Entries Tagged "laws"

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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.

Posted on July 16, 2013 at 12:35 PM • View Comments

NSA E-Mail Eavesdropping

More Snowden documents analyzed by the Guardian—two articles—discuss how the NSA collected e-mails and data on Internet activity of both Americans and foreigners. The program might have ended in 2011, or it might have continued under a different name. This is the program that resulted in that bizarre tale of Bush officials confronting then-Attorney General John Ashcroft in his hospital room; the New York Times story discusses that. What’s interesting is that the NSA collected this data under one legal pretense. When that justification evaporated, they searched around until they found another pretense.

This story is being picked up a bit more than the previous story, but it’s obvious that the press is fatiguing of this whole thing. Without the Ashcroft human interest bit, it would be just another story of the NSA eavesdropping on Americans—and that’s lasts week’s news.

Posted on July 2, 2013 at 6:49 AM • View Comments

Secrecy and Privacy

Interesting article on the history of, and the relationship between, secrecy and privacy.

As a matter of historical analysis, the relationship between secrecy and privacy can be stated in an axiom: the defense of privacy follows, and never precedes, the emergence of new technologies for the exposure of secrets. In other words, the case for privacy always comes too late. The horse is out of the barn. The post office has opened your mail. Your photograph is on Facebook. Google already knows that, notwithstanding your demographic, you hate kale.

Posted on June 26, 2013 at 12:35 PM • View Comments

The Problems with CALEA-II

The FBI wants a new law that will make it easier to wiretap the Internet. Although its claim is that the new law will only maintain the status quo, it’s really much worse than that. This law will result in less-secure Internet products and create a foreign industry in more-secure alternatives. It will impose costly burdens on affected companies. It will assist totalitarian governments in spying on their own citizens. And it won’t do much to hinder actual criminals and terrorists.

As the FBI sees it, the problem is that people are moving away from traditional communication systems like telephones onto computer systems like Skype. Eavesdropping on telephones used to be easy. The FBI would call the phone company, which would bring agents into a switching room and allow them to literally tap the wires with a pair of alligator clips and a tape recorder. In the 1990s, the government forced phone companies to provide an analogous capability on digital switches; but today, more and more communications happens over the Internet.

What the FBI wants is the ability to eavesdrop on everything. Depending on the system, this ranges from easy to impossible. E-mail systems like Gmail are easy. The mail resides in Google’s servers, and the company has an office full of people who respond to requests for lawful access to individual accounts from governments all over the world. Encrypted voice systems like Silent Circle are impossible to eavesdrop on—the calls are encrypted from one computer to the other, and there’s no central node to eavesdrop from. In those cases, the only way to make the system eavesdroppable is to add a backdoor to the user software. This is precisely the FBI’s proposal. Companies that refuse to comply would be fined $25,000 a day.

The FBI believes it can have it both ways: that it can open systems to its eavesdropping, but keep them secure from anyone else’s eavesdropping. That’s just not possible. It’s impossible to build a communications system that allows the FBI surreptitious access but doesn’t allow similar access by others. When it comes to security, we have two options: We can build our systems to be as secure as possible from eavesdropping, or we can deliberately weaken their security. We have to choose one or the other.

This is an old debate, and one we’ve been through many times. The NSA even has a name for it: the equities issue. In the 1980s, the equities debate was about export control of cryptography. The government deliberately weakened U.S. cryptography products because it didn’t want foreign groups to have access to secure systems. Two things resulted: fewer Internet products with cryptography, to the insecurity of everybody, and a vibrant foreign security industry based on the unofficial slogan “Don’t buy the U.S. stuff—it’s lousy.”

In 1993, the debate was about the Clipper Chip. This was another deliberately weakened security product, an encrypted telephone. The FBI convinced AT&T to add a backdoor that allowed for surreptitious wiretapping. The product was a complete failure. Again, why would anyone buy a deliberately weakened security system?

In 1994, the Communications Assistance for Law Enforcement Act mandated that U.S. companies build eavesdropping capabilities into phone switches. These were sold internationally; some countries liked having the ability to spy on their citizens. Of course, so did criminals, and there were public scandals in Greece (2005) and Italy (2006) as a result.

