Entries Tagged "courts"

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Drone Self-Defense and the Law

Last month, a Kentucky man shot down a drone that was hovering near his backyard.

WDRB News reported that the camera drone’s owners soon showed up at the home of the shooter, William H. Merideth: “Four guys came over to confront me about it, and I happened to be armed, so that changed their minds,” Merideth said. “They asked me, ‘Are you the S-O-B that shot my drone?’ and I said, ‘Yes I am,'” he said. “I had my 40 mm Glock on me and they started toward me and I told them, ‘If you cross my sidewalk, there’s gonna be another shooting.'” Police charged Meredith with criminal mischief and wanton endangerment.

This is a trend. People have shot down drones in southern New Jersey and rural California as well. It’s illegal, and they get arrested for it.

Technology changes everything. Specifically, it upends long-standing societal balances around issues like security and privacy. When a capability becomes possible, or cheaper, or more common, the changes can be far-reaching. Rebalancing security and privacy after technology changes capabilities can be very difficult, and take years. And we’re not very good at it.

The security threats from drones are real, and the government is taking them seriously. In January, a man lost control of his drone, which crashed on the White House lawn. In May, another man was arrested for trying to fly his drone over the White House fence, and another last week for flying a drone into the stadium where the U.S. Open was taking place.

Drones have attempted to deliver drugs to prisons in Maryland, Ohio and South Carolina ­so far.

There have been many near-misses between drones and airplanes. Many people have written about the possible terrorist uses of drones.

Defenses are being developed. Both Lockheed Martin and Boeing sell anti-drone laser weapons. One company sells shotgun shells specifically designed to shoot down drones.

Other companies are working on technologies to detect and disable them safely. Some of those technologies were used to provide security at this year’s Boston Marathon.

Law enforcement can deploy these technologies, but under current law it’s illegal to shoot down a drone, even if it’s hovering above your own property. In our society, you’re generally not allowed to take the law into your own hands. You’re expected to call the police and let them deal with it.

There’s an alternate theory, though, from law professor Michael Froomkin. He argues that self-defense should be permissible against drones simply because you don’t know their capabilities. We know, for example, that people have mounted guns on drones, which means they could pose a threat to life. Note that this legal theory has not been tested in court.

Increasingly, government is regulating drones and drone flights both at the state level and by the FAA. There are proposals to require that drones have an identifiable transponder, or no-fly zones programmed into the drone software.

Still, a large number of security issues remain unresolved. How do we feel about drones with long-range listening devices, for example? Or drones hovering outside our property and photographing us through our windows?

What’s going on is that drones have changed how we think about security and privacy within our homes, by removing the protections we used to get from fences and walls. Of course, being spied on and shot at from above is nothing new, but access to those technologies was expensive and largely the purview of governments and some corporations. Drones put these capabilities into the hands of hobbyists, and we don’t know what to do about it.

The issues around drones will get worse as we move from remotely piloted aircraft to true drones: aircraft that operate autonomously from a computer program. For the first time, autonomous robots—­with ever-increasing intelligence and capabilities at an ever-decreasing cost—­will have access to public spaces. This will create serious problems for society, because our legal system is largely based on deterring human miscreants rather than their proxies.

Our desire to shoot down a drone hovering nearby is understandable, given its potential threat. Society’s need for people not to take the law into their own hands­—and especially not to fire guns into the air­—is also understandable. These two positions are increasingly coming into conflict, and will require increasing government regulation to sort out. But more importantly, we need to rethink our assumptions of security and privacy in a world of autonomous drones, long-range cameras, face recognition, and the myriad other technologies that are increasingly in the hands of everyone.

This essay previously appeared on CNN.com.

Posted on September 11, 2015 at 6:45 AM • View Comments

No-Fly List Uses Predictive Assessments

The US government has admitted that it uses predictive assessments to put people on the no-fly list:

In a little-noticed filing before an Oregon federal judge, the US Justice Department and the FBI conceded that stopping US and other citizens from travelling on airplanes is a matter of “predictive assessments about potential threats,” the government asserted in May.

“By its very nature, identifying individuals who ‘may be a threat to civil aviation or national security’ is a predictive judgment intended to prevent future acts of terrorism in an uncertain context,” Justice Department officials Benjamin C Mizer and Anthony J Coppolino told the court on 28 May.

