Entries Tagged "courts"

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Password Sharing Is Now a Crime

In a truly terrible ruling, the US 9th Circuit Court ruled that using someone else’s password with their permission but without the permission of the site owner is a federal crime.

The argument McKeown made is that the employee who shared the password with Nosal “had no authority from Korn/Ferry to provide her password to former employees.”

At issue is language in the CFAA that makes it illegal to access a computer system “without authorization.” McKeown said that “without authorization” is “an unambiguous, non-technical term that, given its plain and ordinary meaning, means accessing a protected computer without permission.” The question that legal scholars, groups such as the Electronic Frontier Foundation, and dissenting judge Stephen Reinhardt ask is an important one: Authorization from who?

Reinhardt argues that Nosal’s use of the database was unauthorized by the firm, but was authorized by the former employee who shared it with him. For you and me, this case means that unless Netflix specifically authorizes you to share your password with your friend, you’re breaking federal law.

The EFF:

While the majority opinion said that the facts of this case “bear little resemblance” to the kind of password sharing that people often do, Judge Reinhardt’s dissent notes that it fails to provide an explanation of why that is. Using an analogy in which a woman uses her husband’s user credentials to access his bank account to pay bills, Judge Reinhardt noted: “So long as the wife knows that the bank does not give her permission to access its servers in any manner, she is in the same position as Nosal and his associates.” As a result, although the majority says otherwise, the court turned anyone who has ever used someone else’s password without the approval of the computer owner into a potential felon.

The Computer Fraud and Abuse Act has been a disaster for many reasons, this being one of them. There will be an appeal of this ruling.

Posted on July 13, 2016 at 11:07 AM • View Comments

Anonymization and the Law

Interesting paper: “Anonymization and Risk,” by Ira S. Rubinstein and Woodrow Hartzog:

Abstract: Perfect anonymization of data sets has failed. But the process of protecting data subjects in shared information remains integral to privacy practice and policy. While the deidentification debate has been vigorous and productive, there is no clear direction for policy. As a result, the law has been slow to adapt a holistic approach to protecting data subjects when data sets are released to others. Currently, the law is focused on whether an individual can be identified within a given set. We argue that the better locus of data release policy is on the process of minimizing the risk of reidentification and sensitive attribute disclosure. Process-based data release policy, which resembles the law of data security, will help us move past the limitations of focusing on whether data sets have been “anonymized.” It draws upon different tactics to protect the privacy of data subjects, including accurate deidentification rhetoric, contracts prohibiting reidentification and sensitive attribute disclosure, data enclaves, and query-based strategies to match required protections with the level of risk. By focusing on process, data release policy can better balance privacy and utility where nearly all data exchanges carry some risk.

Posted on July 11, 2016 at 6:31 AM • View Comments

Julian Sanchez on the Feinstein-Burr Bill

Two excellent posts.

It’s such a badly written bill that I wonder if it’s just there to anchor us to an extreme, so we’re relieved when the actual bill comes along. Me:

“This is the most braindead piece of legislation I’ve ever seen,” Schneier—who has just been appointed a Fellow of the Kennedy School of Government at Harvard—told The Reg. “The person who wrote this either has no idea how technology works or just doesn’t care.”

Posted on May 3, 2016 at 1:10 PM • View Comments

Companies Handing Source Code Over to Governments

ZDNet has an article on US government pressure on software companies to hand over copies of their source code. There’s no details because no one is talking on the record, but I also believe that this is happening.

When asked, a spokesperson for the Justice Dept. acknowledged that the department has demanded source code and private encryption keys before.

These orders would probably come from the FISA Court:

These orders are so highly classified that simply acknowledging an order’s existence is illegal, even a company’s chief executive or members of the board may not be told. Only those who are necessary to execute the order would know, and would be subject to the same secrecy provisions.

Given that Federighi heads the division, it would be almost impossible to keep from him the existence of a FISA order demanding the company’s source code.

It would not be the first time that the US government has reportedly used proprietary code and technology from American companies to further its surveillance efforts.

Top secret NSA documents leaked by whistleblower Edward Snowden, reported in German magazine Der Spiegel in late-2013, have suggested some hardware and software makers were compelled to hand over source code to assist in government surveillance.

