrency platform Tornado Cash, a virtual currency “mixer” designed to make it harder to trace cryptocurrency transactions—and a worldwide favorite money-laundering platform. Americans are now forbidden from using it. According to the US government, Tornado Cash was sanctioned because it allegedly laundered over $7 billion in cryptocurrency, $455 million of which was stolen by a North Korean state-sponsored hacking group.

Tornado Cash is not a traditional company run by human beings, but instead a series of “smart contracts”: self-executing code that exists only as software. Critics argue that prohibiting Americans from using Tornado Cash is a restraint of free speech, pointing to court rulings in the 1990s that established that computer language is a form of language, and that software programs are a form of speech. They also suggest that the Treasury Department has the authority to sanction only humans and not software.

We think that the most useful way to understand the speech issues involved with regulating Tornado Cash and other decentralized autonomous organizations (DAOs) is through an analogy: the golem. There are many versions of the Jewish golem legend, but in most of them, a person-like clay statue comes to life after someone writes the word “truth” in Hebrew on its forehead, and eventually starts doing terrible things. The golem stops only when a rabbi erases one of those letters, turning “truth” into the Hebrew word for “death,” and the golem ceases to function.

The analogy between DAOs and golems is quite precise, and has important consequences for the relationship between free speech and code. Ultimately, just as the golem needed the intervention of a rabbi to stop wreaking havoc on the world, so too do DAOs need to be subject to regulation.

The equivalency of code and free speech was established during the first “crypto wars” of the 1990s, which were about cryptography, not cryptocurrencies. US agencies tried to use export control laws to prevent sophisticated cryptography software from being exported outside the US. Activists and lawyers cleverly showed how code could be transformed into speech and vice versa, turning the source code for a cryptographic product into a printed book and daring US authorities to prevent its export. In 1996, US District Judge Marilyn Hall Patel ruled that computer code is a language, just like German or French, and that coded programs deserve First Amendment protection. That such code is also functional, instructing a computer to do something, was irrelevant to its expressive capabilities, according to Patel’s ruling. However, both a concurring and dissenting opinion argued that computer code also has the “functional purpose of controlling computers and, in that regard, does not command protection under the First Amendment.”

This disagreement highlights the awkward distinction between ordinary language and computer code. Language does not change the world, except insofar as it persuades, informs, or compels other people. Code, however, is a language where words have inherent power. Type the appropriate instructions and the computer will implement them without hesitation, second-guessing, or independence of will. They are like the words inscribed on a golem’s forehead (or the written instructions that, in some versions of the folklore, are placed in its mouth). The golem has no choice, because it is incapable of making choices. The words are code, and the golem is no different from a computer.

Unlike ordinary organizations, DAOs don’t rely on human beings to carry out many of their core functions. Instead, those functions have been translated into a set of instructions that are implemented in software. In the case of Tornado Cash, its code exists as part of Ethereum, a widely used cryptocurrency that can also run arbitrary computer code.

Cryptocurrency zealots thought that DAOs would allow them to place their trust in secure computer code, which would do exactly what they wanted it to do, rather than fallible human beings who might fail or cheat. Humans could still have input, but under rules that were enshrined in self-running software. The past several years of DAO activity has taught these zealots a series of painful and expensive lessons on the limits of both computer security and incomplete contracts: Software has bugs, and contracts may do weird things under unanticipated circumstances. The combination frequently results in multimillion-dollar frauds and thefts.

Further complicating the matter is that individual DAOs can have very different rules. DAOs were supposed to create truly decentralized services that could never turn into a source of state power and coercion. Today, some DAOs talk a big game about decentralization, but provide power to founders and big investors like Andreessen Horowitz. Others are deliberately set up to frustrate outside control. Indeed, the creators of Tornado Cash explicitly wanted to create a golem-like entity that would be immune from law. In doing so, they were following in a long libertarian tradition.

