Entries Tagged "laws"

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The Death of Ephemeral Conversation

The political firestorm over former U.S. Rep. Mark Foley’s salacious instant messages hides another issue, one about privacy. We are rapidly turning into a society where our intimate conversations can be saved and made public later. This represents an enormous loss of freedom and liberty, and the only way to solve the problem is through legislation.

Everyday 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. Of course, organized crime bosses worried about phone taps and room bugs, but that was the exception. Privacy was the default assumption.

This has changed. We now type our casual conversations. We chat in e-mail, with instant messages on our computer and SMS messages on our cellphones, and in comments on social networking Web sites like Friendster, LiveJournal, and MySpace. These conversations—with friends, lovers, colleagues, fellow employees—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 that we’re being recorded.

Foley’s instant messages were saved by the young men he talked to, but they could have also been saved by the instant messaging service. There are tools that allow both businesses and government agencies to monitor and log IM conversations. E-mail can be saved by your ISP or by the IT department in your corporation. Gmail, for example, saves everything, even if you delete it.

And these conversations can come back to haunt people—in criminal prosecutions, divorce proceedings or simply as embarrassing disclosures. During the 1998 Microsoft anti-trust trial, the prosecution pored over masses of e-mail, looking for a smoking gun. Of course they found things; everyone says things in conversation that, taken out of context, can prove anything.

The moral is clear: If you type it and send it, prepare to explain it in public later.

And voice is no longer a refuge. Face-to-face conversations are still safe, but we know that the National Security Agency is monitoring everyone’s international phone calls. (They said nothing about SMS messages, but one can assume they were monitoring those too.) Routine recording of phone conversations is still rare—certainly the NSA has the capability—but will become more common as telephone calls continue migrating to the IP network.

If you find this disturbing, you should. Fewer conversations are ephemeral, and we’re losing control over the data. We trust our ISPs, employers and cellphone companies with our privacy, but again and again they’ve proven they can’t be trusted. Identity thieves routinely gain access to these repositories of our information. Paris Hilton and other celebrities have been the victims of hackers breaking into their cellphone providers’ networks. Google reads our Gmail and inserts context-dependent ads.

Even worse, normal constitutional protections don’t apply to much of this. The police need a court-issued warrant to search our papers or eavesdrop on our communications, but can simply issue a subpoena—or ask nicely or threateningly—for data of ours that is held by a third party, including stored copies of our communications.

The Justice Department wants to make this problem even worse, by forcing ISPs and others to save our communications—just in case we’re someday the target of an investigation. This is not only bad privacy and security, it’s a blow to our liberty as well. A world without ephemeral conversation is a world without freedom.

We can’t turn back technology; electronic communications are here to stay. But as technology makes our conversations less ephemeral, we need laws to step in and safeguard our privacy. 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 to delete it as soon as it is no longer needed.

And we need to remember, whenever we type and send, we’re being watched.

Foley is an anomaly. Most of us do not send instant messages in order to solicit sex with minors. Law enforcement might have a legitimate need to access Foley’s IMs, e-mails and cellphone calling logs, but that’s why there are warrants supported by probable cause—they help ensure that investigations are properly focused on suspected pedophiles, terrorists and other criminals. We saw this in the recent UK terrorist arrests; focused investigations on suspected terrorists foiled the plot, not broad surveillance of everyone without probable cause.

Without legal privacy protections, the world becomes one giant airport security area, where the slightest joke—or comment made years before—lands you in hot water. The world becomes one giant market-research study, where we are all life-long subjects. The world becomes a police state, where we all are assumed to be Foleys and terrorists in the eyes of the government.

This essay originally appeared on Forbes.com.

Posted on October 18, 2006 at 3:30 PM • View Comments

Fukuyama on Secrecy

From the New York Times:

All new threats entail huge uncertainties. Then, as now, there was a pronounced tendency to assume the worst, and for the government to claim enormous discretion in protecting the American public. The Bush administration has consistently argued that it needs to be protected from Congressional oversight and media scrutiny. An example is the National Security Agency’s warrantless surveillance of telephone traffic into and out of the United States. Rather than going to Congress and trying to negotiate changes to the law that regulates such activities, the administration simply grabbed that authority for itself, saying, in effect, “Trust us: if you knew what we know about the threat, you’d be perfectly happy to have us do what we’re doing.” In other areas, like the holding of prisoners in Guantanamo and interrogation methods used there and in the Middle East, one can only quote Moynihan on an earlier era: “As fears of Communist conspiracies and German subversion mounted, it was the U.S. government’s conduct that approached the illegal.”

