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After Section 702 Reauthorization

For over a decade, civil libertarians have been fighting government mass surveillance of innocent Americans over the Internet. We’ve just lost an important battle. On January 18, President Trump signed the renewal of Section 702, domestic mass surveillance became effectively a permanent part of US law.

Section 702 was initially passed in 2008, as an amendment to the Foreign Intelligence Surveillance Act of 1978. As the title of that law says, it was billed as a way for the NSA to spy on non-Americans located outside the United States. It was supposed to be an efficiency and cost-saving measure: the NSA was already permitted to tap communications cables located outside the country, and it was already permitted to tap communications cables from one foreign country to another that passed through the United States. Section 702 allowed it to tap those cables from inside the United States, where it was easier. It also allowed the NSA to request surveillance data directly from Internet companies under a program called PRISM.

The problem is that this authority also gave the NSA the ability to collect foreign communications and data in a way that inherently and intentionally also swept up Americans’ communications as well, without a warrant. Other law enforcement agencies are allowed to ask the NSA to search those communications, give their contents to the FBI and other agencies and then lie about their origins in court.

In 1978, after Watergate had revealed the Nixon administration’s abuses of power, we erected a wall between intelligence and law enforcement that prevented precisely this kind of sharing of surveillance data under any authority less restrictive than the Fourth Amendment. Weakening that wall is incredibly dangerous, and the NSA should never have been given this authority in the first place.

Arguably, it never was. The NSA had been doing this type of surveillance illegally for years, something that was first made public in 2006. Section 702 was secretly used as a way to paper over that illegal collection, but nothing in the text of the later amendment gives the NSA this authority. We didn’t know that the NSA was using this law as the statutory basis for this surveillance until Edward Snowden showed us in 2013.

Civil libertarians have been battling this law in both Congress and the courts ever since it was proposed, and the NSA’s domestic surveillance activities even longer. What this most recent vote tells me is that we’ve lost that fight.

Section 702 was passed under George W. Bush in 2008, reauthorized under Barack Obama in 2012, and now reauthorized again under Trump. In all three cases, congressional support was bipartisan. It has survived multiple lawsuits by the Electronic Frontier Foundation, the ACLU, and others. It has survived the revelations by Snowden that it was being used far more extensively than Congress or the public believed, and numerous public reports of violations of the law. It has even survived Trump’s belief that he was being personally spied on by the intelligence community, as well as any congressional fears that Trump could abuse the authority in the coming years. And though this extension lasts only six years, it’s inconceivable to me that it will ever be repealed at this point.

So what do we do? If we can’t fight this particular statutory authority, where’s the new front on surveillance? There are, it turns out, reasonable modifications that target surveillance more generally, and not in terms of any particular statutory authority. We need to look at US surveillance law more generally.

First, we need to strengthen the minimization procedures to limit incidental collection. Since the Internet was developed, all the world’s communications travel around in a single global network. It’s impossible to collect only foreign communications, because they’re invariably mixed in with domestic communications. This is called “incidental” collection, but that’s a misleading name. It’s collected knowingly, and searched regularly. The intelligence community needs much stronger restrictions on which American communications channels it can access without a court order, and rules that require they delete the data if they inadvertently collect it. More importantly, “collection” is defined as the point the NSA takes a copy of the communications, and not later when they search their databases.

Second, we need to limit how other law enforcement agencies can use incidentally collected information. Today, those agencies can query a database of incidental collection on Americans. The NSA can legally pass information to those other agencies. This has to stop. Data collected by the NSA under its foreign surveillance authority should not be used as a vehicle for domestic surveillance.

The most recent reauthorization modified this lightly, forcing the FBI to obtain a court order when querying the 702 data for a criminal investigation. There are still exceptions and loopholes, though.

Third, we need to end what’s called “parallel construction.” Today, when a law enforcement agency uses evidence found in this NSA database to arrest someone, it doesn’t have to disclose that fact in court. It can reconstruct the evidence in some other manner once it knows about it, and then pretend it learned of it that way. This right to lie to the judge and the defense is corrosive to liberty, and it must end.

Pressure to reform the NSA will probably first come from Europe. Already, European Union courts have pointed to warrantless NSA surveillance as a reason to keep Europeans’ data out of US hands. Right now, there is a fragile agreement between the EU and the United States ­– called “Privacy Shield” — ­that requires Americans to maintain certain safeguards for international data flows. NSA surveillance goes against that, and it’s only a matter of time before EU courts start ruling this way. That’ll have significant effects on both government and corporate surveillance of Europeans and, by extension, the entire world.

Further pressure will come from the increased surveillance coming from the Internet of Things. When your home, car, and body are awash in sensors, privacy from both governments and corporations will become increasingly important. Sooner or later, society will reach a tipping point where it’s all too much. When that happens, we’re going to see significant pushback against surveillance of all kinds. That’s when we’ll get new laws that revise all government authorities in this area: a clean sweep for a new world, one with new norms and new fears.

