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The case of Prof. Cronon and the FOIA requests for his private emails

March 29, 2011 by

Prof. William Cronon, from the University of Wisconsin, started a blog, Scholar as Citizen, wherein he critiqued Republican policies in the State of Wisconsin and elsewhere. I’m going to skip the politics and focus on the fact that the Republicans used Wisconsin’s FOIA mechanism to ask for a wide variety of his emails and they’re likely to get them.

Cronon believes this is a fishing expedition to find material to discredit him and he’s probably correct. He also notes that he scrupulously segregates his non-work-related emails into a private account (perhaps Gmail) while doing his work-related email using his wisc.edu address, as well he should.

What I find fascinating about the Cronon case is that it highlights a threat model for email privacy that doesn’t get much discussion among my professional peers. Sophisticated cryptographic mechanisms don’t protect emails against a FOIA request (or, for that matter, a sufficiently motivated systems administrator).

When I’ve worked in the past with lawyers when our communications weren’t privileged (i.e., opposing counsel would eventually receive every email we ever exchanged), we instead exchanged emails of the form “are you available for a phone call at 2pm?” and not much else. This is annoying when working on a lawsuit and it would completely grind to a halt the regular business of a modern adacemic.

While Cronon doesn’t want to abandon his wisc.edu address, consider the case that he could just forward his email to Gmail and have the university system delete its local copy (which is certainly an option for me with my rice.edu email). At that point, it becomes an interesting legal question of whether a FOIA request can compel production of content from his “private” email service. (And, future lawmaking could well explicitly extend the reach of FOIA to private accounts, particularly when many well-known politicians and others subject to FOIA deliberately conduct their professional business on private servers.)

Here’s another thing to ponder: When I send email from Gmail, it happily forges my rice.edu address in the from line. This allows me to use Gmail without most of the people who correspond with me ever knowing or caring that I’m using Gmail. By blurring the lines between my rice.edu and gmail.com email, am I also blurring the boundary of legal requests to discover my email? Since Rice is a private university, there are presumably no FOIA issues for me, but would it be any different for Prof. Cronon? Could or should present or future FOIA laws compel you to produce content from your “private” email service when you conflate it with your “professional” email address?

Or, leaving FOIA behind for the minute, could or should my employer have any additional privilege to look into my Gmail account when I’m using it for all of my professional emails and forging a rice.edu mail header?

One last alternative: Let’s say I appended some text like this at the bottom on my email:

My personal email is dwallach at gmail.com and my professional email is dwallach at rice.edu. Please use the former for personal matters and the latter for professional matters.

If I go to explicit lengths to separate the two email addresses, using separate services, and making it abundantly clear to all my correspondents which address serves which purpose, could or should that make for a legally significant difference in how FOIA treats my emails?

Filed Under: Privacy & Security Tagged With:

Do corporations have a "personal privacy" right?

March 1, 2011 by

Today, the Supreme Court released its unanimous opinion in Federal Communications Commission v. AT&T Inc., No. 09-1279 (U.S. Mar. 1, 2011)

At issue was the question, “Does a corporation have a “personal privacy” right under the Freedom of Information Act?” In this decision, the United States Supreme Court said “no.” The decision was 8-0 with Associate Justice Kagan not participating in the decision.

What was the case about? A trade association sought disclosure of documents that AT&T had submitted to the FCC during an investigation. AT&T argued that the documents were exempt under FOIA Exemption 7(C), which prohibited disclosure of law enforcement records if the disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The United States Court of Appeals for the Third Circuit accepted AT&T’s argument, and held that a corporation could have a “personal privacy” right because a corporation was a “person” under FOIA.

The Supreme Court disagreed. Looking at the express text of FOIA as well as the common meaning of words, Chief Justice Roberts, writing for the Court, held that, absent an express definition of “personal” in FOIA, that word refers to individuals and not corporate entities.

It should be noted that corporations are, for various purposes, considered “persons” under constitutional and common law. However, at issue was a question of statutory interpretation.

The Court even got in a good zinger at the end, noting that, “We trust that AT&T will not take it personally.”

Filed Under: Privacy & Security Tagged With:

What are the Constitutional Limits on Online Tracking Regulations?

March 1, 2011 by

As the conceptual contours of Do Not Track are being worked out, an interesting question to consider is whether such a regulation—if promulgated—would survive a First Amendment challenge. Could Do Not Track be an unconstitutional restriction on the commercial speech of online tracking entities? The answer would of course depend on what restrictions a potential regulation would specify. However, it may also depend heavily on the outcome of a case currently in front of the Supreme Court—Sorrell v. IMS Health Inc.—that challenges the constitutionality of a Vermont medical privacy law.

The privacy law at issue would restrict pharmacies from selling prescription drug records to data mining companies for marketing purposes without the prescribing doctor’s consent. These drug records each contain extensive details about the doctor-patient relationship, including “the prescriber’s name and address, the name, dosage and quantity of the drug, the date and place the prescription is filled and the patient’s age and gender.” A doctor’s prescription record can be tracked very accurately over time, and while patient names are redacted, each patient is assigned a unique identifier so their prescription histories may also be tracked. Pharmacies have been selling these records to commercial data miners, who in turn aggregate the data and sell compilations to pharmaceutical companies, who then engage in direct marketing back to individual doctors using a practice known as “detailing.” Sound familiar yet? It’s essentially brick-and-mortar behavioral advertising, and a Do Not Track choice mechanism, for prescription drugs.

