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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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Passwords at the Border

The password-manager 1Password has just implemented a travel mode that tries to protect users while crossing borders. It doesn’t make much sense. To enable it, you have to create a list of passwords you feel safe traveling with, and then you can turn on the mode that only gives you access to those passwords. But since you can turn it off at will, a border official can just demand you do so. Better would be some sort of time lock where you are unable to turn it off at the border.

There are a bunch of tricks you can use to ensure that you are unable to decrypt your devices, even if someone demands that you do. Back in 2009, I described such a scheme, and mentioned some other tricks the year before. Here’s more. They work with any password manager, including my own Password Safe.

There’s a problem, though. Everything you do along these lines is problematic, because 1) you don’t want to ever lie to a customs official, and 2) any steps you take to make your data inaccessible is in itself suspicious. Your best defense is not to have anything incriminating on your computer or in the various social media accounts you use. (This advice was given to Australian citizens by their Department of Immigration and Border Protection specifically to Muslims pilgrims returning from hajj. Bizarrely, an Australian MP complained when Muslims repeated that advice.)

The EFF has a comprehensive guide to both the tech and policy of securing your electronics for border crossings.

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A New Free CA

Announcing Let’s Encrypt, a new free certificate authority. This is a joint project of EFF, Mozilla, Cisco, Akamai, and the University of Michigan.

This is an absolutely fantastic idea.

The anchor for any TLS-protected communication is a public-key certificate which demonstrates that the server you’re actually talking to is the server you intended to talk to. For many server operators, getting even a basic server certificate is just too much of a hassle. The application process can be confusing. It usually costs money. It’s tricky to install correctly. It’s a pain to update.

Let’s Encrypt is a new free certificate authority, built on a foundation of cooperation and openness, that lets everyone be up and running with basic server certificates for their domains through a simple one-click process.

[…]

The key principles behind Let’s Encrypt are:

  • Free: Anyone who owns a domain can get a certificate validated for that domain at zero cost.

  • Automatic: The entire enrollment process for certificates occurs painlessly during the server’s native installation or configuration process, while renewal occurs automatically in the background.

  • Secure: Let’s Encrypt will serve as a platform for implementing modern security techniques and best practices.

  • Transparent: All records of certificate issuance and revocation will be available to anyone who wishes to inspect them.

  • Open: The automated issuance and renewal protocol will be an open standard and as much of the software as possible will be open source.

  • Cooperative: Much like the underlying Internet protocols themselves, Let’s Encrypt is a joint effort to benefit the entire community, beyond the control of any one organization.

SlashDot thread. Hacker News thread.

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