Entries Tagged "laws"

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The Future of Privacy

Over the past 20 years, there’s been a sea change in the battle for personal privacy.

The pervasiveness of computers has resulted in the almost constant surveillance of everyone, with profound implications for our society and our freedoms. Corporations and the police are both using this new trove of surveillance data. We as a society need to understand the technological trends and discuss their implications. If we ignore the problem and leave it to the “market,” we’ll all find that we have almost no privacy left.

Most people think of surveillance in terms of police procedure: Follow that car, watch that person, listen in on his phone conversations. This kind of surveillance still occurs. But today’s surveillance is more like the NSA’s model, recently turned against Americans: Eavesdrop on every phone call, listening for certain keywords. It’s still surveillance, but it’s wholesale surveillance.

Wholesale surveillance is a whole new world. It’s not “follow that car,” it’s “follow every car.” The National Security Agency can eavesdrop on every phone call, looking for patterns of communication or keywords that might indicate a conversation between terrorists. Many airports collect the license plates of every car in their parking lots, and can use that database to locate suspicious or abandoned cars. Several cities have stationary or car-mounted license-plate scanners that keep records of every car that passes, and save that data for later analysis.

More and more, we leave a trail of electronic footprints as we go through our daily lives. We used to walk into a bookstore, browse, and buy a book with cash. Now we visit Amazon, and all of our browsing and purchases are recorded. We used to throw a quarter in a toll booth; now EZ Pass records the date and time our car passed through the booth. Data about us are collected when we make a phone call, send an e-mail message, make a purchase with our credit card, or visit a website.

Much has been written about RFID chips and how they can be used to track people. People can also be tracked by their cell phones, their Bluetooth devices, and their WiFi-enabled computers. In some cities, video cameras capture our image hundreds of times a day.

The common thread here is computers. Computers are involved more and more in our transactions, and data are byproducts of these transactions. As computer memory becomes cheaper, more and more of these electronic footprints are being saved. And as processing becomes cheaper, more and more of it is being cross-indexed and correlated, and then used for secondary purposes.

Information about us has value. It has value to the police, but it also has value to corporations. The Justice Department wants details of Google searches, so they can look for patterns that might help find child pornographers. Google uses that same data so it can deliver context-sensitive advertising messages. The city of Baltimore uses aerial photography to surveil every house, looking for building permit violations. A national lawn-care company uses the same data to better market its services. The phone company keeps detailed call records for billing purposes; the police use them to catch bad guys.

In the dot-com bust, the customer database was often the only salable asset a company had. Companies like Experian and Acxiom are in the business of buying and reselling this sort of data, and their customers are both corporate and government.

Computers are getting smaller and cheaper every year, and these trends will continue. Here’s just one example of the digital footprints we leave:

It would take about 100 megabytes of storage to record everything the fastest typist input to his computer in a year. That’s a single flash memory chip today, and one could imagine computer manufacturers offering this as a reliability feature. Recording everything the average user does on the Internet requires more memory: 4 to 8 gigabytes a year. That’s a lot, but “record everything” is Gmail’s model, and it’s probably only a few years before ISPs offer this service.

The typical person uses 500 cell phone minutes a month; that translates to 5 gigabytes a year to save it all. My iPod can store 12 times that data. A “life recorder” you can wear on your lapel that constantly records is still a few generations off: 200 gigabytes/year for audio and 700 gigabytes/year for video. It’ll be sold as a security device, so that no one can attack you without being recorded. When that happens, will not wearing a life recorder be used as evidence that someone is up to no good, just as prosecutors today use the fact that someone left his cell phone at home as evidence that he didn’t want to be tracked?

In a sense, we’re living in a unique time in history. Identification checks are common, but they still require us to whip out our ID. Soon it’ll happen automatically, either through an RFID chip in our wallet or face-recognition from cameras. And those cameras, now visible, will shrink to the point where we won’t even see them.

