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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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Detecting Drone Surveillance with Traffic Analysis

This is clever:

Researchers at Ben Gurion University in Beer Sheva, Israel have built a proof-of-concept system for counter-surveillance against spy drones that demonstrates a clever, if not exactly simple, way to determine whether a certain person or object is under aerial surveillance. They first generate a recognizable pattern on whatever subject­ — a window, say — someone might want to guard from potential surveillance. Then they remotely intercept a drone’s radio signals to look for that pattern in the streaming video the drone sends back to its operator. If they spot it, they can determine that the drone is looking at their subject.

In other words, they can see what the drone sees, pulling out their recognizable pattern from the radio signal, even without breaking the drone’s encrypted video.

The details have to do with the way drone video is compressed:

The researchers’ technique takes advantage of an efficiency feature streaming video has used for years, known as “delta frames.” Instead of encoding video as a series of raw images, it’s compressed into a series of changes from the previous image in the video. That means when a streaming video shows a still object, it transmits fewer bytes of data than when it shows one that moves or changes color.

That compression feature can reveal key information about the content of the video to someone who’s intercepting the streaming data, security researchers have shown in recent research, even when the data is encrypted.

Research paper and video.

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Susan Landau’s New Book: Listening In

Susan Landau has written a terrific book on cybersecurity threats and why we need strong crypto. Listening In: Cybersecurity in an Insecure Age. It’s based in part on her 2016 Congressional testimony in the Apple/FBI case; it examines how the Digital Revolution has transformed society, and how law enforcement needs to — and can — adjust to the new realities. The book is as accessible to techies and non-techies alike, and is strongly recommended.

And if you’ve already read it, give it a review on Amazon. Reviews sell books, and this one needs more of them.

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E-Mail Tracking

Interesting survey paper: on the privacy implications of e-mail tracking:

Abstract: We show that the simple act of viewing emails contains privacy pitfalls for the unwary. We assembled a corpus of commercial mailing-list emails, and find a network of hundreds of third parties that track email recipients via methods such as embedded pixels. About 30% of emails leak the recipient’s email address to one or more of these third parties when they are viewed. In the majority of cases, these leaks are intentional on the part of email senders, and further leaks occur if the recipient clicks links in emails. Mail servers and clients may employ a variety of defenses, but we analyze 16 servers and clients and find that they are far from comprehensive. We propose, prototype, and evaluate a new defense, namely stripping tracking tags from emails based on enhanced versions of existing web tracking protection lists.

Blog post on the research.

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The Data Tinder Collects, Saves, and Uses

Under European law, service providers like Tinder are required to show users what information they have on them when requested. This author requested, and this is what she received:

Some 800 pages came back containing information such as my Facebook “likes,” my photos from Instagram (even after I deleted the associated account), my education, the age-rank of men I was interested in, how many times I connected, when and where every online conversation with every single one of my matches happened…the list goes on.

“I am horrified but absolutely not surprised by this amount of data,” said Olivier Keyes, a data scientist at the University of Washington. “Every app you use regularly on your phone owns the same [kinds of information]. Facebook has thousands of pages about you!”

As I flicked through page after page of my data I felt guilty. I was amazed by how much information I was voluntarily disclosing: from locations, interests and jobs, to pictures, music tastes and what I liked to eat. But I quickly realised I wasn’t the only one. A July 2017 study revealed Tinder users are excessively willing to disclose information without realising it.

“You are lured into giving away all this information,” says Luke Stark, a digital technology sociologist at Dartmouth University. “Apps such as Tinder are taking advantage of a simple emotional phenomenon; we can’t feel data. This is why seeing everything printed strikes you. We are physical creatures. We need materiality.”

Reading through the 1,700 Tinder messages I’ve sent since 2013, I took a trip into my hopes, fears, sexual preferences and deepest secrets. Tinder knows me so well. It knows the real, inglorious version of me who copy-pasted the same joke to match 567, 568, and 569; who exchanged compulsively with 16 different people simultaneously one New Year’s Day, and then ghosted 16 of them.

“What you are describing is called secondary implicit disclosed information,” explains Alessandro Acquisti, professor of information technology at Carnegie Mellon University. “Tinder knows much more about you when studying your behaviour on the app. It knows how often you connect and at which times; the percentage of white men, black men, Asian men you have matched; which kinds of people are interested in you; which words you use the most; how much time people spend on your picture before swiping you, and so on. Personal data is the fuel of the economy. Consumers’ data is being traded and transacted for the purpose of advertising.”

Tinder’s privacy policy clearly states your data may be used to deliver “targeted advertising.”

It’s not Tinder. Surveillance is the business model of the Internet. Everyone does this.

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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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