Entries Tagged "courts"

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How Privacy Laws Hurt Defendants

Rebecca Wexler has an interesting op-ed about an inadvertent harm that privacy laws can cause: while law enforcement can often access third-party data to aid in prosecution, the accused don’t have the same level of access to aid in their defense:

The proposed privacy laws would make this situation worse. Lawmakers may not have set out to make the criminal process even more unfair, but the unjust result is not surprising. When lawmakers propose privacy bills to protect sensitive information, law enforcement agencies lobby for exceptions so they can continue to access the information. Few lobby for the accused to have similar rights. Just as the privacy interests of poor, minority and heavily policed communities are often ignored in the lawmaking process, so too are the interests of criminal defendants, many from those same communities.

In criminal cases, both the prosecution and the accused have a right to subpoena evidence so that juries can hear both sides of the case. The new privacy bills need to ensure that law enforcement and defense investigators operate under the same rules when they subpoena digital data. If lawmakers believe otherwise, they should have to explain and justify that view.

For more detail, see her paper.

Posted on August 2, 2019 at 6:04 AMView Comments

The Importance of Protecting Cybersecurity Whistleblowers

Interesting essay arguing that we need better legislation to protect cybersecurity whistleblowers.

Congress should act to protect cybersecurity whistleblowers because information security has never been so important, or so challenging. In the wake of a barrage of shocking revelations about data breaches and companies mishandling of customer data, a bipartisan consensus has emerged in support of legislation to give consumers more control over their personal information, require companies to disclose how they collect and use consumer data, and impose penalties for data breaches and misuse of consumer data. The Federal Trade Commission (“FTC”) has been held out as the best agency to implement this new regulation. But for any such legislation to be effective, it must protect the courageous whistleblowers who risk their careers to expose data breaches and unauthorized use of consumers’ private data.

Whistleblowers strengthen regulatory regimes, and cybersecurity regulation would be no exception. Republican and Democratic leaders from the executive and legislative branches have extolled the virtues of whistleblowers. High-profile cases abound. Recently, Christopher Wylie exposed Cambridge Analytica’s misuse of Facebook user data to manipulate voters, including its apparent theft of data from 50 million Facebook users as part of a psychological profiling campaign. Though additional research is needed, the existing empirical data reinforces the consensus that whistleblowers help prevent, detect, and remedy misconduct. Therefore it is reasonable to conclude that protecting and incentivizing whistleblowers could help the government address the many complex challenges facing our nation’s information systems.

Posted on June 3, 2019 at 6:30 AMView Comments

I Was Cited in a Court Decision

An article I co-wrote — my first law journal article — was cited by the Massachusetts Supreme Judicial Court — the state supreme court — in a case on compelled decryption.

Here’s the first, in footnote 1:

We understand the word “password” to be synonymous with other terms that cell phone users may be familiar with, such as Personal Identification Number or “passcode.” Each term refers to the personalized combination of letters or digits that, when manually entered by the user, “unlocks” a cell phone. For simplicity, we use “password” throughout. See generally, Kerr & Schneier, Encryption Workarounds, 106 Geo. L.J. 989, 990, 994, 998 (2018).

And here’s the second, in footnote 5:

We recognize that ordinary cell phone users are likely unfamiliar with the complexities of encryption technology. For instance, although entering a password “unlocks” a cell phone, the password itself is not the “encryption key” that decrypts the cell phone’s contents. See Kerr & Schneier, supra at 995. Rather, “entering the [password] decrypts the [encryption] key, enabling the key to be processed and unlocking the phone. This two-stage process is invisible to the casual user.” Id. Because the technical details of encryption technology do not play a role in our analysis, they are not worth belaboring. Accordingly, we treat the entry of a password as effectively decrypting the contents of a cell phone. For a more detailed discussion of encryption technology, see generally Kerr & Schneier, supra.

Posted on March 15, 2019 at 2:38 PMView Comments

Reverse Location Search Warrants

The police are increasingly getting search warrants for information about all cell phones in a certain location at a certain time:

Police departments across the country have been knocking at Google’s door for at least the last two years with warrants to tap into the company’s extensive stores of cellphone location data. Known as “reverse location search warrants,” these legal mandates allow law enforcement to sweep up the coordinates and movements of every cellphone in a broad area. The police can then check to see if any of the phones came close to the crime scene. In doing so, however, the police can end up not only fishing for a suspect, but also gathering the location data of potentially hundreds (or thousands) of innocent people. There have only been anecdotal reports of reverse location searches, so it’s unclear how widespread the practice is, but privacy advocates worry that Google’s data will eventually allow more and more departments to conduct indiscriminate searches.

Of course, it’s not just Google who can provide this information.

I am also reminded of a Canadian surveillance program disclosed by Snowden.

I spend a lot of time talking about this sort of thing in Data and Goliath. Once you have everyone under surveillance all the time, many things are possible.

EDITED TO ADD (3/13): Here’ the portal law enforcement uses to make its requests.

