The No-Fly List and Due Process
The Congressional Research Service has released a report on the no-fly list and current litigation alleging that it violates due process.
Entries Tagged "laws"
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Manipulating Juries with PowerPoint
Interesting article on the subconscious visual tricks used to manipulate juries and affect verdicts.
In December 2012 the Washington Supreme Court threw out Glasmann’s convictions based on the “highly inflammatory” slides. As a general rule, courts don’t want prosecutors expressing their personal opinion to a jury; they’re supposed to couch their arguments in terms of what the evidence shows. Plastering the word “GUILTY” on a slide—not once or twice, but three times—was a “flagrant and ill intentioned” violation of this principle, the Washington Supreme Court wrote. The captions superimposed on the photos were “the equivalent of unadmitted evidence.”
One justice, Tom Chambers, wrote that he was stunned at the state’s contention that there was nothing wrong with digitally altering the booking photo. “Under the State’s logic, in a shooting case, there would be nothing improper with the State altering an image of the accused by photoshopping a gun into his hand,” Chambers wrote.
Jeffrey Ellis, a lawyer from Portland, Oregon, represented Glasmann on appeal. “We all know that commercials can try to persuade people on a subconscious level,” Ellis said in an interview. “But I don’t think the criminal-justice system wants to enter into that base arena.”
I think we need some clear rules as to what’s permitted.
The Limits of Police Subterfuge
“The next time you call for assistance because the Internet service in your home is not working, the ‘technician’ who comes to your door may actually be an undercover government agent. He will have secretly disconnected the service, knowing that you will naturally call for help and—when he shows up at your door, impersonating a technician—let him in. He will walk through each room of your house, claiming to diagnose the problem. Actually, he will be videotaping everything (and everyone) inside. He will have no reason to suspect you have broken the law, much less probable cause to obtain a search warrant. But that makes no difference, because by letting him in, you will have ‘consented’ to an intrusive search of your home.”
This chilling scenario is the first paragraph of a motion to suppress evidence gathered by the police in exactly this manner, from a hotel room. Unbelievably, this isn’t a story from some totalitarian government on the other side of an ocean. This happened in the United States, and by the FBI. Eventually—I’m sure there will be appeals—higher U.S. courts will decide whether this sort of practice is legal. If it is, the country will slide even further into a society where the police have even more unchecked power than they already possess.
The facts are these. In June, Two wealthy Macau residents stayed at Caesar’s Palace in Las Vegas. The hotel suspected that they were running an illegal gambling operation out of their room. They enlisted the police and the FBI, but could not provide enough evidence for them to get a warrant. So instead they repeatedly cut the guests’ Internet connection. When the guests complained to the hotel, FBI agents wearing hidden cameras and recorders pretended to be Internet repair technicians and convinced the guests to let them in. They filmed and recorded everything under the pretense of fixing the Internet, and then used the information collected from that to get an actual search warrant. To make matters even worse, they lied to the judge about how they got their evidence.
The FBI claims that their actions are no different from any conventional sting operation. For example, an undercover policeman can legitimately look around and report on what he sees when he invited into a suspect’s home under the pretext of trying to buy drugs. But there are two very important differences: one of consent, and the other of trust. The former is easier to see in this specific instance, but the latter is much more important for society.
You can’t give consent to something you don’t know and understand. The FBI agents did not enter the hotel room under the pretext of making an illegal bet. They entered under a false pretext, and relied on that for consent of their true mission. That makes things different. The occupants of the hotel room didn’t realize who they were giving access to, and they didn’t know their intentions. The FBI knew this would be a problem. According to the New York Times, “a federal prosecutor had initially warned the agents not to use trickery because of the ‘consent issue.’ In fact, a previous ruse by agents had failed when a person in one of the rooms refused to let them in.” Claiming that a person granting an Internet technician access is consenting to a police search makes no sense, and is no different than one of those “click through” Internet license agreements that you didn’t read saying one thing and while meaning another. It’s not consent in any meaningful sense of the term.