“Judgments concerning such potential threats to aviation and national security call upon the unique prerogatives of the Executive in assessing such threats.”

It is believed to be the government’s most direct acknowledgement to date that people are not allowed to fly because of what the government believes they might do and not what they have already done.

When you have a secret process that can judge and penalize people without due process or oversight, this is the kind of thing that happens.

Posted on August 20, 2015 at 6:19 AM • View Comments

Shooting Down Drones

A Kentucky man shot down a drone that was hovering in his backyard:

“It was just right there,” he told Ars. “It was hovering, I would never have shot it if it was flying. When he came down with a video camera right over my back deck, that’s not going to work. I know they’re neat little vehicles, but one of those uses shouldn’t be flying into people’s yards and videotaping.”

Minutes later, a car full of four men that he didn’t recognize rolled up, “looking for a fight.”

“Are you the son of a bitch that shot my drone?” one said, according to Merideth.

His terse reply to the men, while wearing a 10mm Glock holstered on his hip: “If you cross that sidewalk onto my property, there’s going to be another shooting.”

He was arrested, but what’s the law?

In the view of drone lawyer Brendan Schulman and robotics law professor Ryan Calo, home owners can’t just start shooting when they see a drone over their house. The reason is because the law frowns on self-help when a person can just call the police instead. This means that Meredith may not have been defending his house, but instead engaging in criminal acts and property damage for which he could have to pay.

But a different and bolder argument, put forward by law professor Michael Froomkin, could provide Meredith some cover. In a paper, Froomkin argues that it’s reasonable to assume robotic intrusions are not harmless, and that people may have a right to “employ violent self-help.”

Froomkin’s paper is well worth reading:

Abstract: Robots can pose—or can appear to pose—a threat to life, property, and privacy. May a landowner legally shoot down a trespassing drone? Can she hold a trespassing autonomous car as security against damage done or further torts? Is the fear that a drone may be operated by a paparazzo or a peeping Tom sufficient grounds to disable or interfere with it? How hard may you shove if the office robot rolls over your foot? This paper addresses all those issues and one more: what rules and standards we could put into place to make the resolution of those questions easier and fairer to all concerned.

The default common-law legal rules governing each of these perceived threats are somewhat different, although reasonableness always plays an important role in defining legal rights and options. In certain cases—drone overflights, autonomous cars, national, state, and even local regulation—may trump the common law. Because it is in most cases obvious that humans can use force to protect themselves against actual physical attack, the paper concentrates on the more interesting cases of (1) robot (and especially drone) trespass and (2) responses to perceived threats other than physical attack by robots notably the risk that the robot (or drone) may be spying – perceptions which may not always be justified, but which sometimes may nonetheless be considered reasonable in law.

We argue that the scope of permissible self-help in defending one’s privacy should be quite broad. There is exigency in that resort to legally administered remedies would be impracticable; and worse, the harm caused by a drone that escapes with intrusive recordings can be substantial and hard to remedy after the fact. Further, it is common for new technology to be seen as risky and dangerous, and until proven otherwise drones are no exception. At least initially, violent self-help will seem, and often may be, reasonable even when the privacy threat is not great—or even extant. We therefore suggest measures to reduce uncertainties about robots, ranging from forbidding weaponized robots to requiring lights, and other markings that would announce a robot’s capabilities, and RFID chips and serial numbers that would uniquely identify the robot’s owner.

The paper concludes with a brief examination of what if anything our survey of a person’s right to defend against robots might tell us about the current state of robot rights against people.

Note that there are drones that shoot back.

Here are two books that talk about these topics. And an article from 2012.

EDITED TO ADD (8/9): How to shoot down a drone.

Posted on August 4, 2015 at 8:24 AM • View Comments

Hayden Mocks NSA Reforms

Former NSA Director Michael recently mocked the NSA reforms in the recently passed USA Freedom Act:

If somebody would come up to me and say, “Look, Hayden, here’s the thing: This Snowden thing is going to be a nightmare for you guys for about two years. And when we get all done with it, what you’re going to be required to do is that little 215 program about American telephony metadata—and by the way, you can still have access to it, but you got to go to the court and get access to it from the companies, rather than keep it to yourself.” I go: “And this is it after two years? Cool!”

