Entries Tagged "courts"

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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

An Example of Cell Phone Metadata Forensic Surveillance

In this long article on the 2005 assassination of Rafik Hariri in Beirut, there’s a detailed section on what the investigators were able to learn from the cell phone metadata:

At Eid’s request, a judge ordered Lebanon’s two cellphone companies, Alfa and MTC Touch, to produce records of calls and text messages in Lebanon in the four months before the bombing. Eid then studied the records in secret for months. He focused on the phone records of Hariri and his entourage, looking at whom they called, where they went, whom they met and when. He also followed where Adass, the supposed suicide bomber, spent time before he disappeared. He looked at all the calls that took place along the route taken by Hariri’s entourage on the day of the assassination. Always he looked for cause and effect. How did one call lead to the next? “He was brilliant, just brilliant,” the senior U.N. investigator told me. “He himself, on his own, developed a simple but amazingly efficient program to set about mining this massive bank of data.”

The simple algorithm quickly revealed a peculiar pattern. In October 2004, just after Hariri resigned, a certain cluster of cellphones began following him and his now-reduced motorcade wherever they went. These phones stayed close day and night, until the day of the bombing -­ when nearly all 63 phones in the group immediately went dark and never worked again.

[…]

The investigators now turned their full attention to the cellphone records. Building on Eid’s work, they determined that the assassins worked in groups, each with a leader and each adhering to specific procedures. Everyone in the group called the leader, and he called everyone in the group, but the lower-level operatives never called one another.

The investigators gave each group a color. The green group consisted of 18 Alfa phones, purchased with fake identification from two shops in South Beirut in July and August 2004. The purpose of the fake IDs was not to defraud Alfa out of payment; every month from September 2004 to May 2005, someone went to an Alfa office and paid all 18 bills in cash, without leaving any clue to his identity. The total phone bill for the green network, including activation fees, was $7,375 ­—a prodigious amount, considering that 15 of the green group’s 18 phones went almost entirely unused.

The first spike in call activity occurred in September 2004, immediately after Hariri announced his resignation. The investigators contend that the green group was at the center of the conspiracy. The phone number 3140023 belonged to the top leader, and the numbers 3159300 and 3150071 belonged to his two deputies. (He called them and they called him, but with those phones, they never called each other.) The two deputies carried phones belonging to other groups, through which they passed on instructions to the other participants in the operation. When a member of one group would call a group leader, the group leader would often follow up by switching to a green phone and calling the supreme leader, who was nearly always in South Beirut, where Hezbollah keeps its headquarters.

On Oct. 20, 2004, the day Hariri left office and his security detail was significantly reduced, the blue group went into operation. It originally worked according to the same rules as the green group, but its active membership increased from three phones to 15, with seven connected to Alfa and eight to MTC Touch. All of the blue phones were prepaid. Some were acquired as early as 2003 and had seen little or no use. The people who bought them also gave false identification, and again money seemed to be in plentiful supply. The minutes that expired each month went largely unused, but the phones were loaded again and again. When the blue group went dark, the phones still had unused minutes worth $4,287.

The prosecutors say the blue group followed Hariri’s movements. On the morning of Oct. 20, its members were already deployed around Quraitem Palace. At 10:30 a.m., Hariri set out toward Parliament and then to the presidential palace, where Lahoud was waiting to receive his resignation. The cell towers picked up the blue group’s members moving with him and calling their chief. From then on, the blue phones trailed Hariri nearly everywhere—­ to Parliament, to meetings with political leaders, to long lunches at the Saint-Georges Yacht Club & Marina. When Hariri was at his home, so were they. When he flew abroad, they moved with him to the airport and then stopped operating until he returned, when they would pick up the trail again.

Eventually, the yellow group was added….

There’s a lot more. It’s section 6 of the article.

See also this example.

Posted on May 6, 2015 at 7:09 AM • View Comments

Federal Trade Commissioner Julie Brill on Obscurity

I think this is good:

Obscurity means that personal information isn’t readily available to just anyone. It doesn’t mean that information is wiped out or even locked up; rather, it means that some combination of factors makes certain types of information relatively hard to find.

Obscurity has always been an important component of privacy. It is a helpful concept because it encapsulates how a broad range of social, economic, and technological changes affects norms and consumer expectations.

Posted on April 24, 2015 at 12:42 PM • View Comments

Australia Outlaws Warrant Canaries

In the US, certain types of warrants can come with gag orders preventing the recipient from disclosing the existence of warrant to anyone else. A warrant canary is basically a legal hack of that prohibition. Instead of saying “I just received a warrant with a gag order,” the potential recipient keeps repeating “I have not received any warrants.” If the recipient stops saying that, the rest of us are supposed to assume that he has been served one.

Lots of organizations maintain them. Personally, I have never believed this trick would work. It relies on the fact that a prohibition against speaking doesn’t prevent someone from not speaking. But courts generally aren’t impressed by this sort of thing, and I can easily imagine a secret warrant that includes a prohibition against triggering the warrant canary. And for all I know, there are right now secret legal proceedings on this very issue.

