HazDat
13Jan/11

Privacy Law’s Gone Ex Parte Like it’s 1986…or 1984

A byproduct of life in the 21st Century is that many of the perks of a post-centennial lifestyle require the abdication of a fair bit of privacy to cyberspace. That means that the paper records that once required a search warrant to read (and maybe the forceful extraction from your cold-dead-hands), are now in the possession of companies who don't. Of course there's Facebook and Twitter. Those didn't exist in the 20th. Century. But, what about your phone records and email? While your phone company has long been subject to a warrant or subpoena, in the 21st. Century new "self-service" tools have been developed to help telcos manage the onslaught of requests made particularly attractive by the fact that most of us carry what amounts to a homing-beacon in our pockets. Similarly, while email has always been an attractive source of discovery, until recently most of it resided on each correspondent's physical, and virtual, desktop waiting to get written-over by something more current. Today, it's more likely been put out to pasture in a seemingly-endless "server farm", waiting to be picked by a custodian of records.

Even our personal computers, which have always required a search warrant, and often require a cascading series of search warrants covering various regions of storage space and categories of searches, are rapidly being replaced by windows to the web -- sleek sheets of glass and sculpted-aluminum that act as a portal to your virtual existence. Like a supermodel, these tablets are thin and beautiful, but two-dimensional, with very little substance inside. What makes these devices a reality today is a combination of near-ubiquitous Internet connectivity and access to your personal online data once it's established. Even the notion of "backing up" is becoming a thing of the past, because the data you see, isn't really here. It's somewhere else, presumably safe from destruction, but not necessarily from dissemination. Like many things in life, it's a trade-off.

But, not when it comes to fighting crime. The shift of discovery from physical space to cyberspace is a decided advantage for law enforcement. In fact, Google reports that it responded to more than 4200 discovery requests in the first-half of 2010 alone. One of the reasons these requests have become so popular is that online data is easier seize than a laptop, and often much more useful. Much of what can be had requires no search warrant at all, and thanks to online tools, can be had without even so much as contacting the service provider. Why? Because, unlike the data on your hard drive, you don't necessarily own your data when it's stored in cyberspace.

The Electronic Communications Privacy Act was enacted by Congress in 1986 -- long before most people had access to the Internet, email, or a cellphone. When Mark Zuckerberg's only friends were his stuffed animals. Mind you, it was revolutionary for it's time -- enacted to extend government restrictions on wire taps from telephone calls to also include transmissions of electronic data by computer. But, it doesn't address current evolution. Today, far more can be gleaned from a historical records search than any telephone wiretap. Perhaps that's why last year the Department of Justice argued in favor of warantless email searches. Or why in the same year the DOJ argued that cellphone users had abdicated any expectation of privacy by using a service that stores location data.

Read more at http://www.nytimes.com/2011/01/10/technology/10privacy.html?_r=2&pagewanted=2&ref=technology

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11Jan/11

Winona Ryder Fears Accidentally Opting-Into Al Queda

Careful What You Click F

Actress Winona Ryder doesn't use the Internet. She just got her first smartphone, but finds it unpredictable. She had a laptop, but rarely used it.

She's fearful of technology. And that just might make her smarter than you.

As evidenced in her "Late Night" interview with Jimmy Fallon, these days, such concerns are the fodder for comedians. It's the current equivalent of being afraid to drive or swim. In the late 20th. Century, it might have been a fear of handing one's money over to an ATM machine. Or more recently, making a purchase online. But, well over 30,000 people died in car accidents in 2009. Another 24,000 were injured. In a similar period, more that 3000 people died from drowning. Fear is not necessarily a bad thing. Not if it keeps you safe.

Most of us either fear what we don't know, or fear what we do. There's also a whole complicated subset of irrational, or misguided fears that really fall into the first category. According to her own interview, Ryder falls into the former classification.

Ryder told Fallon, "We're a button away from joining Al Queda!"

How many times have you accidentally opted yourself into joining a mailing list because you forgot to un-approve your pre-approved consent? What about that time when you accidentally installed a bunch of "trial-ware" that came along with a program you legitimately wanted to use. Somewhere, before or after the end-user-license agreement you didn't read, it may have been an option. In the 90's one of my attorney-client's accidentally sold a good investment when he was dabbling with online day trading. I have met people who accidentally purchased cars on eBay. Meanwhile, I promise (though I don't recommend confirming it) that many forms of contraband are just a few clicks, or even a typo, away from where you sit this very moment. Last Summer I gave National Public Radio (NPR) a glimpse into just how easy it can be. Even if you bleed apple pie filling, you're still just a click away from looking like someone else.