In 2014, Gavin Woods, one of Ethereum’s core developers, gave a talk on what he called “allegality” of decentralized software services. Woods’s argument was very simple. Companies like PayPal employ real people and real lawyers. That meant that “if they provide a service to you that is deemed wrong or illegal … then they get fucked … maybe [go] to prison.” But cryptocurrencies like Bitcoin “had no operator.” By using software running on blockchains rather than people to run your organization, you could do an end-run around normal, human law. You could create services that “cannot be shut down. Not by a court, not by a police force, not by a nation state.” People would be able to set whatever rules they wanted, regardless of what any government prohibited.

Woods’s speech helped inspire the first DAO (The DAO), and his ideas live on in Tornado Cash. Tornado Cash was designed, in its founder’s words, “to be unstoppable.” The way the protocol is “designed, decentralized and autonomous …[,] there’s nobody in charge.” The people who ran Tornado Cash used a decentralized protocol running on the Ethereum computing platform, which is itself radically decentralized. But they used indelible ink. The protocol was deliberately instructed never to accept an update command.

Other elements of Tornado Cash—­its website, and the GitHub repository where its source code was stored—­have been taken down. But the protocol that actually mixes cryptocurrency is still available through the Ethereum network, even if it doesn’t have a user-friendly front end. Like a golem that has been set in motion, it will just keep on going, taking in, processing, and returning cryptocurrency according to its original instructions.

This gets us to the argument that the US government, by sanctioning a software program, is restraining free speech. Not only is it more complicated than that, but it’s complicated in ways that undercut this argument. OFAC’s actions aren’t aimed against free speech and the publication of source code, as its clarifications have made clear. Researchers are not prohibited from copying, posting, “discussing, teaching about, or including open-source code in written publications, such as textbooks.” GitHub could potentially still host the source code and the project. OFAC’s actions are aimed at preventing persons from using software applications that undercut one of the most basic functions of government: regulating activities that it deems endangers national security.

The question is whether the First Amendment covers golems. When your words are used not to persuade or argue, but to animate a mindless entity that will exist as long as the Ethereum blockchain exists and will carry out your final instructions no matter what, should your golem be immune from legal action?

When Patel issued her famous ruling, she caustically dismissed the argument that “even one drop of ‘direct functionality'” overwhelmed people’s expressive rights. Arguably, the question with Tornado Cash is whether a possibly notional droplet of free speech expressivity can overwhelm the direct functionality of running code, especially code designed to refuse any further human intervention. The Tornado Cash protocol will accept and implement the routine commands described by its protocol: It will still launder cryptocurrency. But the protocol itself is frozen.

We certainly don’t think that the US government should ban DAOs or code running on Ethereum or other blockchains, or demand any universal right of access to their workings. That would be just as sweeping—and wrong—as the general claim that encrypted messaging results in a “lawless space,” or the contrary notion that regulating code is always a prior restraint on free speech. There is wide scope for legitimate disagreement about government regulation of code and its legal authorities over distributed systems.

However, it’s hard not to sympathize with OFAC’s desire to push back against a radical effort to undermine the very idea of government authority. What would happen if the Tornado Cash approach to the law prevailed? That is, what would be the outcome if judges and politicians decided that entities like Tornado Cash could not be regulated, on free speech or any other grounds?

Likely, anyone who wanted to facilitate illegal activities would have a strong incentive to turn their operation into a DAO—and then throw away the key. Ethereum’s programming language is Turing-complete. That means, as Woods argued back in 2014, that one could turn all kinds of organizational rules into software, whether or not they were against the law.

In practice, it wouldn’t be so easy. Turning business principles into running code is hard, and doing it without creating bugs or loopholes is much harder still. Ethereum and other blockchains still have hard limits on computing power. But human ingenuity can accomplish many things when there’s a lot of money at stake.

