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On Sunday’s Face the Nation, Sen. Rand Paul was asked about President Trump’s accusation that President Obama ordered the NSA to wiretap his calls. The Kentucky senator expressed skepticism about the mechanics of Trump’s specific charge, saying: “I doubt that Trump was a target directly of any kind of eavesdropping.” But he then made a broader and more crucial point about how the U.S. government spies on Americans’ communications — a point that is deliberately obscured and concealed by U.S. government defenders. Paul explained how the NSA routinely and deliberately spies on Americans’ communications — listens to their calls and reads their emails — without a judicial warrant of any kind: The way it works is, the FISA court, through Section 702, wiretaps foreigners and then [NSA] listens to Americans. It is a backdoor search of Americans. And because they have so much data, they can tap — type Donald Trump into their vast resources of people they are tapping overseas, and they get all of his phone calls. And so they did this to President Obama. They — 1,227 times eavesdrops on President Obama’s phone calls. Then they mask him. But here is the problem. And General Hayden said this the other day. He said even low-level employees can unmask the caller. That is probably what happened to Flynn. They are not targeting Americans. They are targeting foreigners. But they are doing it purposefully to get to Americans.

Paul’s explanation is absolutely correct. That the NSA is empowered to spy on Americans’ communications without a warrant — in direct contravention of the core Fourth Amendment guarantee that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause” — is the dirty little secret of the U.S. Surveillance State. As I documented at the height of the controversy over the Snowden reporting, top government officials — including President Obama — constantly deceived (and still deceive) the public by falsely telling them that their communications cannot be monitored without a warrant. Responding to the furor created over the first set of Snowden reports about domestic spying, Obama sought to reassure Americans by telling Charlie Rose: “What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls … by law and by rule, and unless they … go to a court, and obtain a warrant, and seek probable cause.” The right-wing chairman of the House Intelligence Committee at the time, GOP Rep. Mike Rogers, echoed Obama, telling CNN the NSA “is not listening to Americans’ phone calls. If it did, it is illegal. It is breaking the law.” Those statements are categorically false. A key purpose of the new 2008 FISA law — which then-Senator Obama voted for during the 2008 general election after breaking his primary-race promise to filibuster it — was to legalize the once-controversial Bush/Cheney warrantless eavesdropping program, which the New York Times won a Pulitzer Prize for exposing in 2005. The crux of the Bush/Cheney controversy was that they ordered NSA to listen to Americans’ international telephone calls without warrants — which was illegal at the time — and the 2008 law purported to make that type of domestic warrantless spying legal.

Director of National Intelligence James Clapper this morning released a report detailing new rules aimed at reforming the way signals intelligence is collected and stored by certain members of the United States Intelligence Community (IC). The long-awaited changes follow up on an order announced by President Obama one year ago that laid out the White House’s principles governing the collection of signals intelligence. That order, commonly known as PPD-28, purports to place limits on the use of data collected in bulk and to increase privacy protections related to the data collected, regardless of nationality. Accordingly, most of the changes presented as “new” by Clapper’s office  (ODNI) stem directly from the guidance provided in PPD-28, and so aren’t truly new. And of the biggest changes outlined in the report, there are still large exceptions that appear to allow the government to escape the restrictions with relative ease. Here’s a quick rundown.

National security letters (NSLs). The report also states that the FBI’s gag orders related to NSLs expire three years after the opening of a full-blown investigation or three years after an investigation’s close, whichever is earlier. However, these expiration dates can be easily overridden by by an FBI Special Agent in Charge or a Deputy Assistant FBI Director who finds that the statutory standards for secrecy about the NSL continue to be satisfied (which at least one court has said isn’t a very high bar). This exception also doesn’t address concerns that NSL gag orders lack adequate due process protections, lack basic judicial oversight, and may violate the First Amendment.

