Entries Tagged "laws"

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Hidden Anti-Cryptography Provisions in Internet Anti-Trust Bills

Two bills attempting to reduce the power of Internet monopolies are currently being debated in Congress: S. 2992, the American Innovation and Choice Online Act; and S. 2710, the Open App Markets Act. Reducing the power to tech monopolies would do more to “fix” the Internet than any other single action, and I am generally in favor of them both. (The Center for American Progress wrote a good summary and evaluation of them. I have written in support of the bill that would force Google and Apple to give up their monopolies on their phone app stores.)

There is a significant problem, though. Both bills have provisions that could be used to break end-to-end encryption.

Let’s start with S. 2992. Sec. 3(c)(7)(A)(iii) would allow a company to deny access to apps installed by users, where those app makers “have been identified [by the Federal Government] as national security, intelligence, or law enforcement risks.” That language is far too broad. It would allow Apple to deny access to an encryption service provider that provides encrypted cloud backups to the cloud (which Apple does not currently offer). All Apple would need to do is point to any number of FBI materials decrying the security risks with “warrant proof encryption.”

Sec. 3(c)(7)(A)(vi) states that there shall be no liability for a platform “solely” because it offers “end-to-end encryption.” This language is too narrow. The word “solely” suggests that offering end-to-end encryption could be a factor in determining liability, provided that it is not the only reason. This is very similar to one of the problems with the encryption carve-out in the EARN IT Act. The section also doesn’t mention any other important privacy-protective features and policies, which also shouldn’t be the basis for creating liability for a covered platform under Sec. 3(a).

In Sec. 2(a)(2), the definition of business user excludes any person who “is a clear national security risk.” This term is undefined, and as such far too broad. It can easily be interpreted to cover any company that offers an end-to-end encrypted alternative, or a service offered in a country whose privacy laws forbid disclosing data in response to US court-ordered surveillance. Again, the FBI’s repeated statements about end-to-end encryption could serve as support.

Finally, under Sec. 3(b)(2)(B), platforms have an affirmative defense for conduct that would otherwise violate the Act if they do so in order to “protect safety, user privacy, the security of nonpublic data, or the security of the covered platform.” This language is too vague, and could be used to deny users the ability to use competing services that offer better security/privacy than the incumbent platform—particularly where the platform offers subpar security in the name of “public safety.” For example, today Apple only offers unencrypted iCloud backups, which it can then turn over governments who claim this is necessary for “public safety.” Apple can raise this defense to justify its blocking third-party services from offering competing, end-to-end encrypted backups of iMessage and other sensitive data stored on an iPhone.

S. 2710 has similar problems. Sec 7. (6)(B) contains language specifying that the bill does not “require a covered company to interoperate or share data with persons or business users that…have been identified by the Federal Government as national security, intelligence, or law enforcement risks.” This would mean that Apple could ignore the prohibition against private APIs, and deny access to otherwise private APIs, for developers of encryption products that have been publicly identified by the FBI. That is, end-to-end encryption products.

I want those bills to pass, but I want those provisions cleared up so we don’t lose strong end-to-end encryption in our attempt to reign in the tech monopolies.

EDITED TO ADD (6/23): A few DC insiders have responded to me about this post. Their basic point is this: “Your threat model is wrong. The big tech companies can already break end-to-end encryption if they want. They don’t need any help, and this bill doesn’t give the FBI any new leverage they don’t already have. This bill doesn’t make anything any worse than it is today.” That’s a reasonable response. These bills are definitely a net positive for humanity.

Posted on June 21, 2022 at 6:34 AMView Comments

Smartphones and Civilians in Wartime

Interesting article about civilians using smartphones to assist their militaries in wartime, and how that blurs the important legal distinction between combatants and non-combatants:

The principle of distinction between the two roles is a critical cornerstone of international humanitarian law­—the law of armed conflict, codified by decades of customs and laws such as the Geneva Conventions. Those considered civilians and civilian targets are not to be attacked by military forces; as they are not combatants, they should be spared. At the same time, they also should not act as combatants—­if they do, they may lose this status.