I haven't tried it myself, but I'll bet joining Al Queda requires, at least, the completion of an annoying CAPTCHA in order to submit a membership application.  While I'm sure Ryder has no interest in joining, just the accusation, or even a rumor, that she ever supported a terrorist organization, or had some other frighting interest, could be just as detrimental. Remember Christine O'Donnell, the Republican Party's most famous witch? In some parts of the country that's harder to understand than extremism.

Ryder: "We're a button away from joining Al Queda."

Remember, Ryder works in the industry that was most famously asked, "Are you, or have you ever been a member of the Communist Party?"

Maybe -- even if unwittingly -- she's on to something. Maybe we'd have several thousand fewer vehicular deaths every year if more drivers understood the engineering that goes into the highway, or a car, it's tires, or even just its brakes and safety systems. Sure, it might scare a few people out of driving altogether. But it might make the rest think a little harder before they accelerated into a turn, or tried to beat a red light across a wet intersection. Maybe, if more people really understood the Internet better before hopping on the "Information Superhighway", law enforcement might have fewer accidents to investigate.

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10Jan/11

Filed Under “Things You Thought You Could Take for Granted”: Court Holds there is a Reasonable Expectation of Privacy in the Contents of Emails

Show of hands: How many people have a reasonable expectation of privacy when you send an email? It turns out, as late as December 2010, you may have had no reasonable expectation of privacy when it came to your email correspondence -- at least that was the opinion of the United States Department of Justice (DOJ). And, between your Internet Service Provider's (ISP) Terms of Service (TOS), and the 1986 Stored Communications Act (18 U.S.C. §§ 2701-2712), you may not have under various circumstances.

M. Scott Koller, of McKennon | Schindler in Newport Beach, CA has written a very comprehensive overview of the decision, why it was ever in doubt, and the 1986 act that got us here in the first place.

Read more at http://www.reasonableexpectation.com/2011/01/09/stored-email-protected-by-the-4th-amendment/

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10Jan/11

McAfee Predicts Mobile Devices May Be Corporate America’s Real Trojan Horse

If security firm McAfee is right, 2011 may be the tablet computer takes over corporate America. Or more specifically, the year the tablet takes over corporate networks. McAfee predicts that the onslaught of consumer-owned and lent smartphone and tablet devices entering and exiting the office space may pose a new unanticipated threat to corporate security. Their concern is that, not only is the consumer largely ill-prepared to secure devices that may amount to a hole in the Trojan wall big enough to drive a wooden horse into, but that the lack of comprehensive security tools designed around the likes of iPhones, iPads and Android devices, leaves them ill-equipped, even if they were prepared. Potentially, this could mean that personal gadgetry may become the host du jour for new infectious computer viruses, malware, and most alarmingly, remote access to the network the form of "Trojan horses".

While McAfee, one of the world's largest anti-virus software manufacturers, is understandably concerned about the interconnection of consumer-maintained -- and largely unsecured -- devices to more secure corporate networks, I think they may be missing an even bigger threat. While for years USB "thumb drives" have been cheap and affordable, and available in sizes small enough to swallow, they still required the physical removal of data from the premises. This meant exhaustively copying and then walking data out of the building. (See "sneakernet".) And, while every year these storage devices hold more and more data, so does the average corporate server. It's unlikely that portable media will ever quite catchup.

On the other hand, the prevalence of high-powered personal computing devices (yes, I'm talking about your average smartphone) connected to the corporate network allows, not only for the immediate transmission of data off-the-premises, but potentially even the cheapest, least sophisticated, pre-paid Android phone, left "cradled" overnight to a desktop computer, (the same cradle used to charge the battery, and synchronize contacts and calendar events,) could allow for unrestricted unauthorized remote network access over a hard-to-trace personal cellular data connection. Not only is this possible today, but it doesn't require a sophisticated computer virus to accomplish.

