TAG | legal
If this amendment passes, it will significantly reduce the perceived advantages of using servers outside the US. No only would the server still be subject to whatever legal process exists in the hosting country, but they would also be open to legal hacking by the USG.
A New York district judge has ruled that Microsoft must comply with US search warrants for emails stored in European data centers. The argument is that as a US company, Microsoft is subject to the order, and because it has control of its European subsidiary which in turn has control of the data center in Europe, it should therefor comply.
This will put Microsoft, and many other US Internet companies, in a tricky place. The EU data protection laws are being expanded to explicitly bar EU subsidiaries of US companies from sending data outside the EU for law enforcement or intelligence purposes.
This also further undermines confidence in the security and privacy of data held by US Internet companies.
In a unanimous decision, the Supreme Court ruled that police must obtain a warrant before searching suspect’s cellphone. Before this, cellphones were treated just like anything else a suspect might carry, including wallet, keys, address book, or various other “pocket litter”.
Police are generally allowed to search suspects for weapons and to prevent the distraction of evidence. Because of the massive amount of storage on a modern smartphone, and its direct connection into so many other stores of data and communications, the court felt that the contents of these devices was qualitatively different and deserving of greater protection.
It is important to remember that the police can still take the phone, and that they can then get a warrant to search it if there is probable cause. They are simply prevented from searching it without the warrant, possibly in the hope (but not expectation) of finding evidence.
This decision may lay the groundwork for according similar protections to cloud stored data, which once would have been kept in the home in hard copy. Law enforcement officials claim that technology is making life easier for criminals and harder for law enforcement. I find that hard to believe and have not seen any really good studies of the matter. If you have, please let me know!
It strikes me that the routine preservation of emails and other communications, along with the massive use of server logged communications from text messages to social media, actually makes things much easier for law enforcement on the whole.
The fact that the decision was unanimous suggests that we may be entering a period of re-evaluating outdated precedents from the pre-internet era.
Some key quotes from the decision:
- Regarding treating phones like other pocket litter – “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon,”
- On the impact on law enforcement – “Privacy comes at a cost.”
- “Cell phones differ in both a quantitative and a qualita- tive sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself mislead- ing shorthand; many of these devices are in fact minicom- puters that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, librar- ies, diaries, albums, televisions, maps, or newspapers.”
- “The scope of the privacy interests at stake is further com- plicated by the fact that the data viewed on many modern cell phones may in fact be stored on a remote server. Thus, a search may extend well beyond papers and effects in the physical proximity of an ar- restee, a concern that the United States recognizes but cannot defini- tively foreclose.”
- “Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple—get a warrant,”
Some Excellent Articles for further reading:
Note: In the picture above, the policeman is actually just using his own cellphone.
The Massachusetts High Court recently ruled that a suspect can be compelled to decrypt disks, files, and devices which have been seized by law enforcement. The crux of the question before the court was whether compelling the password for decryption is forbidden by the Fifth Amendment protection against self incrimination.
The analogy one most often sees is to being compelled to provide the combination to a safe, the contents of which are subject to a search warrant. That is well settled law, you can be compelled to do so.
The court said:
We now conclude that the answer
to the reported question is, “Yes, where the defendant’s compelled decryption would not
communicate facts of a testimonial nature to the Commonwealth beyond what the defendant
already had admitted to investigators.” Accordingly, we reverse the judge’s denial of the
Commonwealth’s motion to compel decryption.
In this case, there was nothing testimonial about decrypting the files because the defendant has already admitted to owning the computers and devices, and to being able to decrypt them.
The much more interesting situation will come in a case where the defendants say they never had, or have forgotten, the password. One can not be compelled to do something impossible, but generally the proof of the impossibility falls on the defendant. In this case one would have to prove a negative. How could you prove that you don’t have the password? The only thing that can be proved is that you do, and that only by doing so.
This ruling is only binding in the sate of Massachusetts, but is likely to be influential in cases in other areas.