Even if we do not at this juncture know the full scope of the threat we face from jihadist terrorism, it is certainly large enough to justify many changes in the way we conduct our lives, both at home and abroad. But the American government does have a track record in dealing with similar problems in the past, one suggesting that all American institutions—Congress, the courts, the news media—need to do their jobs in scrutinizing official behavior, and not take the easy way out of deferring to the executive. Past experience also suggests that the government would do far better to make public what it knows, as well as the limits of that knowledge, if we are to arrive at a balanced view of the challenges we face today.

Posted on October 12, 2006 at 6:54 AM • View Comments

Securing Wireless Networks with Stickers

Does anyone think this California almost-law (it’s awaiting the governor’s signature) will do any good at all?

From 1 October 2007, manufacturers must place warning labels on all equipment capable of receiving Wi-Fi signals, according to the new state law. These can take the form of box stickers, special notification in setup software, notification during the router setup, or through automatic securing of the connection. One warning sticker must be positioned so that it must be removed by a consumer before the product can be used.

Posted on September 5, 2006 at 1:56 PM • View Comments

Terrorists as Pirates

“The Dread Pirate Bin Laden” argues that, legally, terrorists should be treated as pirates under international law:

More than 2,000 years ago, Marcus Tullius Cicero defined pirates in Roman law as hostis humani generis, “enemies of the human race.” From that day until now, pirates have held a unique status in the law as international criminals subject to universal jurisdiction—meaning that they may be captured wherever they are found, by any person who finds them. The ongoing war against pirates is the only known example of state vs. nonstate conflict until the advent of the war on terror, and its history is long and notable. More important, there are enormous potential benefits of applying this legal definition to contemporary terrorism.

[…]

President Bush and others persist in depicting this new form of state vs. nonstate warfare in traditional terms, as with the president’s declaration of June 2, 2004, that “like the Second World War, our present conflict began with a ruthless surprise attack on the United States.” He went on: “We will not forget that treachery and we will accept nothing less than victory over the enemy.” What constitutes ultimate victory against an enemy that lacks territorial boundaries and governmental structures, in a war without fields of battle or codes of conduct? We can’t capture the enemy’s capital and hoist our flag in triumph. The possibility of perpetual embattlement looms before us.

If the war on terror becomes akin to war against the pirates, however, the situation would change. First, the crime of terrorism would be defined and proscribed internationally, and terrorists would be properly understood as enemies of all states. This legal status carries significant advantages, chief among them the possibility of universal jurisdiction. Terrorists, as hostis humani generis, could be captured wherever they were found, by anyone who found them. Pirates are currently the only form of criminals subject to this special jurisdiction.

Second, this definition would deter states from harboring terrorists on the grounds that they are “freedom fighters” by providing an objective distinction in law between legitimate insurgency and outright terrorism. This same objective definition could, conversely, also deter states from cracking down on political dissidents as “terrorists,” as both Russia and China have done against their dissidents.

Recall the U.N. definition of piracy as acts of “depredation [committed] for private ends.” Just as international piracy is viewed as transcending domestic criminal law, so too must the crime of international terrorism be defined as distinct from domestic homicide or, alternately, revolutionary activities. If a group directs its attacks on military or civilian targets within its own state, it may still fall within domestic criminal law. Yet once it directs those attacks on property or civilians belonging to another state, it exceeds both domestic law and the traditional right of self-determination, and becomes akin to a pirate band.

Third, and perhaps most important, nations that now balk at assisting the United States in the war on terror might have fewer reservations if terrorism were defined as an international crime that could be prosecuted before the International Criminal Court.

Ross Anderson recognized the parallels between terrorism and piracy back in 2001.

Posted on August 30, 2006 at 7:57 AM • View Comments

Broadening CALEA

In 1994, Congress passed the Communications Assistance for Law Enforcement Act (CALEA). Basically, this is the law that forces the phone companies to make your telephone calls—including cell phone calls—available for government wiretapping.

But now the government wants access to VoIP calls, and SMS messages, and everything else. They’re doing their best to interpret CALEA as broadly as possible, but they’re also pursuing a legal angle. Ars Technica has the story:

The government hopes to shore up the legal basis for the program by passing amended legislation. The EFF took a look at the amendments and didn’t like what it found.

