Entries Tagged "laws"

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Government Use of Hackers as an Object of Fear

Interesting article about the perception of hackers in popular culture, and how the government uses the general fear of them to push for more power:

But these more serious threats don’t seem to loom as large as hackers in the minds of those who make the laws and regulations that shape the Internet. It is the hacker—a sort of modern folk devil who personifies our anxieties about technology—who gets all the attention. The result is a set of increasingly paranoid and restrictive laws and regulations affecting our abilities to communicate freely and privately online, to use and control our own technology, and which puts users at risk for overzealous prosecutions and invasive electronic search and seizure practices. The Computer Fraud and Abuse Act, the cornerstone of domestic computer-crime legislation, is overly broad and poorly defined. Since its passage in 1986, it has created a pile of confused caselaw and overzealous prosecutions. The Departments of Defense and Homeland Security manipulate fears of techno-disasters to garner funding and support for laws and initiatives, such as the recently proposed Cyber Intelligence Sharing and Protection Act, that could have horrific implications for user rights. In order to protect our rights to free speech and privacy on the internet, we need to seriously reconsider those laws and the shadowy figure used to rationalize them.

[…]

In the effort to protect society and the state from the ravages of this imagined hacker, the US government has adopted overbroad, vaguely worded laws and regulations which severely undermine internet freedom and threaten the Internet’s role as a place of political and creative expression. In an effort to stay ahead of the wily hacker, laws like the Computer Fraud and Abuse Act (CFAA) focus on electronic conduct or actions, rather than the intent of or actual harm caused by those actions. This leads to a wide range of seemingly innocuous digital activities potentially being treated as criminal acts. Distrust for the hacker politics of Internet freedom, privacy, and access abets the development of ever-stricter copyright regimes, or laws like the proposed Cyber Intelligence Sharing and Protection Act, which if passed would have disastrous implications for personal privacy online.

Note that this was written last year, before any of the recent overzealous prosecutions.

Posted on April 8, 2013 at 6:34 AM • View Comments

What I've Been Thinking About

I’m starting to think about my next book, which will be about power and the Internet—from the perspective of security. My objective will be to describe current trends, explain where those trends are leading us, and discuss alternatives for avoiding that outcome. Many of my recent essays have touched on various facets of this, although I’m still looking for synthesis. These facets include:

  1. The relationship between the Internet and power: how the Internet affects power, and how power affects the Internet. Increasingly, those in power are using information technology to increase their power.
  2. A feudal model of security that leaves users with little control over their data or computing platforms, forcing them to trust the companies that sell the hardware, software, and systems—and allowing those companies to abuse that trust.
  3. The rise of nationalism on the Internet and a cyberwar arms race, both of which play on our fears and which are resulting in increased military involvement in our information infrastructure.
  4. Ubiquitous surveillance for both government and corporate purposes—aided by cloud computing, social networking, and Internet-enabled everything—resulting in a world without any real privacy.
  5. The four tools of Internet oppression—surveillance, censorship, propaganda, and use control—have both government and corporate uses. And these are interrelated; often building tools to fight one as the side effect of facilitating another.
  6. Ill-conceived laws and regulations on behalf of either government or corporate power, either to prop up their business models (copyright protections), fight crime (increased police access to data), or control our actions in cyberspace.
  7. The need for leaks: both whistleblowers and FOIA suits. So much of what the government does to us is shrouded in secrecy, and leaks are the only we know what’s going on. This also applies to the corporate algorithms and systems and control much of our lives.

On the one hand, we need new regimes of trust in the information age. (I wrote about the extensively in my most recent book, Liars and Outliers.) On the other hand, the risks associated with increasing technology might mean that the fear of catastrophic attack will make us unable to create those new regimes.

I believe society is headed down a dangerous path, and that we—as members of society—need to make some hard choices about what sort of world we want to live in. If we maintain our current trajectory, the future does not look good. It’s not clear if we have the social or political will to address the intertwined issues of power, security, and technology, or even have the conversations necessary to understand the decisions we need to make. Writing about topics like this is what I do best, and I hope that a book on this topic will have a positive effect on the discourse.

The working title of the book is Power.com—although that might be too similar to the book Power, Inc. for the final title.

These thoughts are still in draft, and not yet part of a coherent whole. For me, the writing process is how I understand a topic, and the shape of this book will almost certainly change substantially as I write. I’m very interested in what people think about this, especially in terms of solutions. Please pass this around to interested people, and leave comments to this blog post.