The US Second Circuit court of appeals just ruled on a very important case about Fourth Amendment protections for seized computer files. While this ruling is only binding on courts in the 2nd circuit, it will be influential, and we are likely to see this issue addressed by the Supreme Court before too long.
The reality of computer forensics is that investigators start by grabbing everything off the computers they are searching, then look for the specific information specified in the warrant. Generally this is done by making a direct image of the computer’s hard drive. From there additional copies are made so the chain of evidence is clean, and the original image can be shown to be unchanged. It is impractical to try to capture only the targeted information because the volumes are often so large the search must be automated and may take considerable time. Additionally, suspects may have taken steps to try to hide files on the disks.
The upshot of this is that the law enforcement entity now has a great many documents far outside the scope of the warrant. This is where we come to the specifics of the case United States v. Ganias. In 2003 the government searched Ganias’ computers as part of a fraud investigation. As I described, they captured full images of all the computer’s hard drives to 19 DVDs. After competing their searches, they kept the DVDs.
In 2006, they thought Ganias might be involved in tax related crimes, so they obtained warrants to search the DVDs they had in storage for this different set of documents.
The 2nd Circuit ruled to suppress the evidence obtained from that 2006 warrant because the documents searched should never have been seized in the first place.
The ruling recognizes the realities of the search process, and allows for capture of full drive images, and keeping that data for a reasonable time, but specifically forbids keeping it indefinitely as a source of information in future searches. That would completely void the Fourth Amendment which requires that the warrant specify the specific things to be searched.
As a reminder, the full text of the Amendment is:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Thanks to the Washington Post for a more detailed legal analysis: Court adopts a Fourth Amendment right to the deletion of non-responsive computer files – The Washington Post
Canada’s Supreme Court just released a ruling providing some protection for on-line anonymity. Specifically, the ruling requires law enforcement to obtain a warrant before going to an Internet provider to obtain the identity of a user. Previously they were free to simply approach the provider and ask (but not compel) the information.
The judges found that there is a significant expectation of privacy with respect to the identifying information, and that anonymity is a foundation of that right.
Unfortunately the case in question revolves around child pornography, which creates a great deal of passion. Much of the reaction against the decision has come from those working to protect abused children. Because the ruling has implications primarily far from child porn cases, I applaud the court in taking the larger and longer view of the principle at work.
It is important to remember that the court is not saying that the information can not be obtained. This is not an absolute protection of anonymity. This decision simply requires a warrant for the information, ensuring that there is at least probable cause before penetrating the veil of anonymity.
Recently unsealed documents show that Microsoft was able to beat back a National Security Letter (NSL) from the FBI.
NSL are like subpoenas but go through a different, and secret, process that bypasses the courts. NSL also include a gag order forbidding the recipient from revealing the existence of the letter to anyone.
Microsoft fought the NSL in question because it violated their policy of notifying all enterprise customers when they receive any “legal order related to data”. The FBI withdrew it without any rulings on the legality or appropriateness of the NSL.
This may indicate a move towards some limitations of the gag order attached to NSLs, which would be very valuable for transparency in the whole process.
An important decision just came down from the Federal 9th Circuit Court of Appeals about whether Google can be sued for intercepting personal data from open WiFi networks. The intercepts happened as part of the Street View program. In addition to capturing pictures of their surroundings, the Street View vehicles also collect GPS information (to correctly place the pictures) and the MAC addresses (unique hardware identifiers), SSIDs (user assigned network names), and until 2010 they captured some actual data from those networks. The purpose of the WiFi collection is to provide enhanced location services. GPS drains phone batteries quickly, and the weak signals may be unavailable indoors, or even under and significant cover. Nearly ubiquitous WiFi base stations provide another way of finding your location. The Street View cars capture their GPS coordinates along with all of the WiFi networks they can see. Your phone can then simply look at the WiFi networks around it, and ask the database what location corresponds to what it is seeing. WiFi is often available indoors, has short range, requires much less power, and is generally turned on in any case. Google claims that capturing the actual data was an accident and a mistake.