We’re never going to stop the march of technology, but we can enact legislation to protect our privacy: comprehensive laws regulating what can be done with personal information about us, and more privacy protection from the police. Today, personal information about you is not yours; it’s owned by the collector. There are laws protecting specific pieces of personal data—videotape rental records, health care information—but nothing like the broad privacy protection laws you find in European countries. That’s really the only solution; leaving the market to sort this out will result in even more invasive wholesale surveillance.

Most of us are happy to give out personal information in exchange for specific services. What we object to is the surreptitious collection of personal information, and the secondary use of information once it’s collected: the buying and selling of our information behind our back.

In some ways, this tidal wave of data is the pollution problem of the information age. All information processes produce it. If we ignore the problem, it will stay around forever. And the only way to successfully deal with it is to pass laws regulating its generation, use and eventual disposal.

This essay was originally published in the Minneapolis Star-Tribune.

Posted on March 6, 2006 at 5:41 AMView Comments

Unfortunate Court Ruling Regarding Gramm-Leach-Bliley

A Federal Court Rules That A Financial Institution Has No Duty To Encrypt A Customer Database“:

In a legal decision that could have broad implications for financial institutions, a court has ruled recently that a student loan company was not negligent and did not have a duty under the Gramm-Leach-Bliley statute to encrypt a customer database on a laptop computer that fell into the wrong hands.

Basically, an employee of Brazos Higher Education Service Corporation, Inc., had customer information on a laptop computer he was using at home. The computer was stolen, and a customer sued Brazos.

The judge dismissed the lawsuit. And then he went further:

Significantly, while recognizing that Gramm-Leach-Bliley does require financial institutions to protect against unauthorized access to customer records, Judge Kyle held that the statute “does not prohibit someone from working with sensitive data on a laptop computer in a home office,” and does not require that “any nonpublic personal information stored on a laptop computer should be encrypted.”

I know nothing of the legal merits of the case, nor do I have an opinion about whether Gramm-Leach-Bliley does or does not require financial companies to encrypt personal data in its purview. But I do know that we as a society need to force companies to encrypt personal data about us. Companies won’t do it on their own—the market just doesn’t encourage this behavior—so legislation or liability are the only available mechanisms. If this law doesn’t do it, we need another one.

EDITED TO ADD (2/22): Some commentary here.

Posted on February 21, 2006 at 1:34 PMView Comments

A Model Regime of Privacy Protection

Last year I blogged about an article by Daniel J. Solove and Chris Hoofnagle titled “A Model Regime of Privacy Protection.”

The paper has been revised a few times based on comments—some of them from readers of this blog and Crypto-Gram—and the final version has been published.

Abstract:
A series of major security breaches at companies with sensitive personal information has sparked significant attention to the problems with privacy protection in the United States. Currently, the privacy protections in the United States are riddled with gaps and weak spots. Although most industrialized nations have comprehensive data protection laws, the United States has maintained a sectoral approach where certain industries are covered and others are not. In particular, emerging companies known as “commercial data brokers” have frequently slipped through the cracks of U.S. privacy law. In this article, the authors propose a Model Privacy Regime to address the problems in the privacy protection in the United States, with a particular focus on commercial data brokers. Since the United States is unlikely to shift radically from its sectoral approach to a comprehensive data protection regime, the Model Regime aims to patch up the holes in existing privacy regulation and improve and extend it. In other words, the goal of the Model Regime is to build upon the existing foundation of U.S. privacy law, not to propose an alternative foundation. The authors believe that the sectoral approach in the United States can be improved by applying the Fair Information Practices—principles that require the entities that collect personal data to extend certain rights to data subjects. The Fair Information Practices are very general principles, and they are often spoken about in a rather abstract manner. In contrast, the Model Regime demonstrates specific ways that they can be incorporated into privacy regulation in the United States.

Definitely worth reading.

Posted on February 6, 2006 at 12:21 PMView Comments

REAL ID Harder Than Legislators Thought

According to the Associated Press:

State motor vehicle officials nationwide who will have to carry out the Real ID Act say its authors grossly underestimated its logistical, technological and financial demands.