It’s possible that a federal court will rule on Section 702. Although there have been many lawsuits challenging the legality of what the NSA is doing and the constitutionality of the 702 program, no court has ever ruled on those questions. The Bush and Obama administrations successfully argued that defendants don’t have legal standing to sue. That is, they have no right to sue because they don’t know they’re being targeted. If any of the lawsuits can get past that, things might change dramatically.

Meanwhile, much of this is the responsibility of the tech sector. This problem exists primarily because Internet companies collect and retain so much personal data and allow it to be sent across the network with minimal security. Since the government has abdicated its responsibility to protect our privacy and security, these companies need to step up: Minimize data collection. Don’t save data longer than absolutely necessary. Encrypt what has to be saved. Well-designed Internet services will safeguard users, regardless of government surveillance authority.

For the rest of us concerned about this, it’s important not to give up hope. Everything we do to keep the issue in the public eye ­– and not just when the authority comes up for reauthorization again in 2024 — hastens the day when we will reaffirm our rights to privacy in the digital age.

This essay previously appeared in the Washington Post.

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NSA Morale

The Washington Post is reporting that poor morale at the NSA is causing a significant talent shortage. A November New York Times article said much the same thing.

The articles point to many factors: the recent reorganization, low pay, and the various leaks. I have been saying for a while that the Shadow Brokers leaks have been much more damaging to the NSA — both to morale and operating capabilities — than Edward Snowden. I think it’ll take most of a decade for them to recover.

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NSA “Red Disk” Data Leak

ZDNet is reporting about another data leak, this one from US Army’s Intelligence and Security Command (INSCOM), which is also within to the NSA.

The disk image, when unpacked and loaded, is a snapshot of a hard drive dating back to May 2013 from a Linux-based server that forms part of a cloud-based intelligence sharing system, known as Red Disk. The project, developed by INSCOM’s Futures Directorate, was slated to complement the Army’s so-called distributed common ground system (DCGS), a legacy platform for processing and sharing intelligence, surveillance, and reconnaissance information.

[…]

Red Disk was envisioned as a highly customizable cloud system that could meet the demands of large, complex military operations. The hope was that Red Disk could provide a consistent picture from the Pentagon to deployed soldiers in the Afghan battlefield, including satellite images and video feeds from drones trained on terrorists and enemy fighters, according to a Foreign Policy report.

[…]

Red Disk was a modular, customizable, and scalable system for sharing intelligence across the battlefield, like electronic intercepts, drone footage and satellite imagery, and classified reports, for troops to access with laptops and tablets on the battlefield. Marking files found in several directories imply the disk is “top secret,” and restricted from being shared to foreign intelligence partners.

A couple of points. One, this isn’t particularly sensitive. It’s an intelligence distribution system under development. It’s not raw intelligence. Two, this doesn’t seem to be classified data. Even the article hedges, using the unofficial term of “highly sensitive.” Three, it doesn’t seem that Chris Vickery, the researcher that discovered the data, has published it.

Chris Vickery, director of cyber risk research at security firm UpGuard, found the data and informed the government of the breach in October. The storage server was subsequently secured, though its owner remains unknown.

This doesn’t feel like a big deal to me.

Slashdot thread.

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New White House Announcement on the Vulnerability Equities Process

The White House has released a new version of the Vulnerabilities Equities Process (VEP). This is the inter-agency process by which the US government decides whether to inform the software vendor of a vulnerability it finds, or keep it secret and use it to eavesdrop on or attack other systems. You can read the new policy or the fact sheet, but the best place to start is Cybersecurity Coordinator Rob Joyce’s blog post.

In considering a way forward, there are some key tenets on which we can build a better process.

Improved transparency is critical. The American people should have confidence in the integrity of the process that underpins decision making about discovered vulnerabilities. Since I took my post as Cybersecurity Coordinator, improving the VEP and ensuring its transparency have been key priorities, and we have spent the last few months reviewing our existing policy in order to improve the process and make key details about the VEP available to the public. Through these efforts, we have validated much of the existing process and ensured a rigorous standard that considers many potential equities.

The interests of all stakeholders must be fairly represented. At a high level we consider four major groups of equities: defensive equities; intelligence / law enforcement / operational equities; commercial equities; and international partnership equities. Additionally, ordinary people want to know the systems they use are resilient, safe, and sound. These core considerations, which have been incorporated into the VEP Charter, help to standardize the process by which decision makers weigh the benefit to national security and the national interest when deciding whether to disclose or restrict knowledge of a vulnerability.

Accountability of the process and those who operate it is important to establish confidence in those served by it. Our public release of the unclassified portions Charter will shed light on aspects of the VEP that were previously shielded from public review, including who participates in the VEP’s governing body, known as the Equities Review Board. We make it clear that departments and agencies with protective missions participate in VEP discussions, as well as other departments and agencies that have broader equities, like the Department of State and the Department of Commerce. We also clarify what categories of vulnerabilities are submitted to the process and ensure that any decision not to disclose a vulnerability will be reevaluated regularly. There are still important reasons to keep many of the specific vulnerabilities evaluated in the process classified, but we will release an annual report that provides metrics about the process to further inform the public about the VEP and its outcomes.