People have legitimate reasons for seeking anonymity in their financial transactions, but these reasons need to be weighed against other harms to society. As privacy advocate Cory Doctorow wrote recently: “When you combine anonymity with finance—­not the right to speak anonymously, but the right to run an investment fund anonymously—you’re rolling out the red carpet for serial scammers, who can run a scam, get caught, change names, and run it again, incorporating the lessons they learned.”

It’s a mistake to defend DAOs on the grounds that code is free speech. Some code is speech, but not all code is speech. And code can also directly affect the world. DAOs, which are in essence autonomous golems, made from code rather than clay, make this distinction especially stark.

This will become even more important as robots become more capable and prevalent. Robots are even more obviously golems than DAOs are, performing actions in the physical world. Should their code enjoy a safe harbor from the law? What if robots, like DAOs, are designed to obey only their initial instructions, however unlawful­—and refuse all further updates or commands? Assuming that code is free speech and only free speech, and ignoring its functional purpose, will at best tangle the law up in knots.

Tying free speech arguments to the cause of DAOs like Tornado Cash imperils some of the important free speech victories that were won in the past. But the risks for everyone might be even greater if that argument wins. A world where democratic governments are unable to enforce their laws is not a world where civic spaces or civil liberties will thrive.

This essay was written with Henry Farrell, and previously appeared on Lawfare.com.

EDITED TO ADD (10/26): Peter Van Valkenburgh wrote a rebuttal to our essay. My co-author responds. And Evan Geer, who started this whole conversation, responds to Henry.

Posted on October 14, 2022 at 9:08 AMView Comments

Spyware Maker Intellexa Sued by Journalist

The Greek journalist Thanasis Koukakis was spied on by his own government, with a commercial spyware product called “Predator.” That product is sold by a company in North Macedonia called Cytrox, which is in turn owned by an Israeli company called Intellexa.

Koukakis is suing Intellexa.

The lawsuit filed by Koukakis takes aim at Intellexa and its executive, alleging a criminal breach of privacy and communication laws, reports Haaretz. The founder of Intellexa, a former Israeli intelligence commander named Taj Dilian, is listed as one of the defendants in the suit, as is another shareholder, Sara Hemo, and the firm itself. The objective of the suit, Koukakis says, is to spur an investigation to determine whether a criminal indictment should be brought against the defendants.

Why does it always seem to be Israel? The world would be a much safer place if that government stopped this cyberweapons arms trade from inside its borders.

Posted on October 7, 2022 at 6:13 AMView Comments

Facebook Has No Idea What Data It Has

This is from a court deposition:

Facebook’s stonewalling has been revealing on its own, providing variations on the same theme: It has amassed so much data on so many billions of people and organized it so confusingly that full transparency is impossible on a technical level. In the March 2022 hearing, Zarashaw and Steven Elia, a software engineering manager, described Facebook as a data-processing apparatus so complex that it defies understanding from within. The hearing amounted to two high-ranking engineers at one of the most powerful and resource-flush engineering outfits in history describing their product as an unknowable machine.

The special master at times seemed in disbelief, as when he questioned the engineers over whether any documentation existed for a particular Facebook subsystem. “Someone must have a diagram that says this is where this data is stored,” he said, according to the transcript. Zarashaw responded: “We have a somewhat strange engineering culture compared to most where we don’t generate a lot of artifacts during the engineering process. Effectively the code is its own design document often.” He quickly added, “For what it’s worth, this is terrifying to me when I first joined as well.”

[…]

Facebook’s inability to comprehend its own functioning took the hearing up to the edge of the metaphysical. At one point, the court-appointed special master noted that the “Download Your Information” file provided to the suit’s plaintiffs must not have included everything the company had stored on those individuals because it appears to have no idea what it truly stores on anyone. Can it be that Facebook’s designated tool for comprehensively downloading your information might not actually download all your information? This, again, is outside the boundaries of knowledge.

“The solution to this is unfortunately exactly the work that was done to create the DYI file itself,” noted Zarashaw. “And the thing I struggle with here is in order to find gaps in what may not be in DYI file, you would by definition need to do even more work than was done to generate the DYI files in the first place.”

