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How Did Facebook Beat a Federal Wiretap Demand?

This is interesting:

Facebook Inc. in 2018 beat back federal prosecutors seeking to wiretap its encrypted Messenger app. Now the American Civil Liberties Union is seeking to find out how.

The entire proceeding was confidential, with only the result leaking to the press. Lawyers for the ACLU and the Washington Post on Tuesday asked a San Francisco-based federal court of appeals to unseal the judge’s decision, arguing the public has a right to know how the law is being applied, particularly in the area of privacy.

[…]

The Facebook case stems from a federal investigation of members of the violent MS-13 criminal gang. Prosecutors tried to hold Facebook in contempt after the company refused to help investigators wiretap its Messenger app, but the judge ruled against them. If the decision is unsealed, other tech companies will likely try to use its reasoning to ward off similar government requests in the future.

Here’s the 2018 story. Slashdot thread.

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Clarifying the Computer Fraud and Abuse Act

A federal court has ruled that violating a website’s terms of service is not “hacking” under the Computer Fraud and Abuse Act.

The plaintiffs wanted to investigate possible racial discrimination in online job markets by creating accounts for fake employers and job seekers. Leading job sites have terms of service prohibiting users from supplying fake information, and the researchers worried that their research could expose them to criminal liability under the CFAA, which makes it a crime to “access a computer without authorization or exceed authorized access.”

So in 2016 they sued the federal government, seeking a declaration that this part of the CFAA violated the First Amendment.

But rather than addressing that constitutional issue, Judge John Bates ruled on Friday that the plaintiffs’ proposed research wouldn’t violate the CFAA’s criminal provisions at all. Someone violates the CFAA when they bypass an access restriction like a password. But someone who logs into a website with a valid password doesn’t become a hacker simply by doing something prohibited by a website’s terms of service, the judge concluded.

“Criminalizing terms-of-service violations risks turning each website into its own criminal jurisdiction and each webmaster into his own legislature,” Bates wrote.

Bates noted that website terms of service are often long, complex, and change frequently. While some websites require a user to read through the terms and explicitly agree to them, others merely include a link to the terms somewhere on the page. As a result, most users aren’t even aware of the contractual terms that supposedly govern the site. Under those circumstances, it’s not reasonable to make violation of such terms a criminal offense, Bates concluded.

This is not the first time a court has issued a ruling in this direction. It’s also not the only way the courts have interpreted the frustratingly vague Computer Fraud and Abuse Act.

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Securing the Internet of Things through Class-Action Lawsuits

This law journal article discusses the role of class-action litigation to secure the Internet of Things.

Basically, the article postulates that (1) market realities will produce insecure IoT devices, and (2) political failures will leave that industry unregulated. Result: insecure IoT. It proposes proactive class action litigation against manufacturers of unsafe and unsecured IoT devices before those devices cause unnecessary injury or death. It’s a lot to read, but it’s an interesting take on how to secure this otherwise disastrously insecure world.

And it was inspired by my book, Click Here to Kill Everybody.

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The Story of Tiversa

The New Yorker has published the long and interesting story of the cybersecurity firm Tiversa.

Watching “60 Minutes,” Boback saw a remarkable new business angle. Here was a multibillion-dollar industry with a near-existential problem and no clear solution. He did not know it then, but, as he turned the opportunity over in his mind, he was setting in motion a sequence of events that would earn him millions of dollars, friendships with business élites, prime-time media attention, and respect in Congress. It would also place him at the center of one of the strangest stories in the brief history of cybersecurity; he would be mired in lawsuits, countersuits, and counter-countersuits, which would gather into a vortex of litigation so ominous that one friend compared it to the Bermuda Triangle. He would be accused of fraud, of extortion, and of manipulating the federal government into harming companies that did not do business with him. Congress would investigate him. So would the F.B.I.

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AT&T Employees Took Bribes to Unlock Smartphones

This wasn’t a small operation:

A Pakistani man bribed AT&T call-center employees to install malware and unauthorized hardware as part of a scheme to fraudulently unlock cell phones, according to the US Department of Justice. Muhammad Fahd, 34, was extradited from Hong Kong to the US on Friday and is being detained pending trial.

