Category Archives: Mission

By 2020, Commercial Vendors Will Offer Quantum Encryption

From the cover of Physics World magazine, March 2013

From the cover of Physics World magazine, March 2013

One of the major problems with challenging the surveillance state is that it is extremely difficult to prove legally that you have been under surveillance. The only people able to prove it are the government themselves, or (in highly unusual cases) people to whom the government has accidentally disclosed that they are under surveillance.

What if, then, there were a commercially available solution that was able to prove that you were under surveillance, and that changed encryption keys so rapidly that your data could be vulnerable at most for a few seconds before becoming secure again? This is the promise of quantum encryption systems.

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Drawing The Line On Drones: Maine, Massachusetts legislators ponder when drones can be used without a warrant

drone_constitution

Scott Thistle at the Bangor Daily News reports that the Maine Senate is now considering a bill regulating the use of drones.

The bill is the result of consultations including legislators of both parties, the ACLU of Maine, and the Defense of Liberty PAC. It imposes a one-year moratorium on the use of drones by law enforcement in Maine, “except in emergencies”, pending a report from the Maine Criminal Justice Academy on how they could be used. However, the ACLU of Maine is unhappy with the version that has just passed out of the Judiciary Committee on a 7-6 vote, because it would in some circumstances allow police to operate drones without getting a Fourth Amendment compliant warrant. According to Thistle, the bill also does not make clear whether a drone could collect incidental footage that could later be used against a person other than the suspect detailed in a warrant.

There is also a Drone Privacy Act making its way through the Massachusetts legislature, though it is at an earlier stage and has the ACLU of Massachusetts’ strong support.

Perhaps the reason why the Maine bill has lost the support of the ACLU of Maine is that the “emergency exceptions” where a warrant is not required are rather broader in the Maine bill than in the Massachusetts bill. In Maine, the exceptions even include “conspiratorial activity that threatens the national security interest or is characteristic of organized crime”, which is vague, non-imminent, and broad enough to drive a truck through. The Massachusetts bill does not contain exceptions for those things.

Shenna Bellows, executive director of the ACLU of Maine, also objects to letting the police-run Criminal Justice Academy set the detailed rules for drone use. She states the problem plainly enough:

“The ACLU thinks that law enforcement should have a warrant before spying on Mainers with a drone and the [attorney general] does not. That’s the one issue where we cannot compromise.”

Good on you, Ms. Bellows. You have our full support.

Ace G-Man Knows All: FBI Agent Claims Power to Access Content of All Phone Calls Ever

Citizen! Were you under the misapprehension that the terrorist-sympathizing Supreme Court had ruled long ago that law enforcement had to get an actual warrant before accessing the content of your phone calls? Has that thought been keeping you up at night, because it allows people to express potentially un-American thoughts without the FBI being able to listen in and protect us? Well, fear no longer: your friendly neighborhood G-Man is on the case!

 

ace-g-man

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Drowning in Data, Starved for Wisdom: The surveillance state cannot meaningfully assess terrorism risks

In this movie, we're Brad.

Pity the analysts.

The NSA has just vigorously denied that their new Utah Data Center, intended for storing and processing intelligence data, will be used to spy on US citizens. The center will have a capacity of at least one yottabyte, and will provide employment for 100-200 people. With the most generous assumptions [200 employees, all employed only on reviewing the data, only one yottabyte of data, ten years to collect the yottabyte, 5GB per movie], each employee would be responsible on average for reviewing 4500 billion terabytes, or approximately 23 million years’ worth of Blu-ray quality movies, every year.

 

Must...keep...watching...my...country...needs...me

Must…keep…watching…my…country…needs…me

This astounding and continually increasing mismatch shows that we are well beyond the point where law enforcement is able to have a human review a manageable amount of the data in its possession potentially relating to terrorist threats. Computer processing power doubles every two years, but law enforcement employment is rising at a rate of about 7% every ten years, and nobody’s going to pay for it to double every two years instead. Purely machine-based review inevitably carries with it a far higher probability that important things will be missed, even if we were to suppose that the data was entirely accurate to begin with – which it certainly is not.

