Entries Tagged "laws"

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Melissa Hathaway Interview

President Obama has tasked Melissa Hathaway with conducting a 60-day review of the nation’s cybersecurity policies.

Who is she?

Hathaway has been working as a cybercoordination executive for the Office of the Director of National Intelligence. She chaired a multiagency group called the National Cyber Study Group that was instrumental in developing the Comprehensive National Cyber Security Initiative, which was approved by former President George W. Bush early last year. Since then, she has been in charge of coordinating and monitoring the CNCI’s implementation.

Although, honestly, the best thing to read to get an idea of how she thinks is this interview from IEEE Security & Privacy:

In the technology field, concern to be first to market often does trump the need for security to be built in up front. Most of the nation’s infrastructure is owned, operated, and developed by the commercial sector. We depend on this sector to address the nation’s broader needs, so we’ll need a new information-sharing environment. Private-sector risk models aren’t congruent with the needs for national security. We need to think about a way to do business that meets both sets of needs. The proposed revisions to Federal Information Security Management Act [FISMA] legislation will raise awareness of vulnerabilities within broader-based commercial systems.

Increasingly, we see industry jointly addressing these vulnerabilities, such as with the Industry Consortium for Advancement of Security on the Internet to share common vulnerabilities and response mechanisms. In addition, there’s the Software Assurance Forum for Excellence in Code, an alliance of vendors who seek to improve software security. Industry is beginning to understand that [it has a] shared risk and shared responsibilities and sees the advantage of coordinating and collaborating up front during the development stage, so that we can start to address vulnerabilities from day one. We also need to look for niche partnerships to enhance product development and build trust into components. We need to understand when and how we introduce risk into the system and ask ourselves whether that risk is something we can live with.

The government is using its purchasing power to influence the market toward better security. We’re already seeing results with the Federal Desktop Core Configuration [FDCC] initiative, a mandated security configuration for federal computers set by the OMB. The Department of Commerce is working with several IT vendors on standardizing security settings for a wide variety of IT products and environments. Because a broad population of the government is using Windows XP and Vista, the FDCC imitative worked with Microsoft and others to determine security needs up front.

Posted on February 24, 2009 at 12:36 PM • View Comments

Is Megan's Law Worth It?

A study from New Jersey shows that Megan’s Law—laws designed to identity sex offenders to the communities they live in—is ineffective in reducing sex crimes or deterring recidivists.

The study, funded by the National Institute of Justice, examined the cases of 550 sex offenders who were broken into two groups—those released from prison before the passage of Megan’s Law and those released afterward.

The researchers found no statistically significant difference between the groups in whether the offenders committed new sex crimes.

Among those released before the passage of Megan’s Law, 10 percent were re-arrested on sex-crime charges. Among the other group, 7.6 percent were re-arrested for such crimes.

Similarly, the researchers found no significant difference in the number of victims of the two groups. Together, the offenders had 796 victims, ages 1 to 87. Most of the offenders had prior relationships with their new victims, and nearly half were family members. In just 16 percent of the cases, the offender was a stranger.

One complicating factor for the researchers is that sex crimes had started to decline even before the adoption of Megan’s Law, making it difficult to pinpoint cause and effect. In addition, sex offenses vary from county to county, rising and falling from year to year.

Even so, the researchers noted an “accelerated” decline in sex offenses in the years after the law’s passage.

“Although the initial decline cannot be attributed to Megan’s Law, the continued decline may, in fact, be related in some way to registration and notification activities,” the authors wrote. Elsewhere in the report, they noted that notification and increased surveillance of offenders “may have a general deterrent effect.”

Posted on February 23, 2009 at 12:28 PM • View Comments

HIPAA Accountability in Stimulus Bill

On page 379 of the current stimulus bill, there’s a bit about establishing a website of companies that lost patient information:

(4) POSTING ON HHS PUBLIC WEBSITE—The Secretary shall make available to the public on the Internet website of the Department of Health and Human Services a list that identifies each covered entity involved in a breach described in subsection (a) in which the unsecured protected health information of more than 500 individuals is acquired or disclosed.

I’m not sure if this passage survived the final bill, but it will be interesting if it is now law.

EDITED TO ADD (3/13): It’s law.

