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Web giants such as Twitter, Facebook and WhatsApp have become "command-and-control networks... for terrorists and criminals", GCHQ's new head has said. Islamic State extremists had "embraced" the web but some companies remained "in denial" over the problem, Robert Hannigan wrote in the Financial Times. He called for them to do more to co-operate with security services. However, civil liberties campaigners said the companies were already working with the intelligence agencies. None of the major tech firms has yet responded to Mr Hannigan's comments.

GCHQ, terrorists, and the internet: what are the issues? GCHQ v tech firms: Internet reacts Change at the top for Britain's

Mr Hannigan said IS had "embraced the web as a noisy channel in which to promote itself, intimidate people, and radicalise new recruits." The "security of its communications" added another challenge to agencies such as GCHQ, he said - adding that techniques for encrypting - or digitally scrambling - messages "which were once the preserve of the most sophisticated criminals or nation states now come as standard". GCHQ and its sister agencies, MI5 and the Secret Intelligence Service, could not tackle these challenges "at scale" without greater support from the private sector, including the largest US technology companies which dominate the web, he wrote.

In a seminal decision updating and consolidating its previous jurisprudence on surveillance, the Grand Chamber of the European Court of Human Rights took a sideways swing at mass surveillance programs last week, reiterating the centrality of “reasonable suspicion” to the authorization process and the need to ensure interception warrants are targeted to an individual or premises. The decision in Zakharov v. Russia — coming on the heels of the European Court of Justice’s strongly-worded condemnation in Schrems of interception systems that provide States with “generalised access” to the content of communications — is another blow to governments across Europe and the United States that continue to argue for the legitimacy and lawfulness of bulk collection programs. It also provoked the ire of the Russian government, prompting an immediate legislative move to give the Russian constitution precedence over Strasbourg judgments. The Grand Chamber’s judgment in Zakharov is especially notable because its subject matter — the Russian SORM system of interception, which includes the installation of equipment on telecommunications networks that subsequently enables the State direct access to the communications transiting through those networks — is similar in many ways to the interception systems currently enjoying public and judicial scrutiny in the United States, France, and the United Kingdom. Zakharov also provides a timely opportunity to compare the differences between UK and Russian law: Namely, Russian law requires prior independent authorization of interception measures, whereas neither the proposed UK law nor the existing legislative framework do.

The decision is lengthy and comprises a useful restatement and harmonization of the Court’s approach to standing (which it calls “victim status”) in surveillance cases, which is markedly different from that taken by the US Supreme Court. (Indeed, Judge Dedov’s separate but concurring opinion notes the contrast with Clapper v. Amnesty International.) It also addresses at length issues of supervision and oversight, as well as the role played by notification in ensuring the effectiveness of remedies. (Marko Milanovic discusses many of these issues here.) For the purpose of the ongoing debate around the legitimacy of bulk surveillance regimes under international human rights law, however, three particular conclusions of the Court are critical.

The Court took issue with legislation permitting the interception of communications for broad national, military, or economic security purposes (as well as for “ecological security” in the Russian case), absent any indication of the particular circumstances under which an individual’s communications may be intercepted. It said that such broadly worded statutes confer an “almost unlimited degree of discretion in determining which events or acts constitute such a threat and whether that threat is serious enough to justify secret surveillance” (para. 248). Such discretion cannot be unbounded. It can be limited through the requirement for prior judicial authorization of interception measures (para. 249). Non-judicial authorities may also be competent to authorize interception, provided they are sufficiently independent from the executive (para. 258). What is important, the Court said, is that the entity authorizing interception must be “capable of verifying the existence of a reasonable suspicion against the person concerned, in particular, whether there are factual indications for suspecting that person of planning, committing or having committed criminal acts or other acts that may give rise to secret surveillance measures, such as, for example, acts endangering national security” (para. 260). This finding clearly constitutes a significant threshold which a number of existing and pending European surveillance laws would not meet. For example, the existence of individualized reasonable suspicion runs contrary to the premise of signals intelligence programs where communications are intercepted in bulk; by definition, those programs collect information without any consideration of individualized suspicion. Yet the Court was clearly articulating the principle with national security-driven surveillance in mind, and with the knowledge that interception of communications in Russia is conducted by Russian intelligence on behalf of law enforcement agencies.

