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Crowdsourcing State Secrets

September 19, 2011 by

Those who regularly listen to Fresh Air may have heard a recent interview with journalist Dana Priest about the dramatic expansion of the intelligence community over the past ten years. The guest mentioned how the government had paid contractors several times what their own intelligence officials would be paid to perform the same analysis tasks. The guest also mentioned how unwieldy the massive network of contractors had become (to the point where even decided who gets top secret clearance had been contracted out). At the same time, in this age of Wikileaks and #Antisec, leaks and break-ins are becoming all the more common. It’s only a matter of time before thousands of military intelligence reports show up on Pastebin.

However, what if we didn’t have to pay this mass of analysts? What if we stopped worrying so much about leaks and embraced them? What if we could bring in anyone who wanted to analyze the insane amount of information by simply dumping large amounts of the raw data to a publicly-accessible location? What if we crowdsourced intelligence analysis?

Granted, we wouldn’t be able to just dump everything, as some items (such as “al-Qaeda’s number 5 may be house X in Waziristan, according to informant Y who lives in Taliban-controlled territory”) would be damaging if released. But (at least according to the interview) many of the items which are classified as top secret actually wouldn’t cause “exceptionally grave damage.” As for particularly sensitive (but could benefit from analysis) information in such documents, we could simply use pseudonyms and keep the pseudonym-real name mapping top secret.

Adversaries would almost certainly attempt to piece together false analyses. This simply becomes an instance of the Byzantine generals problem, but with a twist: because the mainstream media is always looking for the next sensational story, it would be performing much of the analysis. Because this creates a common goal between the public and the news outlets, there would be some level of trust that other (potentially adversarial) actors would not necessarily have.

In an era when the talking heads in Washington and the media want to cut everything from the tiny National Endowment for the Arts to gigantic Social Security, the last thing we need is to pay people to do work that many would do for free. Applying open government principles to data that do not necessarily need to be kept secret could go a long way toward reducing the part of government that most politicians are unwilling to touch.

Filed Under: National Security & Surveillance, Privacy & Security

Brazilian Communications Agency Moves Towards Surveillance Superpowers

January 31, 2011 by

January is the month when the Brazilian version of the popular TV show Big Brother returns to the air. For three months, a bunch of people are locked inside a house and their lives are broadcast 24/7. A TV show premised on nonstop surveillance might sound like fun to some people, but it is disturbing when governments engage in similar practices. The Brazilian national communications agency (aka Anatel) announced a few days ago a plan to implement 24/7 surveillance over the more than 203 million cell phones in the country.

As published by Folha de Sao Paulo, the largest newspaper in the country, Anatel has invested about $500,000 in building three central switches that connect directly with the private carrier’s networks. The switches are not for eavesdropping, but will provide the agency with direct access to information such as numbers dialed, date, time, amount paid and duration of all phone calls. It will also provide access to personal information such as name, address and taxpayer number for every mobile customer.

The agency claims that the system will help “modernize” the capability of regulating phone companies, leading to a better quality of service. Currently, the data is privately kept by each phone company. The agency can ask for that information, but has to rely on what is provided. It claims that its technicians “are not prepared to deal with the systems used by the phone carriers and obtain the necessary original information”. So it has decided to collect the information directly, creating its own database in order to “validate” the information directly.

Lawyers and civil rights advocates are worried about this intention to turn Anatel into a “Big Brother” entity. Floriano Marques, an administrative law attorney, claims that the new measure is a “pathology”. He says “it reflects a trend of weakening privacy rights that can be found in various efforts of the public administration in Brazil”. And he is right. Recent events indicate that some public authorities in Brazil have been holding privacy in low regard. In the presidential campaign of 2010, Brazilian tax officials were caught disclosing confidential tax information of members of the political party opposing the government.

Also, a Brazilian Senator called Eduardo Azeredo introduced a bill mandating every citizen to establish his identity through a digital certificate before connecting to the Internet. After causing considerable uproar, the bill was amended to exclude mandatory identification provision, but it still includes disconcerting surveillance provisions, such as the obligation imposed on websites and service providers to keep records of users’ online activities for 5 years.