The thing is, he’s right. And Peter Swire is also right when he calls the law “the biggest pro-privacy change to U.S. intelligence law since the original enactment of the Foreign Intelligence Surveillance Act in 1978.” I supported the bill not because it was the answer, but because it was a step in the right direction. And Hayden’s comments demonstrate how much more work we have to do.

Posted on June 23, 2015 at 1:39 PM • View Comments

Surveillance Law and Surveillance Studies

Interesting paper by Julie Cohen:

Abstract: The dialogue between law and Surveillance Studies has been complicated by a mutual misrecognition that is both theoretical and temperamental. Legal scholars are inclined to consider surveillance simply as the (potential) subject of regulation, while scholarship in Surveillance Studies often seems not to grapple with the ways in which legal processes and doctrines are sites of contestation over both the modalities and the limits of surveillance. Put differently, Surveillance Studies takes notice of what law does not—the relationship between surveillance and social shaping—but glosses over what legal scholarship rightly recognizes as essential­—the processes of definition and compromise that regulators and other interested parties must navigate, and the ways that legal doctrines and constructs shape those processes. This article explores the fault lines between law and Surveillance Studies and considers the potential for more productive confrontation and dialogue in ways that leverage the strengths of each tradition.

Posted on June 8, 2015 at 12:48 PM • View Comments

NSA Running a Massive IDS on the Internet Backbone

The latest story from the Snowden documents, co-published by the New York Times and ProPublica, shows that the NSA is operating a signature-based intrusion detection system on the Internet backbone:

In mid-2012, Justice Department lawyers wrote two secret memos permitting the spy agency to begin hunting on Internet cables, without a warrant and on American soil, for data linked to computer intrusions originating abroad—including traffic that flows to suspicious Internet addresses or contains malware, the documents show.

The Justice Department allowed the agency to monitor only addresses and “cybersignatures” ­—patterns associated with computer intrusions—that it could tie to foreign governments. But the documents also note that the N.S.A. sought to target hackers even when it could not establish any links to foreign powers.

To me, the big deal here is 1) the NSA is doing this without a warrant, and 2) that the policy change happened in secret, without any public policy debate.

The effort is the latest known expansion of the N.S.A.’s warrantless surveillance program, which allows the government to intercept Americans’ cross-border communications if the target is a foreigner abroad. While the N.S.A. has long searched for specific email addresses and phone numbers of foreign intelligence targets, the Obama administration three years ago started allowing the agency to search its communications streams for less-identifying Internet protocol addresses or strings of harmful computer code.

[…]

To carry out the orders, the F.B.I. negotiated in 2012 to use the N.S.A.’s system for monitoring Internet traffic crossing “chokepoints operated by U.S. providers through which international communications enter and leave the United States,” according to a 2012 N.S.A. document. The N.S.A. would send the intercepted traffic to the bureau’s “cyberdata repository” in Quantico, Virginia.

Ninety pages of NSA documents accompany the article. Here is a single OCRed PDF of them all.

Jonathan Mayer was consulted on the article. He gives more details on his blog, which I recommend you all read.

In my view, the key takeaway is this: for over a decade, there has been a public policy debate about what role the NSA should play in domestic cybersecurity. The debate has largely presupposed that the NSA’s domestic authority is narrowly circumscribed, and that DHS and DOJ play a far greater role. Today, we learn that assumption is incorrect. The NSA already asserts broad domestic cybersecurity powers. Recognizing the scope of the NSA’s authority is particularly critical for pending legislation.

This is especially important for pending information sharing legislation, which Mayer explains.

The other big news is that ProPublica’s Julia Angwin is working with Laura Poitras on the Snowden documents. I expect that this isn’t the last artcile we’re going to see.

EDITED TO ADD: Others are writing about these documents. Shane Harris explains how the NSA and FBI are working together on Internet surveillance. Benjamin Wittes says that the story is wrong, that “combating overseas cybersecurity threats from foreign governments” is exactly what the NSA is supposed to be doing, and that they don’t need a warrant for any of that. And Marcy Wheeler points out that she has been saying for years that the NSA has been using Section 702 to justify Internet surveillance.

EDITED TO ADD (6/5): Charlie Savage responds to Ben Wittes.