The Second Circuit recently struck down the Vermont law on First Amendment grounds, ruling first that the law is a regulation of commercial speech and second that the law’s restrictions fall on the wrong side of the Central Hudson test—the four-step analysis used to determine the constitutionality of commercial speech restrictions. This ruling clashes explicitly with two previous decisions in the First Circuit, in Ayotte and Mills, which deemed that similar medical privacy laws in Maine and New Hampshire were constitutional. As such, the Supreme Court decided in January to take the case and resolve the disagreement, and the oral argument is set for April 26th.

I’m not a lawyer, but it seems like the outcome of Sorrell could have a wide-ranging impact on current and future information privacy laws, including possible Do Not Track regulations. Indeed, the petitioners recognize the potentially broad implications of their case. From the petition:

“Information technology has created new and unprecedented opportunities for data mining companies to obtain, monitor, transfer, and use personal information. Indeed, one of the defining traits of the so-called “Information Age” is this ability to amass information about individuals. Computers have made the flow of data concerning everything from personal purchasing habits to real estate records easier to collect than ever before.”

One central question in the case is whether a restriction on access to these data for marketing purposes is a restriction on legitimate commercial speech. The Second Circuit believes it is, reasoning that even “dry information” sold for profit—and already in the hands of a private actor—is entitled to First Amendment protection. In contrast, the First Circuit in Ayotte posited that the information being exchanged has “itself become a commodity,” not unlike beef jerky, so such restrictions are only a limitation on commercial conduct—not speech—and therefore do not implicate any First Amendment concerns.

A major factual difference here, as compared to online privacy and tracking, is that pharmacies are required by many state and federal laws to collect and maintain prescription drug records, so there may be more compelling reasons for the state to restrict access to this information.

In the case of online privacy, it could be argued that Internet users are voluntarily supplying information to the tracking servers, even though many users probably don’t intend to do this, nor do they expect that this is occurring. Judge Livingston, in her circuit dissent in Sorrell, notes that different considerations apply where the government is “prohibiting a speaker from conveying information that the speaker already possesses,” distinguishing that from situations where the government restricts access to the information itself. In applying this to online communications, at what point does the server “possess” the user’s data—when the packets are received and are sitting in a buffer or when the packets are re-assembled and the data permanently stored? Is there a constitutional difference between restrictions on collection versus restrictions on use? The Supreme Court in 1965 in Zemel v. Rusk stated that “the right to speak and publish does not carry with it the unrestrained right to gather information.” To what extent does this apply to government restrictions of online tracking?

The constitutionality of state and federal information privacy laws have historically and consistently been called into question, and things would be no different if—and it’s a big if— Congress grants the FTC authority over online tracking. When considering technical standards and what “tracking” means, it’s worth keeping in mind the possible constitutional challenges insofar as state action may be involved, as some desirable options to curb online tracking may only be possible within a voluntary or self-regulatory framework. Where that line is drawn will depend on how the Supreme Court comes down in Sorrell and how broadly they decide the case.

Filed Under: Uncategorized Tagged With: , ,

Things overheard on the WiFi from my Android smartphone

February 22, 2011 by

Today in my undergraduate security class, we set up a sniffer so we could run Wireshark and Mallory to listen in on my Android smartphone. This blog piece summarizes what we found.

  • Google properly encrypts traffic to Gmail and Google Voice, but they don’t encrypt traffic to Google Calendar. An eavesdropper can definitely see your calendar transactions and can likely impersonate you to Google Calendar.
  • Twitter does everything in the clear, but then your tweets generally go out for all the world to see, so there isn’t really a privacy concern. Twitter uses OAuth signatures, which appear to make it difficult for a third party to create forged tweets.
  • Facebook does everything in the clear, much like Twitter. My Facebook account’s web settings specify full-time encrypted traffic, but this apparently isn’t honored or supported by Facebook’s Android app. Facebook isn’t doing anything like OAuth signatures, so it may be possible to inject bogus posts as well. Also notable: one of the requests we saw going from my phone to the Facebook server included an SQL statement within. Could Facebook’s server have a SQL injection vulnerability? Maybe it was just FQL, which is ostensibly safe.
  • The free version of Angry Birds, which uses AdMob, appears to preserve your privacy. The requests going to the AdMob server didn’t have anything beyond the model of my phone. When I clicked an ad, it sent the (x,y) coordinates of my click and got a response saying to send me to a URL in the web browser.
  • Another game I tried, Galcon, had no network activity whatsoever. Good for them.
  • SoundHound and ShopSaavy transmit your fine GPS coordinates whenever you make a request to them. One of the students typed the coordinates into Google Maps and they nailed me to the proper side of the building I was teaching in.

What options do Android users have, today, to protect themselves against eavesdroppers? Android does support several VPN configurations which you could configure before you hit the road. That won’t stop the unnecessary transmission of your fine GPS coordinates, which, to my mind, neither SoundHound nor ShopSaavy have any business knowing. If that’s an issue for you, you could turn off your GPS altogether, but you’d have to turn it on again later when you want to use maps or whatever else. Ideally, I’d like the Market installer to give me the opportunity to revoke GPS privileges for apps like these.

Instructor note: live demos where you don’t know the outcome are always a dicey prospect. Set everything up and test it carefully in advance before class starts.

Filed Under: Privacy & Security Tagged With:

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: , ,