The first (and thus far only) roll-back of post-9/11 surveillance authorities was implemented over the weekend: The National Security Agency shuttered its program for collecting and holding the metadata of Americans’ phone calls under Section 215 of the Patriot Act. While bulk collection under Section 215 has ended, the government can obtain access to this information under the procedures specified in the USA Freedom Act. Indeed, some experts have argued that the Agency likely has access to more metadata because its earlier dragnet didn’t cover cell phones or Internet calling. In addition, the metadata of calls made by an individual in the United States to someone overseas and vice versa can still be collected in bulk — this takes place abroad under Executive Order 12333. No doubt the NSA wishes that this was the end of the surveillance reform story and the Paris attacks initially gave them an opening. John Brennan, the Director of the CIA, implied that the attacks were somehow related to “hand wringing” about spying and Sen. Tom Cotton (R-Ark.) introduced a bill to delay the shut down of the 215 program. Opponents of encryption were quick to say: “I told you so.”

But the facts that have emerged thus far tell a different story. It appears that much of the planning took place IRL (that’s “in real life” for those of you who don’t have teenagers). The attackers, several of whom were on law enforcement’s radar, communicated openly over the Internet. If France ever has a 9/11 Commission-type inquiry, it could well conclude that the Paris attacks were a failure of the intelligence agencies rather than a failure of intelligence authorities. Despite the passage of the USA Freedom Act, US surveillance authorities have remained largely intact. Section 702 of the FISA Amendments Act — which is the basis of programs like PRISM and the NSA’s Upstream collection of information from Internet cables — sunsets in the summer of 2017. While it’s difficult to predict the political environment that far out, meaningful reform of Section 702 faces significant obstacles. Unlike the Section 215 program, which was clearly aimed at Americans, Section 702 is supposedly targeted at foreigners and only picks up information about Americans “incidentally.” The NSA has refused to provide an estimate of how many Americans’ information it collects under Section 702, despite repeated requests from lawmakers and most recently a large cohort of advocates. The Section 215 program was held illegal by two federal courts (here and here), but civil attempts to challenge Section 702 have run into standing barriers. Finally, while two review panels concluded that the Section 215 program provided little counterterrorism benefit (here and here), they found that the Section 702 program had been useful.

There is, nonetheless, some pressure to narrow the reach of Section 702. The recent decision by the European Court of Justice in the safe harbor case suggests that data flows between Europe and the US may be restricted unless the PRISM program is modified to protect the information of Europeans (see here, here, and here for discussion of the decision and reform options). Pressure from Internet companies whose business is suffering — estimates run to the tune of $35 to 180 billion — as a result of disclosures about NSA spying may also nudge lawmakers towards reform. One of the courts currently considering criminal cases which rely on evidence derived from Section 702 surveillance may hold the program unconstitutional either on the basis of the Fourth Amendment or Article III for the reasons set out in this Brennan Center report. A federal district court in Colorado recently rejected such a challenge, although as explained in Steve’s post, the decision did not seriously explore the issues. Further litigation in the European courts too could have an impact on the debate.

Just as any new technology claims to offer the most advanced development; that their definition of progress will cure society’s ills or make life easier by eliminating the drudgery of antiquated appliances, the Wifi Alliance  was organized as a worldwide wireless network to connect ‘everyone and everything, everywhere” as it promised “improvements to nearly every aspect of daily life.”    The Alliance, which makes no pretense of potential health or environmental concerns, further proclaimed (and they may be correct) that there are “more wifi devices than people on earth”.   It is that inescapable exposure to ubiquitous wireless technologies wherein lies the problem.   

Even prior to the 1997 introduction of commercially available wifi devices which has saturated every industrialized country, EMF wifi hot spots were everywhere.  Today with the addition of cell and cordless phones and towers, broadcast antennas, smart meters and the pervasive computer wifi, both adults and especially vulnerable children are surrounded 24-7 by an inescapable presence with little recognition that all radiation exposure is cumulative.    

The National Toxicology Program (NTP), a branch of the US National Institute for Health (NIH), conducted the world’s largest study on radiofrequency radiation used by the US telecommunications industry and found a ‘significantly statistical increase in brain and heart cancers” in animals exposed to EMF (electromagnetic fields).  The NTP study confirmed the connection between mobile and wireless phone use and human brain cancer risks and its conclusions were supported by other epidemiological peer-reviewed studies.  Of special note is that studies citing the biological risk to human health were below accepted international exposure standards.    

Justice Department agreed to issue "2511 letters" immunizing AT&T and other companies participating in a cybersecurity program from criminal prosecution under the Wiretap Act, according to new documents obtained by the Electronic Privacy Information Center.

Harris Corp.’s Stingray surveillance device has been one of the most closely guarded secrets in law enforcement for more than 15 years. The company and its police clients across the United States have fought to keep information about the mobile phone-monitoring boxes from the public against which they are used. The Intercept has obtained several Harris instruction manuals spanning roughly 200 pages and meticulously detailing how to create a cellular surveillance dragnet. Harris has fought to keep its surveillance equipment, which carries price tags in the low six figures, hidden from both privacy activists and the general public, arguing that information about the gear could help criminals. Accordingly, an older Stingray manual released under the Freedom of Information Act to news website TheBlot.com last year was almost completely redacted. So too have law enforcement agencies at every level, across the country, evaded almost all attempts to learn how and why these extremely powerful tools are being used — though court battles have made it clear Stingrays are often deployed without any warrant. The San Bernardino Sheriff’s Department alone has snooped via Stingray, sans warrant, over 300 times.