Read more at http://www.technewsworld.com/story/71541.html

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8Jan/11

Obama Looks to Silicon Valley to Solve Identity Crisis

The federal government thinks identity and passwords need to be fixed to keep the internet healthy, but is declining, thankfully, to try to fix it themselves. Instead, they are pushing internet entrepreneurs to build something robust and open.

Read full article at http://feeds.wired.com/~r/wired/index/~3/3Uts2JG5xFc/

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3Dec/10

FTC Want Eat Cookies. Om nom nom nom.

The Federal Trade Commission testified before congress this week on what it calls "Do Not Track Legislation". According to the FTC's web site, "The testimony describes the FTC’s efforts to protect consumer privacy for 40 years through law enforcement, education, and policy initiatives. It also provides highlights from the FTC staff’s new report on consumer privacy, released yesterday, and proposes a framework to promote privacy, transparency, business innovation, and consumer choice."

The commission suggests that tracking should be controlled at a user (likely browser) level, but could be enacted either via strict legislation or industry-supported self-regulation.

Cookie Settings

Cookie Settings

For the most part, the mechanisms utilized by web sites to track user activity are inherent in the browsers themselves, and have retained an element of user-control since their inception. The most common method is through the use of what is known as a "browser cookie"--a small piece of unique data saved by a web site into the the web browser for later retrieval. Although users have the ability to "flush" cookies from their browsers, or simply configure the browser not to accept cookies at all, these features tend to be buried well within the browser settings, and difficult for most people to understand. What's worse, enabling such privacy features often renders many web site features semi or non-functional.

The FTC is not calling for specific mandates at this time, but rather for comment.

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31Aug/10

A Click Away…

I recently had another occasion to meet with Reporter Martin Kaste from NPR's "All Things Considered". Last time we met to play a game of cat-and-mouse in the streets of San Francisco to demonstrate the current state of cellular telephone and wireless device tracking. This time we discussed an issue closer to my heart.

"Right now, anybody is just one search term and a click on Google away from most of the same files that I have seen as part of my work," he says.

Fischbach believes the easy-to-find images are a kind of public hazard.

He worked for one defendant who went to prison because of one night of ill-advised Web surfing. The easy-to-find images are also tempting weapons in messy custody battles and divorces — he's convinced that in some of the cases he's worked on, one spouse has been framed by another. All of this makes Fischbach wonder why more isn't done to block some of the more obvious sources of these "radioactive" files.

"It's the same thing as any other public nuisance. Part of the government's job is not just to go out there and stop people from doing bad things, but to stop good people from having to fall victim to that," he says.

It's probably not constitutional for the government to block offending Web sites outright, but Fischbach says Internet service providers and search engines could volunteer to filter the images that reach their customers, just as e-mail providers filter out known viruses.

He's been suggesting this idea for years, and now somebody is trying it.

Listen to NPR's A Click Away: Preventing Online Child Porn Viewing

Audio and transcript: http://www.npr.org/templates/story/story.php?storyId=129526579

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22Mar/10

Was convicted hacker on the Secret Service payroll?

"Secret Service paid TJX Hacker $75,000 a Year"

U.S. Secret ServiceAccording to Wired, a convicted hacker and credit card thief was paid to work undercover for the U.S. Secret Service. A convicted accomplice told Wired that Albert Gonzalez was paid $75,000 a year in cash as a confidential informant to the U.S. Government.

Though the Secret Service would not comment, a former federal prosecutor told Wired that the payment was not unusual. He compared it to "million-dollar payouts" to informants involved in organized crime investigations. According to Department of Justice guidelines, agents are required to advise confidential informants that payments "may be taxable income that must be reported to appropriate tax authorities".

Albert Gonzalez was arrested in 2008 and accused of running one of the largest identity theft crimes in U.S. history. After his arrest Gonzalez lead instigators to more than $1 million buried behind his parent's home.

Gonzalez will be sentenced on Thursday. The government is seeking a 25 year sentence.

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14Mar/10

FTC Queues-in on Netflix Member Privacy

Attn. MPAA: There are much worse ways to copy movies than with a computer.

In 2007 prosecutors in Anchorage Alaska accused 34 year old stripper Mechele Linehan of plotting a murder based on the 1994 movie "The Last Seduction". Life so closely imitated art, said prosecutors, that they even tried to have the movie played for the jury.