So why is anybody surprised that Tamerlan Tsarnaev, the elder of the Boston Marathon bombing suspects and one of around 750,000 people in the TIDE database, was not stopped at the border? That facial recognition software wasn’t able to flag him as a match for a suspect? That the fusion centers, intended to synthesize data into actionable “suspicious activity reports”, flag things too late for them to be of any use? That the Air Force is panicking a little at not having enough people to process the data provided by our drone fleet?

It’s in this context, then, that we should understand the calls for more surveillance after the Boston Marathon attacks for what they are. More cameras, more surveillance drones and more wiretapping, without many more humans to process the data, will make this problem worse, not better. These calls are being driven not by a realistic assessment that surveillance will help prevent the next attack, but by the internal incentives of the players in this market. Neither the drone manufacturers, nor law enforcement, nor elected officials, have an interest in being the ones to call a halt. So instead they’re promoting automation – automated drones, automated surveillance, and email scanning software techniques.

They are missing something very simple. We don’t need a terrorism database with 750,000 names on it. There are not 750,000 people out there who pose any sort of realistic threat to America. If the “terrorism watch list” were limited by law to a thousand records, then law enforcement would have to focus only on the thousand most serious threats. Given the real and likely manpower of the federal government, and the rarity of actual terrorism, that’s more than enough. If law enforcement used the power of the Fourth Amendment, instead of trying to find ways round it, it could focus more on the highest-probability threats.

Yes, they would miss stuff. That’s inevitable under both a tight and a loose system. But a tight system has the added advantages that it protects more people’s liberties, and costs a lot less.

UPDATE: With the help of a New Yorker fact-checker, the figure of “400 billion terabytes” above has been corrected to “500 billion terabytes”.

Panel Discussion on Privacy and Security, BU, April 24

If you are in the BU area on Wednesday evening, come by to hear interesting speakers talking about privacy and security in the wake of the Boston Marathon attacks. Panelists will include Alex Marthews (that’s me!), James O’Keefe of the Massachusetts Pirate Party, and Gregg Housh. RSVP here.

bu_event_flyer

The Fourth Amendment and the Boston Marathon Attacks: Racialized “Reasonable Suspicion” and the Search of the Saudi Marathoner’s Apartment

The Boston Marathon attacks have brought to the surface some of the best and the worst in Massachusetts.

On the one side, many news sources reported responsibly and refused to speculate too quickly and without foundation about who the bombers were or why they might have done what they did. There seems at this stage good evidence on which to base the arrest of Dzhokhar Tsarnaev. Above all, he was taken into custody quickly and alive, and Bostonians will be able to learn more about the motivations behind the attacks.

On the other side, panic, prejudice and the needs of the news cycle fueled an almost certainly unconstitutional search of an innocent Saudi marathoner’s house, an attack on a Muslim doctor in Malden, a call for genocide of Muslims, and a martial law-style lockdown of a vast area of metropolitan Boston.

This is the blog for the Campaign for Digital Fourth Amendment Rights, so unsurprisingly I’m going to focus on some of the Fourth Amendment issues arising out of the attacks; principally, the stop of the Saudi marathoner and the search of his apartment in Revere, and the constitutional issues raised when a householder refuses entry to law enforcement during house-to-house searches for a fugitive.

Follow me below the fold for the first of these!

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The Boston Marathon: Generalized Surveillance Fails To Thwart Attack

Headline updated [x2].

Today, by the finish line of the Boston Marathon, on the same city block as the church I go to, two bombs went off. I feel shocked and sad beyond belief.

 

Photo credit: KVLY

Photo credit: KVLY.

My thoughts and prayers are with those who died or were hurt, with their families, and with all the people stranded in Boston on this cold night.

The former district attorney of Middlesex County, Gerry Leone, has taken to the airwaves to talk about how great the efforts have been before this attack to get a Joint Terrorism Task Force going, how well it has been working together, how smooth the state and federal collaboration has been, and how the appropriate response will be to increase random surveillance. Governor Patrick has also echoed his perspective, talking about the need for increased vigilance and random bag searches on the MBTA, which we have covered, and opposed, before.