Far more important is the matter of trust. Trust is central to how a society functions. No one, not even the most hardened survivalists who live in backwoods log cabins, can do everything by themselves. Humans need help from each other, and most of us need a lot of help from each other. And that requires trust. Many Americans’ homes, for example, are filled with systems that require outside technical expertise when they break: phone, cable, Internet, power, heat, water. Citizens need to trust each other enough to give them access to their hotel rooms, their homes, their cars, their person. Americans simply can’t live any other way.
It cannot be that every time someone allows one of those technicians into our homes they are consenting to a police search. Again from the motion to suppress: “Our lives cannot be private—and our personal relationships intimate—if each physical connection that links our homes to the outside world doubles as a ready-made excuse for the government to conduct a secret, suspicionless, warrantless search.” The resultant breakdown in trust would be catastrophic. People would not be able to get the assistance they need. Legitimate servicemen would find it much harder to do their job. Everyone would suffer.
It all comes back to the warrant. Through warrants, Americans legitimately grant the police an incredible level of access into our personal lives. This is a reasonable choice because the police need this access in order to solve crimes. But to protect ordinary citizens, the law requires the police to go before a neutral third party and convince them that they have a legitimate reason to demand that access. That neutral third party, a judge, then issues the warrant when he or she is convinced. This check on the police’s power is for Americans’ security, and is an important part of the Constitution.
In recent years, the FBI has been pushing the boundaries of its warrantless investigative powers in disturbing and dangerous ways. It collects phone-call records of millions of innocent people. It uses hacking tools against unknown individuals without warrants. It impersonates legitimate news sites. If the lower court sanctions this particular FBI subterfuge, the matter needs to be taken up—and reversed—by the Supreme Court.
This essay previously appeared in The Atlantic.
EDITED TO ADD (4/24/2015): A federal court has ruled that the FBI cannot do this.
Chinese Hacking of the US
Chinese hacking of American computer networks is old news. For years we’ve known about their attacks against U.S. government and corporate targets. We’ve seen detailed reports of how they hacked The New York Times. Google has detected them going after Gmail accounts of dissidents. They’ve built sophisticated worldwide eavesdropping networks. These hacks target both military secrets and corporate intellectual property. They’re perpetrated by a combination of state, state-sponsored and state-tolerated hackers. It’s been going on for years.
On Monday, the Justice Department indicted five Chinese hackers in absentia, all associated with the Chinese military, for stealing corporate secrets from U.S. energy, metals and manufacturing companies. It’s entirely for show; the odds that the Chinese are going to send these people to the U.S. to stand trial is zero. But it does move what had been mostly a technical security problem into the world of diplomacy and foreign policy. By doing this, the U.S. government is taking a very public stand and saying “enough.”
The problem with that stand is that we’ve been doing much the same thing to China. Documents revealed by the whistleblower Edward Snowden show that the NSA has penetrated Chinese government and commercial networks, and is exfiltrating—that’s NSA talk for stealing—an enormous amount of secret data. We’ve hacked the networking hardware of one of their own companies, Huawei. We’ve intercepted networking equipment being sent there and installed monitoring devices. We’ve been listening in on their private communications channels.
The only difference between the U.S. and China’s actions is that the U.S. doesn’t engage in direct industrial espionage. That is, we don’t steal secrets from Chinese companies and pass them directly to U.S. competitors. But we do engage in economic espionage; we steal secrets from Chinese companies for an advantage in government trade negotiations, which directly benefits U.S. competitors. We might think this difference is important, but other countries are not as as impressed with our nuance.
Already the Chinese are retaliating against the U.S. actions with rhetoric of their own. I don’t know the Chinese expression for ‘pot calling the kettle black,’ but it certainly fits in this case.
Again, none of this is new. The U.S. and the Chinese have been conducting electronic espionage on each other throughout the Cold War, and there’s no reason to think it’s going to change anytime soon. What’s different now is the ease with which the two countries can do this safely and remotely, over the Internet, as well as the massive amount of information that can be stolen with a few computer commands.
On the Internet today, it is much easier to attack systems and break into them than it is to defend those systems against attack, so the advantage is to the attacker. This is true for a combination of reasons: the ability of an attacker to concentrate his attack, the nature of vulnerabilities in computer systems, poor software quality and the enormous complexity of computer systems.