Posted on April 1, 2013 at 6:07 AM • View Comments

The Dangers of Surveillance

Interesting article, “The Dangers of Surveillance,” by Neil M. Richards, Harvard Law Review, 2013. From the abstract:

….We need a better account of the dangers of surveillance.

This article offers such an account. Drawing on law, history, literature, and the work of scholars in the emerging interdisciplinary field of “surveillance studies,” I explain what those harms are and why they matter. At the level of theory, I explain when surveillance is particularly dangerous, and when it is not. Surveillance is harmful because it can chill the exercise of our civil liberties, especially our intellectual privacy. It is also gives the watcher power over the watched, creating the the risk of a variety of other harms, such as discrimination, coercion, and the threat of selective enforcement, where critics of the government can be prosecuted or blackmailed for wrongdoing unrelated to the purpose of the surveillance.

At a practical level, I propose a set of four principles that should guide the future development of surveillance law, allowing for a more appropriate balance between the costs and benefits of government surveillance. First, we must recognize that surveillance transcends the public-private divide. Even if we are ultimately more concerned with government surveillance, any solution must grapple with the complex relationships between government and corporate watchers. Second, we must recognize that secret surveillance is illegitimate, and prohibit the creation of any domestic surveillance programs whose existence is secret. Third, we should recognize that total surveillance is illegitimate and reject the idea that it is acceptable for the government to record all Internet activity without authorization. Fourth, we must recognize that surveillance is harmful. Surveillance menaces intellectual privacy and increases the risk of blackmail, coercion, and discrimination; accordingly, we must recognize surveillance as a harm in constitutional standing doctrine.

EDITED TO ADD (4/12): Reply to the article.

Posted on March 29, 2013 at 12:25 PM • View Comments

When Technology Overtakes Security

A core, not side, effect of technology is its ability to magnify power and multiply force—for both attackers and defenders. One side creates ceramic handguns, laser-guided missiles, and new-identity theft techniques, while the other side creates anti-missile defense systems, fingerprint databases, and automatic facial recognition systems.

The problem is that it’s not balanced: Attackers generally benefit from new security technologies before defenders do. They have a first-mover advantage. They’re more nimble and adaptable than defensive institutions like police forces. They’re not limited by bureaucracy, laws, or ethics. They can evolve faster. And entropy is on their side—it’s easier to destroy something than it is to prevent, defend against, or recover from that destruction.

For the most part, though, society still wins. The bad guys simply can’t do enough damage to destroy the underlying social system. The question for us is: can society still maintain security as technology becomes more advanced?

I don’t think it can.

Because the damage attackers can cause becomes greater as technology becomes more powerful. Guns become more harmful, explosions become bigger, malware becomes more pernicious…and so on. A single attacker, or small group of attackers, can cause more destruction than ever before.

This is exactly why the whole post-9/11 weapons-of-mass-destruction debate was so overwrought: Terrorists are scary, terrorists flying airplanes into buildings are even scarier, and the thought of a terrorist with a nuclear bomb is absolutely terrifying.

As the destructive power of individual actors and fringe groups increases, so do the calls for—and society’s acceptance of—increased security.

Traditional security largely works "after the fact". We tend not to ban or restrict the objects that can do harm; instead, we punish the people who do harm with objects. There are exceptions, of course, but they’re exactly that: exceptions. This system works as long as society can tolerate the destructive effects of those objects (for example, allowing people to own baseball bats and arresting them after they use them in a riot is only viable if society can tolerate the potential for riots).

When that isn’t enough, we resort to "before-the-fact" security measures. These come in two basic varieties: general surveillance of people in an effort to stop them before they do damage, and specific interdictions in an effort to stop people from using those technologies to do damage.

But these measures work better at keeping dangerous technologies out of the hands of amateurs than at keeping them out of the hands of professionals.

And in the global interconnected world we live in, they’re not anywhere close to foolproof. Still, a climate of fear causes governments to try. Lots of technologies are already restricted: entire classes of drugs, entire classes of munitions, explosive materials, biological agents. There are age restrictions on vehicles and training restrictions on complex systems like aircraft. We’re already almost entirely living in a surveillance state, though we don’t realize it or won’t admit it to ourselves. This will only get worse as technology advances… today’s Ph.D. theses are tomorrow’s high-school science-fair projects.