The conundrum, then, is how to classify a civilian who, with the use of their smartphone, potentially becomes an active participant in a military sensor system. (To be clear, solely having the app installed is not sufficient to lose the protected status. What matters is actual usage.) The Additional Protocol I to Geneva Conventions states that civilians enjoy protection from the “dangers arising from military operations unless and for such time as they take a direct part in hostilities.” Legally, if civilians engage in military activity, such as taking part in hostilities by using weapons, they forfeit their protected status, “for such time as they take a direct part in hostilities” that “affect[s] the military operations,” according to the International Committee of the Red Cross, the traditional impartial custodian of International Humanitarian Law. This is the case even if the people in question are not formally members of the armed forces. By losing the status of a civilian, one may become a legitimate military objective, carrying the risk of being directly attacked by military forces.

Posted on June 9, 2022 at 6:22 AMView Comments

US Critical Infrastructure Companies Will Have to Report When They Are Hacked

This will be law soon:

Companies critical to U.S. national interests will now have to report when they’re hacked or they pay ransomware, according to new rules approved by Congress.

[…]

The reporting requirement legislation was approved by the House and the Senate on Thursday and is expected to be signed into law by President Joe Biden soon. It requires any entity that’s considered part of the nation’s critical infrastructure, which includes the finance, transportation and energy sectors, to report any “substantial cyber incident” to the government within three days and any ransomware payment made within 24 hours.

Even better would be if they had to report it to the public.

Posted on March 15, 2022 at 6:01 AMView Comments

Me on App Store Monopolies and Security

There are two bills working their way through Congress that would force companies like Apple to allow competitive app stores. Apple hates this, since it would break its monopoly, and it’s making a variety of security arguments to bolster its argument. I have written a rebuttal:

I would like to address some of the unfounded security concerns raised about these bills. It’s simply not true that this legislation puts user privacy and security at risk. In fact, it’s fairer to say that this legislation puts those companies’ extractive business-models at risk. Their claims about risks to privacy and security are both false and disingenuous, and motivated by their own self-interest and not the public interest. App store monopolies cannot protect users from every risk, and they frequently prevent the distribution of important tools that actually enhance security. Furthermore, the alleged risks of third-party app stores and “side-loading” apps pale in comparison to their benefits. These bills will encourage competition, prevent monopolist extortion, and guarantee users a new right to digital self-determination.

Matt Stoller has also written about this.

EDITED TO ADD (2/13): Here are the two bills.

Posted on February 1, 2022 at 2:26 PMView Comments

The Problem with Treating Data as a Commodity

Excellent Brookings paper: “Why data ownership is the wrong approach to protecting privacy.”

From the introduction:

Treating data like it is property fails to recognize either the value that varieties of personal information serve or the abiding interest that individuals have in their personal information even if they choose to “sell” it. Data is not a commodity. It is information. Any system of information rights­—whether patents, copyrights, and other intellectual property, or privacy rights—­presents some tension with strong interest in the free flow of information that is reflected by the First Amendment. Our personal information is in demand precisely because it has value to others and to society across a myriad of uses.

From the conclusion:

Privacy legislation should empower individuals through more layered and meaningful transparency and individual rights to know, correct, and delete personal information in databases held by others. But relying entirely on individual control will not do enough to change a system that is failing individuals, and trying to reinforce control with a property interest is likely to fail society as well. Rather than trying to resolve whether personal information belongs to individuals or to the companies that collect it, a baseline federal privacy law should directly protect the abiding interest that individuals have in that information and also enable the social benefits that flow from sharing information.