The NSA’s catalog of implants and software backdoors suggest that some companies, including Dell, Huawei, and Juniper—which was publicly linked to an “unauthorized” backdoor—had their servers and firewall products targeted and attacked through various exploits. Other exploits were able to infiltrate firmware of hard drives manufactured by Western Digital, Seagate, Maxtor, and Samsung.

Last year, antivirus maker and security firm Kaspersky later found evidence that the NSA had obtained source code from a number of prominent hard drive makers—a claim the NSA denied—to quietly install software used to eavesdrop on the majority of the world’s computers.

“There is zero chance that someone could rewrite the [hard drive] operating system using public information,” said one of the researchers.

The problem is, of course, is that any company forced by the US to hand over their source code would also be forbidden from talking about it.

It’s the sort of thing China does:

For most computing and networking equipment, the chart says, source code must be turned over to Chinese officials. But many foreign companies would be unwilling to disclose code because of concerns about intellectual property, security and, in some cases, United States export law.

The chart also calls for companies that want to sell to banks to set up research and development centers in China, obtain permits for workers servicing technology equipment and build “ports” to allow Chinese officials to manage and monitor data processed by their hardware.

The draft antiterrorism law pushes even further, calling for companies to store all data related to Chinese users on servers in China, create methods for monitoring content for terror threats and provide keys to encryption to public security authorities.

Slashdot thread.

Posted on March 18, 2016 at 11:27 AM • View Comments

Another FBI Filing on the San Bernardino iPhone Case

The FBI’s reply to Apple is more of a character assassination attempt than a legal argument. It’s as if it only cares about public opinion at this point.

Although notice the threat in footnote 9 on page 22:

For the reasons discussed above, the FBI cannot itself modify the software on Farook’s iPhone without access to the source code and Apple’s private electronic signature. The government did not seek to compel Apple to turn those over because it believed such a request would be less palatable to Apple. If Apple would prefer that course, however, that may provide an alternative that requires less labor by Apple programmers.

This should immediately remind everyone of the Lavabit case, where the FBI did ask for the site’s master key in order to get at one user. Ladar Levison commented on the similarities. He, of course, shut his service down rather than turn over the master key. A company as large as Apple does not have that option. Marcy Wheeler wrote about this in detail.

My previous three posts on this are here, here, and here, all with lots of interesting links to various writings on this case.

EDITED TO ADD:The New York Times reports that the White House might have overreached in this case.

John Oliver has a great segment on this. With a Matt Blaze cameo!

Good NPR interview with Richard Clarke.

Well, I don’t think it’s a fierce debate. I think the Justice Department and the FBI are on their own here. You know, the secretary of defense has said how important encryption is when asked about this case. The National Security Agency director and three past National Security Agency directors, a former CIA director, a former Homeland Security secretary have all said that they’re much more sympathetic with Apple in this case. You really have to understand that the FBI director is exaggerating the need for this and is trying to build it up as an emotional case, organizing the families of the victims and all of that. And it’s Jim Comey and the attorney general is letting him get away with it.

Senator Lindsay Graham is changing his views:

“It’s just not so simple,” Graham said. “I thought it was that simple.”

Steven Levy on the history angle of this story.

Benjamin Wittes on possible legislative options.

EDITED TO ADD (3/17): Apple’s latest response is pretty withering. Commentary from Susan Crawford. FBI and China are on the same side. How this fight risks the whole US tech industry.

EDITED TO ADD (3/18): Tim Cook interview. Apple engineers might refuse to help the FBI, if Apple loses the case. And I should have previously posted this letter from racial justice activists, and this more recent essay on how this affects the LGBTQ community.

EDITED TO ADD (3/21): Interesting article on the Apple/FBI tensions that led to this case.

Posted on March 16, 2016 at 6:12 AM • View Comments

Judge Demands that Apple Backdoor an iPhone

A judge has ordered that Apple bypass iPhone security in order for the FBI to attempt a brute-force password attack on an iPhone 5c used by one of the San Bernardino killers. Apple is refusing.

The order is pretty specific technically. This implies to me that what the FBI is asking for is technically possible, and even that Apple assisted in the wording so that the case could be about the legal issues and not the technical ones.

From Apple’s statement about its refusal:

Some would argue that building a backdoor for just one iPhone is a simple, clean-cut solution. But it ignores both the basics of digital security and the significance of what the government is demanding in this case.

In today’s digital world, the “key” to an encrypted system is a piece of information that unlocks the data, and it is only as secure as the protections around it. Once the information is known, or a way to bypass the code is revealed, the encryption can be defeated by anyone with that knowledge.