Increasingly, broad prohibitions on technologies, constant ubiquitous surveillance, and Minority Report-like preemptive security will become the norm. We can debate the effectiveness of various security measures in different circumstances. But the problem isn’t that these security measures won’t work—even as they shred our freedoms and liberties—it’s that no security is perfect.

Because sooner or later, the technology will exist for a hobbyist to explode a nuclear weapon, print a lethal virus from a bio-printer, or turn our electronic infrastructure into a vehicle for large-scale murder. We’ll have the technology eventually to annihilate ourselves in great numbers, and sometime after, that technology will become cheap enough to be easy.

As it gets easier for one member of a group to destroy the entire group, and the group size gets larger, the odds of someone in the group doing it approaches certainty. Our global interconnectedness means that our group size encompasses everyone on the planet, and since government hasn’t kept up, we have to worry about the weakest-controlled member of the weakest-controlled country. Is this a fundamental limitation of technological advancement, one that could end civilization? First our fears grip us so strongly that, thinking about the short term, we willingly embrace a police state in a desperate attempt to keep us safe; then, someone goes off and destroys us anyway?

If security won’t work in the end, what is the solution?

Resilience—building systems able to survive unexpected and devastating attacks—is the best answer we have right now. We need to recognize that large-scale attacks will happen, that society can survive more than we give it credit for, and that we can design systems to survive these sorts of attacks. Calling terrorism an existential threat is ridiculous in a country where more people die each month in car crashes than died in the 9/11 terrorist attacks.

If the U.S. can survive the destruction of an entire city—witness New Orleans after Hurricane Katrina or even New York after Sandy—we need to start acting like it, and planning for it. Still, it’s hard to see how resilience buys us anything but additional time. Technology will continue to advance, and right now we don’t know how to adapt any defenses—including resilience—fast enough.

We need a more flexible and rationally reactive approach to these problems and new regimes of trust for our information-interconnected world. We’re going to have to figure this out if we want to survive, and I’m not sure how many decades we have left.

This essay originally appeared on Wired.com.

Commentary.

Posted on March 21, 2013 at 7:02 AM • View Comments

On Secrecy

Interesting law paper: “The Implausibility of Secrecy,” by Mark Fenster.

Abstract: Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events ­ among them the WikiLeaks episode, the Obama administration’s celebrated leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters ­ undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, open sources ­ each of these constitutes a path out of the government’s informational clutches. As a result, permanent, long-lasting secrecy of any sort and to any degree is costly and difficult to accomplish.

This article argues that information control is an implausible goal. It critiques some of the foundational assumptions of constitutional and statutory laws that seek to regulate information flows, in the process countering and complicating the extensive literature on secrecy, transparency, and leaks that rest on those assumptions. By focusing on the functional issues relating to government information and broadening its study beyond the much-examined phenomenon of leaks, the article catalogs and then illustrates in a series of case studies the formal and informal means by which information flows out of the state. These informal means play an especially important role in limiting both the ability of state actors to keep secrets and the extent to which formal legal doctrines can control the flow of government information. The same bureaucracy and legal regime that keep open government laws from creating a transparent state also keep the executive branch from creating a perfect informational dam. The article draws several implications from this descriptive, functional argument for legal reform and for the study of administrative and constitutional law.

Posted on March 14, 2013 at 12:19 PM • View Comments

Technologies of Surveillance

It’s a new day for the New York Police Department, with technology increasingly informing the way cops do their jobs. With innovation comes new possibilities but also new concerns.

For one, the NYPD is testing a new type of security apparatus that uses terahertz radiation to detect guns under clothing from a distance. As Police Commissioner Ray Kelly explained to the Daily News back in January, If something is obstructing the flow of that radiation—a weapon, for example—the device will highlight that object.

Ignore, for a moment, the glaring constitutional concerns, which make the stop-and-frisk debate pale in comparison: virtual strip-searching, evasion of probable cause, potential racial profiling. Organizations like the American Civil Liberties Union are all over those, even though their opposition probably won’t make a difference. We’re scared of both terrorism and crime, even as the risks decrease; and when we’re scared, we’re willing to give up all sorts of freedoms to assuage our fears. Often, the courts go along.