Posted on February 21, 2019 at 6:33 AMView Comments

El Chapo's Encryption Defeated by Turning His IT Consultant

Impressive police work:

In a daring move that placed his life in danger, the I.T. consultant eventually gave the F.B.I. his system’s secret encryption keys in 2011 after he had moved the network’s servers from Canada to the Netherlands during what he told the cartel’s leaders was a routine upgrade.

A Dutch article says that it’s a BlackBerry system.

El Chapo had his IT person install “…spyware called FlexiSPY on the ‘special phones’ he had given to his wife, Emma Coronel Aispuro, as well as to two of his lovers, including one who was a former Mexican lawmaker.” That same software was used by the FBI when his IT person turned over the keys. Yet again we learn the lesson that a backdoor can be used against you.

And it doesn’t have to be with the IT person’s permission. A good intelligence agency can use the IT person’s authorizations without his knowledge or consent. This is why the NSA hunts sysadmins.

Slashdot thread. Hacker News thread. Boing Boing post.

EDITED TO ADD (2/12): Good information here.

Posted on January 16, 2019 at 6:53 AMView Comments

SpiderOak's Warrant Canary Died

BoingBoing has the story.

I have never quite trusted the idea of a warrant canary. But here it seems to have worked. (Presumably, if SpiderOak wanted to replace the warrant canary with a transparency report, they would have written something explaining their decision. To have it simply disappear is what we would expect if SpiderOak were being forced to comply with a US government request for personal data.)

EDITED TO ADD (8/9): SpiderOak has posted an explanation claiming that the warrant canary did not die — it just changed.

That’s obviously false, because it did die. And a change is the functional equivalent — that’s how they work. So either they have received a National Security Letter and now have to pretend they did not, or they completely misunderstood what a warrant canary is and how it works. No one knows.

I have never fully trusted warrant canaries — this EFF post explains why — and this is an illustration.

Posted on August 8, 2018 at 9:37 AMView Comments

E-Mail Leaves an Evidence Trail

If you’re going to commit an illegal act, it’s best not to discuss it in e-mail. It’s also best to Google tech instructions rather than asking someone else to do it:

One new detail from the indictment, however, points to just how unsophisticated Manafort seems to have been. Here’s the relevant passage from the indictment. I’ve bolded the most important bits:

Manafort and Gates made numerous false and fraudulent representations to secure the loans. For example, Manafort provided the bank with doctored [profit and loss statements] for [Davis Manafort Inc.] for both 2015 and 2016, overstating its income by millions of dollars. The doctored 2015 DMI P&L submitted to Lender D was the same false statement previously submitted to Lender C, which overstated DMI’s income by more than $4 million. The doctored 2016 DMI P&L was inflated by Manafort by more than $3.5 million. To create the false 2016 P&L, on or about October 21, 2016, Manafort emailed Gates a .pdf version of the real 2016 DMI P&L, which showed a loss of more than $600,000. Gates converted that .pdf into a “Word” document so that it could be edited, which Gates sent back to Manafort. Manafort altered that “Word” document by adding more than $3.5 million in income. He then sent this falsified P&L to Gates and asked that the “Word” document be converted back to a .pdf, which Gates did and returned to Manafort. Manafort then sent the falsified 2016 DMI P&L .pdf to Lender D.

So here’s the essence of what went wrong for Manafort and Gates, according to Mueller’s investigation: Manafort allegedly wanted to falsify his company’s income, but he couldn’t figure out how to edit the PDF. He therefore had Gates turn it into a Microsoft Word document for him, which led the two to bounce the documents back-and-forth over email. As attorney and blogger Susan Simpson notes on Twitter, Manafort’s inability to complete a basic task on his own seems to have effectively “created an incriminating paper trail.”

If there’s a lesson here, it’s that the Internet constantly generates data about what people are doing on it, and that data is all potential evidence. The FBI is 100% wrong that they’re going dark; it’s really the golden age of surveillance, and the FBI’s panic is really just its own lack of technical sophistication.

Posted on February 26, 2018 at 3:39 PMView Comments

After Section 702 Reauthorization

For over a decade, civil libertarians have been fighting government mass surveillance of innocent Americans over the Internet. We’ve just lost an important battle. On January 18, President Trump signed the renewal of Section 702, domestic mass surveillance became effectively a permanent part of US law.

Section 702 was initially passed in 2008, as an amendment to the Foreign Intelligence Surveillance Act of 1978. As the title of that law says, it was billed as a way for the NSA to spy on non-Americans located outside the United States. It was supposed to be an efficiency and cost-saving measure: the NSA was already permitted to tap communications cables located outside the country, and it was already permitted to tap communications cables from one foreign country to another that passed through the United States. Section 702 allowed it to tap those cables from inside the United States, where it was easier. It also allowed the NSA to request surveillance data directly from Internet companies under a program called PRISM.

The problem is that this authority also gave the NSA the ability to collect foreign communications and data in a way that inherently and intentionally also swept up Americans’ communications as well, without a warrant. Other law enforcement agencies are allowed to ask the NSA to search those communications, give their contents to the FBI and other agencies and then lie about their origins in court.