Australia has sidestepped all of this by outlawing warrant canaries entirely:

Section 182A of the new law says that a person commits an offense if he or she discloses or uses information about “the existence or non-existence of such a [journalist information] warrant.” The penalty upon conviction is two years imprisonment.

Expect that sort of wording in future US surveillance bills, too.

Posted on March 31, 2015 at 7:14 AM • View Comments

Reforming the FISA Court

The Brennan Center has a long report on what’s wrong with the FISA Court and how to fix it.

At the time of its creation, many lawmakers saw constitutional problems in a court that operated in total secrecy and outside the normal “adversarial” process…. But the majority of Congress was reassured by similarities between FISA Court proceedings and the hearings that take place when the government seeks a search warrant in a criminal investigation. Moreover, the rules governing who could be targeted for “foreign intelligence” purposes were narrow enough to mitigate concerns that the FISA Court process might be used to suppress political dissent in the U.S.—or to avoid the stricter standards that apply in domestic criminal cases.

In the years since then, however, changes in technology and the law have altered the constitutional calculus. Technological advances have revolutionized communications. People are communicating at a scale unimaginable just a few years ago. International phone calls, once difficult and expensive, are now as simple as flipping a light switch, and the Internet provides countless additional means of international communication. Globalization makes such exchanges as necessary as they are easy. As a result of these changes, the amount of information about Americans that the NSA intercepts, even when targeting foreigners overseas, has exploded.

Instead of increasing safeguards for Americans’ privacy as technology advances, the law has evolved in the opposite direction since 9/11…. While surveillance involving Americans previously required individualized court orders, it now happens through massive collection programs…involving no case-by-case judicial review. The pool of permissible targets is no longer limited to foreign powers—such as foreign governments or terrorist groups—and their agents. Furthermore, the government may invoke the FISA Court process even if its primary purpose is to gather evidence for a domestic criminal prosecution rather than to thwart foreign threats.

…[T]hese developments…have had a profound effect on the role exercised by the FISA Court. They have caused the court to veer off course, departing from its traditional role of ensuring that the government has sufficient cause to intercept communications or obtain records in particular cases and instead authorizing broad surveillance programs. It is questionable whether the court’s new role comports with Article III of the Constitution, which mandates that courts must adjudicate concrete disputes rather than issuing advisory opinions on abstract questions. The constitutional infirmity is compounded by the fact that the court generally hears only from the government, while the people whose communications are intercepted have no meaningful opportunity to challenge the surveillance, even after the fact.

Moreover, under current law, the FISA Court does not provide the check on executive action that the Fourth Amendment demands. Interception of communications generally requires the government to obtain a warrant based on probable cause of criminal activity. Although some courts have held that a traditional warrant is not needed to collect foreign intelligence, they have imposed strict limits on the scope of such surveillance and have emphasized the importance of close judicial scrutiny in policing these limits. The FISA Court’s minimal involvement in overseeing programmatic surveillance does not meet these constitutional standards.

[…]

Fundamental changes are needed to fix these flaws. Congress should end programmatic surveillance and require the government to obtain judicial approval whenever it seeks to obtain communications or information involving Americans. It should shore up the Article III soundness of the FISA Court by ensuring that the interests of those affected by surveillance are represented in court proceedings, increasing transparency, and facilitating the ability of affected individuals to challenge surveillance programs in regular federal courts. Finally, Congress should address additional Fourth Amendment concerns by narrowing the permissible scope of “foreign intelligence surveillance” and ensuring that it cannot be used as an end-run around the constitutional standards for criminal investigations.

Just Security post—where I copied the above excerpt. Lawfare post.

Posted on March 24, 2015 at 9:04 AM • View Comments

When Thinking Machines Break the Law

Last year, two Swiss artists programmed a Random Botnot Shopper, which every week would spend $100 in bitcoin to buy a random item from an anonymous Internet black market…all for an art project on display in Switzerland. It was a clever concept, except there was a problem. Most of the stuff the bot purchased was benign­—fake Diesel jeans, a baseball cap with a hidden camera, a stash can, a pair of Nike trainers—but it also purchased ten ecstasy tablets and a fake Hungarian passport.

What do we do when a machine breaks the law? Traditionally, we hold the person controlling the machine responsible. People commit the crimes; the guns, lockpicks, or computer viruses are merely their tools. But as machines become more autonomous, the link between machine and controller becomes more tenuous.

Who is responsible if an autonomous military drone accidentally kills a crowd of civilians? Is it the military officer who keyed in the mission, the programmers of the enemy detection software that misidentified the people, or the programmers of the software that made the actual kill decision? What if those programmers had no idea that their software was being used for military purposes? And what if the drone can improve its algorithms by modifying its own software based on what the entire fleet of drones learns on earlier missions?

Maybe our courts can decide where the culpability lies, but that’s only because while current drones may be autonomous, they’re not very smart. As drones get smarter, their links to the humans that originally built them become more tenuous.

What if there are no programmers, and the drones program themselves? What if they are both smart and autonomous, and make strategic as well as tactical decisions on targets? What if one of the drones decides, based on whatever means it has at its disposal, that it no longer maintains allegiance to the country that built it and goes rogue?