It won’t surprise regular readers to know that my perspective on this is a little different and more skeptical. Even while massively and systematically abusing the Fourth Amendment, law enforcement wasn’t able to prevent this attack. The amount of data collected through warrantless electronic means by the centers Leone is talking about has been vast, and none of it, none of it, has thwarted a terrorist attack. Now, once again, they have failed us all.

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The IRS Is Up In All Of Your Email, Warrantlessly; but Fret Not, Peons, It Is For Your Own Good

What kind of hippy would object to spending half of our taxes on war anyways?

What kind of hippy would object to spending half of our taxes on war anyways?

The ACLU reported on Wednesday that the IRS may be reading Americans’ emails without a warrant, because all Americans are now terrorists tax evasion is just like terrorism look because they can OK jeez you people with all your Constitution this and Constitution that shut up already!

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Microscope Monday: Analysis of Massachusetts’ proposed Liberty Preservation Act, H. 1428

steampunk_microscope

The newly formed Massachusetts chapter of PANDA is bringing forward legislation on Beacon Hill to prevent the indefinite detention of American citizens under the National Defense Authorization Act, or NDAA.

The notion that the President should be allowed to detain US citizens without trial and without limit in time of war is a horrifying idea, but not a new one. President Lincoln suspended the writ of habeas corpus during the Civil War. President Roosevelt interned Americans of Japanese descent during the Second World War. It had seemed by the early 1990s that we were recognizing that shameful past and leaving it behind. Then came 9/11.

In the aftermath of the attack, 1,200 Muslim Americans were detained on `material witness warrants’ and interrogated, often without any evidence beyond their religion. American citizen and civilian Jose Padilla was arrested in 2002, committed to a military brig for three and a half years, tortured and possibly driven insane, before being transferred to civilian court and sentenced to 17 years in prison in 2008, for conspiracy to conspire to commit terrorist acts abroad.

The US government in these cases was exceptionally anxious to preserve authority to detain anyone for any length of time, provided they could be vaguely associated with al-Qaeda. Many people expected that President Obama would abandon such arguments and restore the rule of law. In reality, he has allowed the power of indefinite detention to pass into law. In 2012, he issued a signing statement to that year’s NDAA (it’s an annual thing), claiming that he would never use the power of indefinite detention. That’s not even legally binding on him, let alone on his successors. In 2013’s bill, even that signing statement has disappeared from view. Hence, people in many states have been proposing bills like the Liberty Preservation Act.

Over the fold, for the details of what the Liberty Preservation Act would do!

[Previous Microscope Mondays covered: the Free Speech Act; the Electronic Privacy Bill; the Drone Privacy Bill; and the infamous Act Updating the Wire Interception Law.]

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By 2020, Americans May Have Started Talking About The Right To Obscurity

Shepard Fairey's artwork for Internet anti-censorship campaign

Shepard Fairey’s artwork for Internet anti-censorship campaign

Americans are used to thinking of ourselves as “rights pioneers.” But the American constitution is particularly difficult to amend, and is therefore slower than most to respond to a rapidly changing technological and cultural landscape. Justice Brandeis’s 1890 law review article on “The Right to Privacy” conceived of the Constitution as embodying a central, unarticulated “right to be let alone”, expressed as the “right to an inviolate personality.” Such a right was eventually recognized in the context of marriage by the US Supreme Court in Griswold v. Connecticut (1965), famously arguing in much-mocked language that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” The difficulty with embodying privacy as a right consists in the fact that nobody can define it clearly in a way that is not highly contingent on time-specific cultural and generational norms; we cannot say now, in 2013 and after the passage of (to name only two) marital rape laws and gay marriage laws, that the norms governing marital privacy are the same now as when Griswold was decided. Thus, culture and technology continually gallop ahead, while the law is still getting saddled up. In this post, we explore some innovative efforts to help the law catch up.

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