Surveillance, Legal and Otherwise

 A New Jersey Court recently held that a "communication data warrant" was insufficient to compel Facebook to hand over a user's posts.  Rather, under New Jersey's Wiretap and Electronic Surveillance Control Act, they would require a "wiretap" order.  While both orders are "warrants" as required by the Fourth Amendment to the US Constitution, under NJ law the standards and permissions are different for the two orders.  Said another way, it is the intention of the New Jersey legislature that surveillance in (near) real-time is more intrusive than a mere search warrant and must be more limited.  The intent of the law is to resist abuse, not only by NJ investigators but also by the federal government.

While the US Code contains no such explicit distinction, both law and precedent require that warrants be explicit as to what methods may be employed and what evidence is sought.  A warrant is not a carte blanche, a license to do anything the officer wants.  In practice judges expect law enforcement to use the "least intrusive means" to investigate.  

Governments around the globe, and law enforcement in particular, employ surveillance to detect and investigate communications that they wish to discourage.  Some, like ours, recognize the potential for abuse and seek to resist it.  None absolutely eschew its use. In some authoritarian states it is routine, a means of exercising power and control over the populous.  

The most frequent justifications for surveillance are crime, specifically CSAM and terrorism.  The rules are often "collect everything, forget nothing, admit nothing."  Data collected for legitimate purposes constitutes a temptation, not to say an invitation, to other uses.  

While the US Constitution requires probable cause for both searches and seizures, in practice seizures are routine and warrants are required only for searches.  While under the Constitution the test is "reasonableness," in practice and precedent the threshold for requiring a warrant has become whether or not the subject has an "expectation of privacy;" reasonableness is no longer even considered.  

In the US the requirement for a warrant is routinely bypassed by purchasing "surveillance as a service" in the open market.  Investigators simply pay a small fee to so called data brokers.  This is much more efficient than creating a government database.  

In summary the protection against unreasonable search and seizure guaranteed in the Fourth Amendment to the US Constitution have been whittled away.  While there is little evidence that the current administration is engaged in massive surveillance, it happened under the GWB administration.  There is little left to protect us against abuse by future administrations.   

On the "Expectation of Privacy"

In assessing the "search and seizure" of personal data by law enforcement, modern courts have applied the test of "reasonable expectation of privacy." This test implies that if the citizen has used his data in such a way that exposes it to others, for example, used it in a business transaction, then law enforcement may use it against them without restriction.  

The Framers never conceived of this test and might well be surprised by it.  Rather, the tests that they wrote into the Bill of Rights were "reasonable" and "probable cause."  If a search or seizure is "unreasonable," then law enforcement must have a warrant from a court.  The test for the issuance of a warrant is probable cause to believe that a crime has been, not will be, committed.  

These are constitutional tests and they are independent of how the citizen uses his personal information or what his expectations are.  He should not need to do, think, or "expect" anything in order for them to apply.  The tests apply to the behavior of the state, not the expectation of the citizen.  They restrict what the state, the police, may do.  The Bill of Rights places the burden on the state to show that its behavior is lawful, not on the citizen to demonstrate a right or "expectation."  Note that while information obtained in violation of these tests may not be used to convict the citizen of a crime, it is routinely used to investigate, threaten, and coerce, the very things that the Framers feared from a powerful government.  

In some cases, the state, with the tacit consent of the courts, pretends to get a warrant for all searches.  It pretends that it can legitimately collect anything as long as it does not look at it.  However, the Bill of Rights does not limit the tests to searches but also to "seizures." The government operates a data center in Bluffdale Utah.  In a world in which one can put a terabyte of data in one's pocket for $100, the government requires 26 acres of floor space to accommodate the data that it collects world-wide on citizens' communications.  It claims that this seizure is not "unreasonable" and that it does not need a warrant unless it "searches" or looks at the data.  By what reasoning can the arbitrary collection of so much data be called "reasonable?"

I am not hopeful that this view will be argued before the courts or that, even it argued, it will change much.  Nonetheless, I had to argue it.  

Open Letter to my Congressman

Sir:

In my forty years in information security I have come to have many colleagues in the intelligence community.  I find them to be brilliant and noble.  I have also found them to be myopic, artful, and zealous.  I have watched their testimony before both the House and Senate judiciary committees.  While I have been impressed by their testimony, I have been less impressed by the questioning.   The testimony has been carefully rehearsed and very consistent.  Where the questioning has not been sympathetic, it has been inept.  Even those legislators who recognize that the testimony is misleading are prevented by secrecy and decorum from asking the questions that might really inform the citizens or even saying so when a witness lies under oath. 

·         Here is a short list of questions that I would like put to the administration to answer under oath.