Lawyers and civil rights activists fear that Anatel’s surveillance superpowers will open the path for all sorts of misuse. They claim the project violates the Brazilian Constitution, which protects privacy as a fundamental right, as well as due process. The agency would gain access to sensitive information without prior permission of users, or any scrutiny by the courts.

Arguably, the implementation of these new provisions by Anatel puts Brazil one step closer to initiatives such as China’s practices of scanning SMS messages for “illegal or unhealthy” content, India’s demands for monitoring communications sent via BlackBerry smartphones, or other countries investing in technical infrastructure to surveil citizens. For the country that once pledged allegiance to the Penguin, in reference to its support to online freedom, free software and free culture policies, the recent developments have been showing an unexpected Orwellian touch.

Filed Under: National Security & Surveillance, Privacy & Security Tagged With: , ,

If Wikileaks Scraped P2P Networks for "Leaks," Did it Break Federal Criminal Law?

January 20, 2011 by

On Bloomberg.com today, Michael Riley reports that some of the documents hosted at Wikileaks may not be “leaks” at all, at least not in the traditional sense of the word. Instead, according to a computer security firm called Tiversa, “computers in Sweden” have been searching the files shared on p2p networks like Limewire for sensitive and confidential information, and the firm supposedly has proof that some of the documents found in this way have ended up on the Wikileaks site. These charges are denied as “completely false in every regard” by Wikileaks lawyer Mark Stephens.

I have no idea whether these accusations are true, but I am interested to learn from the story that if they are true they might provide “an alternate path for prosecuting WikiLeaks,” most importantly because the reporter attributes this claim to me. Although I wasn’t misquoted in the article, I think what I said to the reporter is a few shades away from what he reported, so I wanted to clarify what I think about this.

In the interview and in the article, I focus only on the Computer Fraud and Abuse Act (“CFAA”), the primary federal law prohibiting computer hacking. The CFAA defines a number of federal crimes, most of which turn on whether an action on a computer or network was done “without authorization” or in a way that “exceeds authorized access.”

The question presented by the reporter to me (though not in these words) was: is it a violation of the CFAA to systematically crawl a p2p network like Limewire searching for and downloading files that might be mistakenly shared, like spreadsheets or word processing documents full of secrets?

I don’t think so. With everything I know about the text of this statute, the legislative history surrounding its enactment, and the cases that have interpreted it, this kind of searching and downloading won’t “exceed the authorized access” of the p2p network. This simply isn’t a crime under the CFAA.

But although I don’t think this is a viable theory, I can’t unequivocally dismiss it for a few reasons, all of which I tried to convey in the interview. First, some courts have interpreted “exceeds authorized access” broadly, especially in civil lawsuits arising under the CFAA. For example, back in 2001, one court declared it a CFAA violation to utilize a spider capable of collecting prices from a travel website by a competitor, if the defendant built the spider by taking advantage of “proprietary information” from a former employee of the plaintiff. (For much more on this, see this article by Orin Kerr.)

Second, it seems self-evident that these confidential files are being shared on accident. The users “leaking” these files are either misunderstanding or misconfiguring their p2p clients in ways that would horrify them, if only they knew the truth. While this doesn’t translate directly into “exceeds authorized access,” it might weigh heavily in court, especially if the government can show that a reasonable searcher/downloader would immediately and unambiguously understand that the files were shared on accident.

Third, let’s be realistic: there may be judges who are so troubled by what they see as the harm caused by Wikileaks that they might be willing to read the open-textured and mostly undefined terms of the CFAA broadly if it might help throw a hurdle in Wikileaks’ way. I’m not saying that judges will bend the law to the facts, but I think that with a law as vague as the CFAA, multiple interpretations are defensible.

But I restate my conclusion: I think a prosecution under the CFAA against someone for searching a p2p network should fail. The text and caselaw of the CFAA don’t support such a prosecution. Maybe it’s “not a slam dunk either way,” as I am quoted saying in the story, but for the lawyers defending against such a theory, it’s at worst an easy layup.

