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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

Friday Squid Blogging: Preserving Giant Squid

At the Smithsonian:

At the centerof the Smithsonian Institution’s National Museum of Natural History’s gleaming new Sant Ocean Hall lies a preserved giant female squid—the arresting, spineless star among the vibrant exhibition’s animal specimens. Tentacles menacingly outstretched and seemingly frozen in time, the 24-foot squid embodies humans’ fascination with the briny deep. But this squid also symbolizes something else: an ongoing experiment in the chemistry of preservation, without which the Smithsonian’s new exhibition would not have been possible.

Also note the terrorism tie-in:

To create the exhibit, the Smithsonian had to work around post-9/11 rules restricting flammable materials, while maximizing the lifelike appearance of the squid for public display. They turned not to formalin or ethanol, but to a new fluorinated chemical called Novec, developed by 3M.

If we give up our preserved giant squids, then surely the terrorists have won.

Posted on November 21, 2008 at 4:20 PM • View Comments

RIAA Lawsuits May Be Unconstitutional

Harvard law professor Charles Nesson is arguing, in court, that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is unconstitutional:

He makes the argument that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is very much unconstitutional, in that its hefty fines for copyright infringement (misleadingly called “theft” in the title of the bill) show that the bill is effectively a criminal statute, yet for a civil crime. That’s because it really focuses on punitive damages, rather than making private parties whole again. Even worse, it puts the act of enforcing the criminal statute in the hands of a private body (the RIAA) who uses it for profit motive in being able to get hefty fines.

Imagine a statute which, in the name of deterrence, provides for a $750 fine for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew he or she was speeding. Imagine that the fines are not publicized, and most drivers do not know they exist. Imagine that enforcement of the fines is put in the hands of a private, self-interested police force, that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body.

Another news story.

Posted on November 19, 2008 at 1:33 PM • View Comments

Anti-Terror Law Mission Creep in the U.K.

First terrorists, then trash cans:

More than half of town halls admit using anti-terror laws to spy on families suspected of putting their rubbish out on the wrong day.

Their tactics include putting secret cameras in tin cans, on lamp posts and even in the homes of ‘friendly’ residents.

The local authorities admitted that one of their main aims was to catch householders who put their bins out early.

EDITED TO ADD (11/13): A better article on the subject.

Posted on November 7, 2008 at 8:18 AM • View Comments

The Ill Effects of Banning Security Research

The Indian police are having trouble with SIM card cloning:

Police had no idea that one SIM card could be used simultaneously from two handsets before the detention of Nazir Ahmed for interrogation. Nazir was picked up from Morigaon after an SMS from his mobile number in the name of ISF-IM claimed responsibility for Thursday’s blasts in Assam.

Nazir had a Reliance connection and an Eve handset. Each handset of this particular model has a unique International Mobile Equipment Identity (IMEI) number. Cops found that two IMEI numbers were using the same SIM. Accordingly there were two record sheets of calls and SMSes from Nazir’s mobile number. The record of the SMS to the media was found in only one sheet, which forced police to believe that Nazir’s SIM might have been cloned and someone else was using the duplicate card, with or without the owner’s knowledge.

“We stumbled upon this technological surprise that Nazir Ahmed’s SIM card was used in two handsets,” Assam IG (Law and Order) Bhaskarjyoti Mahanta said.

So far, not that interesting. There are lots of vulnerabilities in technological systems, and it’s generally a race between the good guys and the bad guys to see who finds them first. It’s the last sentence of this article that’s significant:

The experts said no one has actually done any research on SIM card cloning because the activity is illegal in the country.

If the good guys can’t even participate, the bad guys will always win.

Posted on November 6, 2008 at 6:26 AM • View Comments

U.S. Court Rules that Hashing = Searching

Really interesting post by Orin Kerr on whether, by taking hash values of someone’s hard drive, the police conducted a “search”:

District Court Holds that Running Hash Values on Computer Is A Search: The case is United States v. Crist, 2008 WL 4682806 (M.D.Pa. October 22 2008) (Kane, C.J.). It’s a child pornography case involving a warrantless search that raises a very interesting and important question of first impression: Is running a hash a Fourth Amendment search? (For background on what a “hash” is and why it matters, see here).

First, the facts. Crist is behind on his rent payments, and his landlord starts to evict him by hiring Sell to remove Crist’s belongings and throw them away. Sell comes across Crist’s computer, and he hands over the computer to his friend Hipple who he knows is looking for a computer. Hipple starts to look through the files, and he comes across child pornography: Hipple freaks out and calls the police. The police then conduct a warrantless forensic examination of the computer:

In the forensic examination, Agent Buckwash used the following procedure. First, Agent Buckwash created an “MD5 hash value” of Crist’s hard drive. An MD5 hash value is a unique alphanumeric representation of the data, a sort of “fingerprint” or “digital DNA.” When creating the hash value, Agent Buckwash used a “software write protect” in order to ensure that “nothing can be written to that hard drive.” Supp. Tr. 88. Next, he ran a virus scan, during which he identified three relatively innocuous viruses. After that, he created an “image,” or exact copy, of all the data on Crist’s hard drive.

Agent Buckwash then opened up the image (not the actual hard drive) in a software program called EnCase, which is the principal tool in the analysis. He explained that EnCase does not access the hard drive in the traditional manner, i.e., through the computer’s operating system. Rather, EnCase “reads the hard drive itself.” Supp. Tr. 102. In other words, it reads every file-bit by bit, cluster by cluster-and creates a index of the files contained on the hard drive. EnCase can, therefore, bypass user-defined passwords, “break down complex file structures for examination,” and recover “deleted” files as long as those files have not been written over. Supp. Tr. 102-03.