Retention policy for non-U.S. persons. The new rules say that the IC must now delete information about “non-U.S. persons” that’s been gathered via signals intelligence after five-years. However, there is a loophole that will let spies hold onto that information indefinitely whenever the Director of National Intelligence determines (after considering the views of the ODNI’s Civil Liberties Protection Officer) that retaining information is in the interest of national security. The new rules don’t say whether the exceptions will be directed at entire groups of people or individual surveillance targets.  Section 215 metadata. Updates to the rules concerning the use of data collected under Section 215 of the Patriot Act includes the requirement that the Foreign Intelligence Surveillance Court (rather than authorized NSA officials) must determine spies have “reasonable, articulable suspicion” prior to query Section 215 data, outside of emergency circumstances. What qualifies as an emergency for these purposes? We don’t know. Additionally, the IC is now limited to two “hops” in querying the database. This means that spies can only play two degrees of Kevin Bacon, instead of the previously allowed three degrees, with the contacts of anyone targeted under Section 215. The report doesn’t explain what would prevent the NSA (or other agency using the 215 databases) from getting around this limit by redesignating a phone number found in the first or second hop as a new “target,” thereby allowing the agency to continue the contact chain.

The battle over the Federal Communications Commission’s (FCC) repeal of net neutrality rules is entering a new phase, with opponents of the move launching efforts to preserve the Obama-era consumer protections.The net neutrality rules had required internet service providers to treat all web traffic equally. Republicans on the commission decried the regulatory structure as a gross overreach, and quickly moved to reverse them once the Trump administration came to power. The reversal of the rules was published in the Federal Register Thursday, and even though the order is months away from implementation, net neutrality supporters are now free to mount legal challenges to the action. A coalition of Democratic state attorneys general, public interest groups and internet companies have vowed to fight in the courts. Twenty-three states, led by New York and its attorney general, Eric Schneiderman (D), have already filed a lawsuit. 

Even if Democrats do manage to find the tie-breaking vote in the Senate, the bill is almost certain to die in the House. But Democrats see a roll call vote as an opportunity to make GOP members stake out a position on an issue that they think could resonate in the midterm elections. On yet another front, Democratic states around the country have already launched their own attack on the FCC’s rules. Five governors (from Montana, Hawaii, New Jersey, Vermont and New York) have in recent weeks signed executive orders forbidding their states from doing business with internet service providers who violate net neutrality principles. And, according to the pro-net neutrality group Free Press, legislatures in 26 states are weighing bills that would codify their own open internet protections. The local efforts could ignite a separate legal battle over whether states have the authority to counteract the FCC’s order, which included a provision preempting them from replacing the rules.

The emerging court battle over net neutrality could keep the issue in limbo for years.Meanwhile, a separate battle over the rules is brewing in Congress.Senate Democrats have secured enough support to force a vote on a bill that would undo the FCC’s December vote and leave the net neutrality rules in place. The bill, which is being pushed by Sen. Ed MarkeyEdward (Ed) John MarkeyRegulators seek to remove barriers to electric grid storage Markey, Paul want to know if new rules are helping opioid treatment Oil spill tax on oil companies reinstated as part of budget deal MORE (D-Mass.), would use a legislative tool called the Congressional Review Act (CRA) to roll back the FCC’s repeal of net neutrality. The entry of the FCC’s repeal order in the Federal Register Thursday means that the Senate has 60 legislative days to move on the CRA bill. Democrats have secured support from one Republican, Sen. Susan CollinsSusan Margaret CollinsOvernight Tech: Judge blocks AT&T request for DOJ communications | Facebook VP apologizes for tweets about Mueller probe | Tech wants Treasury to fight EU tax proposal Overnight Regulation: Trump to take steps to ban bump stocks | Trump eases rules on insurance sold outside of ObamaCare | FCC to officially rescind net neutrality Thursday | Obama EPA chief: Reg rollback won't stand FCC to officially rescind net neutrality rules on Thursday MORE (Maine), and need just one more to cross the aisle for the bill to pass the chamber. 

That’s not a bug. It’s a function of Apple policy. With some exceptions, the company doesn’t let users pay app makers directly for their apps or digital services. They can only pay Apple, which takes a 30% cut of all revenue and then passes 70% to the developer. (For subscription services, which account for the majority of App Store revenues, that 30% cut drops to 15% after the first year.) To tighten its grip, Apple prohibits the affected apps from even telling users how they can pay their creators directly.In 2018, unwilling to continue paying the “Apple tax,” Netflix followed Spotify and Amazon’s Kindle books app in pulling in-app purchases from its iOS app. Users must now sign up elsewhere, such as on the company’s website, in order for the app to become usable. Of course, these brands are big enough to expect that many users will seek them out anyway.