Posted on February 18, 2009 at 12:28 PM • View Comments

Man Arrested by Amtrak Police for Taking Photographs for Amtrak Photography Contest

You can’t make this stuff up. Even Stephen Colbert made fun of it.

This isn’t the first time Amtrak police have been idiots.

And in related news, in the U.K. it soon might be illegal to photograph the police.

EDITED TO ADD (2/10): The photographer’s page about the incident has been replaced with the words “No comment!” Anyone have a link to a copy? In the meantime, here’s an entry about the incident on a photo activist’s blog.

EDITED AGAIN: Thanks to Phil M. in comments for finding these Google Cache links from Duane Kerzic’s site:

Phil adds: “The main Amtrak page on his site has since been crawled, so Google now has the ‘no comment’ note cached.”

Posted on February 10, 2009 at 6:19 AM • View Comments

Making Cameras Go Click

There’s a bill in Congress—unlikely to go anywhere—to force digital cameras to go “click.” The idea is that this will make surreptitious photography harder:

The bill’s text says that Congress has found that “children and adolescents have been exploited by photographs taken in dressing rooms and public places with the use of a camera phone.”

This is so silly it defies comment.

EDITED TO ADD (2/13): Apparently this is already law in Japan.

Posted on February 3, 2009 at 6:08 AM • View Comments

Airlines Defining Anyone Disruptive as Terrorists

From the Los Angeles Times:

Freeman is one of at least 200 people on flights who have been convicted under the amended law. In most of the cases, there was no evidence that the passengers had attempted to hijack the airplane or physically attack any of the flight crew. Many have simply involved raised voices, foul language and drunken behavior.

Some security experts say the use of the law by airlines and their employees has run amok, criminalizing incidents that did not start out as a threat to public safety, much less an act of terrorism.

In one case, a couple was arrested after an argument with a flight attendant, who claimed the couple was engaged in “overt sexual activity”—an FBI affidavit said the two were “embracing, kissing and acting in a manner that made other passengers uncomfortable.”

EDITED TO ADD (2/2): Blog post showing that the article is a lot more hyperbole than fact. And commentary on the commentary.

Posted on February 2, 2009 at 6:47 AM • View Comments

The Exclusionary Rule and Security

Earlier this month, the Supreme Court ruled that evidence gathered as a result of errors in a police database is admissible in court. Their narrow decision is wrong, and will only ensure that police databases remain error-filled in the future.

The specifics of the case are simple. A computer database said there was a felony arrest warrant pending for Bennie Herring when there actually wasn’t. When the police came to arrest him, they searched his home and found illegal drugs and a gun. The Supreme Court was asked to rule whether the police had the right to arrest him for possessing those items, even though there was no legal basis for the search and arrest in the first place.

What’s at issue here is the exclusionary rule, which basically says that unconstitutionally or illegally collected evidence is inadmissible in court. It might seem like a technicality, but excluding what is called “the fruit of the poisonous tree” is a security system designed to protect us all from police abuse.

We have a number of rules limiting what the police can do: rules governing arrest, search, interrogation, detention, prosecution, and so on. And one of the ways we ensure that the police follow these rules is by forbidding the police to receive any benefit from breaking them. In fact, we design the system so that the police actually harm their own interests by breaking them, because all evidence that stems from breaking the rules is inadmissible.

And that’s what the exclusionary rule does. If the police search your home without a warrant and find drugs, they can’t arrest you for possession. Since the police have better things to do than waste their time, they have an incentive to get a warrant.

The Herring case is more complicated, because the police thought they did have a warrant. The error was not a police error, but a database error. And, in fact, Judge Roberts wrote for the majority: “The exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.”

Unfortunately, Roberts is wrong. Government databases are filled with errors. People often can’t see data about themselves, and have no way to correct the errors if they do learn of any. And more and more databases are trying to exempt themselves from the Privacy Act of 1974, and specifically the provisions that require data accuracy. The legal argument for excluding this evidence was best made by an amicus curiae brief filed by the Electronic Privacy Information Center, but in short, the court should exclude the evidence because it’s the only way to ensure police database accuracy.

We are protected from becoming a police state by limits on police power and authority. This is not a trade-off we make lightly: we deliberately hamper law enforcement’s ability to do its job because we recognize that these limits make us safer. Without the exclusionary rule, your only remedy against an illegal search is to bring legal action against the police—and that can be very difficult. We, the people, would rather have you go free than motivate the police to ignore the rules that limit their power.