In 1978, after Watergate had revealed the Nixon administration’s abuses of power, we erected a wall between intelligence and law enforcement that prevented precisely this kind of sharing of surveillance data under any authority less restrictive than the Fourth Amendment. Weakening that wall is incredibly dangerous, and the NSA should never have been given this authority in the first place.

Arguably, it never was. The NSA had been doing this type of surveillance illegally for years, something that was first made public in 2006. Section 702 was secretly used as a way to paper over that illegal collection, but nothing in the text of the later amendment gives the NSA this authority. We didn’t know that the NSA was using this law as the statutory basis for this surveillance until Edward Snowden showed us in 2013.

Civil libertarians have been battling this law in both Congress and the courts ever since it was proposed, and the NSA’s domestic surveillance activities even longer. What this most recent vote tells me is that we’ve lost that fight.

Section 702 was passed under George W. Bush in 2008, reauthorized under Barack Obama in 2012, and now reauthorized again under Trump. In all three cases, congressional support was bipartisan. It has survived multiple lawsuits by the Electronic Frontier Foundation, the ACLU, and others. It has survived the revelations by Snowden that it was being used far more extensively than Congress or the public believed, and numerous public reports of violations of the law. It has even survived Trump’s belief that he was being personally spied on by the intelligence community, as well as any congressional fears that Trump could abuse the authority in the coming years. And though this extension lasts only six years, it’s inconceivable to me that it will ever be repealed at this point.

So what do we do? If we can’t fight this particular statutory authority, where’s the new front on surveillance? There are, it turns out, reasonable modifications that target surveillance more generally, and not in terms of any particular statutory authority. We need to look at US surveillance law more generally.

First, we need to strengthen the minimization procedures to limit incidental collection. Since the Internet was developed, all the world’s communications travel around in a single global network. It’s impossible to collect only foreign communications, because they’re invariably mixed in with domestic communications. This is called “incidental” collection, but that’s a misleading name. It’s collected knowingly, and searched regularly. The intelligence community needs much stronger restrictions on which American communications channels it can access without a court order, and rules that require they delete the data if they inadvertently collect it. More importantly, “collection” is defined as the point the NSA takes a copy of the communications, and not later when they search their databases.

Second, we need to limit how other law enforcement agencies can use incidentally collected information. Today, those agencies can query a database of incidental collection on Americans. The NSA can legally pass information to those other agencies. This has to stop. Data collected by the NSA under its foreign surveillance authority should not be used as a vehicle for domestic surveillance.

The most recent reauthorization modified this lightly, forcing the FBI to obtain a court order when querying the 702 data for a criminal investigation. There are still exceptions and loopholes, though.

Third, we need to end what’s called “parallel construction.” Today, when a law enforcement agency uses evidence found in this NSA database to arrest someone, it doesn’t have to disclose that fact in court. It can reconstruct the evidence in some other manner once it knows about it, and then pretend it learned of it that way. This right to lie to the judge and the defense is corrosive to liberty, and it must end.

Pressure to reform the NSA will probably first come from Europe. Already, European Union courts have pointed to warrantless NSA surveillance as a reason to keep Europeans’ data out of US hands. Right now, there is a fragile agreement between the EU and the United States ­– called “Privacy Shield” — ­that requires Americans to maintain certain safeguards for international data flows. NSA surveillance goes against that, and it’s only a matter of time before EU courts start ruling this way. That’ll have significant effects on both government and corporate surveillance of Europeans and, by extension, the entire world.

Further pressure will come from the increased surveillance coming from the Internet of Things. When your home, car, and body are awash in sensors, privacy from both governments and corporations will become increasingly important. Sooner or later, society will reach a tipping point where it’s all too much. When that happens, we’re going to see significant pushback against surveillance of all kinds. That’s when we’ll get new laws that revise all government authorities in this area: a clean sweep for a new world, one with new norms and new fears.

It’s possible that a federal court will rule on Section 702. Although there have been many lawsuits challenging the legality of what the NSA is doing and the constitutionality of the 702 program, no court has ever ruled on those questions. The Bush and Obama administrations successfully argued that defendants don’t have legal standing to sue. That is, they have no right to sue because they don’t know they’re being targeted. If any of the lawsuits can get past that, things might change dramatically.

Meanwhile, much of this is the responsibility of the tech sector. This problem exists primarily because Internet companies collect and retain so much personal data and allow it to be sent across the network with minimal security. Since the government has abdicated its responsibility to protect our privacy and security, these companies need to step up: Minimize data collection. Don’t save data longer than absolutely necessary. Encrypt what has to be saved. Well-designed Internet services will safeguard users, regardless of government surveillance authority.

For the rest of us concerned about this, it’s important not to give up hope. Everything we do to keep the issue in the public eye ­– and not just when the authority comes up for reauthorization again in 2024 — hastens the day when we will reaffirm our rights to privacy in the digital age.

This essay previously appeared in the Washington Post.

Posted on January 31, 2018 at 6:06 AMView Comments

Sidebar photo of Bruce Schneier by Joe MacInnis.