Smaller app developers, meanwhile, have little choice but to play by Apple’s rules. That’s true even when they’re competing with Apple’s own apps, which pay no such fees and often enjoy deeper access to users’ devices and information.Now, a handful of developers are speaking out about it — and government regulators are beginning to listen. David Heinemeier Hansson, the co-founder of the project management software company Basecamp, told members of the U.S. House antitrust subcommittee in January that navigating the App Store’s fees, rules, and review processes can feel like a “Kafka-esque nightmare.”One of the world’s most beloved companies, Apple has long enjoyed a reputation for user-friendly products, and it has cultivated an image as a high-minded protector of users’ privacy. The App Store, launched in 2008, stands as one of its most underrated inventions; it has powered the success of the iPhone—perhaps the most profitable product in human history. The concept was that Apple and developers could share in one another’s success with the iPhone user as the ultimate beneficiary.

But critics say that gauzy success tale belies the reality of a company that now wields its enormous market power to bully, extort, and sometimes even destroy rivals and business partners alike. The iOS App Store, in their telling, is a case study in anti-competitive corporate behavior. And they’re fighting to change that — by breaking its choke hold on the Apple ecosystem.

The German software-as-a-service firm Open-Xchange, which provides apps that telcos and other service providers can bundle with their connectivity or hosting products, is adding a cloud-based office productivity toolset called OX Documents to its OX App Suite lineup. Open-Xchange has around 70 million users through its contracts with roughly 80 providers such as 1&1 Internet and Strato. Its OX App Suite takes the form of a virtual desktop of sorts, that lets users centralize their email and file storage accounts and view all sorts of documents through a unified portal. However, as of an early April release it will also include OX Text, a non-destructive, collaborative document editor that rivals Google Docs, and that has an interesting heritage of its own.

The new rules for exemptions to copyright's DRM-circumvention laws were issued today, and the Librarian of Congress has granted much of what EFF asked for over the course of months of extensive briefs and hearings. The exemptions we requested—ripping DVDs and Blurays for making fair use remixes and analysis; preserving video games and running multiplayer servers after publishers have abandoned them; jailbreaking cell phones, tablets, and other portable computing devices to run third party software; and security research and modification and repairs on cars—have each been accepted, subject to some important caveats.

The exemptions are needed thanks to a fundamentally flawed law that forbids users from breaking DRM, even if the purpose is a clearly lawful fair use. As software has become ubiquitous, so has DRM.  Users often have to circumvent that DRM to make full use of their devices, from DVDs to games to smartphones and cars. The law allows users to request exemptions for such lawful uses—but it doesn’t make it easy. Exemptions are granted through an elaborate rulemaking process that takes place every three years and places a heavy burden on EFF and the many other requesters who take part. Every exemption must be argued anew, even if it was previously granted, and even if there is no opposition. The exemptions that emerge are limited in scope. What is worse, they only apply to end users—the people who are actually doing the ripping, tinkering, jailbreaking, or research—and not to the people who make the tools that facilitate those lawful activities. The section of the law that creates these restrictions—the Digital Millennium Copyright Act's Section 1201—is fundamentally flawed, has resulted in myriad unintended consequences, and is long past due for reform or removal altogether from the statute books. Still, as long as its rulemaking process exists, we're pleased to have secured the following exemptions.

The new rules are long and complicated, and we'll be posting more details about each as we get a chance to analyze them. In the meantime, we hope each of these exemptions enable more exciting fair uses that educate, entertain, improve the underlying technology, and keep us safer. A better long-terms solution, though, is to eliminate the need for this onerous rulemaking process. We encourage lawmakers to support efforts like the Unlocking Technology Act, which would limit the scope of Section 1201 to copyright infringements—not fair uses. And as the White House looks for the next Librarian of Congress, who is ultimately responsible for issuing the exemptions, we hope to get a candidate who acts—as a librarian should—in the interest of the public's access to information.