According to the Administration, the proposal would “confirm [CALEA’s] coverage of push-to-talk, short message service, voice mail service and other communications services offered on a commercial basis to the public,” along with “confirm[ing] CALEA’s application to providers of broadband Internet access, and certain types of ‘Voice-Over-Internet-Protocol’ (VOIP).” Many of CALEA’s express exceptions and limitations are also removed. Most importantly, while CALEA’s applicability currently depends on whether broadband and VOIP can be considered “substantial replacements” for existing telephone services, the new proposal would remove this limit.

Posted on July 28, 2006 at 11:09 AM • View Comments

Unreliable Programming

One response to software liability:

Now suppose that there was a magical wand for taking snapshots of computer states just before crashes. Or that the legal system would permit claims on grounds of only the second part of the proof. Then there would be a strong positive incentive to write software that fails unreproducibly: “If our software’s errors cannot be demonstrated reliably in court, we will never lose money in product liability cases.”

Follow the link for examples.

Posted on July 11, 2006 at 7:47 AM • View Comments

Congress Learns How Little Privacy We Have

Reuters story:

Almost every piece of personal information that Americans try to keep secret—including bank account statements, e-mail messages and telephone records—is semi-public and available for sale.

That was the lesson Congress learned over the last week during a series of hearings aimed at exposing peddlers of personal data, from whom banks, car dealers, jealous lovers and even some law enforcement officers have covertly purchased information to use as they wish.

And:

The committee subpoenaed representatives from 11 companies that use the Internet and phone calls to obtain, market, and sell personal data, but they refused to talk.

All invoked their constitutional right to not incriminate themselves when asked whether they sold “personal, non-public information” that had been obtained by lying or impersonating someone.

Posted on June 28, 2006 at 7:39 AM • View Comments

Privacy as Contextual Integrity

Interesting law review article by Helen Nissenbaum:

Abstract: The practices of public surveillance, which include the monitoring of individuals in public through a variety of media (e.g., video, data, online), are among the least understood and controversial challenges to privacy in an age of information technologies. The fragmentary nature of privacy policy in the United States reflects not only the oppositional pulls of diverse vested interests, but also the ambivalence of unsettled intuitions on mundane phenomena such as shopper cards, closed-circuit television, and biometrics. This Article, which extends earlier work on the problem of privacy in public, explains why some of the prominent theoretical approaches to privacy, which were developed over time to meet traditional privacy challenges, yield unsatisfactory conclusions in the case of public surveillance. It posits a new construct, ‘contextual integrity’ as an alternative benchmark for privacy, to capture the nature of challenges posed by information technologies. Contextual integrity ties adequate protection for privacy to norms of specific contexts, demanding that information gathering and dissemination be appropriate to that context and obey the governing norms of distribution within it. Building on the idea of ‘spheres of justice’ developed by political philosopher Michael Walzer, this Article argues that public surveillance violates a right to privacy because it violates contextual integrity; as such, it constitutes injustice and even tyranny.

Posted on June 9, 2006 at 7:11 AM • View Comments

Lying to Government Agents

“How to Avoid Going to Jail under 18 U.S.C. Section 1001 for Lying to Government Agents”

Title 18, United States Code, Section 1001 makes it a crime to: 1) knowingly and willfully; 2) make any materially false, fictitious or fraudulent statement or representation; 3) in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States. Your lie does not even have to be made directly to an employee of the national government as long as it is “within the jurisdiction” of the ever expanding federal bureaucracy. Though the falsehood must be “material” this requirement is met if the statement has the “natural tendency to influence or [is] capable of influencing, the decision of the decisionmaking body to which it is addressed.” United States v. Gaudin, 515 U.S. 506, 510 (1995). (In other words, it is not necessary to show that your particular lie ever really influenced anyone.) Although you must know that your statement is false at the time you make it in order to be guilty of this crime, you do not have to know that lying to the government is a crime or even that the matter you are lying about is “within the jurisdiction” of a government agency. United States v. Yermian, 468 U.S. 63, 69 (1984). For example, if you lie to your employer on your time and attendance records and, unbeknownst to you, he submits your records, along with those of other employees, to the federal government pursuant to some regulatory duty, you could be criminally liable.

Posted on June 5, 2006 at 1:24 PM • View Comments

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Sidebar photo of Bruce Schneier by Joe MacInnis.