The systemic fogginess of Facebook’s data storage made answering even the most basic question futile. At another point, the special master asked how one could find out which systems actually contain user data that was created through machine inference.

“I don’t know,” answered Zarashaw. “It’s a rather difficult conundrum.”

I’m not surprised. These systems are so complex that no humans understand them anymore. That allows us to do things we couldn’t do otherwise, but it’s also a problem.

EDITED TO ADD: Another article.

Posted on September 8, 2022 at 10:14 AMView Comments

The Justice Department Will No Longer Charge Security Researchers with Criminal Hacking

Following a recent Supreme Court ruling, the Justice Department will no longer prosecute “good faith” security researchers with cybercrimes:

The policy for the first time directs that good-faith security research should not be charged. Good faith security research means accessing a computer solely for purposes of good-faith testing, investigation, and/or correction of a security flaw or vulnerability, where such activity is carried out in a manner designed to avoid any harm to individuals or the public, and where the information derived from the activity is used primarily to promote the security or safety of the class of devices, machines, or online services to which the accessed computer belongs, or those who use such devices, machines, or online services.

[…]

The new policy states explicitly the longstanding practice that “the department’s goals for CFAA enforcement are to promote privacy and cybersecurity by upholding the legal right of individuals, network owners, operators, and other persons to ensure the confidentiality, integrity, and availability of information stored in their information systems.” Accordingly, the policy clarifies that hypothetical CFAA violations that have concerned some courts and commentators are not to be charged. Embellishing an online dating profile contrary to the terms of service of the dating website; creating fictional accounts on hiring, housing, or rental websites; using a pseudonym on a social networking site that prohibits them; checking sports scores at work; paying bills at work; or violating an access restriction contained in a term of service are not themselves sufficient to warrant federal criminal charges. The policy focuses the department’s resources on cases where a defendant is either not authorized at all to access a computer or was authorized to access one part of a computer—such as one email account—and, despite knowing about that restriction, accessed a part of the computer to which his authorized access did not extend, such as other users’ emails.

News article.

EDITED TO ADD (6/14): Josephine Wolff writes about this update.

Posted on May 24, 2022 at 6:11 AMView Comments

Hackers Using Fake Police Data Requests against Tech Companies

Brian Krebs has a detailed post about hackers using fake police data requests to trick companies into handing over data.

Virtually all major technology companies serving large numbers of users online have departments that routinely review and process such requests, which are typically granted as long as the proper documents are provided and the request appears to come from an email address connected to an actual police department domain name.

But in certain circumstances ­—such as a case involving imminent harm or death—­ an investigating authority may make what’s known as an Emergency Data Request (EDR), which largely bypasses any official review and does not require the requestor to supply any court-approved documents.

It is now clear that some hackers have figured out there is no quick and easy way for a company that receives one of these EDRs to know whether it is legitimate. Using their illicit access to police email systems, the hackers will send a fake EDR along with an attestation that innocent people will likely suffer greatly or die unless the requested data is provided immediately.

In this scenario, the receiving company finds itself caught between two unsavory outcomes: Failing to immediately comply with an EDR -­- and potentially having someone’s blood on their hands -­- or possibly leaking a customer record to the wrong person.

Another article claims that both Apple and Facebook (or Meta, or whatever they want to be called now) fell for this scam.

We allude to this kind of risk in our 2015 “Keys Under Doormats” paper:

Third, exceptional access would create concentrated targets that could attract bad actors. Security credentials that unlock the data would have to be retained by the platform provider, law enforcement agencies, or some other trusted third party. If law enforcement’s keys guaranteed access to everything, an attacker who gained access to these keys would enjoy the same privilege. Moreover, law enforcement’s stated need for rapid access to data would make it impractical to store keys offline or split keys among multiple keyholders, as security engineers would normally do with extremely high-value credentials.