The documents described and linked below, instruction manuals for the software used by Stingray operators, were provided to The Intercept as part of a larger cache believed to have originated with the Florida Department of Law Enforcement. Two of them contain a “distribution warning” saying they contain “Proprietary Information and the release of this document and the information contained herein is prohibited to the fullest extent allowable by law.”  Although “Stingray” has become a catch-all name for devices of its kind, often referred to as “IMSI catchers,” the manuals include instructions for a range of other Harris surveillance boxes, including the Hailstorm, ArrowHead, AmberJack, and KingFish. They make clear the capability of those devices and the Stingray II to spy on cellphones by, at minimum, tracking their connection to the simulated tower, information about their location, and certain “over the air” electronic messages sent to and from them. Wessler added that parts of the manuals make specific reference to permanently storing this data, something that American law enforcement has denied doing in the past.

One piece of Windows software used to control Harris’s spy boxes, software that appears to be sold under the name “Gemini,” allows police to track phones across 2G, 3G, and LTE networks. Another Harris app, “iDen Controller,” provides a litany of fine-grained options for tracking phones. A law enforcement agent using these pieces of software along with Harris hardware could not only track a large number of phones as they moved throughout a city but could also apply nicknames to certain phones to keep track of them in the future. The manual describing how to operate iDEN, the lengthiest document of the four at 156 pages, uses an example of a target (called a “subscriber”) tagged alternately as Green Boy and Green Ben:

This week the Center for Media Justice, ColorOfChange.org, and New America’s Open Technology Institute filed a complaint with the Federal Communications Commission alleging the Baltimore police are violating the federal Communications Act by using cell site simulators, also known as Stingrays, that disrupt cellphone calls and interfere with the cellular network—and are doing so in a way that has a disproportionate impact on communities of color. Stingrays operate by mimicking a cell tower and directing all cellphones in a given area to route communications through the Stingray instead of the nearby tower. They are especially pernicious surveillance tools because they collect information on every single phone in a given area—not just the suspect’s phone—this means they allow the police to conduct indiscriminate, dragnet searches. They are also able to locate people inside traditionally-protected private spaces like homes, doctors’ offices, or places of worship. Stingrays can also be configured to capture the content of communications. Because Stingrays operate on the same spectrum as cellular networks but are not actually transmitting communications the way a cell tower would, they interfere with cell phone communications within as much as a 500 meter radius of the device (Baltimore’s devices may be limited to 200 meters). This means that any important phone call placed or text message sent within that radius may not get through. As the complaint notes, “[d]epending on the nature of an emergency, it may be urgently necessary for a caller to reach, for example, a parent or child, doctor, psychiatrist, school, hospital, poison control center, or suicide prevention hotline.” But these and even 911 calls could be blocked.

The Baltimore Police Department could be among the most prolific users of cell site simulator technology in the country. A Baltimore detective testified last year that the BPD used Stingrays 4,300 times between 2007 and 2015. Like other law enforcement agencies, Baltimore has used its devices for major and minor crimes—everything from trying to locate a man who had kidnapped two small children to trying to find another man who took his wife’s cellphone during an argument (and later returned it). According to logs obtained by USA Today, the Baltimore PD also used its Stingrays to locate witnesses, to investigate unarmed robberies, and for mysterious “other” purposes. And like other law enforcement agencies, the Baltimore PD has regularly withheld information about Stingrays from defense attorneys, judges, and the public. Moreover, according to the FCC complaint, the Baltimore PD’s use of Stingrays disproportionately impacts African American communities. Coming on the heels of a scathing Department of Justice report finding “BPD engages in a pattern or practice of conduct that violates the Constitution or federal law,” this may not be surprising, but it still should be shocking. The DOJ’s investigation found that BPD not only regularly makes unconstitutional stops and arrests and uses excessive force within African-American communities but also retaliates against people for constitutionally protected expression, and uses enforcement strategies that produce “severe and unjustified disparities in the rates of stops, searches and arrests of African Americans.”

