ACLU vs. NSA
Dan Solove comments (two posts) on the recent ACLU vs. NSA decision regarding the NSA’s illegal wiretapping activities.
Entries Tagged "courts"
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Surveillance Cameras that Obscure Faces
From Technology Review:
A camera developed by computer scientists at the University of California, Berkeley, would obscure, with an oval, the faces of people who appear on surveillance videos. These so-called respectful cameras, which are still in the research phase, could be used for day-to-day surveillance applications and would allow for the privacy oval to be removed from a given set of footage in the event of an investigation.
An interesting privacy-enhancing technology.
4th Amendment Rights Extended to E-Mail
This is a great piece of news in the U.S. For the first time, e-mail has been granted the same constitutional protections as telephone calls and personal papers: the police need a warrant to get at it. Now it’s only a circuit court decision—the Sixth U.S. Circuit Court of Appeals in Ohio—it’s pretty narrowly defined based on the attributes of the e-mail system, and it has a good chance of being overturned by the Supreme Court…but it’s still great news.
The way to think of the warrant system is as a security device. The police still have the ability to get access to e-mail in order to investigate a crime. But in order to prevent abuse, they have to convince a neutral third party—a judge—that accessing someone’s e-mail is necessary to investigate that crime. That judge, at least in theory, protects our interests.
Clearly e-mail deserves the same protection as our other personal papers, but—like phone calls—it might take the courts decades to figure that out. But we’ll get there eventually.
Third Party Consent and Computer Searches
U.S. courts are weighing in with opinions:
When Ray Andrus’ 91-year-old father gave federal agents permission to search his son’s password-protected computer files and they found child pornography, the case turned a spotlight on how appellate courts grapple with third-party consents to search computers.
[…]
The case was a first for the 10th U.S. Circuit Court of Appeals, and only two other circuits have touched on the issue, the 4th and 6th circuits. The 10th Circuit held that although password-protected computers command a high level of privacy, the legitimacy of a search turns on an officer’s belief that the third party had authority to consent.
The 10th Circuit’s recent 2-1 decision in U.S. v. Andrus, No. 06-3094 (April 25, 2007), recognized for the first time that a password-protected computer is like a locked suitcase or a padlocked footlocker in a bedroom. The digital locks raise the expectation of privacy by the owner. The majority nonetheless refused to suppress the evidence.
Excellent commentary from Jennifer Granick:
The Fourth Amendment generally prohibits warrantless searches of an individual’s home or possessions. There is an exception to the warrant requirement when someone consents to the search. Consent can be given by the person under investigation, or by a third party with control over or mutual access to the property being searched. Because the Fourth Amendment only prohibits “unreasonable searches and seizures,” permission given by a third party who lacks the authority to consent will nevertheless legitimize a warrantless search if the consenter has “apparent authority,” meaning that the police reasonably believed that the person had actual authority to control or use the property.
Under existing case law, only people with a key to a locked closet have apparent authority to consent to a search of that closet. Similarly, only people with the password to a locked computer have apparent authority to consent to a search of that device. In Andrus, the father did not have the password (or know how to use the computer) but the police say they did not have any reason to suspect this because they did not ask and did not turn the computer on. Then, they used forensic software that automatically bypassed any installed password.
The majority held that the police officers not only weren’t obliged to ask whether the father used the computer, they had no obligation to check for a password before performing their forensic search. In dissent, Judge Monroe G. McKay criticized the agents’ intentional blindness to the existence of password protection, when physical or digital locks are such a fundamental part of ascertaining whether a consenting person has actual or apparent authority to permit a police search. “(T)he unconstrained ability of law enforcement to use forensic software such at the EnCase program to bypass password protection without first determining whether such passwords have been enabled … dangerously sidestep(s) the Fourth Amendment.”
[…]
If courts are going to treat computers as containers, and if owners must lock containers in order to keep them private from warrantless searches, then police should be required to look for those locks. Password protected computers and locked containers are an inexact analogy, but if that is how courts are going to do it, then its inappropriate to diminish protections for computers simply because law enforcement chooses to use software that turns a blind eye to owners’ passwords.
Massive Spam Lawsuit
Project Honey Pot files a $1B+ lawsuit against spammers.
Lawsuit for Not Disclosing a Security Breach
There’s a class-action lawsuit against TJX by various banks and banking groups:
The suit will argue that TJX failed to protect customer data with adequate security measures, and that the Framingham, Mass.-based retail giant was less than honest about how it handled data.
This case could break new legal ground, and is worth watching closely. (I’m rooting for the plaintiff.)
Canadian Anti-Terrorism Law News
The court said the men, who are accused of having ties to al-Qaeda, have the right to see and respond to evidence against them. It pointed to a law in Britain that allows special advocates or lawyers to see sensitive intelligence material, but not share details with their clients.
In its ruling, the court said while it’s important to protect Canada’s national security, the government can do more to protect individual rights.
But the court suspended the judgment from taking legal effect for a year, giving Parliament time to write a new law complying with constitutional principles.
Critics have long denounced the certificates, which can lead to deportation of non-citizens on the basis of secret intelligence presented to a Federal Court judge at closed-door hearings.
Those who fight the allegations can spend years in jail while the case works its way through the legal system. In the end, they can sometimes face removal to countries with a track record of torture, say critics.
And that’s not the only piece of good news from Canada. Two provisions from an anti-terrorism law passed at the end of 2001 were due to expire at the end of February. The House of Commons has voted against extending them:
One of the anti-terrorism measures allows police to arrest suspects without a warrant and detain them for three days without charges, provided police believe a terrorist act may be committed. The other measure allows judges to compel witnesses to testify in secret about past associations or pending acts. The witnesses could go to jail if they don’t comply.
The two measures, introduced by a previous Liberal government in 2001, have never been used.
“These two provisions especially have done nothing to fight against terrorism,” Dion said Tuesday. “[They] have not been helpful and have continued to create some risk for civil liberties.”
Another article here.
Scanning People's Intentions
Here’s an article on a brain scanning technique that reads people’s intentions.
There’s not a lot of detail, but my guess is that it doesn’t work very well. But that’s not really the point. If it doesn’t work today, it will in five, ten, twenty years; it will work eventually.
What we need to do, today, is debate the legality and ethics of these sorts of interrogations:
“These techniques are emerging and we need an ethical debate about the implications, so that one day we’re not surprised and overwhelmed and caught on the wrong foot by what they can do. These things are going to come to us in the next few years and we should really be prepared,” Professor Haynes told the Guardian.
The use of brain scanners to judge whether people are likely to commit crimes is a contentious issue that society should tackle now, according to Prof Haynes. “We see the danger that this might become compulsory one day, but we have to be aware that if we prohibit it, we are also denying people who aren’t going to commit any crime the possibility of proving their innocence.”
More discussion along these lines is in the article. And I wrote about this sort of thing in 2005, in the context of Judge Roberts’ confirmation hearings.
Sidebar photo of Bruce Schneier by Joe MacInnis.