In 2012, we learned that every phone switch sold to the Department of Defense had security vulnerabilities in its surveillance system. And just this May, we learned that Chinese hackers breached Google’s system for providing surveillance data for the FBI.

The new FBI proposal will fail in all these ways and more. The bad guys will be able to get around the eavesdropping capability, either by building their own security systems—not very difficult—or buying the more-secure foreign products that will inevitably be made available. Most of the good guys, who don’t understand the risks or the technology, will not know enough to bother and will be less secure. The eavesdropping functions will 1) result in more obscure—and less secure—product designs, and 2) be vulnerable to exploitation by criminals, spies, and everyone else. U.S. companies will be forced to compete at a disadvantage; smart customers won’t buy the substandard stuff when there are more-secure foreign alternatives. Even worse, there are lots of foreign governments who want to use these sorts of systems to spy on their own citizens. Do we really want to be exporting surveillance technology to the likes of China, Syria, and Saudi Arabia?

The FBI’s short–sighted agenda also works against the parts of the government that are still working to secure the Internet for everyone. Initiatives within the NSA, the DOD, and DHS to do everything from securing computer operating systems to enabling anonymous web browsing will all be harmed by this.

What to do, then? The FBI claims that the Internet is “going dark,” and that it’s simply trying to maintain the status quo of being able to eavesdrop. This characterization is disingenuous at best. We are entering a golden age of surveillance; there’s more electronic communications available for eavesdropping than ever before, including whole new classes of information: location tracking, financial tracking, and vast databases of historical communications such as e-mails and text messages. The FBI’s surveillance department has it better than ever. With regard to voice communications, yes, software phone calls will be harder to eavesdrop upon. (Although there are questions about Skype’s security.) That’s just part of the evolution of technology, and one that on balance is a positive thing.

Think of it this way: We don’t hand the government copies of our house keys and safe combinations. If agents want access, they get a warrant and then pick the locks or bust open the doors, just as a criminal would do. A similar system would work on computers. The FBI, with its increasingly non-transparent procedures and systems, has failed to make the case that this isn’t good enough.

Finally there’s a general principle at work that’s worth explicitly stating. All tools can be used by the good guys and the bad guys. Cars have enormous societal value, even though bank robbers can use them as getaway cars. Cash is no different. Both good guys and bad guys send e-mails, use Skype, and eat at all-night restaurants. But because society consists overwhelmingly of good guys, the good uses of these dual-use technologies greatly outweigh the bad uses. Strong Internet security makes us all safer, even though it helps the bad guys as well. And it makes no sense to harm all of us in an attempt to harm a small subset of us.

This essay originally appeared in Foreign Policy.

Posted on June 4, 2013 at 12:44 PM • View Comments

The Security Risks of Unregulated Google Search

Someday I need to write an essay on the security risks of secret algorithms that become part of our infrastructure. This paper gives one example of that. Could Google tip an election by manipulating what comes up from search results on the candidates?

The study’s participants, selected to resemble the US voting population, viewed the results for two candidates on a mock search engine called Kadoodle. By front-loading Kadoodle’s results with articles favoring one of the candidates, Epstein shifted enough of his participants’ voter preferences toward the favored candidate to simulate the swing of a close election. But here’s the kicker: in one round of the study, Epstein configured Kadoodle so that it hid the manipulation from 100 percent of the participants.

Turns out that it could. And, it wouldn’t even be illegal for Google to do it.

The author thinks that government regulation is the only reasonable solution.

Epstein believes that the mere existence of the power to fix election outcomes, wielded or not, is a threat to democracy, and he asserts that search engines should be regulated accordingly. But regulatory analogies for a many-armed, ever-shifting company like Google are tough to pin down. For those who see search results as a mere passive relaying of information, like a library index or a phone book, there is precedent for regulation. In the past, phone books—with a monopoly on the flow of certain information to the public—were prevented from not listing businesses even when paid to do so. In the 1990s, similar reasoning led to the “must carry” rule, which required cable companies to carry certain channels to communities where they were the only providers of those channels.

As I said, I need to write an essay on the broader issue.