Adding Stingrays to this mix means that these same communities are subject to more surveillance that chills speech and are less able to make 911 and other emergency calls than communities where the police aren’t regularly using Stingrays. A map included in the FCC complaint shows exactly how this is impacting Baltimore’s African-American communities. It plots hundreds of addresses where USA Today discovered BPD was using Stingrays over a map of Baltimore’s black population based on 2010 Census data included in the DOJ’s recent report:

By James Bamford Last summer, cyber investigators plowing through the thousands of leaked emails from the Democratic National Committee uncovered a clue.A user named “Феликс Эдмундович” modified one of the documents using settings in the Russian language. Translated, his name was Felix Edmundovich, a pseudonym referring to Felix Edmundovich Dzerzhinsky, the chief of the Soviet Union’s first secret-police organization, the Cheka.It was one more link in the chain of evidence pointing to Russian President Vladimir Putin as the man ultimately behind the operation.During the Cold War, when Soviet intelligence was headquartered in Dzerzhinsky Square in Moscow, Putin was a KGB officer assigned to the First Chief Directorate. Its responsibilities included “active measures,” a form of political warfare that included media manipulation, propaganda and disinformation. Soviet active measures, retired KGB Major General Oleg Kalugin told Army historian Thomas Boghart, aimed to discredit the United States and “conquer world public opinion.”As the Cold War has turned into the code war, Putin recently unveiled his new, greatly enlarged spy organization: the Ministry of State Security, taking the name from Joseph Stalin’s secret service. Putin also resurrected, according to James Clapper, the U.S. director of national intelligence, some of the KGB’s old active- measures tactics. On October 7, Clapper issued a statement: “The U.S. Intelligence community is confident that the Russian government directed the recent compromises of emails from U.S. persons and institutions, including from U.S. political organizations.” Notably, however, the FBI declined to join the chorus, according to reports by the New York Times and CNBC.A week later, Vice President Joe Biden said on NBC’s Meet the Press that "we're sending a message" to Putin and "it will be at the time of our choosing, and under the circumstances that will have the greatest impact." When asked if the American public would know a message was sent, Biden replied, "Hope not." Meanwhile, the CIA was asked, according to an NBC report on October 14, “to deliver options to the White House for a wide-ranging ‘clandestine’ cyber operation designed to harass and ‘embarrass’ the Kremlin leadership.”But as both sides begin arming their cyberweapons, it is critical for the public to be confident that the evidence is really there, and to understand the potential consequences of a tit-for-tat cyberwar escalating into a real war. 

This is a prospect that has long worried Richard Clarke, the former White House cyber czar under President George W. Bush. “It’s highly likely that any war that began as a cyberwar,” Clarke told me last year, “would ultimately end up being a conventional war, where the United States was engaged with bombers and missiles.”The problem with attempting to draw a straight line from the Kremlin to the Clinton campaign is the number of variables that get in the way. For one, there is little doubt about Russian cyber fingerprints in various U.S. campaign activities. Moscow, like Washington, has long spied on such matters. The United States, for example, inserted malware in the recent Mexican election campaign. The question isn’t whether Russia spied on the U.S. presidential election, it’s whether it released the election emails.Then there’s the role of Guccifer 2.0, the person or persons supplying WikiLeaks and other organizations with many of the pilfered emails. Is this a Russian agent? A free agent? A cybercriminal? A combination, or some other entity? No one knows.There is also the problem of groupthink that led to the war in Iraq. For example, just as the National Security Agency, the Central Intelligence Agency and the rest of the intelligence establishment are convinced Putin is behind the attacks, they also believed it was a slam-dunk that Saddam Hussein had a trove of weapons of mass destruction. Consider as well the speed of the political-hacking investigation, followed by a lack of skepticism, culminating in a rush to judgment. After the Democratic committee discovered the potential hack last spring, it called in the cybersecurity firm CrowdStrike in May to analyze the problem.

CrowdStrike took just a month or so before it conclusively determined that Russia’s FSB, the successor to the KGB, and the Russian military intelligence organization, GRU, were behind it. Most of the other major cybersecurity firms quickly fell in line and agreed. By October, the intelligence community made it unanimous. That speed and certainty contrasts sharply with a previous suspected Russian hack in 2010, when the target was the Nasdaq stock market. According to an extensive investigation by Bloomberg Businessweek in 2014, the NSA and FBI made numerous mistakes over many months that stretched to nearly a year. “After months of work,” the article said, “there were still basic disagreements in different parts of government over who was behind the incident and why.”  There was no consensus­, with just a 70 percent certainty that the hack was a cybercrime. Months later, this determination was revised again: It was just a Russian attempt to spy on the exchange in order to design its own. The federal agents also considered the possibility that the Nasdaq snooping was not connected to the Kremlin. Instead, “someone in the FSB could have been running a for-profit operation on the side, or perhaps sold the malware to a criminal hacking group.” Again, that’s why it’s necessary to better understand the role of Guccifer 2.0 in releasing the Democratic National Committee and Clinton campaign emails before launching any cyberweapons.