By not applying the exclusionary rule in the Herring case, the Supreme Court missed an important opportunity to motivate the police to purge errors from their databases. Constitutional lawyers have written many articles about this ruling, but the most interesting idea comes from George Washington University professor Daniel J. Solove, who proposes this compromise: “If a particular database has reasonable protections and deterrents against errors, then the Fourth Amendment exclusionary rule should not apply. If not, then the exclusionary rule should apply. Such a rule would create an incentive for law enforcement officials to maintain accurate databases, to avoid all errors, and would ensure that there would be a penalty or consequence for errors.”

Increasingly, we are being judged by the trail of data we leave behind us. Increasingly, data accuracy is vital to our personal safety and security. And if errors made by police databases aren’t held to the same legal standard as errors made by policemen, then more and more innocent Americans will find themselves the victims of incorrect data.

This essay originally appeared on the Wall Street Journal website.

EDITED TO ADD (2/1): More on the assault on the exclusionary rule.

EDITED TO ADD (2/9): Here’s another recent court case involving the exclusionary rule, and a thoughtful analysis by Orin Kerr.

Posted on January 28, 2009 at 7:12 AM • View Comments

Breach Notification Laws

There are three reasons for breach notification laws. One, it’s common politeness that when you lose something of someone else’s, you tell him. The prevailing corporate attitude before the law—”They won’t notice, and if they do notice they won’t know it’s us, so we are better off keeping quiet about the whole thing”—is just wrong. Two, it provides statistics to security researchers as to how pervasive the problem really is. And three, it forces companies to improve their security.

That last point needs a bit of explanation. The problem with companies protecting your data is that it isn’t in their financial best interest to do so. That is, the companies are responsible for protecting your data, but bear none of the costs if your data is compromised. You suffer the harm, but you have no control—or even knowledge—of the company’s security practices. The idea behind such laws, and how they were sold to legislators, is that they would increase the cost—both in bad publicity and the actual notification—of security breaches, motivating companies to spend more to prevent them. In economic terms, the law reduces the externalities and forces companies to deal with the true costs of these data breaches.

So how has it worked?

Earlier this year, three researchers at the Heinz School of Public Policy and Management at Carnegie Mellon University—Sasha Romanosky, Rahul Telang and Alessandro Acquisti—tried to answer that question. They looked at reported data breaches and rates of identity theft from 2002 to 2007, comparing states with a law to states without one. If these laws had their desired effects, people in states with notification laws should experience fewer incidences of identity theft. The result: not so much. The researchers found data breach notification laws reduced identity theft by just 2 percent on average.

I think there’s a combination of things going on. Identity theft is being reported far more today than five years ago, so it’s difficult to compare identity theft rates before and after the state laws were enacted. Most identity theft occurs when someone’s home or work computer is compromised, not from theft of large corporate databases, so the effect of these laws is small. Most of the security improvements companies made didn’t make much of a difference, reducing the effect of these laws.

The laws rely on public shaming. It’s embarrassing to have to admit to a data breach, and companies should be willing to spend to avoid this PR expense. The problem is, in order for this to work well, public shaming needs the cooperation of the press. And there’s an attenuation effect going on. The first major breach after the first state disclosure law was in February 2005 in California, when ChoicePoint sold personal data on 145,000 people to criminals. The event was big news, ChoicePoint’s stock tanked, and it was shamed into improving its security.

Next, LexisNexis exposed personal data on 300,000 individuals, and then Citigroup lost data on 3.9 million. The law worked; the only reason we knew about these security breaches was because of the law. But the breaches came in increasing numbers, and in larger quantities. Data breach stories felt more like “crying wolf” and soon, data breaches were no longer news.

Today, the remaining cost is that of the direct mail campaign to notify customers, which often turns into a marketing opportunity.

I’m still a fan of these laws, if only for the first two reasons I listed. Disclosure is important, but it’s not going to solve identity theft. As I’ve written previously, the reason theft of personal information is common is that the data is valuable once stolen. The way to mitigate the risk of fraud due to impersonation is not to make personal information difficult to steal, it’s to make it difficult to use.