In a comprehensive survey obtained by The Associated Press and in follow-up interviews, officials cast doubt on the states’ ability to comply with the law on time and fretted that it will be a budget buster.

I’ve already written about REAL ID, including the obscene costs:

REAL ID is expensive. It’s an unfunded mandate: the federal government is forcing the states to spend their own money to comply with the act. I’ve seen estimates that the cost to the states of complying with REAL ID will be $120 million. That’s $120 million that can’t be spent on actual security.

According to the AP, I was way off:

Pennsylvania alone estimated a hit of up to $85 million. Washington state projected at least $46 million annually in the first several years.

Separately, a December report to Virginia’s governor pegged the potential price tag for that state as high as $169 million, with $63 million annually in successive years. Of the initial cost, $33 million would be just to redesign computing systems.

Remember, security is a trade-off. REAL ID is a bad idea primarily because the security gained is not worth the enormous expense.

See also the ACLU’s site on REAL ID.

Posted on January 13, 2006 at 1:23 PMView Comments

Anonymous Internet Annoying Is Illegal in the U.S.

How bizarre:

Last Thursday, President Bush signed into law a prohibition on posting annoying Web messages or sending annoying e-mail messages without disclosing your true identity.

[…]

Buried deep in the new law is Sec. 113, an innocuously titled bit called “Preventing Cyberstalking.” It rewrites existing telephone harassment law to prohibit anyone from using the Internet “without disclosing his identity and with intent to annoy.”

What does this mean for the comment section of this blog? Or any blog? Or Usenet?

More importantly, what does it mean for our society when obviously stupid laws like this get passed, and we have to rely on the police being nice enough to not enforce them?

EDITED TO ADD (1/9) Some commenters to BoingBoing clarify the legal issues. This is from an anonymous attorney:

The anonymous harassment provision ( Link ) is the old telephone-annoyance statute that has been on the books for decades. It was updated in the widely (and in many respects deservedly) ridiculed Communications Decency Act to include new technologies, and the cases make clear its applicability to Internet communications. See, e.g., ACLU v. Reno, 929 F. Supp. 824, 829 n.5 (E.D. Pa. 1996) (text here), aff’d, 521 U.S. 824 (1997). Unlike the indecency provisions of the CDA, this scope update was not invalidated in the courts and remains fully effective.

In other words, the latest amendment, which supposedly adds Internet communications devices to the scope of the law, is meaningless surplusage.

Posted on January 9, 2006 at 2:38 PMView Comments

Wisconsin Voting Machines

Here’s an impressive piece of common sense:

Among the 15 bills governor Jim Doyle signed into law on Wednesday will require the software of touch-screen voting machines used in elections to be open-source.

Municipalities that use electronic voting machines are responsible for providing to the public, on request, the code used.

Any voting machines to be used in the state already had to pass State Elections Board tests. Electronic voting machines, in particular, already were required to maintain their results tallies even if the power goes out, and to produce paper ballots that could be used in case of a recount. The new law also requires the paper ballots to be presented to voters for verification before being stored.

I wrote about electronic voting here (2004), here (2003), and here (2000).

Posted on January 6, 2006 at 7:15 AMView Comments

Project Shamrock

Decades before 9/11, and the subsequent Bush order that directed the NSA to eavesdrop on every phone call, e-mail message, and who-knows-what-else going into or out of the United States, U.S. citizens included, they did the same thing with telegrams. It was called Project Shamrock, and anyone who thinks this is new legal and technological terrain should read up on that program.

Project SHAMROCK…was an espionage exercise that involved the accumulation of all telegraphic data entering into or exiting from the United States. The Armed Forces Security Agency (AFSA) and its successor NSA were given direct access to daily microfilm copies of all incoming, outgoing, and transiting telegraphs via the Western Union and its associates RCA and ITT. Operation Shamrock lasted well into the 1960s when computerized operations (HARVEST) made it possible to search for keywords rather than read through all communications.