Our society has many approaches, using both informal social rules and more formal laws, for dealing with people who won’t follow the rules of society. We have informal mechanisms for small infractions, and a complex legal system for larger ones. If you are obnoxious at a party I throw, I won’t invite you back. Do it regularly, and you’ll be shamed and ostracized from the group. If you steal some of my stuff, I might report you to the police. Steal from a bank, and you’ll almost certainly go to jail for a long time. A lot of this might seem more ad hoc than situation-specific, but we humans have spent millennia working this all out. Security is both political and social, but it’s also psychological. Door locks, for example, only work because our social and legal prohibitions on theft keep the overwhelming majority of us honest. That’s how we live peacefully together at a scale unimaginable for any other species on the planet.

How does any of this work when the perpetrator is a machine with whatever passes for free will? Machines probably won’t have any concept of shame or praise. They won’t refrain from doing something because of what other machines might think. They won’t follow laws simply because it’s the right thing to do, nor will they have a natural deference to authority. When they’re caught stealing, how can they be punished? What does it mean to fine a machine? Does it make any sense at all to incarcerate it? And unless they are deliberately programmed with a self-preservation function, threatening them with execution will have no meaningful effect.

We are already talking about programming morality into thinking machines, and we can imagine programming other human tendencies into our machines, but we’re certainly going to get it wrong. No matter how much we try to avoid it, we’re going to have machines that break the law.

This, in turn, will break our legal system. Fundamentally, our legal system doesn’t prevent crime. Its effectiveness is based on arresting and convicting criminals after the fact, and their punishment providing a deterrent to others. This completely fails if there’s no punishment that makes sense.

We already experienced a small example of this after 9/11, which was when most of us first started thinking about suicide terrorists and how post-facto security was irrelevant to them. That was just one change in motivation, and look at how those actions affected the way we think about security. Our laws will have the same problem with thinking machines, along with related problems we can’t even imagine yet. The social and legal systems that have dealt so effectively with human rulebreakers of all sorts will fail in unexpected ways in the face of thinking machines.

A machine that thinks won’t always think in the ways we want it to. And we’re not ready for the ramifications of that.

This essay previously appeared on Edge.org as one of the answers to the 2015 Edge Question: “What do you think about machines that think?”

EDITED TO ADD: The Random Botnet Shopper is “under arrest.”

Posted on January 23, 2015 at 4:55 AM • View Comments

US Law Enforcement Also Conducting Mass Telephone Surveillance

Late last year, in a criminal case involving export violations, the US government disclosed a mysterious database of telephone call records that it had queried in the case.

The defendant argued that the database was the NSA’s, and that the query was unconditional and the evidence should be suppressed. The government said that the database was not the NSA’s. As part of the back and forth, the judge ordered the government to explain the call records database.

Someone from the Drug Enforcement Agency did that last week. Apparently, there’s another bulk telephone metadata collection program and a “federal law enforcement database” authorized as part of a federal drug trafficking statute:

This database [redacted] consisted of telecommunications metadata obtained from United Stated telecommunications service providers pursuant to administrative subpoenas served up on the service providers under the provisions of 21 U.S.C. 876. This metadata related to international telephone calls originating in the United States and calling [redacted] designated foreign countries, one of which was Iran, that were determined to have a demonstrated nexus to international drug trafficking and related criminal activities.

The program began in the 1990s and was “suspended” in September 2013.

News article. Slashdot thread. Hacker News thread.

EDITED TO ADD (1/19): Another article.

Posted on January 19, 2015 at 12:42 PM • View Comments

Merry Christmas from the NSA

On Christmas Eve, the NSA released a bunch of audit reports on illegal spying using EO 12333 from 2001 to 2013.

Bloomberg article.

The heavily-redacted reports include examples of data on Americans being e-mailed to unauthorized recipients, stored in unsecured computers and retained after it was supposed to be destroyed, according to the documents. They were posted on the NSA’s website at around 1:30 p.m. on Christmas Eve.

In a 2012 case, for example, an NSA analyst “searched her spouse’s personal telephone directory without his knowledge to obtain names and telephone numbers for targeting,” according to one report. The analyst “has been advised to cease her activities,” it said.

The documents were released in response to an ACLU lawsuit.

Another article.

EDITED TO ADD (12/27): Remember Edward Snowden’s comment that he could eavesdrop on anybody? “I, sitting at my desk, certainly had the authorities to wiretap anyone, from you, or your accountant, to a federal judge, to even the President if I had a personal email.” Lots of people have accused him of lying. Here’s former NSA General Counsel Stewart Baker: “All that makes Snowden’s claim about being able to wiretap anyone extremely unlikely—and certainly not demonstrated by the latest disclosures, despite Glenn Greenwald’s claims to the contrary.”

These documents demonstrate that Snowden is probably correct. In these documents, NSA agents target all sorts of random Americans.

Posted on December 26, 2014 at 6:29 AM • View Comments

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Sidebar photo of Bruce Schneier by Joe MacInnis.