Rockstar Games Grand Theft Auto

In 2008 a teenager confessed that he was trying to imitate scenes from the video game "Grand Theft Auto" when he robbed a murdered a taxicab driver in Bangkok Thailand. Movies like "The Deer Hunter" (1978) are even believed to have inspired several "copycat" suicides in the late 1970's and early 80's.

All of this may seem like fodder for censorship advocates, but that debate has largely come and gone in favor preserving the First Amendment's right to free speech. Wise as the framers of the U.S. Constitution may have been, few would accuse them of being clairvoyant. After all, who could have predicted the impact the Internet would some day have on both the precept of free speech and the concept of privacy?

Though many speak of the "right to privacy", it is not, at least as far as the U.S. Constitution is concerned, a right at all. It is, nonetheless, an ethos that has long been coveted by Americans, and is implicit in the Fourth Amendment's:

...right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...

Of course, mention the term "search" to most people today, and it's far more likely to conjure thoughts of friends lists", home pages and e-books, than actual people, houses and papers. And while, in just the past few years, popular culture has come to embrace the sharing of intimate, private and personal details with virtual strangers, the desire to remain "secure" seems to be very much alive in the 21st Century. In fact, more than any other, the Fourth Amendment has played a central, albeit contested, role in the litigation of hi-tech criminal evidence.

I know what you watched last summer...

So, what does all this have to do with your Netflix queue? Though Americans, and many other people around the world, may be willing to voluntarily divulge personal information, either in trade for modern conveniences and services, or increasingly, for a sense of online significance, we're not quite as enthusiastic when it's taken from us and shared without any tangible return. It's no longer a secret that the monetary value of data has been pre-calculated into the return on investment (ROI) of so many of today's business models, but consumers still tend to expect a certain level of security. In recent years the bar has been set pretty low. Still, it may surprise many to learn that "anonymous" usage data can be deciphered into personally-identifiable intelligence, as proven by a pair of researchers at the University of Texas using what was thought to be anonymous user data provided to contestants in the three-year $1 million "Netflix Prize" to improve the site's recommendation results.

The UT's results brought both unwanted attention from the Federal Trade Commission and a lawsuit from a private firm, resulting in Netflix's decision last week to cancel a planned sequel to the prize awarded last year.

It's not hard to imagine how this sort of data could be exploited to peddle shoes to people who have rented all six seasons of "Sex in the City", or BestBuy ads targeted at fans of NBC's "Chuck".

Dreamworks Minority Report (2002)

It's no longer extraordinary to see similar data exploited in the process of investigating crimes either. Certainly the viewing interests and habits of the individuals mentioned above have been considered relevant discovery by law enforcement. In these cases, there's little, if anything, to decipher.  Anything that Netflix knows about you, your account, and your viewing habits, is subject to a warrant, and, with or without much imagination, could be incriminating. How many of us haven't seen a good fictional car case, a well-written murder plot, a scripted street-fight, or a perfectly executed crime? The consumption of such fiction could be hazardous to your defense, if it proceeds similar accusations.

Now, imagine the same evidence available to anyone, without a warrant, subpoena, or probable cause. Perhaps someone at the FTC had the movie "Minority Report" in their queue.

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28Sep/09

The problem is, banks have too many humans.

What do you call the sacrifice of one person's privacy in an attempt to save the privacy of over 1300? If you're a bank, you call it collateral damage.

rmb-logoWhen I was a kid I earned my first paycheck passing out fliers for a neighbor who was starting a pool cleaning business. With my first $13 in hand, my grandfather took me to the a bank in walking distance to my home, got me a tour of the vault from the branch manager, a neat pouch to hold all my coin, a full explanation of the principals of savings and loans, and helped me open my very first savings account. Believe it or not, back then, all my account information was stored on a double-sided index card behind the teller.

Today, things are much more complicated. Gone are the index cards and passbooks, most of the employees, tellers and branches, a good deal of the service, interest-bearing accounts with only $13 in them, and a lot of the customers' money. Today, it's all computerized, and most banks even attach various penalties to discourage human contact.

I know an awful lot about electronic data systems, but I don't pretend to fully understand how the modern banking system works. Sometimes, I think I do--from a mechanical (as opposed to financial) perspective. But then something convinces me that I don't. For instance, you know how every so often your bank emails its customers' names, addresses, Social Security numbers, and loan information to Gmail? ... CONTINUE READING »

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