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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.

infossl August 2, 2019 academicpapers, courts, lawenforcement, laws, privacy, Security technology Read more >

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.

infossl June 3, 2019 breaches, courts, cybersecurity, disclosure, laws, Security technology, whistleblowers Read more >

Major Tech Companies Finally Endorse Federal Privacy Regulation

The major tech companies, scared that states like California might impose actual privacy regulations, have now decided that they can better lobby the federal government for much weaker national legislation that will preempt any stricter state measures.

I’m sure they’ll still do all they can to weaken the California law, but they know they’ll do better at the national level.

infossl September 28, 2018 laws, nationalsecuritypolicy, privacy, Security technology Read more >

California Passes New Privacy Law

The California legislature unanimously passed the strongest data privacy law in the nation. This is great news, but I have a lot of reservations. The Internet tech companies pressed to get this law passed out of self-defense. A ballot initiative was already going to be voted on in November, one with even stronger data privacy protections. The author of that initiative agreed to pull it if the legislature passed something similar, and that’s why it did. This law doesn’t take effect until 2020, and that gives the legislature a lot of time to amend the law before it actually protects anyone’s privacy. And a conventional law is much easier to amend than a ballot initiative. Just as the California legislature gutted its net neutrality law in committee at the behest of the telcos, I expect it to do the same with this law at the behest of the Internet giants.

So: tentative hooray, I guess.

infossl July 3, 2018 datacollection, dataprotection, laws, privacy, Security technology Read more >

Cabinet of Secret Documents from Australia

This story of leaked Australian government secrets is unlike any other I’ve heard:

It begins at a second-hand shop in Canberra, where ex-government furniture is sold off cheaply.

The deals can be even cheaper when the items in question are two heavy filing cabinets to which no-one can find the keys.

They were purchased for small change and sat unopened for some months until the locks were attacked with a drill.

Inside was the trove of documents now known as The Cabinet Files.

The thousands of pages reveal the inner workings of five separate governments and span nearly a decade.

Nearly all the files are classified, some as “top secret” or “AUSTEO”, which means they are to be seen by Australian eyes only.

Yes, that really happened. The person who bought and opened the file cabinets contacted the Australian Broadcasting Corp, who is now publishing a bunch of it.

There’s lots of interesting (and embarassing) stuff in the documents, although most of it is local politics. I am more interested in the government’s reaction to the incident: they’re pushing for a law making it illegal for the press to publish government secrets it received through unofficial channels.

“The one thing I would point out about the legislation that does concern me particularly is that classified information is an element of the offence,” he said.

“That is to say, if you’ve got a filing cabinet that is full of classified information … that means all the Crown has to prove if they’re prosecuting you is that it is classified nothing else.

“They don’t have to prove that you knew it was classified, so knowledge is beside the point.”

[…]

Many groups have raised concerns, including media organisations who say they unfairly target journalists trying to do their job.

But really anyone could be prosecuted just for possessing classified information, regardless of whether they know about it.

That might include, for instance, if you stumbled across a folder of secret files in a regular skip bin while walking home and handed it over to a journalist.

This illustrates a fundamental misunderstanding of the threat. The Australian Broadcasting Corp gets their funding from the government, and was very restrained in what they published. They waited months before publishing as they coordinated with the Australian government. They allowed the government to secure the files, and then returned them. From the government’s perspective, they were the best possible media outlet to receive this information. If the government makes it illegal for the Australian press to publish this sort of material, the next time it will be sent to the BBC, the Guardian, the New York Times, or Wikileaks. And since people no longer read their news from newspapers sold in stores but on the Internet, the result will be just as many people reading the stories with far fewer redactions.

The proposed law is older than this leak, but the leak is giving it new life. The Australian opposition party is being cagey on whether they will support the law. They don’t want to appear weak on national security, so I’m not optimistic.

infossl February 7, 2018 australia, control, laws, leaks, nationalsecuritypolicy, physicalsecurity, secrecy, Security technology Read more >

A Framework for Cyber Security Insurance

New paper: “Policy measures and cyber insurance: a framework,” by Daniel Woods and Andrew Simpson, Journal of Cyber Policy, 2017.

Abstract: The role of the insurance industry in driving improvements in cyber security has been identified as mutually beneficial for both insurers and policy-makers. To date, there has been no consideration of the roles governments and the insurance industry should pursue in support of this public-private partnership. This paper rectifies this omission and presents a framework to help underpin such a partnership, giving particular consideration to possible government interventions that might affect the cyber insurance market. We have undertaken a qualitative analysis of reports published by policy-making institutions and organisations working in the cyber insurance domain; we have also conducted interviews with cyber insurance professionals. Together, these constitute a stakeholder analysis upon which we build our framework. In addition, we present a research roadmap to demonstrate how the ideas described might be taken forward.

infossl August 30, 2017 academicpapers, computersecurity, insurance, laws, Security technology Read more >

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.

infossl June 7, 2017 academicpapers, courts, incentives, laws, nationalsecuritypolicy, privacy, Security technology, surveillance Read more >

Election Security

It’s over. The voting went smoothly. As of the time of writing, there are no serious fraud allegations, nor credible evidence that anyone tampered with voting rolls or voting machines. And most important, the results are not in doubt.