Project SHAMROCK became so successful that in 1966 the NSA and CIA set up a front company in lower Manhattan (where the offices of the telegraph companies were located) under the codename LPMEDLEY. At the height of Project SHAMROCK, 150,000 messages a month were printed and analyzed by NSA agents. In May 1975 however, congressional critics began to investigate and expose the program. As a result, NSA director Lew Allen terminated it. The testimony of both the representatives from the cable companies and of director Allen at the hearings prompted Senate Intelligence Committee chairman Sen. Frank Church to conclude that Project SHAMROCK was “probably the largest government interception program affecting Americans ever undertaken.”

If you want details, the best place is James Banford’s books about the NSA: his 1982 book, The Puzzle Palace, and his 2001 book, Body of Secrets. This quote is from the latter book, page 440:

Among the reforms to come out of the Church Committee investigation was the creation of the Foreign Intelligence Surveillance Act (FISA), which for the first time outlined what NSA was and was not permitted to do. The new statute outlawed wholesale, warrantless acquisition of raw telegrams such as had been provided under Shamrock. It also outlawed the arbitrary compilation of watch list containing the names of Americans. Under FISA, a secret federal court was set up, the Foreign Intelligence Surveillance Court. In order for NSA to target an American citizen or a permanent resident alien—a “green card” holder—within the United States, a secret warrant must be obtained from the court. To get the warrant, NSA officials must show that the person they wish to target is either an agent of a foreign power or involved in espionage or terrorism.

A lot of people are trying to say that it’s a different world today, and that eavesdropping on a massive scale is not covered under the FISA statute, because it just wasn’t possible or anticipated back then. That’s a lie. Project Shamrock began in the 1950s, and ran for about twenty years. It too had a massive program to eavesdrop on all international telegram communications, including communications to and from American citizens. It too was to counter a terrorist threat inside the United States. It too was secret, and illegal. It is exactly, by name, the sort of program that the FISA process was supposed to get under control.

Twenty years ago, Senator Frank Church warned of the dangers of letting the NSA get involved in domestic intelligence gathering. He said that the “potential to violate the privacy of Americans is unmatched by any other intelligence agency.” If the resources of the NSA were ever used domestically, “no American would have any privacy left…. There would be no place to hide…. We must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is an abyss from which there is no return.”

Bush’s eavesdropping program was explicitly anticipated in 1978, and made illegal by FISA. There might not have been fax machines, or e-mail, or the Internet, but the NSA did the exact same thing with telegrams.

We can decide as a society that we need to revisit FISA. We can debate the relative merits of police-state surveillance tactics and counterterrorism. We can discuss the prohibitions against spying on American citizens without a warrant, crossing over that abyss that Church warned us about twenty years ago. But the president can’t simply decide that the law doesn’t apply to him.

This issue is not about terrorism. It’s not about intelligence gathering. It’s about the executive branch of the United States ignoring a law, passed by the legislative branch and signed by President Jimmy Carter: a law that directs the judicial branch to monitor eavesdropping on Americans in national security investigations.

It’s not the spying, it’s the illegality.

Posted on December 29, 2005 at 8:40 AMView Comments

Are Computer-Security Export Controls Back?

I thought U.S. export regulations were finally over and done with, at least for software. Maybe not:

Unfortunately, due to strict US Government export regulations Symantec is only able to fulfill new LC5 orders or offer technical support directly with end-users located in the United States and commercial entities in Canada, provided all screening is successful.

Commodities, technology or software is subject to U.S. Dept. of Commerce, Bureau of Industry and Security control if exported or electronically transferred outside of the USA. Commodities, technology or software are controlled under ECCN 5A002.c.1, cryptanalytic.

You can also access further information on our web site at the following address: http://www.symantec.com/region/reg_eu/techsupp/enterprise/index.html

The software in question is the password breaking and auditing tool called LC5, better known as L0phtCrack.

Anyone have any ideas what’s going on, because I sure don’t.

Posted on December 28, 2005 at 7:08 AMView Comments

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Sidebar photo of Bruce Schneier by Joe MacInnis.