Brian Krebs is a popular reporter on the cybersecurity beat. He regularly exposes cybercriminals and their tactics, and consequently is regularly a target of their ire. Last month, he wrote about an online attack-for-hire service that resulted in the arrest of the two proprietors. In the aftermath, his site was taken down by a massive DDoS attack.In many ways, this is nothing new. Distributed denial-of-service attacks are a family of attacks that cause websites and other internet-connected systems to crash by overloading them with traffic. The "distributed" part means that other insecure computers on the internet—sometimes in the millions—are recruited to a botnet to unwittingly participate in the attack. The tactics are decades old; DDoS attacks are perpetrated by lone hackers trying to be annoying, criminals trying to extort money, and governments testing their tactics. There are defenses, and there are companies that offer DDoS mitigation services for hire. Basically, it's a size vs. size game. If the attackers can cobble together a fire hose of data bigger than the defender's capability to cope with, they win. If the defenders can increase their capability in the face of attack, they win. What was new about the Krebs attack was both the massive scale and the particular devices the attackers recruited. Instead of using traditional computers for their botnet, they used CCTV cameras, digital video recorders, home routers, and other embedded computers attached to the internet as part of the Internet of Things. Much has been written about how the IoT is wildly insecure. In fact, the software used to attack Krebs was simple and amateurish. What this attack demonstrates is that the economics of the IoT mean that it will remain insecure unless government steps in to fix the problem. This is a market failure that can't get fixed on its own.

An entry in something the government calls a “Manhunting Timeline” suggests that the United States pressured officials of countries around the world to prosecute WikiLeaks editor-in-chief, Julian Assange, in 2010. The file—marked unclassified, revealed by National Security Agency whistleblower Edward Snowden and published by The Intercept—is dated August 2010. Under the headline, “United States, Australia, Great Britain, Germany, Iceland” – it states: The United States on 10 August urged other nations with forces in Afghanistan, including Australia, United Kingdom and Germany, to consider filing criminal charges against Julian Assange, founder of the rogue WikiLeaks Internet website and responsible for the unauthorized publication of over 70,000 classified documents covering the war in Afghanistan. The documents may have been provided to WikiLeaks by Army Private First Class Bradley Manning. The appeal exemplifies the start of an international effort to focus the legal element of national power upon non-state actor Assange and the human network that supports WikiLeaks. Another document—a top-secret page from an internal wiki—indicates there has been discussion in the NSA with the Threat Operations Center Oversight and Compliance (NOC) and Office of General Counsel (OGC) on the legality of designating WikiLeaks a “malicious foreign actor” and whether this would make it permissible to conduct surveillance on Americans accessing the website. “Can we treat a foreign server who stores or potentially disseminates leaked or stolen data on its server as a ‘malicious foreign actor’ for the purpose of targeting with no defeats?” Examples: WikiLeaks, thepiratebay.org). The NOC/OGC answered, “Let me get back to you.” (The page does not indicate if anyone ever got back to the NSA. And “defeats” essentially means protections.)

GCHQ, the NSA’s counterpart in the UK, had a program called “ANTICRISIS GIRL,” which could engage in “targeted website monitoring.” This means data of hundreds of users accessing a website, like WikiLeaks, could be collected. The IP addresses of readers and supporters could be monitored. The agency could even target the publisher if it had a public dropbox or submission system. NSA and GCHQ could also target the foreign “branches” of the hacktivist group, Anonymous. An answer to another question from the wiki entry involves the question, “Is it okay to query against a foreign server known to be malicious even if there is a possibility that US persons could be using it as well? Example: thepiratebay.org.” The NOC/OGC responded, “Okay to go after foreign servers which US people use also (with no defeats). But try to minimize to ‘post’ only for example to filter out non-pertinent information.” WikiLeaks is not an example in this question, however, if it was designated as a “malicious foreign actor,” then the NSA would do queries of American users.

Michael Ratner, a lawyer from the Center for Constitutional Rights (CCR) who represents WikiLeaks, said on “Democracy Now!”, this shows he has every reason to fear what would happen if he set foot outside of the embassy. The files show some of the extent to which the US and UK have tried to destroy WikiLeaks. CCR added in a statement, “These NSA documents should make people understand why Julian Assange was granted diplomatic asylum, why he must be given safe passage to Ecuador, and why he must keep himself out of the hands of the United States and apparently other countries as well. These revelations only corroborate the expectation that Julian Assange is on a US target list for prosecution under the archaic “Espionage Act,” for what is nothing more than publishing evidence of government misconduct.” “These documents demonstrate that the political persecution of WikiLeaks is very much alive,”Baltasar Garzón, the Spanish former judge who now represents the group, told The Intercept. “The paradox is that Julian Assange and the WikiLeaks organization are being treated as a threat instead of what they are: a journalist and a media organization that are exercising their fundamental right to receive and impart information in its original form, free from omission and censorship, free from partisan interests, free from economic or political pressure.”