Posted on June 4, 2013 at 6:19 AM • View Comments

DDOS as Civil Disobedience

For a while now, I have been thinking about what civil disobedience looks like in the Internet Age. Certainly DDOS attacks, and politically motivated hacking in general, is a part of that. This is one of the reasons I found Molly Sauter’s recent thesis, “Distributed Denial of Service Actions and the Challenge of Civil Disobedience on the Internet,” so interesting:

Abstract: This thesis examines the history, development, theory, and practice of distributed denial of service actions as a tactic of political activism. DDOS actions have been used in online political activism since the early 1990s, though the tactic has recently attracted significant public attention with the actions of Anonymous and Operation Payback in December 2010. Guiding this work is the overarching question of how civil disobedience and disruptive activism can be practiced in the current online space. The internet acts as a vital arena of communication, self expression, and interpersonal organizing. When there is a message to convey, words to get out, people to organize, many will turn to the internet as the zone of that activity. Online, people sign petitions, investigate stories and rumors, amplify links and videos, donate money, and show their support for causes in a variety of ways. But as familiar and widely accepted activist tools—petitions, fundraisers, mass letter-writing, call-in campaigns and others—find equivalent practices in the online space, is there also room for the tactics of disruption and civil disobedience that are equally familiar from the realm of street marches, occupations, and sit-ins? This thesis grounds activist DDOS historically, focusing on early deployments of the tactic as well as modern instances to trace its development over time, both in theory and in practice. Through that examination, as well as tool design and development, participant identity, and state and corporate responses, this thesis presents an account of the development and current state of activist DDOS actions. It ends by presenting an analytical framework for the analysis of activist DDOS actions.

One of the problems with the legal system is that it doesn’t make any differentiation between civil disobedience and “normal” criminal activity on the Internet, though it does in the real world.

Posted on May 22, 2013 at 6:24 AM • View Comments

Transparency and Accountability

As part of the fallout of the Boston bombings, we’re probably going to get some new laws that give the FBI additional investigative powers. As with the Patriot Act after 9/11, the debate over whether these new laws are helpful will be minimal, but the effects on civil liberties could be large. Even though most people are skeptical about sacrificing personal freedoms for security, it’s hard for politicians to say no to the FBI right now, and it’s politically expedient to demand that something be done.

If our leaders can’t say no—and there’s no reason to believe they can—there are two concepts that need to be part of any new counterterrorism laws, and investigative laws in general: transparency and accountability.

Long ago, we realized that simply trusting people and government agencies to always do the right thing doesn’t work, so we need to check up on them. In a democracy, transparency and accountability are how we do that. It’s how we ensure that we get both effective and cost-effective government. It’s how we prevent those we trust from abusing that trust, and protect ourselves when they do. And it’s especially important when security is concerned.

First, we need to ensure that the stuff we’re paying money for actually works and has a measureable impact. Law-enforcement organizations regularly invest in technologies that don’t make us any safer. The TSA, for example, could devote an entire museum to expensive but ineffective systems: puffer machines, body scanners, FAST behavioral screening, and so on. Local police departments have been wasting lots of post-9/11 money on unnecessary high-tech weaponry and equipment. The occasional high-profile success aside, police surveillance cameras have been shown to be a largely ineffective police tool.

Sometimes honest mistakes led organizations to invest in these technologies. Sometimes there’s self-deception and mismanagement—and far too often lobbyists are involved. Given the enormous amount of security money post-9/11, you inevitably end up with an enormous amount of waste. Transparency and accountability are how we keep all of this in check.

Second, we need to ensure that law enforcement does what we expect it to do and nothing more. Police powers are invariably abused. Mission creep is inevitable, and it results in laws designed to combat one particular type of crime being used for an ever-widening array of crimes. Transparency is the only way we have of knowing when this is going on.

For example, that’s how we learned that the FBI is abusing National Security Letters. Traditionally, we use the warrant process to protect ourselves from police overreach. It’s not enough for the police to want to conduct a search; they also need to convince a neutral third party—a judge—that the search is in the public interest and will respect the rights of those searched. That’s accountability, and it’s the very mechanism that NSLs were exempted from.