• Does GCHQ target American citizens on behalf of the US government?  What did we get for our $152M? 
• Does the NSA target citizens of the United Kingdom?  Does it do so on behalf of the UK government? 
• What programs, besides the collection of all telephone call records, does the NSA operate under USA Patriot Act, Section 215?  What programs, other than PRISM, does it operate under the FISA, Section 702?  Are we going to be surprised by more revelations?   
• NSA has admitted that a query to the call records database implicates not only those connected directly to the "seed" number but all those associated with it to "three hops."  What is the largest number of phone numbers implicated by any single query?  How many subscribers have been implicated by the hundreds of queries made since the inception of the program?  Is it possible that there is any American citizen  that has not been swept up in this huge drag net?
• Given the density of modern digital storage, e.g., a terabyte in a shirt pocket for $100, what is NSA storing that requires 24 acres of floor space in Utah?  
• What percentage of the e-mail that crosses our borders does NSA collect?  Store?  Analyze?  Disseminate to other agencies of government?  
• Given the demonstrations by Edward Snowden and Bradley Manning as to the breadth and depth of their access, how can we rely upon the assurances of NSA  that they can protect us from abuse of the information they collect?  Doesn't the mere collection of all this information invite, not to say guarantee, abuse?
• Doesn't the mammoth budget ($75B in 2t012?) of NSA justify the conclusion that NSA operates on the premise that "Because we can, we must," and without any regard for efficiency?   Are they not spending far more than doing nothing would cost?
• Does not the Bush "Warrantless Surveillance Program" demonstrate that citizens cannot rely upon bureaucrats and spies to protect us from over-zealous, not to say rogue, politicians?  Are we building capabilities now that will empower politicians of the future? 
• Does the NSA require a warrant before they target US citizens on behalf of the FBI?  Secret Service? DEA?  MI5?  MI6?  
• Does the NSA protect American citizens from surveillance by their peers and colleagues in other nations?  
•  Is information passed to the FBI by NSA ever, usually, sufficient for the issuance of a wiretap warrant?  A National Security Letter?  
•  Do the intelligence agencies selectively share intelligence with legislators in order to curry support?
• 
  

Crypto Wars Redux

This morning, while researching another question, I found the following from Aaron Schumann to alt.security, quoting a post to the Risk Forum from me.  While written a quarter of a century ago, it might have been written this morning.

From: schuman@sgi.com (Aaron Schuman)
Newsgroups: alt.security
Subject: Congress to order crypto trapdoor?
Message-ID: <1991apr11 .231215.19779="" dragon.wpd.sgi.com="">
Date: 11 Apr 91 23:12:15 GMT 

The United States Senate is considering a bill that would require
manufacturers of cryptographic equipment to introduce a trap door,
and to make that trap door accessible to law enforcement officials.
If you feel, as I do, that the risk of abuse far outweighs the
potential benefits, please write to Senators Joseph Biden and Dennis
DeConcini, and to the Senators that represent your state, asking that
they propose a friendly amendment to their bill removing this
requirement.

I don't have exact addresses for Senators Biden and DeConcini, and
I hope someone will post them here, but the Washington DC post office
can deliver letters addressed to
Senator Joseph Biden Senator Dennis DeConcini
United States Senate and United States Senate
Washington, DC 20510 Washington, DC 20510

------------------------------
RISKS-LIST: RISKS-FORUM Digest  Wednesday 10 April 1991  Volume 11 : Issue 43
Date:  Wed, 10 Apr 91 17:23 EDT
From: WHMurray@DOCKMASTER.NCSC.MIL
Subject:  U.S. Senate 266, Section 2201 (cryptographics)
Senate 266 introduced by Mr. Biden (for himself and Mr. DeConcini)
contains the following section:
SEC. 2201. COOPERATION OF TELECOMMUNICATIONS PROVIDERS WITH LAW ENFORCEMENT
It is the sense of Congress that providers of electronic communications
services and manufacturers of electronic communications service equipment shall
ensure that communications systems permit the government to obtain the plain
text contents of voice, data, and other communications when appropriately
authorized by law.
------------------------------
The referenced language requires that manufacturers build trap-doors
into all cryptographic equipment and that providers of confidential
channels reserve to themselves, their agents, and assigns the ability to
read all traffic. 

Are there readers of this list that believe that it is possible for
manufacturers of crypto gear to include such a mechanism and also to reserve
its use to those "appropriately authorized by law" to employ it?
Are there readers of this list who believe that providers of electronic
communications services can reserve to themselves the ability to read all the
traffic and still keep the traffic "confidential" in any meaningful sense?
Is there anybody out there who would buy crypto gear or confidential services
from vendors who were subject to such a law? 

David Kahn asserts that the sovereign always attempts to reserve the use of
cryptography to himself.  Nonetheless, if this language were to be enacted into
law, it would represent a major departure.  An earlier Senate went to great
pains to assure itself that there were no trapdoors in the DES. Mr. Biden and
Mr. DeConcini want to mandate them.  The historical justification of such
reservation has been "national security;" just when that justification begins
to wane, Mr. Biden wants to use "law enforcement."  Both justifications rest
upon appeals to fear. 

In the United States the people, not the Congress, are sovereign; it should not
be illegal for the people to have access to communications that the government
cannot read.  We should be free from unreasonable search and seizure; we should
be free from self-incrimination.  The government already has powerful tools of
investigation at its disposal; it has demonstrated precious little restraint in
their use. 

Any assertion that all use of any such trap-doors would be only
"when appropriately authorized by law" is absurd on its face.  It is not
humanly possible to construct a mechanism that could meet that
requirement;  any such mechanism would be subject to abuse.
I suggest that you begin to stock up on crypto gear while you can still get it.
Watch the progress of this law carefully.  Begin to identify vendors across the
pond. 

William Hugh Murray, Executive Consultant, Information System Security 21
Locust Avenue, Suite 2D, New Canaan, Connecticut 06840       203 966 4769

We fought this battle once and thought that we won the war.