The computer security industry is used to coping with criminal attacks. In general, such attacks are untargeted. Criminals might have broken into Target’s network last year and stolen 40 million credit and debit card numbers, but they would have been happy with any retailer’s large credit card database. If Target’s security had been better than its competitors, the criminals would have gone elsewhere. In this way, security is relative.
The Chinese attacks are different. For whatever reason, the government hackers wanted certain information inside the networks of Alcoa World Alumina, Westinghouse Electric, Allegheny Technologies, U.S. Steel, United Steelworkers Union and SolarWorld. It wouldn’t have mattered how those companies’ security compared with other companies; all that mattered was whether it was better than the ability of the attackers.
This is a fundamentally different security model—often called APT or Advanced Persistent Threat—and one that is much more difficult to defend against.
In a sense, American corporations are collateral damage in this battle of espionage between the U.S. and China. Taking the battle from the technical sphere into the foreign policy sphere might be a good idea, but it will work only if we have some moral high ground from which to demand that others not spy on us. As long as we run the largest surveillance network in the world and hack computer networks in foreign countries, we’re going to have trouble convincing others not to attempt the same on us.
This essay previously appeared on Time.com.
Putin Requires Russian Bloggers to Register with the Government
This is not good news.
Widely known as the “bloggers law,” the new Russian measure specifies that any site with more than 3,000 visitors daily will be considered a media outlet akin to a newspaper and be responsible for the accuracy of the information published.
Besides registering, bloggers can no longer remain anonymous online, and organizations that provide platforms for their work such as search engines, social networks and other forums must maintain computer records on Russian soil of everything posted over the previous six months.
Who Should Store NSA Surveillance Data
One of the recommendations by the president’s Review Group on Intelligence and Communications Technologies on reforming the National Security Agency—No. 5, if you’re counting—is that the government should not collect and store telephone metadata. Instead, a private company—either the phone companies themselves or some other third party—should store the metadata and provide it to the government only upon a court order.
This isn’t a new idea. Over the past decade, several countries have enacted mandatory data retention laws, in which companies are required to save Internet or telephony data about customers for a specified period of time, in case the government needs it for an investigation. But does it make sense? In December, Harvard Law professor Jack Goldsmith asked: “I understand the Report’s concerns about the storage of bulk meta-data by the government. But I do not understand the Report’s implicit assumption that the storage of bulk meta-data by private entities is an improvement from the perspective of privacy, or data security, or potential abuse.”
It’s a good question, and in the almost two months since the report was released, it hasn’t received enough attention. I think the proposal makes things worse in several respects.
First, the NSA is going to do a better job at database security than corporations are. I say this not because the NSA has any magic computer security powers, but because it has more experience at it and is better funded. (And, yes, that’s true even though Edward Snowden was able to copy so many of their documents.) The difference is of degree, not of kind. Both options leave the data vulnerable to insider attacks—more so in the case of a third-party data repository because there will be more insiders. And although neither will be perfect, I would trust the NSA to protect my data against unauthorized access more than I would trust a private corporation to do the same.
Second, there’s the greater risk of authorized access. This is the risk that the Review Group is most concerned about. The thought is that if the data were in private hands, and the only legal way at the data was a court order, then it would be less likely for the NSA to exceed its authority by making bulk queries on the data or accessing more of it than it is allowed to. I don’t believe that this is true. Any system that has the data outside of the NSA’s control is going to include provisions for emergency access, because … well, because the word terrorism will scare any lawmaker enough to give the NSA that capability. Already the NSA goes through whatever legal processes it and the secret FISA court have agreed to. Adding another party into this process doesn’t slow things down, provide more oversight, or in any way make it better. I don’t trust a corporate employee not to turn data over for NSA analysis any more than I trust an NSA employee.