When laws are broken, accountability is how we punish those who abused their power. It’s how, for example, we correct racial profiling by police departments. And it’s a lack of accountability that permits the FBI to get away with massive data collection until exposed by a whistleblower or noticed by a judge.

Third, transparency and accountability keep both law enforcement and politicians from lying to us. The Bush Administration lied about the extent of the NSA’s warrantless wiretapping program. The TSA lied about the ability of full-body scanners to save naked images of people. We’ve been lied to about the lethality of tasers, when and how the FBI eavesdrops on cell-phone calls, and about the existence of surveillance records. Without transparency, we would never know.

A decade ago, the FBI was heavily lobbying Congress for a law to give it new wiretapping powers: a law known as CALEA. One of its key justifications was that existing law didn’t allow it to perform speedy wiretaps during kidnapping investigations. It sounded plausible—and who wouldn’t feel sympathy for kidnapping victims?—but when civil-liberties organizations analyzed the actual data, they found that it was just a story; there were no instances of wiretapping in kidnapping investigations. Without transparency, we would never have known that the FBI was making up stories to scare Congress.

If we’re going to give the government any new powers, we need to ensure that there’s oversight. Sometimes this oversight is before action occurs. Warrants are a great example. Sometimes they’re after action occurs: public reporting, audits by inspector generals, open hearings, notice to those affected, or some other mechanism. Too often, law enforcement tries to exempt itself from this principle by supporting laws that are specifically excused from oversight…or by establishing secret courts that just rubber-stamp government wiretapping requests.

Furthermore, we need to ensure that mechanisms for accountability have teeth and are used.

As we respond to the threat of terrorism, we must remember that there are other threats as well. A society without transparency and accountability is the very definition of a police state. And while a police state might have a low crime rate—especially if you don’t define police corruption and other abuses of power as crime—and an even lower terrorism rate, it’s not a society that most of us would willingly choose to live in.

We already give law enforcement enormous power to intrude into our lives. We do this because we know they need this power to catch criminals, and we’re all safer thereby. But because we recognize that a powerful police force is itself a danger to society, we must temper this power with transparency and accountability.

This essay previously appeared on TheAtlantic.com.

Posted on May 14, 2013 at 5:48 AM • View Comments

Securing Members of Congress from Transparency

I commented in this article on the repeal of the transparency provisions of the STOCK Act:

Passed in 2012 after a 60 Minutes report on insider trading practices in Congress, the STOCK Act banned members of Congress and senior executive and legislative branch officials from trading based on government knowledge. To give the ban teeth, the law directed that many of these officials’ financial disclosure forms be posted online and their contents placed into public databases. However, in March, a report ordered by Congress found that airing this information on the Internet could put public servants and national security at risk. The report urged that the database, and the public disclosure for everyone but members of Congress and the highest-ranking executive branch officials—measures that had never been implemented—be thrown out.

The government sprang into action: last week, both chambers of Congress unanimously agreed to adopt the report’s recommendations. Days later, Obama signed the changes into law.

The article went on to talk to four cybersecurity experts, all of whom basically said the same thing:

Bluntest of all was Bruce Schneier, a leading security technologist and cryptographer. “They put them personally at risk by holding them accountable,” Schneier said of the impact of disclosure rules on Congress members and DC staffers. “That’s why they repealed it. The national security bit is bullshit you’re supposed to repeat.” (Three of the four experts we consulted opted for the same term of choice.)

There was a security risk, but it was not a national security risk. It was a personal Congressperson risk.

EDITED TO ADD (4/25): Jon Stewart quoted my “the national security bit is bullshit” line.