A more pressing question is the effectiveness of technologies that are supposed to make us safer. These include the NYPD’s Domain Awareness System, developed by Microsoft, which aims to integrate massive quantities of data to alert cops when a crime may be taking place. Other innovations are surely in the pipeline, all promising to make the city safer. But are we being sold a bill of goods?

For example, press reports make the gun-detection machine look good. We see images from the camera that pretty clearly show a gun outlined under someone’s clothing. From that, we can imagine how this technology can spot gun-toting criminals as they enter government buildings or terrorize neighborhoods. Given the right inputs, we naturally construct these stories in our heads. The technology seems like a good idea, we conclude.

The reality is that we reach these conclusions much in the same way we decide that, say, drinking Mountain Dew makes you look cool. These are, after all, the products of for-profit companies, pushed by vendors looking to make sales. As such, they’re marketed no less aggressively than soda pop and deodorant. Those images of criminals with concealed weapons were carefully created both to demonstrate maximum effectiveness and push our fear buttons. These companies deliberately craft stories of their effectiveness, both through advertising and placement on television and movies, where police are often showed using high-powered tools to catch high-value targets with minimum complication.

The truth is that many of these technologies are nowhere near as reliable as claimed. They end up costing us gazillions of dollars and open the door for significant abuse. Of course, the vendors hope that by the time we realize this, they’re too embedded in our security culture to be removed.

The current poster child for this sort of morass is the airport full-body scanner. Rushed into airports after the underwear bomber Umar Farouk Abdulmutallab nearly blew up a Northwest Airlines flight in 2009, they made us feel better, even though they don’t work very well and, ironically, wouldn’t have caught Abdulmutallab with his underwear bomb. Both the Transportation Security Administration and vendors repeatedly lied about their effectiveness, whether they stored images, and how safe they were. In January, finally, backscatter X-ray scanners were removed from airports because the company who made them couldn’t sufficiently blur the images so they didn’t show travelers naked. Now, only millimeter-wave full-body scanners remain.

Another example is closed-circuit television (CCTV) cameras. These have been marketed as a technological solution to both crime and understaffed police and security organizations. London, for example, is rife with them, and New York has plenty of its own. To many, it seems apparent that they make us safer, despite cries of Big Brother. The problem is that in study after study, researchers have concluded that they don’t.

Counterterrorist data mining and fusion centers: nowhere near as useful as those selling the technologies claimed. It’s the same with DNA testing and fingerprint technologies: both are far less accurate than most people believe. Even torture has been oversold as a security system—this time by a government instead of a company—despite decades of evidence that it doesn’t work and makes us all less safe.

It’s not that these technologies are totally useless. It’s that they’re expensive, and none of them is a panacea. Maybe there’s a use for a terahertz radar, and maybe the benefits of the technology are worth the costs. But we should not forget that there’s a profit motive at work, too.

An edited version of this essay, without links, appeared in the New York Daily News.

EDITED TO ADD (2/13): IBM’s version massive data policing system is being tested in Rio de Jeneiro.

Posted on March 5, 2013 at 6:28 AM • View Comments

Commenting on Aaron Swartz's Death

There has been an enormous amount written about the suicide of Aaron Swartz. This is primarily a collection of links, starting with those that use his death to talk about the broader issues at play: Orin Kerr, Larry Lessig, Jennifer Granick, Glenn Greenwald, Henry Farrell, danah boyd, Cory Doctorow, James Fallows, Brewster Kahle, Carl Malamud, and Mark Bernstein. Here are obituaries from the New York Times and Economist. Here are articles and essays from CNN.com, The Huffington Post, Larry Lessig, TechDirt, CNet, and Forbes, mostly about the prosecutor’s statement after the death and the problems with plea bargaining in general. Representative Zoe Lofgren is introducing a bill to prevent this from happening again.

I don’t have anything to add, but enough people have sent me their thoughts via e-mail that I thought it would be good to have a thread on this blog for conversation.

EDITED TO ADD (1/23): Groklaw’s legal analysis. Secret Service involvement.

EDITED TO ADD (1/29): Another.

EDITED TO ADD (2/28): The DoJ has admitted that Aaron Swartz’s prosecution was political.

EDITED TO ADD (3/4): This profile of Aaron Swartz is very good.

Posted on January 23, 2013 at 6:14 AM • View Comments

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Sidebar photo of Bruce Schneier by Joe MacInnis.