An indictment alleges that “Fahd recruited and paid AT&T insiders to use their computer credentials and access to disable AT&T’s proprietary locking software that prevented ineligible phones from being removed from AT&T’s network,” a DOJ announcement yesterday said. “The scheme resulted in millions of phones being removed from AT&T service and/or payment plans, costing the company millions of dollars. Fahd allegedly paid the insiders hundreds of thousands of dollars­ — paying one co-conspirator $428,500 over the five-year scheme.”

In all, AT&T insiders received more than $1 million in bribes from Fahd and his co-conspirators, who fraudulently unlocked more than 2 million cell phones, the government alleged. Three former AT&T customer service reps from a call center in Bothell, Washington, already pleaded guilty and agreed to pay the money back to AT&T.

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How Privacy Laws Hurt Defendants

Rebecca Wexler has an interesting op-ed about an inadvertent harm that privacy laws can cause: while law enforcement can often access third-party data to aid in prosecution, the accused don’t have the same level of access to aid in their defense:

The proposed privacy laws would make this situation worse. Lawmakers may not have set out to make the criminal process even more unfair, but the unjust result is not surprising. When lawmakers propose privacy bills to protect sensitive information, law enforcement agencies lobby for exceptions so they can continue to access the information. Few lobby for the accused to have similar rights. Just as the privacy interests of poor, minority and heavily policed communities are often ignored in the lawmaking process, so too are the interests of criminal defendants, many from those same communities.

In criminal cases, both the prosecution and the accused have a right to subpoena evidence so that juries can hear both sides of the case. The new privacy bills need to ensure that law enforcement and defense investigators operate under the same rules when they subpoena digital data. If lawmakers believe otherwise, they should have to explain and justify that view.

For more detail, see her paper.

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The Importance of Protecting Cybersecurity Whistleblowers

Interesting essay arguing that we need better legislation to protect cybersecurity whistleblowers.

Congress should act to protect cybersecurity whistleblowers because information security has never been so important, or so challenging. In the wake of a barrage of shocking revelations about data breaches and companies mishandling of customer data, a bipartisan consensus has emerged in support of legislation to give consumers more control over their personal information, require companies to disclose how they collect and use consumer data, and impose penalties for data breaches and misuse of consumer data. The Federal Trade Commission (“FTC”) has been held out as the best agency to implement this new regulation. But for any such legislation to be effective, it must protect the courageous whistleblowers who risk their careers to expose data breaches and unauthorized use of consumers’ private data.

Whistleblowers strengthen regulatory regimes, and cybersecurity regulation would be no exception. Republican and Democratic leaders from the executive and legislative branches have extolled the virtues of whistleblowers. High-profile cases abound. Recently, Christopher Wylie exposed Cambridge Analytica’s misuse of Facebook user data to manipulate voters, including its apparent theft of data from 50 million Facebook users as part of a psychological profiling campaign. Though additional research is needed, the existing empirical data reinforces the consensus that whistleblowers help prevent, detect, and remedy misconduct. Therefore it is reasonable to conclude that protecting and incentivizing whistleblowers could help the government address the many complex challenges facing our nation’s information systems.

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I Was Cited in a Court Decision

An article I co-wrote — my first law journal article — was cited by the Massachusetts Supreme Judicial Court — the state supreme court — in a case on compelled decryption.

Here’s the first, in footnote 1:

We understand the word “password” to be synonymous with other terms that cell phone users may be familiar with, such as Personal Identification Number or “passcode.” Each term refers to the personalized combination of letters or digits that, when manually entered by the user, “unlocks” a cell phone. For simplicity, we use “password” throughout. See generally, Kerr & Schneier, Encryption Workarounds, 106 Geo. L.J. 989, 990, 994, 998 (2018).

And here’s the second, in footnote 5:

We recognize that ordinary cell phone users are likely unfamiliar with the complexities of encryption technology. For instance, although entering a password “unlocks” a cell phone, the password itself is not the “encryption key” that decrypts the cell phone’s contents. See Kerr & Schneier, supra at 995. Rather, “entering the [password] decrypts the [encryption] key, enabling the key to be processed and unlocking the phone. This two-stage process is invisible to the casual user.” Id. Because the technical details of encryption technology do not play a role in our analysis, they are not worth belaboring. Accordingly, we treat the entry of a password as effectively decrypting the contents of a cell phone. For a more detailed discussion of encryption technology, see generally Kerr & Schneier, supra.

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