Last week, we noted that there was an effort underway to introduce an amendment for this week's Defense Appropriations bill in the House that would effectively limit some of the most nefarious aspects of the NSA's ability to spy on Americans via two different types of backdoors: (1) so-called "backdoor searches" on Americans' information collected under Section 702 of the FISA Amendments Act and (2) mandating tech companies build in backdoors to their technology for the NSA to go snooping. The Defense Appropriations bill is expected to hit the House floor sometime soon, under open rules, meaning that the amendment in question won't be blocked by the House Rules Committee, as happens on a variety of other bills.

The amendment has powerful bipartisan backing, sponsored by Reps. James Sensenbrenner, Thomas Massie and Zoe Lofgren, along with co-sponsors Reps. Conyers, Poe, Gabbard, Jordan, O’Rourke, Amash, and Holt. Having Sensenbrenner bring out this amendment is a big deal. This amendment would restore at least one aspect of the USA Freedom Act that was stripped out at the last minute under pressure from the White House. Sensenbrenner sponsoring this bill highlights that he's clearly not satisfied with how his own bill got twisted and watered down from the original, and he's still working to put back in some of the protections that were removed. Conyers is a powerful force on the other side of the aisle, whose support for the USA Freedom Act was seen by some as a signal that the bill was "okay" to vote on. Having both of them support this Amendment suggests that neither were really that satisfied with the bill and felt pressured into supporting it.

While this Amendment doesn't fix everything, it is an important chance for members of Congress to show that they really do support protecting Americans' privacy. But they need to know that. Please contact your Representative today to let them know you want them to support this amendment. The EFF and others have set up a website, ShutTheBackDoor.net, to help you contact your official. Please do so today.

“Is this related to what we talked about before?” Bencsáth said, referring to a previous discussion they’d had about testing new services the company planned to offer customers. “No, something else,” Bartos said. “Can you come now? It’s important. But don’t tell anyone where you’re going.” Bencsáth wolfed down the rest of his lunch and told his colleagues in the lab that he had a “red alert” and had to go. “Don’t ask,” he said as he ran out the door. A while later, he was at Bartos’ office, where a triage team had been assembled to address the problem they wanted to discuss. “We think we’ve been hacked,” Bartos said.

They found a suspicious file on a developer’s machine that had been created late at night when no one was working. The file was encrypted and compressed so they had no idea what was inside, but they suspected it was data the attackers had copied from the machine and planned to retrieve later. A search of the company’s network found a few more machines that had been infected as well. The triage team felt confident they had contained the attack but wanted Bencsáth’s help determining how the intruders had broken in and what they were after. The company had all the right protections in place—firewalls, antivirus, intrusion-detection and -prevention systems—and still the attackers got in.

Bencsáth was a teacher, not a malware hunter, and had never done such forensic work before. At the CrySyS Lab, where he was one of four advisers working with a handful of grad students, he did academic research for the European Union and occasional hands-on consulting work for other clients, but the latter was mostly run-of-the-mill cleanup work—mopping up and restoring systems after random virus infections. He’d never investigated a targeted hack before, let alone one that was still live, and was thrilled to have the chance. The only catch was, he couldn’t tell anyone what he was doing. Bartos’ company depended on the trust of customers, and if word got out that the company had been hacked, they could lose clients. The triage team had taken mirror images of the infected hard drives, so they and Bencsáth spent the rest of the afternoon poring over the copies in search of anything suspicious. By the end of the day, they’d found what they were looking for—an “infostealer” string of code that was designed to record passwords and other keystrokes on infected machines, as well as steal documents and take screenshots. It also catalogued any devices or systems that were connected to the machines so the attackers could build a blueprint of the company’s network architecture. The malware didn’t immediately siphon the stolen data from infected machines but instead stored it in a temporary file, like the one the triage team had found. The file grew fatter each time the infostealer sucked up data, until at some point the attackers would reach out to the machine to retrieve it from a server in India that served as a command-and-control node for the malware.

When the Senate Intelligence Committee passed the Cybersecurity Information Sharing Act by a vote of 14 to 1, committee chairman Senator Richard Burr argued that it successfully balanced security and privacy. Fifteen new amendments to the bill, he said, were designed to protect internet users’ personal information while enabling new ways for companies and federal agencies to coordinate responses to cyberattacks. But critics within the security and privacy communities still have two fundamental problems with the legislation: First, they say, the proposed cybersecurity act won’t actually boost security. And second, the “information sharing” it describes sounds more than ever like a backchannel for surveillance.