Posted on June 5, 2015 at 7:42 AM • View Comments

Why the Current Section 215 Reform Debate Doesn't Matter Much

The ACLU’s Chris Soghoian explains (time 25:52-30:55) why the current debate over Section 215 of the Patriot Act is just a minor facet of a large and complex bulk collection program by the FBI and the NSA.

There were 180 orders authorized last year by the FISA Court under Section 215—180 orders issued by this court. Only five of those orders relate to the telephony metadata program. There are 175 orders about completely separate things. In six weeks, Congress will either reauthorize this statute or let it expire, and we’re having a debate—to the extent we’re even having a debate—but the debate that’s taking place is focused on five of the 180, and there’s no debate at all about the other 175 orders.

Now, Senator Wyden has said there are other bulk collection programs targeted at Americans that the public would be shocked to learn about. We don’t know, for example, how the government collects records from Internet providers. We don’t know how they get bulk metadata from tech companies about Americans. We don’t know how the American government gets calling card records.

If we take General Hayden at face value—and I think you’re an honest guy—if the purpose of the 215 program is to identify people who are calling Yemen and Pakistan and Somalia, where one end is in the United States, your average Somali-American is not calling Somalia from their land line phone or their cell phone for the simple reason that AT&T will charge them $7.00 a minute in long distance fees. The way that people in the diaspora call home—the way that people in the Somali or Yemeni community call their family and friends back home—they walk into convenience stores and they buy prepaid calling cards. That is how regular people make international long distance calls.

So the 215 program that has been disclosed publicly, the 215 program that is being debated publicly, is about records to major carriers like AT&T and Verizon. We have not had a debate about surveillance requests, bulk orders to calling card companies, to Skype, to voice over Internet protocol companies. Now, if NSA isn’t collecting those records, they’re not doing their job. I actually think that that’s where the most useful data is. But why are we having this debate about these records that don’t contain a lot of calls to Somalia when we should be having a debate about the records that do contain calls to Somalia and do contain records of e-mails and instant messages and searches and people posting inflammatory videos to YouTube?

Certainly the government is collecting that data, but we don’t know how they’re doing it, we don’t know at what scale they’re doing it, and we don’t know with which authority they’re doing it. And I think it is a farce to say that we’re having a debate about the surveillance authority when really, we’re just debating this very narrow usage of the statute.

Further underscoring this point, yesterday the Department of Justice’s Office of the Inspector General released a redacted version of its internal audit of the FBI’s use of Section 215: “A Review of the FBI’s Use of Section 215 Orders: Assessment of Progress in Implementing Recommendations and Examination of Use in 2007 through 2009,” following the reports of the statute’s use from 2002-2005 and 2006. (Remember that the FBI and the NSA are inexorably connected here. The order to Verizon was from the FBI, requiring it to turn data over to the NSA.)

Details about legal justifications are all in the report (see here for an important point about minimization), but detailed data on exactly what the FBI is collecting—whether targeted or bulk—is left out. We read that the FBI demanded “customer information” (p. 36), “medical and educational records” (p. 39) “account information and electronic communications transactional records” (p. 41), “information regarding other cyber activity” (p. 42). Some of this was undoubtedly targeted against individuals; some of it was undoubtedly bulk.

I believe bulk collection is discussed in detail in Chapter VI. The chapter title is redacted, as well as the introduction (p. 46). Section A is “Bulk Telephony Metadata.” Section B (pp. 59-63) is completely redacted, including the section title. There’s a summary in the Introduction (p. 3): “In Section VI, we update the information about the uses of Section 215 authority described [redacted word] Classified Appendices to our last report. These appendices described the FBI’s use of Section 215 authority on behalf of the NSA to obtain bulk collections of telephony metadata [long redacted clause].” Sounds like a comprehensive discussion of bulk collection under Section 215.

What’s in there? As Soghoian says, certainly other communications systems like prepaid calling cards, Skype, text messaging systems, and e-mails. Search history and browser logs? Financial transactions? The “medical and educational records” mentioned above? Probably all of them—and the data is in the report, redacted (p. 29)—but there’s nothing public.

The problem is that those are the pages Congress should be debating, and not the telephony metadata program exposed by Snowden.

EDITED TO ADD: Marcy Wheeler is going through the document line by line.

Posted on May 22, 2015 at 5:45 AM • View Comments

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Sidebar photo of Bruce Schneier by Joe MacInnis.