Unfortunately that data contained usernames, passwords and other sensitive information in many cases. A lawsuit was filed accusing Google of violating the Wiretap Act when it captured the data. There is no suggestion that the data has been leaked, misused, or otherwise caused direct harm to the victims.
The ruling was on a motion to dismiss the lawsuit on the grounds that Google’s intercepts were protected under an exemption in the Wiretap Act which states that it is OK to intercept radio communications that are “readily accessible” to the general public. The Act specifically states that encrypted or scrambled communications are NOT readily accessible, but the decision hangs on exactly what IS readily accessible. The court ruled that WiFi did not count as “radio” under the Act because several types of radio communications were enumerated, and this was not one of them. They then considered this case under the umbrella of “electronic communications”, which also has an exemption for readily accessible communications. On that, they decided that open WiFi is not readily accessible.
From a privacy perspective, this is good news. It says that people who intercept your information from your open WiFi can be punished (if you ever find out about it). This would clearly prevent someone setting up a business to automatically capture personal and marketing data from coffee shop WiFi’s around the world. It is less likely to have any impact on criminals. I am concerned that it will also lead to a sense of false confidence, and perhaps cause people to leave their WiFi open, rather than taking even minimal steps to protect themselves.
The hacker / tinkerer / libertarian in me has a real problem with this ruling. It is really trivial to intercept open WiFi. Anyone can join any open WiFi network. Once joined, all the the data on that network is available to every connected device. Easy, free, point and click software allows you to capture all of the data from connected (or even un-connected) open WiFi networks. If you are debugging your home WiFi network, you could easily find yourself capturing packets from other networks by accident. They are in the clear. There is no hacking involved. It is like saying that you can not tune your radio to a specific station, even though it is right there on the dial.
I think peeping in windows is a reasonable analogy. If I am standing on the sidewalk, look at your house, and see something through your windows that you did not want me to see, that is really your problem. If I walk across your lawn and put my face against the glass, then you have a cause to complain.
Open WiFi is like a window without curtains, or a postcard. You are putting the data out there where anyone can trivially see it. Thinking otherwise is willful ignorance. All WiFi base stations have the ability to be secured, and it is generally as simple as picking a password and checking a box. You don’t even need to pick a good password (although you really should). Any scrambling or encryption clearly moves the contents from being readily accessible, to being intentionally protected. If you want to sunbathe nude in your back yard, put up a fence. If you want to have privacy in your data, turn on security on your WiFi router.
I think that radio communications are clearly different than wired. With radio, you are putting your data on my property, or out into public spaces. There is no trespass of any kind involved to obtain it, and we have no relationship under which you would expect me to protect the information that you have inadvertently beamed to me. It would be like saying that I can’t look at your Facebook information that you made public because you accidentally forgot to restrict it.
Similar to provisions of the DMCA, which outlaw much research on copy protection schemes, this is likely to create accidental outlaws of researchers, and the generally technical and curious.
There has been a lot of chatter about implications of first Lavabit and then Silent Circle’s Silent Mail being shut down by their operators.
In both cases, it appears that there was information visible to the services which could be compelled by search warrants, court orders, or national security letters.
I want to assure Anonymizer users that we have no such information about Anonymizer Universal users that could be compelled. While we know who our customers are, for billing purposes, we have no information at all about what they do.
This has been tested many times, under many different kinds of court orders, and no user activity information has ever been provided, or could be provided.
Welcome to Episode 10 of The Privacy Blog Podcast, brought to you by Anonymizer.
In July’s episode, I’ll be talking about the storage capacity of the NSA’s data center in Utah and whether the US really is the most surveilled country in the world. Next, I’ll explain why the new royal baby is trying to hack you and how your own phone’s SIM card could be putting your privacy at risk.
Lastly, I’ll discuss the current legal status of law enforcement geolocation, Yahoo!’s decision to reuse account names, and some exciting Anonymizer Universal news.
As always, feel free to leave any questions in the comments section. Thanks for listening!