While we may breathe a collective sigh of relief about that, we can’t ignore the issue until the next election. The risks remain.

As computer security experts have been saying for years, our newly computerized voting systems are vulnerable to attack by both individual hackers and government-sponsored cyberwarriors. It is only a matter of time before such an attack happens.

Electronic voting machines can be hacked, and those machines that do not include a paper ballot that can verify each voter’s choice can be hacked undetectably. Voting rolls are also vulnerable; they are all computerized databases whose entries can be deleted or changed to sow chaos on Election Day.

The largely ad hoc system in states for collecting and tabulating individual voting results is vulnerable as well. While the difference between theoretical if demonstrable vulnerabilities and an actual attack on Election Day is considerable, we got lucky this year. Not just presidential elections are at risk, but state and local elections, too.

To be very clear, this is not about voter fraud. The risks of ineligible people voting, or people voting twice, have been repeatedly shown to be virtually nonexistent, and “solutions” to this problem are largely voter-suppression measures. Election fraud, however, is both far more feasible and much more worrisome.

Here’s my worry. On the day after an election, someone claims that a result was hacked. Maybe one of the candidates points to a wide discrepancy between the most recent polls and the actual results. Maybe an anonymous person announces that he hacked a particular brand of voting machine, describing in detail how. Or maybe it’s a system failure during Election Day: voting machines recording significantly fewer votes than there were voters, or zero votes for one candidate or another. (These are not theoretical occurrences; they have both happened in the United States before, though because of error, not malice.)

We have no procedures for how to proceed if any of these things happen. There’s no manual, no national panel of experts, no regulatory body to steer us through this crisis. How do we figure out if someone hacked the vote? Can we recover the true votes, or are they lost? What do we do then?

First, we need to do more to secure our elections system. We should declare our voting systems to be critical national infrastructure. This is largely symbolic, but it demonstrates a commitment to secure elections and makes funding and other resources available to states.

We need national security standards for voting machines, and funding for states to procure machines that comply with those standards. Voting-security experts can deal with the technical details, but such machines must include a paper ballot that provides a record verifiable by voters. The simplest and most reliable way to do that is already practiced in 37 states: optical-scan paper ballots, marked by the voters, counted by computer but recountable by hand. And we need a system of pre-election and postelection security audits to increase confidence in the system.

Second, election tampering, either by a foreign power or by a domestic actor, is inevitable, so we need detailed procedures to follow–both technical procedures to figure out what happened, and legal procedures to figure out what to do–that will efficiently get us to a fair and equitable election resolution. There should be a board of independent computer-security experts to unravel what happened, and a board of independent election officials, either at the Federal Election Commission or elsewhere, empowered to determine and put in place an appropriate response.

In the absence of such impartial measures, people rush to defend their candidate and their party. Florida in 2000 was a perfect example. What could have been a purely technical issue of determining the intent of every voter became a battle for who would win the presidency. The debates about hanging chads and spoiled ballots and how broad the recount should be were contested by people angling for a particular outcome. In the same way, after a hacked election, partisan politics will place tremendous pressure on officials to make decisions that override fairness and accuracy.

That is why we need to agree on policies to deal with future election fraud. We need procedures to evaluate claims of voting-machine hacking. We need a fair and robust vote-auditing process. And we need all of this in place before an election is hacked and battle lines are drawn.

In response to Florida, the Help America Vote Act of 2002 required each state to publish its own guidelines on what constitutes a vote. Some states — Indiana, in particular — set up a “war room” of public and private cybersecurity experts ready to help if anything did occur. While the Department of Homeland Security is assisting some states with election security, and the F.B.I. and the Justice Department made some preparations this year, the approach is too piecemeal.

Elections serve two purposes. First, and most obvious, they are how we choose a winner. But second, and equally important, they convince the loser–and all the supporters–that he or she lost. To achieve the first purpose, the voting system must be fair and accurate. To achieve the second one, it must be shown to be fair and accurate.

We need to have these conversations before something happens, when everyone can be calm and rational about the issues. The integrity of our elections is at stake, which means our democracy is at stake.

This essay previously appeared in the New York Times.
http://www.nytimes.com/2016/11/09/opinion/american-elections-will-be-hacked.html

infossl November 15, 2016 hacking, laws, Security technology, voting Read more >

Regulation of the Internet of Things

Late last month, popular websites like Twitter, Pinterest, Reddit and PayPal went down for most of a day. The distributed denial-of-service attack that caused the outages, and the vulnerabilities that made the attack possible, was as much a failure of market and policy as it was of technology. If we want to secure our increasingly computerized and connected world, we need more government involvement in the security of the “Internet of Things” and increased regulation of what are now critical and life-threatening technologies. It’s no longer a question of if, it’s a question of when.