Posted on February 26, 2021 at 6:28 AMView Comments

Presidential Cybersecurity and Pelotons

President Biden wants his Peloton in the White House. For those who have missed the hype, it’s an Internet-connected stationary bicycle. It has a screen, a camera, and a microphone. You can take live classes online, work out with your friends, or join the exercise social network. And all of that is a security risk, especially if you are the president of the United States.

Any computer brings with it the risk of hacking. This is true of our computers and phones, and it’s also true about all of the Internet-of-Things devices that are increasingly part of our lives. These large and small appliances, cars, medical devices, toys and—yes—exercise machines are all computers at their core, and they’re all just as vulnerable. Presidents face special risks when it comes to the IoT, but Biden has the NSA to help him handle them.

Not everyone is so lucky, and the rest of us need something more structural.

US presidents have long tussled with their security advisers over tech. The NSA often customizes devices, but that means eliminating features. In 2010, President Barack Obama complained that his presidential BlackBerry device was “no fun” because only ten people were allowed to contact him on it. In 2013, security prevented him from getting an iPhone. When he finally got an upgrade to his BlackBerry in 2016, he complained that his new “secure” phone couldn’t take pictures, send texts, or play music. His “hardened” iPad to read daily intelligence briefings was presumably similarly handicapped. We don’t know what the NSA did to these devices, but they certainly modified the software and physically removed the cameras and microphones—and possibly the wireless Internet connection.

President Donald Trump resisted efforts to secure his phones. We don’t know the details, only that they were regularly replaced, with the government effectively treating them as burner phones.

The risks are serious. We know that the Russians and the Chinese were eavesdropping on Trump’s phones. Hackers can remotely turn on microphones and cameras, listening in on conversations. They can grab copies of any documents on the device. They can also use those devices to further infiltrate government networks, maybe even jumping onto classified networks that the devices connect to. If the devices have physical capabilities, those can be hacked as well. In 2007, the wireless features of Vice President Richard B. Cheney’s pacemaker were disabled out of fears that it could be hacked to assassinate him. In 1999, the NSA banned Furbies from its offices, mistakenly believing that they could listen and learn.

Physically removing features and components works, but the results are increasingly unacceptable. The NSA could take Biden’s Peloton and rip out the camera, microphone, and Internet connection, and that would make it secure—but then it would just be a normal (albeit expensive) stationary bike. Maybe Biden wouldn’t accept that, and he’d demand that the NSA do even more work to customize and secure the Peloton part of the bicycle. Maybe Biden’s security agents could isolate his Peloton in a specially shielded room where it couldn’t infect other computers, and warn him not to discuss national security in its presence.

This might work, but it certainly doesn’t scale. As president, Biden can direct substantial resources to solving his cybersecurity problems. The real issue is what everyone else should do. The president of the United States is a singular espionage target, but so are members of his staff and other administration officials.

Members of Congress are targets, as are governors and mayors, police officers and judges, CEOs and directors of human rights organizations, nuclear power plant operators, and election officials. All of these people have smartphones, tablets, and laptops. Many have Internet-connected cars and appliances, vacuums, bikes, and doorbells. Every one of those devices is a potential security risk, and all of those people are potential national security targets. But none of those people will get their Internet-connected devices customized by the NSA.

That is the real cybersecurity issue. Internet connectivity brings with it features we like. In our cars, it means real-time navigation, entertainment options, automatic diagnostics, and more. In a Peloton, it means everything that makes it more than a stationary bike. In a pacemaker, it means continuous monitoring by your doctor—and possibly your life saved as a result. In an iPhone or iPad, it means…well, everything. We can search for older, non-networked versions of some of these devices, or the NSA can disable connectivity for the privileged few of us. But the result is the same: in Obama’s words, “no fun.”

And unconnected options are increasingly hard to find. In 2016, I tried to find a new car that didn’t come with Internet connectivity, but I had to give up: there were no options to omit that in the class of car I wanted. Similarly, it’s getting harder to find major appliances without a wireless connection. As the price of connectivity continues to drop, more and more things will only be available Internet-enabled.

