TAG | legal
ArsTechnica has a nice article on a recent ruling by the US Fifth Circuit court of appeals.
In this 2-1 decision, the court ruled that cellular location information is not covered by the fourth amendment, and does not require a warrant. The logic behind this ruling is that the information is part of business records created and stored by the mobile phone carriers in the ordinary course of their business.
Therefor, the data actually belongs to the phone company, and not to you. The Stored Communications Act says that law enforcement must get a warrant to obtain the contents of communications (the body of emails or the audio of a phone call) but not for meta-data like sender, recipient, or location.
The court suggests that if the public wants privacy of location information that they should demand (I suppose through market forces) that providers delete or anonymize the location information, and that legislation be enacted to require warrants for access to it. Until then, they say we have no expectation of privacy in that information.
The Fifth Circuit covers Louisiana, Mississippi, and Texas.
This ruling conflicts with a recent New Jersey Supreme Court, which unanimously ruled that law enforcement does not have that right, which ruling only applies in New Jersey.
Montana has a law requiring a warrant to obtain location information, while in California a similar bill was vetoed.
It seems very likely that one or more of these cases will go to the supreme court.
Declan McCullagh at CNET writes about the most recent skirmish over whether a person can be forced to decrypt their encrypted files.
In this case, Jeffery Feldman is suspected of having almost 20 terabytes of encrypted child pornography. Evidence of use of eMule, a peer to peer file sharing tool, showed filenames suggestive of such content. Child porn makes for some of the worst case law because it is such an emotionally charged issue.
A judge had ordered Mr. Feldman to decrypt the hard drive, or furnish the pass phrase, by today. After an emergency motion, he has been given more time while the challenge to the order is processed.
The challenge is over whether being compelled to decrypt data is equivalent to forced testimony against one’s self, which is forbidden by the Fifth Amendment. The prosecution position is that an encryption key is similar to a key to a safe, which may be compelled. Some prior cases have come down on the side of forcing the decryption, but not all.
If it was plausible that the suspect might not know how to decrypt the file, that would make things even more interesting. For now, the moral of the story is that you can’t rely on the Fifth Amendment to protect you from contempt of court charges in the United States if you try to protect your encrypted data. Outside the US, your mileage may vary.
It has long been known in security circles that many printers embed nearly invisible watermarks in all printed documents which uniquely identify the printer used.
SpringyLeaks reports that a recent FOIA request revealed the names of printer companies who embed such markings and have worked with law enforcement to identify the printers used in various cases.
The article also suggest that these watermarks can be used to aid reconstruction of shredded documents.
Courthouse News Service reports that a virginia judge has ruled Facebook “Likes” are not protected speech.
The case was related to employees of the Hampton VA sheriff’s office who “Liked” the current sheriff’s opponent in the last election. After he was re-elected, he fired many of the people who had supported his opponent.
The judge ruled that posts on Facebook would have been protected, but not simple Likes.
There has been a lot of attention recently to the arrest of an alleged LulzSec hacker after his anonymity was compromised by the anonymity service he was using, HideMyAss.com. Some articles on the event are here, here and the provider’s explanation here.
The reason this company was able to compromise the privacy of their user was that they had logs of user activity. They know what IP address is assigned to each user and can use that to attribute any activity back to the real identity of the person behind the account.
The real problem with logs is that they exist or they don’t. You can’t keep logs only for “bad users” but not for responsible “good users” because even if it was possible to identify them as such in advance, you would not find anything like agreement about who should fall in which category.
Many operators of privacy services, including myself, feel very strongly that such tools should be usable in countries like China to circumvent the censorship and surveillance there. Such actions are certainly illegal for the user, and probably for the provider. While being a UK company and only responding to UK court orders, they were “forced” to expose the identity of a person in the US who was then arrested by the FBI.
I don’t know enough about this case to debate whether or not this person is guilty or deserved to be arrested. My concern is that this case has demonstrated that anyone who can cause a UK court order to be severed against this company can expose their users. It also makes them a target for hacking, social engineering, infiltration and other attacks which could gain access to these logs without a UK court order.
As a general rule, if information exists and people want it, there is a very good chance it will escape, if only by accident.
I founded this company, Anonymizer.com, and I personally stand behind our services. We have clear privacy policies, we keep no logs of the surfing activities of our users, we have no way of identifying what user may have visited what website. We have an unblemished record of providing robust privacy since 1995.
As I have said in many previous posts, it all comes down to trust. If you don’t know who is providing the service, and don’t have the ability to research their history and gauge their integrity, you should not use that service.