The government suggests this tool could only be used once, on one phone. But that’s simply not true. Once created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks ­ from restaurants and banks to stores and homes. No reasonable person would find that acceptable.

The government is asking Apple to hack our own users and undermine decades of security advancements that protect our customers ­ including tens of millions of American citizens ­ from sophisticated hackers and cybercriminals. The same engineers who built strong encryption into the iPhone to protect our users would, ironically, be ordered to weaken those protections and make our users less safe.

We can find no precedent for an American company being forced to expose its customers to a greater risk of attack. For years, cryptologists and national security experts have been warning against weakening encryption. Doing so would hurt only the well-meaning and law-abiding citizens who rely on companies like Apple to protect their data. Criminals and bad actors will still encrypt, using tools that are readily available to them.

Congressman Ted Lieu comments.

Here’s an interesting essay about why Tim Cook and Apple are such champions for encryption and privacy.

Today I walked by a television showing CNN. The sound was off, but I saw an aerial scene which I presume was from San Bernardino, and the words “Apple privacy vs. national security.” If that’s the framing, we lose. I would have preferred to see “National security vs. FBI access.”

Slashdot thread.

EDITED TO ADD (2/18): Good analysis of Apple’s case. Interesting debate. Nicholas Weaver’s comments. And commentary from some other planet.

EDITED TO ADD (2/19): Ben Adida comments:

What’s probably happening is that the FBI is using this as a test case for the general principle that they should be able to compel tech companies to assist in police investigations. And that’s pretty smart, because it’s a pretty good test case: Apple obviously wants to help prevent terrorist attacks, so they’re left to argue the slippery slope argument in the face of an FBI investigation of a known terrorist. Well done, FBI, well done.

And Julian Sanchez’s comments. His conclusion:

These, then, are the high stakes of Apple’s resistance to the FBI’s order: not whether the federal government can read one dead terrorism suspect’s phone, but whether technology companies can be conscripted to undermine global trust in our computing devices. That’s a staggeringly high price to pay for any investigation.

A New York Times editorial.

Also, two questions: One, what do we know about Apple’s assistance in the past, and why this one is different? Two, has anyone speculated on how much this will cost Apple? The FBI is demanding that Apple give them free engineering work. What’s the value of that work?

EDITED TO ADD (2/20): Jonathan Zdziarski writes on the differences between the FBI compelling someone to provide a service versus build a tool, and why the latter will 1) be difficult and expensive, 2) will get out into the wild, and 3) set a dangerous precedent.

This answers my first question, above:

For years, the government could come to Apple with a subpoena and a phone, and have the manufacturer provide a disk image of the device. This largely worked because Apple didn’t have to hack into their phones to do this. Up until iOS 8, the encryption Apple chose to use in their design was easily reversible when you had code execution on the phone (which Apple does). So all through iOS 7, Apple only needed to insert the key into the safe and provide FBI with a copy of the data.

EFF wrote a good technical explainer on the case. My only complaint is with the last section. I have heard directly from Apple that this technique still works on current model phones using the current iOS version.

I am still stunned by how good a case the FBI chose to push this. They have all the sympathy in the media that they could hope for.

EDITED TO ADD (2/20): Tim Cook as privacy advocate. How the back door works on modern iPhones. Why the average American should care. The grugq on what this all means.

EDITED TO ADD (2/22): I wrote an op ed for the Washington Post.

Posted on February 17, 2016 at 2:15 PM • View Comments

Using Law against Technology

On Thursday, a Brazilian judge ordered the text messaging service WhatsApp shut down for 48 hours. It was a monumental action.

WhatsApp is the most popular app in Brazil, used by about 100 million people. The Brazilian telecoms hate the service because it entices people away from more expensive text messaging services, and they have been lobbying for months to convince the government that it’s unregulated and illegal. A judge finally agreed.

In Brazil’s case, WhatsApp was blocked for allegedly failing to respond to a court order. Another judge reversed the ban 12 hours later, but there is a pattern forming here. In Egypt, Vodafone has complained about the legality of WhatsApp’s free voice-calls, while India’s telecoms firms have been lobbying hard to curb messaging apps such as WhatsApp and Viber. Earlier this year, the United Arab Emirates blocked WhatsApp’s free voice call feature.