Once in EnCase, Agent Buckwash ran a “hash value and signature analysis on all of the files on the hard drive.” Supp. Tr. 89. In doing so, he was able to “ingerprint” each file in the computer. Once he generated hash values of the files, he compared those hash values to the hash values of files that are known or suspected to contain child pornography. Agent Buckwash discovered five videos containing known child pornography. Attachment 5. He discovered 171 videos containing suspected child pornography.

One of the interesting questions here is whether the search that resulted was within the scope of Hipple’s private search; different courts have approached this question differently. But for now the most interesting question is whether running the hash was a Fourth Amendment search. The Court concluded that it was, and that the evidence of child pornography discovered had to be suppressed:

The Government argues that no search occurred in running the EnCase program because the agents “didn’t look at any files, they simply accessed the computer.” 2d Supp. Tr. 16. The Court rejects this view and finds that the “running of hash values” is a search protected by the Fourth Amendment.

Computers are composed of many compartments, among them a “hard drive,” which in turn is composed of many “platters,” or disks. To derive the hash values of Crist’s computer, the Government physically removed the hard drive from the computer, created a duplicate image of the hard drive without physically invading it, and applied the EnCase program to each compartment, disk, file, folder, and bit.2d Supp. Tr. 18-19. By subjecting the entire computer to a hash value analysis-every file, internet history, picture, and “buddy list” became available for Government review. Such examination constitutes a search.

I think this is generally a correct result: See my article Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005), for the details. Still, given the lack of analysis here it’s somewhat hard to know what to make of the decision. Which stage was the search—the creating the duplicate? The running of the hash? It’s not really clear. I don’t think it matters very much to this case, because the agent who got the positive hit on the hashes didn’t then get a warrant. Instead, he immediately switched over to the EnCase “gallery view” function to see the images, which seems to be to be undoudtedly a search. Still, it’s a really interesting question.

Posted on November 5, 2008 at 8:28 AM • View Comments

Terrorist Fear Mongering Seems to be Working Less Well, Part II

Last week I wrote about a story that indicated that terrorist fear mongering is working less well. Here’s another story, this one from Canada: two pipeline bombings in Northern British Columbia:

Investigators are treating the explosions as acts of vandalism, not terrorism, Shields said.

“Under the Criminal Code, it would be characterized as mischief, which is an intentional vandalism. We don’t want to characterize this as terrorism. They were very isolated locations and there would seem there was no intent to hurt people,” he said.

It’s not all good, though. Here’s a story from Philadelphia, where a subway car is criticized because people can see out the front. Because, um, because terrorist will be able to see out the front, and we all know how dangerous terrorists are:

Marcus Ruef, a national vice president with the Brotherhood of Locomotive Engineers and Trainmen, compared a train cab to an airliner cockpit and said a cab should be similarly secure. He invoked post-9/11 security concerns as a reason to provide a full cab that prevents passengers from seeing the rails and signals ahead.

“We don’t think the forward view of the right-of-way should be available to whoever wants to watch … and the conductor and the engineer should be able to talk privately,” Ruef said.

Pat Nowakowski, SEPTA chief of operations, said the smaller cabs pose no security risk. “I have never heard that from a security expert,” he said.

At least there was pushback against that kind of idiocy.

And from the UK:

Transport Secretary Geoff Hoon has said the government is prepared to go “quite a long way” with civil liberties to “stop terrorists killing people”.

He was responding to criticism of plans for a database of mobile and web records, saying it was needed because terrorists used such communications.

By not monitoring this traffic, it would be “giving a licence to terrorists to kill people”, he said.

I hope there will be similar pushback against this “choice.”

EDITED TO ADD (11/13): Seems like the Philadelphia engineers have another agenda—the cabs in the new trains are too small—and they’re just using security as an excuse.

Posted on October 22, 2008 at 6:44 AM • View Comments

"Scareware" Vendors Sued

This is good:

Microsoft Corp. and the state of Washington this week filed lawsuits against a slew of “scareware” purveyors, scam artists who use fake security alerts to frighten consumers into paying for worthless computer security software.

The case filed by the Washington attorney general’s office names Texas-based Branch Software and its owner James Reed McCreary IV, alleging that McCreary’s company caused targeted PCs to pop up misleading security alerts about security threats on the victims’ computers. The alerts warned users that their systems were “damaged and corrupted” and instructed them to visit a Web site to purchase a copy of Registry Cleaner XP for $39.95.

I would have thought that existing scam laws would be enough, but Washington state actually has a specific law about this sort of thing:

The lawsuits were filed under Washington’s Computer Spyware Act, which among other things punishes individuals who prey on user concerns regarding spyware or other threats. Specifically, the law makes it illegal to misrepresent the extent to which software is required for computer security or privacy, and it provides actual damages or statutory damages of $100,000 per violation, whichever is greater.

Posted on October 2, 2008 at 7:03 AM • View Comments

Hand Grenades as Weapons of Mass Destruction

I get that this is terrorism:

A 24-year-old convert to Islam has been sentenced to 35 years in prison for plotting to set off hand grenades in a crowded shopping mall during the Christmas season.

But I thought “weapons of mass destruction” was reserved for nuclear, chemical, and biological weapons.

He was arrested in 2006 on charges of scheming to use weapons of mass destruction at the Cherryvale Mall in the northern Illinois city of Rockford.

Like the continuing cheapening of the word “terrorism,” we are now cheapening the term “weapons of mass destruction.”

Edited: The link above now leads to a revised story that doesn’t use the term “weapons of mass destruction.” A version that does can still be found here.

Posted on October 1, 2008 at 6:37 AM • View Comments

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