Disclosure laws only deal with the economic externality of data owners protecting your personal information. What we really need are laws prohibiting financial institutions from granting credit to someone using your name with only a minimum of authentication.

This is the second half of a point/counterpoint with Marcus Ranum. Marcus’s essay is here.

Posted on January 21, 2009 at 6:59 AM • View Comments

The Future of Ephemeral Conversation

When he becomes president, Barack Obama will have to give up his BlackBerry. Aides are concerned that his unofficial conversations would become part of the presidential record, subject to subpoena and eventually made public as part of the country’s historical record.

This reality of the information age might be particularly stark for the president, but it’s no less true for all of us. Conversation used to be ephemeral. Whether face-to-face or by phone, we could be reasonably sure that what we said disappeared as soon as we said it. Organized crime bosses worried about phone taps and room bugs, but that was the exception. Privacy was just assumed.

This has changed. We chat in e-mail, over SMS and IM, and on social networking websites like Facebook, MySpace, and LiveJournal. We blog and we Twitter. These conversations—with friends, lovers, colleagues, members of our cabinet—are not ephemeral; they leave their own electronic trails.

We know this intellectually, but we haven’t truly internalized it. We type on, engrossed in conversation, forgetting we’re being recorded and those recordings might come back to haunt us later.

Oliver North learned this, way back in 1987, when messages he thought he had deleted were saved by the White House PROFS system, and then subpoenaed in the Iran-Contra affair. Bill Gates learned this in 1998 when his conversational e-mails were provided to opposing counsel as part of the antitrust litigation discovery process. Mark Foley learned this in 2006 when his instant messages were saved and made public by the underage men he talked to. Paris Hilton learned this in 2005 when her cell phone account was hacked, and Sarah Palin learned it earlier this year when her Yahoo e-mail account was hacked. Someone in George W. Bush’s administration learned this, and millions of e-mails went mysteriously and conveniently missing.

Ephemeral conversation is dying.

Cardinal Richelieu famously said, :If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged.” When all our ephemeral conversations can be saved for later examination, different rules have to apply. Conversation is not the same thing as correspondence. Words uttered in haste over morning coffee, whether spoken in a coffee shop or thumbed on a Blackberry, are not official pronouncements. Discussions in a meeting, whether held in a boardroom or a chat room, are not the same as answers at a press conference. And privacy isn’t just about having something to hide; it has enormous value to democracy, liberty, and our basic humanity.

We can’t turn back technology; electronic communications are here to stay and even our voice conversations are threatened. But as technology makes our conversations less ephemeral, we need laws to step in and safeguard ephemeral conversation. We need a comprehensive data privacy law, protecting our data and communications regardless of where it is stored or how it is processed. We need laws forcing companies to keep it private and delete it as soon as it is no longer needed. Laws requiring ISPs to store e-mails and other personal communications are exactly what we don’t need.

Rules pertaining to government need to be different, because of the power differential. Subjecting the president’s communications to eventual public review increases liberty because it reduces the government’s power with respect to the people. Subjecting our communications to government review decreases liberty because it reduces our power with respect to the government. The president, as well as other members of government, need some ability to converse ephemerally—just as they’re allowed to have unrecorded meetings and phone calls—but more of their actions need to be subject to public scrutiny.

But laws can only go so far. Law or no law, when something is made public it’s too late. And many of us like having complete records of all our e-mail at our fingertips; it’s like our offline brains.

In the end, this is cultural.

The Internet is the greatest generation gap since rock and roll. We’re now witnessing one aspect of that generation gap: the younger generation chats digitally, and the older generation treats those chats as written correspondence. Until our CEOs blog, our Congressmen Twitter, and our world leaders send each other LOLcats – until we have a Presidential election where both candidates have a complete history on social networking sites from before they were teenagers– we aren’t fully an information age society.

When everyone leaves a public digital trail of their personal thoughts since birth, no one will think twice about it being there. Obama might be on the younger side of the generation gap, but the rules he’s operating under were written by the older side. It will take another generation before society’s tolerance for digital ephemera changes.

This essay previously appeared on The Wall Street Journal website (not the print newspaper), and is an update of something I wrote previously.

Posted on November 24, 2008 at 2:06 PM • View Comments

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Sidebar photo of Bruce Schneier by Joe MacInnis.