This is part of a Motherboard mini-series on the proliferation of phone cracking technology, the people behind it, and who is buying it. Follow along here.When cops have a phone to break into, they just might pull a small, laptop-sized device out of a rugged briefcase. After plugging the phone in with a cable, and a few taps of a touch-screen, the cops have now bypassed the phone’s passcode. Almost like magic, they now have access to call logs, text messages, and in some cases even deleted data.State police forces and highway patrols in the US have collectively spent millions of dollars on this sort of technology to break into and extract data from mobile phones, according to documents obtained by Motherboard. Over 2,000 pages of invoices, purchase orders, communications, and other documents lay out in unprecedented detail how one company in particular has cornered the trade in mobile phone forensics equipment across the United States.Cellebrite, an Israel-based firm, sells tools that can pull data from most mobile phones on the market, such as contact lists, emails, and wiped messages. Cellebrite's products can also circumvent the passcode locks or other security protections on many current mobile phones. The gear is typically used to gather evidence from a criminal suspect's device after it has been seized, and although not many public examples of abuse are available, Cellebrite’s tools have been used by non-US authorities to prosecute dissidents.Previous reports have focused on federal agencies' acquisition of Cellebrite tools. But as smartphones have proliferated and increasingly become the digital center of our lives, the demand and supply of mobile forensics tools has trickled down to more local bodies.

In our society, the rule of law sets limits on what government can and cannot do, no matter how important its goals. To give a simple example, even when chasing a fleeing murder suspect, the police have a duty not to endanger bystanders. The government should pay the same care to our safety in pursuing threats online, but right now we don’t have clear, enforceable rules for government activities like hacking and "digital sabotage." And this is no abstract question—these actions increasingly endanger everyone’s security

The problem became especially clear this year during the San Bernardino case, involving the FBI’s demand that Apple rewrite its iOS operating system to defeat security features on a locked iPhone. Ultimately the FBI exploited an existing vulnerability in iOS and accessed the contents of the phone with the help of an "outside party." Then, with no public process or discussion of the tradeoffs involved, the government refused to tell Apple about the flaw. Despite the obvious fact that the security of the computers and networks we all use is both collective and interwoven—other iPhones used by millions of innocent people presumably have the same vulnerability—the government chose to withhold information Apple could have used to improve the security of its phones. Other examples include intelligence activities like Stuxnet and Bullrun, and law enforcement investigations like the FBI’s mass use of malware against Tor users engaged in criminal behavior. These activities are often disproportionate to stopping legitimate threats, resulting in unpatched software for millions of innocent users, overbroad surveillance, and other collateral effects.  That’s why we’re working on a positive agenda to confront governmental threats to digital security. Put more directly, we’re calling on lawyers, advocates, technologists, and the public to demand a public discussion of whether, when, and how governments can be empowered to break into our computers, phones, and other devices; sabotage and subvert basic security protocols; and stockpile and exploit software flaws and vulnerabilities.  

Smart people in academia and elsewhere have been thinking and writing about these issues for years. But it’s time to take the next step and make clear, public rules that carry the force of law to ensure that the government weighs the tradeoffs and reaches the right decisions. This long post outlines some of the things that can be done. It frames the issue, then describes some of the key areas where EFF is already pursuing this agenda—in particular formalizing the rules for disclosing vulnerabilities and setting out narrow limits for the use of government malware. Finally it lays out where we think the debate should go from here.   

While the Justice Department wages a public fight with Apple over access to a locked iPhone, government officials are privately debating how to resolve a prolonged standoff with another technology company, WhatsApp, over access to its popular instant messaging application, officials and others involved in the case said. No decision has been made, but a court fight with WhatsApp, the world’s largest mobile messaging service, would open a new front in the Obama administration’s dispute with Silicon Valley over encryption, security and privacy.WhatsApp, which is owned by Facebook, allows customers to send messages and make phone calls over the Internet. In the last year, the company has been adding encryption to those conversations, making it impossible for the Justice Department to read or eavesdrop, even with a judge’s wiretap order.

As recently as this past week, officials said, the Justice Department was discussing how to proceed in a continuing criminal investigation in which a federal judge had approved a wiretap, but investigators were stymied by WhatsApp’s encryption.The Justice Department and WhatsApp declined to comment. The government officials and others who discussed the dispute did so on condition of anonymity because the wiretap order and all the information associated with it were under seal. The nature of the case was not clear, except that officials said it was not a terrorism investigation. The location of the investigation was also unclear.