All this is part of a massive power struggle going on right now between traditional companies and new Internet companies, and we’re all in the blast radius.

It’s one aspect of a tech policy problem that has been plaguing us for at least 25 years: technologists and policymakers don’t understand each other, and they inflict damage on society because of that. But it’s worse today. The speed of technological progress makes it worse. And the types of technology­—especially the current Internet of mobile devices everywhere, cloud computing, always-on connections and the Internet of Things—­make it worse.

The Internet has been disrupting and destroying long-standing business models since its popularization in the mid-1990s. And traditional industries have long fought back with every tool at their disposal. The movie and music industries have tried for decades to hamstring computers in an effort to prevent illegal copying of their products. Publishers have battled with Google over whether their books could be indexed for online searching.

More recently, municipal taxi companies and large hotel chains are fighting with ride-sharing companies such as Uber and apartment-sharing companies such as Airbnb. Both the old companies and the new upstarts have tried to bend laws to their will in an effort to outmaneuver each other.

Sometimes the actions of these companies harm the users of these systems and services. And the results can seem crazy. Why would the Brazilian telecoms want to provoke the ire of almost everyone in the country? They’re trying to protect their monopoly. If they win in not just shutting down WhatsApp, but Telegram and all the other text-message services, their customers will have no choice. This is how high-stakes these battles can be.

This isn’t just companies competing in the marketplace. These are battles between competing visions of how technology should apply to business, and traditional businesses and “disruptive” new businesses. The fundamental problem is that technology and law are in conflict, and what’s worked in the past is increasingly failing today.

First, the speeds of technology and law have reversed. Traditionally, new technologies were adopted slowly over decades. There was time for people to figure them out, and for their social repercussions to percolate through society. Legislatures and courts had time to figure out rules for these technologies and how they should integrate into the existing legal structures.

They don’t always get it right—­ the sad history of copyright law in the United States is an example of how they can get it badly wrong again and again­—but at least they had a chance before the technologies become widely adopted.

That’s just not true anymore. A new technology can go from zero to a hundred million users in a year or less. That’s just too fast for the political or legal process. By the time they’re asked to make rules, these technologies are well-entrenched in society.

Second, the technologies have become more complicated and specialized. This means that the normal system of legislators passing laws, regulators making rules based on those laws and courts providing a second check on those rules fails. None of these people has the expertise necessary to understand these technologies, let alone the subtle and potentially pernicious ramifications of any rules they make.

We see the same thing between governments and law-enforcement and militaries. In the United States, we’re expecting policymakers to understand the debate between the FBI’s desire to read the encrypted e-mails and computers of crime suspects and the security researchers who maintain that giving them that capability will render everyone insecure. We’re expecting legislators to provide meaningful oversight over the National Security Agency, when they can only read highly technical documents about the agency’s activities in special rooms and without any aides who might be conversant in the issues.

The result is that we end up in situations such as the one Brazil finds itself in. WhatsApp went from zero to 100 million users in five years. The telecoms are advancing all sorts of weird legal arguments to get the service banned, and judges are ill-equipped to separate fact from fiction.

This isn’t a simple matter of needing government to get out of the way and let companies battle in the marketplace. These companies are for-profit entities, and their business models are so complicated that they regularly don’t do what’s best for their users. (For example, remember that you’re not really Facebook’s customer. You’re their product.)

The fact that people’s resumes are effectively the first 10 hits on a Google search of their name is a problem—­ something that the European “right to be forgotten” tried ham-fistedly to address. There’s a lot of smart writing that says that Uber’s disruption of traditional taxis will be worse for the people who regularly use the services. And many people worry about Amazon’s increasing dominance of the publishing industry.

We need a better way of regulating new technologies.

That’s going to require bridging the gap between technologists and policymakers. Each needs to understand the other ­—not enough to be experts in each other’s fields, but enough to engage in meaningful conversations and debates. That’s also going to require laws that are agile and written to be as technologically invariant as possible.

It’s a tall order, I know, and one that has been on the wish list of every tech policymaker for decades. But today, the stakes are higher and the issues come faster. Not doing so will become increasingly harmful for all of us.

This essay originally appeared on CNN.com.

EDITED TO ADD (12/23): Slashdot thread.

Posted on December 23, 2015 at 6:48 AM • View Comments

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Sidebar photo of Bruce Schneier by Joe MacInnis.