The “credentials” are even more insecure than we could have imagined: access to an email address. And the data, of course, isn’t very secure. But imagine how this kind of thing could be abused with a law enforcement encryption backdoor.

Posted on April 5, 2022 at 6:04 AMView Comments

Merck Wins Insurance Lawsuit re NotPetya Attack

The insurance company Ace American has to pay for the losses:

On 6th December 2021, the New Jersey Superior Court granted partial summary judgment (attached) in favour of Merck and International Indemnity, declaring that the War or Hostile Acts exclusion was inapplicable to the dispute.

Merck suffered US$1.4 billion in business interruption losses from the Notpetya cyber attack of 2017 which were claimed against “all risks” property re/insurance policies providing coverage for losses resulting from destruction or corruption of computer data and software.

The parties disputed whether the Notpetya malware which affected Merck’s computers in 2017 was an instrument of the Russian government, so that the War or Hostile Acts exclusion would apply to the loss.

The Court noted that Merck was a sophisticated and knowledgeable party, but there was no indication that the exclusion had been negotiated since it was in standard language. The Court, therefore, applied, under New Jersey law, the doctrine of construction of insurance contracts that gives prevalence to the reasonable expectations of the insured, even in exceptional circumstances when the literal meaning of the policy is plain.

Merck argued that the attack was not “an official state action,” which I’m surprised wasn’t successfully disputed.

Slashdot thread.

Posted on January 25, 2022 at 9:35 AMView Comments

San Francisco Police Illegally Spying on Protesters

Last summer, the San Francisco police illegally used surveillance cameras at the George Floyd protests. The EFF is suing the police:

This surveillance invaded the privacy of protesters, targeted people of color, and chills and deters participation and organizing for future protests. The SFPD also violated San Francisco’s new Surveillance Technology Ordinance. It prohibits city agencies like the SFPD from acquiring, borrowing, or using surveillance technology, without prior approval from the city’s Board of Supervisors, following an open process that includes public participation. Here, the SFPD went through no such process before spying on protesters with this network of surveillance cameras.

It’s feels like a pretty easy case. There’s a law, and the SF police didn’t follow it.

Tech billionaire Chris Larsen is on the side of the police. He thinks that the surveillance is a good thing, and wrote an op-ed defending it.

I wouldn’t be writing about this at all except that Chris is a board member of EPIC, and used his EPIC affiliation in the op-ed to bolster his own credentials. (Bizarrely, he linked to an EPIC page that directly contradicts his position.) In his op-ed, he mischaracterized the EFF’s actions and the facts of the lawsuit. It’s a mess.

The plaintiffs in the lawsuit wrote a good rebuttal to Larsen’s piece. And this week, EPIC published what is effectively its own rebuttal:

One of the fundamental principles that underlies EPIC’s work (and the work of many other groups) on surveillance oversight is that individuals should have the power to decide whether surveillance tools are used in their communities and to impose limits on their use. We have fought for years to shed light on the development, procurement, and deployment of such technologies and have worked to ensure that they are subject to independent oversight through hearings, legal challenges, petitions, and other public forums. The CCOPS model, which was developed by ACLU affiliates and other coalition partners in California and implemented through the San Francisco ordinance, is a powerful mechanism to enable public oversight of dangerous surveillance tools. The access, retention, and use policies put in place by the neighborhood business associations operating these networks provide necessary, but not sufficient, protections against abuse. Strict oversight is essential to promote both privacy and community safety, which includes freedom from arbitrary police action and the freedom to assemble.

So far, EPIC has not done anything about Larsen still being on its board. (Others have criticized them for keeping him on.) I don’t know if I have an opinion on this. Larsen has done good work on financial privacy regulations, which is a good thing. But he seems to be funding all these surveillance cameras in San Francisco, which is really bad.

Posted on January 20, 2022 at 6:13 AMView Comments

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Sidebar photo of Bruce Schneier by Joe MacInnis.