First, the facts. Those websites went down because their domain name provider — a company named Dyn — was forced offline. We don’t know who perpetrated that attack, but it could have easily been a lone hacker. Whoever it was launched a distributed denial-of-service attack against Dyn by exploiting a vulnerability in large numbers — possibly millions — of Internet-of-Things devices like webcams and digital video recorders, then recruiting them all into a single botnet. The botnet bombarded Dyn with traffic, so much that it went down. And when it went down, so did dozens of websites.

Your security on the Internet depends on the security of millions of Internet-enabled devices, designed and sold by companies you’ve never heard of to consumers who don’t care about your security.

The technical reason these devices are insecure is complicated, but there is a market failure at work. The Internet of Things is bringing computerization and connectivity to many tens of millions of devices worldwide. These devices will affect every aspect of our lives, because they’re things like cars, home appliances, thermostats, lightbulbs, fitness trackers, medical devices, smart streetlights and sidewalk squares. Many of these devices are low-cost, designed and built offshore, then rebranded and resold. The teams building these devices don’t have the security expertise we’ve come to expect from the major computer and smartphone manufacturers, simply because the market won’t stand for the additional costs that would require. These devices don’t get security updates like our more expensive computers, and many don’t even have a way to be patched. And, unlike our computers and phones, they stay around for years and decades.

An additional market failure illustrated by the Dyn attack is that neither the seller nor the buyer of those devices cares about fixing the vulnerability. The owners of those devices don’t care. They wanted a webcam — or thermostat, or refrigerator — with nice features at a good price. Even after they were recruited into this botnet, they still work fine — you can’t even tell they were used in the attack. The sellers of those devices don’t care: They’ve already moved on to selling newer and better models. There is no market solution because the insecurity primarily affects other people. It’s a form of invisible pollution.

And, like pollution, the only solution is to regulate. The government could impose minimum security standards on IoT manufacturers, forcing them to make their devices secure even though their customers don’t care. They could impose liabilities on manufacturers, allowing companies like Dyn to sue them if their devices are used in DDoS attacks. The details would need to be carefully scoped, but either of these options would raise the cost of insecurity and give companies incentives to spend money making their devices secure.

It’s true that this is a domestic solution to an international problem and that there’s no U.S. regulation that will affect, say, an Asian-made product sold in South America, even though that product could still be used to take down U.S. websites. But the main costs in making software come from development. If the United States and perhaps a few other major markets implement strong Internet-security regulations on IoT devices, manufacturers will be forced to upgrade their security if they want to sell to those markets. And any improvements they make in their software will be available in their products wherever they are sold, simply because it makes no sense to maintain two different versions of the software. This is truly an area where the actions of a few countries can drive worldwide change.

Regardless of what you think about regulation vs. market solutions, I believe there is no choice. Governments will get involved in the IoT, because the risks are too great and the stakes are too high. Computers are now able to affect our world in a direct and physical manner.

Security researchers have demonstrated the ability to remotely take control of Internet-enabled cars. They’ve demonstrated ransomware against home thermostats and exposed vulnerabilities in implanted medical devices. They’ve hacked voting machines and power plants. In one recent paper, researchers showed how a vulnerability in smart lightbulbs could be used to start a chain reaction, resulting in them all being controlled by the attackers — that’s every one in a city. Security flaws in these things could mean people dying and property being destroyed.

Nothing motivates the U.S. government like fear. Remember 2001? A small-government Republican president created the Department of Homeland Security in the wake of the Sept. 11 terrorist attacks: a rushed and ill-thought-out decision that we’ve been trying to fix for more than a decade. A fatal IoT disaster will similarly spur our government into action, and it’s unlikely to be well-considered and thoughtful action. Our choice isn’t between government involvement and no government involvement. Our choice is between smarter government involvement and stupider government involvement. We have to start thinking about this now. Regulations are necessary, important and complex — and they’re coming. We can’t afford to ignore these issues until it’s too late.

In general, the software market demands that products be fast and cheap and that security be a secondary consideration. That was okay when software didn’t matter — it was okay that your spreadsheet crashed once in a while. But a software bug that literally crashes your car is another thing altogether. The security vulnerabilities in the Internet of Things are deep and pervasive, and they won’t get fixed if the market is left to sort it out for itself. We need to proactively discuss good regulatory solutions; otherwise, a disaster will impose bad ones on us.

This essay previously appeared in the Washington Post.

infossl November 10, 2016 denialofservice, dns, economicsofsecurity, internetofthings, laws, Security technology, softwareliability Read more >

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.

infossl December 23, 2014 courts, laws, propaganda, Security technology Read more >