To understand the battle lines, consider this imperfect analogy from the predigital world: If the Apple dispute is akin to whether the F.B.I. can unlock your front door and search your house, the issue with WhatsApp is whether it can listen to your phone calls. In the era of encryption, neither question has a clear answer.Some investigators view the WhatsApp issue as even more significant than the one over locked phones because it goes to the heart of the future of wiretapping. They say the Justice Department should ask a judge to force WhatsApp to help the government get information that has been encrypted. Others are reluctant to escalate the dispute, particularly with senators saying they will soon introduce legislation to help the government get data in a format it can read.

The FBI may be allowed to withhold information about how it broke into an iPhone belonging to a gunman in the December San Bernardino shootings, despite a U.S. government policy of disclosing technology security flaws discovered by federal agencies. Under the U.S. vulnerabilities equities process, the government is supposed to err in favor of disclosing security issues so companies can devise fixes to protect data. The policy has exceptions for law enforcement, and there are no hard rules about when and how it must be applied.Apple Inc has said it would like the government to share how it cracked the iPhone security protections. But the Federal Bureau of Investigation, which has been frustrated by its inability to access data on encrypted phones belonging to criminal suspects, might prefer to keep secret the technique it used to gain access to gunman Syed Farook's phone. The referee is likely to be a White House group formed during the Obama administration to review computer security flaws discovered by federal agencies and decide whether they should be disclosed.

Stewart Baker, former general counsel of the NSA and now a lawyer with Steptoe & Johnson, said the review process could be complicated if the cracking method is considered proprietary by the third party that assisted the FBI.Several security researchers have pointed to the Israel-based mobile forensics firm Cellebrite as the likely third party that helped the FBI. That company has repeatedly declined comment.

Federal Magistrate Judge John M. Facciola denied a US government request earlier this month for a search and seizure warrant, targeting electronic data stored on Apple Inc. property. Facciola’s order, issued on March 7, 2014, rejected what it described as only the latest in a series of “overbroad search and seizure requests,” and “unconstitutional warrant applications” submitted by the US government to the US District Court for the District of Columbia. Facciola referred to the virtually unlimited warrant request submitted by the Justice Department as “repugnant to the Fourth Amendment.” The surveillance request sought information in relation to a “kickback investigation” of a defense contractor, details about which remain secret. It is significant, however, that the surveillance request denied by Facciola relates to a criminal investigation, unrelated to terrorism. This demonstrates that the use by the Obama administration of blanket warrants enabling them to seize all information on a person's Internet accounts is not limited to terrorism, as is frequently claimed, but is part of a program of general mass illegal spying on the American people.

Facciola’s ruling states in no uncertain terms that the Obama administration has aggressively and repeatedly sought expansive, unconstitutional warrants, ignoring the court’s insistence for specific, narrowly targeted surveillance requests. “The government continues to submit overly broad warrants and makes no effort to balance the law enforcement interest against the obvious expectation of privacy email account holders have in their communications…The government continues to ask for all electronically stored information in email accounts, irrespective of the relevance to the investigation,” wrote Judge Facciola. As stated in the ruling, the surveillance requests submitted to the court by the US government sought the following comprehensive, virtually limitless list of information about the target: “All records or other information stored by an individual using each account, including address books, contact and buddy lists, pictures, and files… All records or other information regarding the identification of the accounts, to include full name, physical address, telephone numbers and other identifies, records of session times and durations, the date on which each account was created, the length of service, the types of service utilized, the Internet Protocol (IP) address used to register each account, log-in IP addresses associated with session times and dates, account status, alternative email addresses provided during registration, methods of connecting, log files, and means of payment (including any credit or bank account number).”

Responding to these all-encompassing warrant requests, Judge Facciola ruled that evidence of probable cause was necessary for each specific item sought by the government. “This Court is increasingly concerned about the government’s applications for search warrants for electronic data. In essence, its applications ask for the entire universe of information tied to a particular account, even if it has established probable cause only for certain information,” Facciola wrote. “It is the Court’s duty to reject any applications for search warrants where the standard of probable cause has not been met… To follow the dictates of the Fourth Amendment and to avoid issuing a general warrant, a court must be careful to ensure that probable cause exists to seize each item specified in the warrant application… Any search of an electronic source has the potential to unearth tens or hundreds of thousands of individual documents, pictures, movies, or other constitutionally protected content.” Facciola also noted in the ruling that the government never reported the length of time it would keep the data, or whether it planned to destroy the data at any point.

A federal judge in Idaho has upheld the constitutionality of the National Security Agency's program that gathers massive quanities of data on the telephone calls of Americans. The ruling Tuesday from U.S. District Court Judge B. Lynn Winmill leaves the federal government with two wins in lawsuits decided since the program was revealed about a year ago by ex-NSA contractor Edward Snowden. In addition, one judge handling a criminal case ruled that the surveillance did not violate the Constitution. Opponents of the program have only one win: U.S. District Court Judge Richard Leon's ruling in December that the program likely violates the Fourth Amendment. In the new decision, Winmill said binding precedent in the Ninth Circuit holds that call and email metadata are not protected by the Constitution and no warrant is needed to obtain it.

