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What the NSA Collects via 702

New York Times reporter Charlie Savage writes about some bad statistics we’re all using:

Among surveillance legal policy specialists, it is common to cite a set of statistics from an October 2011 opinion by Judge John Bates, then of the FISA Court, about the volume of internet communications the National Security Agency was collecting under the FISA Amendments Act (“Section 702”) warrantless surveillance program. In his opinion, declassified in August 2013, Judge Bates wrote that the NSA was collecting more than 250 million internet communications a year, of which 91 percent came from its Prism system (which collects stored e-mails from providers like Gmail) and 9 percent came from its upstream system (which collects transmitted messages from network operators like AT&T).

These numbers are wrong. This blog post will address, first, the widespread nature of this misunderstanding; second, how I came to FOIA certain documents trying to figure out whether the numbers really added up; third, what those documents show; and fourth, what I further learned in talking to an intelligence official. This is far too dense and weedy for a New York Times article, but should hopefully be of some interest to specialists.

Worth reading for the details.

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Do the Police Need a Search Warrant to Access Cell Phone Location Data?

The US Supreme Court is deciding a case that will establish whether the police need a warrant to access cell phone location data. This week I signed on to an amicus brief from a wide array of security technologists outlining the technical arguments as why the answer should be yes. Susan Landau summarized our arguments.

A bunch of tech companies also submitted a brief.

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The Dangers of Secret Law

Last week, the Department of Justice released 18 new FISC opinions related to Section 702 as part of an EFF FOIA lawsuit. (Of course, they don’t mention EFF or the lawsuit. They make it sound as if it was their idea.)

There’s probably a lot in these opinions. In one Kafkaesque ruling, a defendant was denied access to the previous court rulings that were used by the court to decide against it:

…in 2014, the Foreign Intelligence Surveillance Court (FISC) rejected a service provider’s request to obtain other FISC opinions that government attorneys had cited and relied on in court filings seeking to compel the provider’s cooperation.

[…]

The provider’s request came up amid legal briefing by both it and the DOJ concerning its challenge to a 702 order. After the DOJ cited two earlier FISC opinions that were not public at the time — one from 2014 and another from 2008­ — the provider asked the court for access to those rulings.

The provider argued that without being able to review the previous FISC rulings, it could not fully understand the court’s earlier decisions, much less effectively respond to DOJ’s argument. The provider also argued that because attorneys with Top Secret security clearances represented it, they could review the rulings without posing a risk to national security.

The court disagreed in several respects. It found that the court’s rules and Section 702 prohibited the documents release. It also rejected the provider’s claim that the Constitution’s Due Process Clause entitled it to the documents.

This kind of government secrecy is toxic to democracy. National security is important, but we will not survive if we become a country of secret court orders based on secret interpretations of secret law.

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Surveillance Intermediaries

Interesting law-journal article: “Surveillance Intermediaries,” by Alan Z. Rozenshtein.

Abstract:Apple’s 2016 fight against a court order commanding it to help the FBI unlock the iPhone of one of the San Bernardino terrorists exemplifies how central the question of regulating government surveillance has become in American politics and law. But scholarly attempts to answer this question have suffered from a serious omission: scholars have ignored how government surveillance is checked by “surveillance intermediaries,” the companies like Apple, Google, and Facebook that dominate digital communications and data storage, and on whose cooperation government surveillance relies. This Article fills this gap in the scholarly literature, providing the first comprehensive analysis of how surveillance intermediaries constrain the surveillance executive. In so doing, it enhances our conceptual understanding of, and thus our ability to improve, the institutional design of government surveillance.

Surveillance intermediaries have the financial and ideological incentives to resist government requests for user data. Their techniques of resistance are: proceduralism and litigiousness that reject voluntary cooperation in favor of minimal compliance and aggressive litigation; technological unilateralism that designs products and services to make surveillance harder; and policy mobilization that rallies legislative and public opinion to limit surveillance. Surveillance intermediaries also enhance the “surveillance separation of powers”; they make the surveillance executive more subject to inter-branch constraints from Congress and the courts, and to intra-branch constraints from foreign-relations and economics agencies as well as the surveillance executive’s own surveillance-limiting components.

The normative implications of this descriptive account are important and cross-cutting. Surveillance intermediaries can both improve and worsen the “surveillance frontier”: the set of tradeoffs ­ between public safety, privacy, and economic growth ­ from which we choose surveillance policy. And while intermediaries enhance surveillance self-government when they mobilize public opinion and strengthen the surveillance separation of powers, they undermine it when their unilateral technological changes prevent the government from exercising its lawful surveillance authorities.

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Uber Uses Ubiquitous Surveillance to Identify and Block Regulators

The New York Times reports that Uber developed apps that identified and blocked government regulators using the app to find evidence of illegal behavior:

Yet using its app to identify and sidestep authorities in places where regulators said the company was breaking the law goes further in skirting ethical lines — and potentially legal ones, too. Inside Uber, some of those who knew about the VTOS program and how the Greyball tool was being used were troubled by it.

[…]

One method involved drawing a digital perimeter, or “geofence,” around authorities’ offices on a digital map of the city that Uber monitored. The company watched which people frequently opened and closed the app — a process internally called “eyeballing” — around that location, which signified that the user might be associated with city agencies.

Other techniques included looking at the user’s credit card information and whether that card was tied directly to an institution like a police credit union.

Enforcement officials involved in large-scale sting operations to catch Uber drivers also sometimes bought dozens of cellphones to create different accounts. To circumvent that tactic, Uber employees went to that city’s local electronics stores to look up device numbers of the cheapest mobile phones on sale, which were often the ones bought by city officials, whose budgets were not sizable.

In all, there were at least a dozen or so signifiers in the VTOS program that Uber employees could use to assess whether users were new riders or very likely city officials.

If those clues were not enough to confirm a user’s identity, Uber employees would search social media profiles and other available information online. Once a user was identified as law enforcement, Uber Greyballed him or her, tagging the user with a small piece of code that read Greyball followed by a string of numbers.

When Edward Snowden exposed the fact that the NSA does this sort of thing, I commented that the technologies will eventually become cheap enough for corporations to do it. Now, it has.

One discussion we need to have is whether or not this behavior is legal. But another, more important, discussion is whether or not it is ethical. Do we want to live in a society where corporations wield this sort of power against government? Against individuals? Because if we don’t align government against this kind of behavior, it’ll become the norm.

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Malicious AI

It’s not hard to imagine the criminal possibilities of automation, autonomy, and artificial intelligence. But the imaginings are becoming mainstream — and the future isn’t too far off.

Along similar lines, computers are able to predict court verdicts. My guess is that the real use here isn’t to predict actual court verdicts, but for well-paid defense teams to test various defensive tactics.

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