Filed Under: National Security & Surveillance, Privacy & Security Tagged With: ,

Court Rules Email Protected by Fourth Amendment

December 14, 2010 by

Today, the United States Court of Appeals for the Sixth Circuit ruled that the contents of the messages in an email inbox hosted on a provider’s servers are protected by the Fourth Amendment, even though the messages are accessible to an email provider. As the court puts it, “[t]he government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause.”

This is a very big deal; it marks the first time a federal court of appeals has extended the Fourth Amendment to email with such care and detail. Orin Kerr calls the opinion, at least on his initial read, “quite persuasive” and “likely . . . influential,” and I agree, but I’d go further: this is the opinion privacy activists and many legal scholars, myself included, have been waiting and calling for, for more than a decade. It may someday be seen as a watershed moment in the extension of our Constitutional rights to the Internet.

And it may have a more immediate impact on Capitol Hill, because in its ruling the Sixth Circuit also declares part of the Stored Communications Act (SCA) of the Electronic Communications Privacy Act unconstitutional. 18 U.S.C. 2703(b) allows the government to obtain email messages with less than a search warrant. This section has been targeted for amendment by the Digital Due Process coalition of companies, privacy groups, and academics (I have signed on) for precisely the reason now attacked by this opinion, because it allows warrantless government access to communications stored online. I am sure some congressional staffers are paying close attention to this opinion, and I hope it helps clear the way for an amendment to the SCA, to fix a now-declared unconstitutional law, if not during the lame duck session, then early in the next Congressional term.

Update: Other reactions from Dissent and the EFF.

Filed Under: National Security & Surveillance, Privacy & Security Tagged With: ,

A Good Day for Email Privacy: A Court Takes Back its Earlier, Bad Ruling in Rehberg v. Paulk

July 16, 2010 by

In March, the U.S. Court of Appeals for the Eleventh Circuit, the court that sets federal law for Alabama, Florida, and Georgia, ruled in an opinion in a case called Rehberg v. Paulk that people lacked a reasonable expectation of privacy in the content of email messages stored with an email provider. This meant that the police in those three states were free to ignore the Fourth Amendment when obtaining email messages from a provider. In this case, the plaintiff alleged that the District Attorney had used a sham subpoena to trick a provider to hand over the plaintiff’s email messages. The Court ruled that the DA was allowed to do this, consistent with the Constitution.

I am happy to report that today, the Court vacated the opinion and replaced it with a much more carefully reasoned, nuanced opinion.

Most importantly, the Eleventh Circuit no longer holds that “A person also loses a reasonable expectation of privacy in emails, at least after the email is sent to and received by a third party.” nor that “Rehberg’s voluntary delivery of emails to third parties constituted a voluntary relinquishment of the right to privacy in that information.” These bad statements of law have effectively been erased from the court reporters.

This is a great victory for Internet privacy, although it could have been even better. The Court no longer strips email messages of protection, but it didn’t go further and affirmatively hold that email users possess a Fourth Amendment right to privacy in email. Instead, the Court ruled that even if such a right exists, it wasn’t “clearly established,” at the time the District Attorney acted, which means the plaintiff can’t continue to pursue this claim.

I am personally invested in this case because I authored a brief asking the Court to reverse its earlier bad ruling. I am glad the Court agreed with us and thank all of the other law professors who signed the brief: Susan Brenner, Susan Freiwald, Stephen Henderson, Jennifer Lynch, Deirdre Mulligan, Joel Reidenberg, Jason Schultz, Chris Slobogin, and Dan Solove. Thanks also to my incredibly hard-working and talented research assistants, Nicole Freiss and Devin Looijien.

Updated: The EFF (which represents the plaintiff) is much more disappointed in the amended opinion than I. They make a lot of good points, but I prefer to see the glass half-full.

Filed Under: National Security & Surveillance, Privacy & Security Tagged With: ,