Our system of government depends on informed and vigorous dialogue to discover and make available the best ideas that our diverse society can generate. This publication of the VEP Charter will likely spark discussion and debate. This discourse is important. I also predict that articles will make breathless claims of “massive stockpiles” of exploits while describing the issue. That simply isn’t true. The annual reports and transparency of this effort will reinforce that fact.

Mozilla is pleased with the new charter. I am less so; it looks to me like the same old policy with some new transparency measures — which I’m not sure I trust. The devil is in the details, and we don’t know the details — and it has giant loopholes that pretty much anything can fall through:

The United States Government’s decision to disclose or restrict vulnerability information could be subject to restrictions by partner agreements and sensitive operations. Vulnerabilities that fall within these categories will be cataloged by the originating Department/Agency internally and reported directly to the Chair of the ERB. The details of these categories are outlined in Annex C, which is classified. Quantities of excepted vulnerabilities from each department and agency will be provided in ERB meetings to all members.

This is me from last June:

There’s a lot we don’t know about the VEP. The Washington Post says that the NSA used EternalBlue “for more than five years,” which implies that it was discovered after the 2010 process was put in place. It’s not clear if all vulnerabilities are given such consideration, or if bugs are periodically reviewed to determine if they should be disclosed. That said, any VEP that allows something as dangerous as EternalBlue — or the Cisco vulnerabilities that the Shadow Brokers leaked last August to remain unpatched for years isn’t serving national security very well. As a former NSA employee said, the quality of intelligence that could be gathered was “unreal.” But so was the potential damage. The NSA must avoid hoarding vulnerabilities.

I stand by that, and am not sure the new policy changes anything.

More commentary.

Here’s more about the Windows vulnerabilities hoarded by the NSA and released by the Shadow Brokers.

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More on Kaspersky and the Stolen NSA Attack Tools

Both the New York Times and the Washington Post are reporting that Israel has penetrated Kaspersky’s network and detected the Russian operation.

From the New York Times:

Israeli intelligence officers informed the NSA that, in the course of their Kaspersky hack, they uncovered evidence that Russian government hackers were using Kaspersky’s access to aggressively scan for American government classified programs and pulling any findings back to Russian intelligence systems. [Israeli intelligence] provided their NSA counterparts with solid evidence of the Kremlin campaign in the form of screenshots and other documentation, according to the people briefed on the events.

Kaspersky first noticed the Israeli intelligence operation in 2015.

The Washington Post writes about the NSA tools being on the home computer in the first place:

The employee, whose name has not been made public and is under investigation by federal prosecutors, did not intend to pass the material to a foreign adversary. “There wasn’t any malice,” said one person familiar with the case, who, like others interviewed, spoke on the condition of anonymity to discuss an ongoing case. “It’s just that he was trying to complete the mission, and he needed the tools to do it.

I don’t buy this. People with clearances are told over and over not to take classified material home with them. It’s not just mentioned occasionally; it’s a core part of the job.

More news articles.

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Yet Another Russian Hack of the NSA — This Time with Kaspersky’s Help

The Wall Street Journal has a bombshell of a story. Yet another NSA contractor took classified documents home with him. Yet another Russian intelligence operation stole copies of those documents. The twist this time is that the Russians identified the documents because the contractor had Kaspersky Labs anti-virus installed on his home computer.

This is a huge deal, both for the NSA and Kaspersky. The Wall Street Journal article contains no evidence, only unnamed sources. But I am having trouble seeing how the already embattled Kaspersky Labs survives this.

WSJ follow up. Four more news articles.

EDITED TO ADD: This is either an example the Russians subverting a perfectly reasonable security feature in Kaspersky’s products, or Kaspersky adding a plausible feature at the request of Russian intelligence. In the latter case, it’s a nicely deniable Russian information operation. In either case, it’s an impressive Russian information operation.

What’s getting a lot less press is yet another NSA contractor stealing top-secret cyberattack software. What is it with the NSA’s inability to keep anything secret anymore?

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ISO Rejects NSA Encryption Algorithms

The ISO has decided not to approve two NSA-designed block encryption algorithms: Speck and Simon. It’s because the NSA is not trusted to put security ahead of surveillance:

A number of them voiced their distrust in emails to one another, seen by Reuters, and in written comments that are part of the process. The suspicions stem largely from internal NSA documents disclosed by Snowden that showed the agency had previously plotted to manipulate standards and promote technology it could penetrate. Budget documents, for example, sought funding to “insert vulnerabilities into commercial encryption systems.”

More than a dozen of the experts involved in the approval process for Simon and Speck feared that if the NSA was able to crack the encryption techniques, it would gain a “back door” into coded transmissions, according to the interviews and emails and other documents seen by Reuters.

“I don’t trust the designers,” Israeli delegate Orr Dunkelman, a computer science professor at the University of Haifa, told Reuters, citing Snowden’s papers. “There are quite a lot of people in NSA who think their job is to subvert standards. My job is to secure standards.”

I don’t trust the NSA, either.

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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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