Posted on April 23, 2013 at 7:10 AM • View Comments

Government Use of Hackers as an Object of Fear

Interesting article about the perception of hackers in popular culture, and how the government uses the general fear of them to push for more power:

But these more serious threats don’t seem to loom as large as hackers in the minds of those who make the laws and regulations that shape the Internet. It is the hacker—a sort of modern folk devil who personifies our anxieties about technology—who gets all the attention. The result is a set of increasingly paranoid and restrictive laws and regulations affecting our abilities to communicate freely and privately online, to use and control our own technology, and which puts users at risk for overzealous prosecutions and invasive electronic search and seizure practices. The Computer Fraud and Abuse Act, the cornerstone of domestic computer-crime legislation, is overly broad and poorly defined. Since its passage in 1986, it has created a pile of confused caselaw and overzealous prosecutions. The Departments of Defense and Homeland Security manipulate fears of techno-disasters to garner funding and support for laws and initiatives, such as the recently proposed Cyber Intelligence Sharing and Protection Act, that could have horrific implications for user rights. In order to protect our rights to free speech and privacy on the internet, we need to seriously reconsider those laws and the shadowy figure used to rationalize them.

[…]

In the effort to protect society and the state from the ravages of this imagined hacker, the US government has adopted overbroad, vaguely worded laws and regulations which severely undermine internet freedom and threaten the Internet’s role as a place of political and creative expression. In an effort to stay ahead of the wily hacker, laws like the Computer Fraud and Abuse Act (CFAA) focus on electronic conduct or actions, rather than the intent of or actual harm caused by those actions. This leads to a wide range of seemingly innocuous digital activities potentially being treated as criminal acts. Distrust for the hacker politics of Internet freedom, privacy, and access abets the development of ever-stricter copyright regimes, or laws like the proposed Cyber Intelligence Sharing and Protection Act, which if passed would have disastrous implications for personal privacy online.

Note that this was written last year, before any of the recent overzealous prosecutions.

Posted on April 8, 2013 at 6:34 AM • View Comments

What I've Been Thinking About

I’m starting to think about my next book, which will be about power and the Internet—from the perspective of security. My objective will be to describe current trends, explain where those trends are leading us, and discuss alternatives for avoiding that outcome. Many of my recent essays have touched on various facets of this, although I’m still looking for synthesis. These facets include:

  1. The relationship between the Internet and power: how the Internet affects power, and how power affects the Internet. Increasingly, those in power are using information technology to increase their power.
  2. A feudal model of security that leaves users with little control over their data or computing platforms, forcing them to trust the companies that sell the hardware, software, and systems—and allowing those companies to abuse that trust.
  3. The rise of nationalism on the Internet and a cyberwar arms race, both of which play on our fears and which are resulting in increased military involvement in our information infrastructure.
  4. Ubiquitous surveillance for both government and corporate purposes—aided by cloud computing, social networking, and Internet-enabled everything—resulting in a world without any real privacy.
  5. The four tools of Internet oppression—surveillance, censorship, propaganda, and use control—have both government and corporate uses. And these are interrelated; often building tools to fight one as the side effect of facilitating another.
  6. Ill-conceived laws and regulations on behalf of either government or corporate power, either to prop up their business models (copyright protections), fight crime (increased police access to data), or control our actions in cyberspace.
  7. The need for leaks: both whistleblowers and FOIA suits. So much of what the government does to us is shrouded in secrecy, and leaks are the only we know what’s going on. This also applies to the corporate algorithms and systems and control much of our lives.

On the one hand, we need new regimes of trust in the information age. (I wrote about the extensively in my most recent book, Liars and Outliers.) On the other hand, the risks associated with increasing technology might mean that the fear of catastrophic attack will make us unable to create those new regimes.

I believe society is headed down a dangerous path, and that we—as members of society—need to make some hard choices about what sort of world we want to live in. If we maintain our current trajectory, the future does not look good. It’s not clear if we have the social or political will to address the intertwined issues of power, security, and technology, or even have the conversations necessary to understand the decisions we need to make. Writing about topics like this is what I do best, and I hope that a book on this topic will have a positive effect on the discourse.

The working title of the book is Power.com—although that might be too similar to the book Power, Inc. for the final title.

These thoughts are still in draft, and not yet part of a coherent whole. For me, the writing process is how I understand a topic, and the shape of this book will almost certainly change substantially as I write. I’m very interested in what people think about this, especially in terms of solutions. Please pass this around to interested people, and leave comments to this blog post.

Posted on April 1, 2013 at 6:07 AM • View Comments

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Sidebar photo of Bruce Schneier by Joe MacInnis.