On Tuesday the bill’s authors released the full, updated text of the CISA legislation passed last week, and critics say the changes have done little to assuage their fears about wanton sharing of Americans’ private data. In fact, legal analysts say the changes actually widen the backdoor leading from private firms to intelligence agencies. “It’s a complete failure to strengthen the privacy protections of the bill,” says Robyn Greene, a policy lawyer for the Open Technology Institute, which joined a coalition of dozens of non-profits and cybersecurity experts criticizing the bill in an open letter earlier this month. “None of the [privacy-related] points we raised in our coalition letter to the committee was effectively addressed.” The central concern of that letter was how the same data sharing meant to bolster cybersecurity for companies and the government opens massive surveillance loopholes. The bill, as worded, lets a private company share with the Department of Homeland Security any information construed as a cybersecurity threat “notwithstanding any other provision of law.” That means CISA trumps privacy laws like the Electronic Communication Privacy Act of 1986 and the Privacy Act of 1974, which restrict eavesdropping and sharing of users’ communications. And once the DHS obtains the information, it would automatically be shared with the NSA, the Department of Defense (including Cyber Command), and the Office of the Director of National Intelligence.

In a statement posted to his website yesterday, Senator Burr wrote that “Information sharing is purely voluntary and companies can only share cyber-threat information and the government may only use shared data for cybersecurity purposes.” But in fact, the bill’s data sharing isn’t limited to cybersecurity “threat indicators”—warnings of incoming hacker attacks, which is the central data CISA is meant to disseminate among companies and three-letter agencies. OTI’s Greene says it also gives companies a mandate to share with the government any data related to imminent terrorist attacks, weapons of mass destruction, or even other information related to violent crimes like robbery and carjacking. 

Today we’re announcing the launch of STARTTLS Everywhere, EFF’s initiative to improve the security of the email ecosystem. Thanks to previous EFF efforts like Let's Encrypt, and Certbot, as well as help from the major web browsers, we've seen significant wins in encrypting the web. Now we want to do for email what we’ve done for web browsing: make it simple and easy for everyone to help ensure their communications aren’t vulnerable to mass surveillance.

t’s important to note that STARTTLS Everywhere is designed to be run by mailserver admins, not regular users. No matter your role, you can join in the STARTTLS fun and find out how secure your current email provider is at: https://www.starttls-everywhere.org/ Enter your email domain (the part of your email address after the “@” symbol), and we’ll check if your email provider has configured their server to use STARTTLS, whether or not they use a valid certificate, and whether or not they’re on the STARTTLS Preload List—all different indications of how secure (or vulnerable) your email provider is to mass surveillance.

French privacy watchdog, the Commission Nationale de l’Informatique et des Libertés (CNIL), has hit Google with a 150 million euro fine and Facebook with a 60 million euro fine, because their websites—google.fr, youtube.com, and facebook.com—don’t make refusing cookies as easy as accepting them. The CNIL carried out an online investigation after receiving complaints from users about the way cookies were handled on these sites. It found that while the sites offered buttons for allowing immediate acceptance of cookies, the sites didn’t implement an equivalent solution to let users refuse them. Several clicks were required to refuse all cookies, against a single one to accept them. In addition to the fines, the companies have been given three months to provide Internet users in France with a way to refuse cookies that’s as simple as accepting them. If they don’t, the companies will have to pay a penalty of 100,000 euros for each day they delay.

EU data protection regulators’ powers have increased significantly since the General Data Protection Regulation (GDPR) took effect in May 2018. This EU law allows watchdogs to levy penalties of as much as 4% of a company’s annual global sales. The restricted committee, the body in charge of sanctions, considered that the process regarding cookies affects the freedom of consent of Internet users and constitutes an infringement of the French Data Protection Act, which demands that it should be as easy to refuse cookies as to accept them. Since March 31, 2021, when the deadline set for websites and mobile applications to comply with the new rules on cookies expired, the CNIL has adopted nearly 100 corrective measures (orders and sanctions) related to non-compliance with the legislation on cookies.