On the corporate side, the corresponding risk is that the data will be used for all sorts of things that wouldn’t be possible otherwise. If corporations are forced by governments to hold on to customer data, they’re going to start thinking things like: “We’re already storing this personal data on all of our customers for the government. Why don’t we mine it for interesting tidbits, use it for marketing purposes, sell it to data brokers, and on and on and on?” At least the NSA isn’t going to use our personal data for large-scale individual psychological manipulation designed to separate us from as much money as possible—which is the business model of companies like Google and Facebook.
The final claimed benefit—and this one is from the president’s Review Group—is that putting the data in private hands will make us all feel better. They write: “Knowing that the government has ready access to one’s phone call records can seriously chill ‘associational and expressive freedoms,’ and knowing that the government is one flick of a switch away from such information can profoundly ‘alter the relationship between citizen and government in a way that is inimical to society.'” Those quotes within the quote are from Justice Sonia Sotomayor’s opinion in the U.S. v. Jones GPS monitoring case.
The Review Group believes that moving the data to some other organization, either the companies that generate it in the first place or some third-party data repository, fixes that problem. But is that something we really want fixed? The fact that a government has us all under constant and ubiquitous surveillance should be chilling. It should limit freedom of expression. It is inimical to society, and to the extent we hide what we’re doing from the people or do things that only pretend to fix the problem, we do ourselves a disservice.
Where does this leave us? If the corporations are storing the data already—for some business purpose—then the answer is easy: Only they should store it. If the corporations are not already storing the data, then—on balance—it’s safer for the NSA to store the data. And in many cases, the right answer is for no one to store the data. It should be deleted because keeping it makes us all less secure.
This question is much bigger than the NSA. There are going to be data—medical data, movement data, transactional data—that are both valuable to us all in aggregate and private to us individually. And in every one of those instances, we’re going to be faced with the same question: How do we extract that societal value, while at the same protecting its personal nature? This is one of the key challenges of the Information Age, and figuring out where to store the data is a major part of that challenge. There certainly isn’t going to be one solution for all instances of this problem, but learning how to weigh the costs and benefits of different solutions will be a key component to harnessing the power of big data without suffering the societal harms.
This essay originally appeared on Slate.com, with a very misleading title.
EDITED TO ADD (2/21): Commentary from Lawfare blog.
Today I Briefed Congress on the NSA
This morning, I spent an hour in a closed room with six members of Congress: Rep. Lofgren, Rep. Sensenbrenner, Rep. Bobby Scott, Rep. Goodlatte, Rep. Mike Thompson, and Rep. Amash. No staffers, no public: just them. Lofgren had asked me to brief her and a few Representatives on the NSA. She said that the NSA wasn’t forthcoming about their activities, and they wanted me—as someone with access to the Snowden documents—to explain to them what the NSA was doing. Of course, I’m not going to give details on the meeting, except to say that it was candid and interesting. And that it’s extremely freaky that Congress has such a difficult time getting information out of the NSA that they have to ask me. I really want oversight to work better in this country.
Surreal part of setting up this meeting: I suggested that we hold this meeting in a SCIF, because they wanted me to talk about top secret documents that had not been made public. The problem is that I, as someone without a clearance, would not be allowed into the SCIF. So we had to have the meeting in a regular room.
EDITED TO ADD: This really was an extraordinary thing.
Susan Landau Article on the Snowden Documents
Really good article by Susan Landau on the Snowden documents and what they mean.
The Public/Private Surveillance Partnership
Imagine the government passed a law requiring all citizens to carry a tracking device. Such a law would immediately be found unconstitutional. Yet we all carry mobile phones.
If the National Security Agency required us to notify it whenever we made a new friend, the nation would rebel. Yet we notify Facebook. If the Federal Bureau of Investigation demanded copies of all our conversations and correspondence, it would be laughed at. Yet we provide copies of our e-mail to Google, Microsoft or whoever our mail host is; we provide copies of our text messages to Verizon, AT&T and Sprint; and we provide copies of other conversations to Twitter, Facebook, LinkedIn, or whatever other site is hosting them.
The primary business model of the Internet is built on mass surveillance, and our government’s intelligence-gathering agencies have become addicted to that data. Understanding how we got here is critical to understanding how we undo the damage.