Internet security is national security—not because the president is personally vulnerable but because we are all part of a single network. Depending on who we are and what we do, we will make different trade-offs between security and fun. But we all deserve better options.

Regulations that force manufacturers to provide better security for all of us are the only way to do that. We need minimum security standards for computers of all kinds. We need transparency laws that give all of us, from the president on down, sufficient information to make our own security trade-offs. And we need liability laws that hold companies liable when they misrepresent the security of their products and services.

I’m not worried about Biden. He and his staff will figure out how to balance his exercise needs with the national security needs of the country. Sometimes the solutions are weirdly customized, such as the anti-eavesdropping tent that Obama used while traveling. I am much more worried about the political activists, journalists, human rights workers, and oppressed minorities around the world who don’t have the money or expertise to secure their technology, or the information that would give them the ability to make informed decisions on which technologies to choose.

This essay previously appeared in the Washington Post.

Posted on February 5, 2021 at 5:58 AMView Comments

Another California Data Privacy Law

The California Consumer Privacy Act is a lesson in missed opportunities. It was passed in haste, to stop a ballot initiative that would have been even more restrictive:

In September 2017, Alastair Mactaggart and Mary Ross proposed a statewide ballot initiative entitled the “California Consumer Privacy Act.” Ballot initiatives are a process under California law in which private citizens can propose legislation directly to voters, and pursuant to which such legislation can be enacted through voter approval without any action by the state legislature or the governor. While the proposed privacy initiative was initially met with significant opposition, particularly from large technology companies, some of that opposition faded in the wake of the Cambridge Analytica scandal and Mark Zuckerberg’s April 2018 testimony before Congress. By May 2018, the initiative appeared to have garnered sufficient support to appear on the November 2018 ballot. On June 21, 2018, the sponsors of the ballot initiative and state legislators then struck a deal: in exchange for withdrawing the initiative, the state legislature would pass an agreed version of the California Consumer Privacy Act. The initiative was withdrawn, and the state legislature passed (and the Governor signed) the CCPA on June 28, 2018.

Since then, it was substantially amended—that is, watered down—at the request of various surveillance capitalism companies. Enforcement was supposed to start this year, but we haven’t seen much yet.

And we could have had that ballot initiative.

It looks like Alastair Mactaggart and others are back.

Advocacy group Californians for Consumer Privacy, which started the push for a state-wide data privacy law, announced this week that it has the signatures it needs to get version 2.0 of its privacy rules on the US state’s ballot in November, and submitted its proposal to Sacramento.

This time the goal is to tighten up the rules that its previously ballot measure managed to get into law, despite the determined efforts of internet giants like Google and Facebook to kill it. In return for the legislation being passed, that ballot measure was dropped. Now, it looks like the campaigners are taking their fight to a people’s vote after all.

[…]

The new proposal would add more rights, including the use and sale of sensitive personal information, such as health and financial information, racial or ethnic origin, and precise geolocation. It would also triples existing fines for companies caught breaking the rules surrounding data on children (under 16s) and would require an opt-in to even collect such data.

The proposal would also give Californians the right to know when their information is used to make fundamental decisions about them, such as getting credit or employment offers. And it would require political organizations to divulge when they use similar data for campaigns.

And just to push the tech giants from fury into full-blown meltdown the new ballot measure would require any amendments to the law to require a majority vote in the legislature, effectively stripping their vast lobbying powers and cutting off the multitude of different ways the measures and its enforcement can be watered down within the political process.

I don’t know why they accepted the compromise in the first place. It was obvious that the legislative process would be hijacked by the powerful tech companies. I support getting this onto the ballot this year.

EDITED TO ADD(5/17): It looks like this new ballot initiative isn’t going to be an improvement.

Posted on May 11, 2020 at 10:58 AMView Comments

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Sidebar photo of Bruce Schneier by Joe MacInnis.