Computers and networks inherently produce data, and our constant interactions with them allow corporations to collect an enormous amount of intensely personal data about us as we go about our daily lives. Sometimes we produce this data inadvertently simply by using our phones, credit cards, computers and other devices. Sometimes we give corporations this data directly on Google, Facebook, Apple Inc.’s iCloud and so on in exchange for whatever free or cheap service we receive from the Internet in return.
The NSA is also in the business of spying on everyone, and it has realized it’s far easier to collect all the data from these corporations rather than from us directly. In some cases, the NSA asks for this data nicely. In other cases, it makes use of subtle threats or overt pressure. If that doesn’t work, it uses tools like national security letters.
The result is a corporate-government surveillance partnership, one that allows both the government and corporations to get away with things they couldn’t otherwise.
There are two types of laws in the U.S., each designed to constrain a different type of power: constitutional law, which places limitations on government, and regulatory law, which constrains corporations. Historically, these two areas have largely remained separate, but today each group has learned how to use the other’s laws to bypass their own restrictions. The government uses corporations to get around its limits, and corporations use the government to get around their limits.
This partnership manifests itself in various ways. The government uses corporations to circumvent its prohibitions against eavesdropping domestically on its citizens. Corporations rely on the government to ensure that they have unfettered use of the data they collect.
Here’s an example: It would be reasonable for our government to debate the circumstances under which corporations can collect and use our data, and to provide for protections against misuse. But if the government is using that very data for its own surveillance purposes, it has an incentive to oppose any laws to limit data collection. And because corporations see no need to give consumers any choice in this matter—because it would only reduce their profits—the market isn’t going to protect consumers, either.
Our elected officials are often supported, endorsed and funded by these corporations as well, setting up an incestuous relationship between corporations, lawmakers and the intelligence community.
The losers are us, the people, who are left with no one to stand up for our interests. Our elected government, which is supposed to be responsible to us, is not. And corporations, which in a market economy are supposed to be responsive to our needs, are not. What we have now is death to privacy—and that’s very dangerous to democracy and liberty.
The simple answer is to blame consumers, who shouldn’t use mobile phones, credit cards, banks or the Internet if they don’t want to be tracked. But that argument deliberately ignores the reality of today’s world. Everything we do involves computers, even if we’re not using them directly. And by their nature, computers produce tracking data. We can’t go back to a world where we don’t use computers, the Internet or social networking. We have no choice but to share our personal information with these corporations, because that’s how our world works today.
Curbing the power of the corporate-private surveillance partnership requires limitations on both what corporations can do with the data we choose to give them and restrictions on how and when the government can demand access to that data. Because both of these changes go against the interests of corporations and the government, we have to demand them as citizens and voters. We can lobby our government to operate more transparently—disclosing the opinions of the Foreign Intelligence Surveillance Court would be a good start—and hold our lawmakers accountable when it doesn’t. But it’s not going to be easy. There are strong interests doing their best to ensure that the steady stream of data keeps flowing.
This essay originally appeared on Bloomberg.com.
The Value of Breaking the Law
Interesting essay on the impossibility of being entirely lawful all the time, the balance that results from the difficulty of law enforcement, and the societal value of being able to break the law.
What’s often overlooked, however, is that these legal victories would probably not have been possible without the ability to break the law.
The state of Minnesota, for instance, legalized same-sex marriage this year, but sodomy laws had effectively made homosexuality itself completely illegal in that state until 2001. Likewise, before the recent changes making marijuana legal for personal use in WA and CO, it was obviously not legal for personal use.
Imagine if there were an alternate dystopian reality where law enforcement was 100% effective, such that any potential law offenders knew they would be immediately identified, apprehended, and jailed. If perfect law enforcement had been a reality in MN, CO, and WA since their founding in the 1850s, it seems quite unlikely that these recent changes would have ever come to pass. How could people have decided that marijuana should be legal, if nobody had ever used it? How could states decide that same sex marriage should be permitted, if nobody had ever seen or participated in a same sex relationship?
This is very much like my notion of “outliers” in my book Liars and Outliers.
Sidebar photo of Bruce Schneier by Joe MacInnis.