"The weight of the authority favors the NSA," wrote Winmill, an appointee of President Bill Clinton. Winmill took note of Leon's contrary decision and called it eloquent, but concluded it departs from current Supreme Court precedent — though perhaps not for long. "Judge Leon’s decision should serve as a template for a Supreme Court opinion. And it might yet," Winmill wrote as he threw out the lawsuit brought by an Idaho registered nurse who objected to the gathering of data on her phone calls. Winmill's opinion (posted here) does not address an argument put forward by some critics of the program, including some lawmakers: that the metadata program violates federal law because it does not fit squarely within the language of the statute used to authorize it.

The government and police regularly use location data pulled off of cell phone towers to put criminals at the scenes of crimes—often without a warrant. Well, an appeals court ruled today that the practice is unconstitutional, in one of the strongest judicial defenses of technology privacy rights we've seen in a while.  The United States Court of Appeals for the Eleventh Circuit ruled that the government illegally obtained and used Quartavious Davis's cell phone location data to help convict him in a string of armed robberies in Miami and unequivocally stated that cell phone location information is protected by the Fourth Amendment. "In short, we hold that cell site location information is within the subscriber’s reasonable expectation of privacy," the court ruled in an opinion written by Judge David Sentelle. "The obtaining of that data without a warrant is a Fourth Amendment violation."

In Davis's case, police used his cell phone's call history against him to put him at the scene of several armed robberies. They obtained a court order—which does not require the government to show probable cause—not a warrant, to do so. From now on, that'll be illegal. The decision applies only in the Eleventh Circuit, but sets a strong precedent for future cases.

Indeed, the decision alone is a huge privacy win, but Sentelle's strong language supporting cell phone users' privacy rights is perhaps the most important part of the opinion. Sentelle pushed back against several of the federal government's arguments, including one that suggested that, because cell phone location data based on a caller's closest cell tower isn't precise, it should be readily collectable.  "The United States further argues that cell site location information is less protected than GPS data because it is less precise. We are not sure why this should be significant. We do not doubt that there may be a difference in precision, but that is not to say that the difference in precision has constitutional significance," Sentelle wrote. "That information obtained by an invasion of privacy may not be entirely precise does not change the calculus as to whether obtaining it was in fact an invasion of privacy." The court also cited the infamous US v. Jones Supreme Court decision that held that attaching a GPS to a suspect's car is a "search" under the Fourth Amendment. Sentelle suggested a cell phone user has an even greater expectation of location privacy with his or her cell phone use than a driver does with his or her car. A car, Sentelle wrote, isn't always with a person, while a cell phone, these days, usually is.

The Electronic Frontier Foundation (EFF) has urged a federal court to block a U.S. search warrant ordering Microsoft to turn over a customer's emails held in an overseas server, arguing that the case has dangerous privacy implications for Internet users everywhere. The case started in December of last year, when a magistrate judge in New York signed a search warrant seeking records and emails from a Microsoft account in connection with a criminal investigation. However, Microsoft determined that the emails the government sought were on a Microsoft server in Dublin, Ireland. Because a U.S. judge has no authority to issue warrants to search and seize property or data abroad, Microsoft refused to turn over the emails and asked the magistrate to quash the warrant. But the magistrate denied Microsoft's request, ruling there was no foreign search because the data would be reviewed by law enforcement agents in the U.S.

Microsoft appealed the decision. In an amicus brief in support of Microsoft, EFF argues the magistrate's rationale ignores the fact that copying the emails is a "seizure" that takes place in Ireland. "The Fourth Amendment protects from unreasonable search and seizure. You can't ignore the 'seizure' part just because the property is digital and not physical," said EFF Staff Attorney Hanni Fakhoury. "Ignoring this basic point has dangerous implications – it could open the door to unfounded law enforcement access to and collection of data stored around the world."

For the full brief in this case:https://www.eff.org/document/eff-amicus-brief-support-microsoft

We can't choose a world where the US gets to spy but China doesn't, or even a world where governments get to spy and criminals don't. We need to choose, as a matter of policy, communications systems that are secure for all users, or ones that are vulnerable to all attackers. It's security or surveillance.

The foundation behind Wikipedia is suing the U.S. government over spying that it says violates core provisions of the Constitution.The Wikimedia Foundation joined forces on Tuesday with a slew of human rights groups, The Nation magazine and other organizations in a lawsuit accusing the National Security Agency (NSA) and Justice Department of violating the constitutional protections for freedom of speech and privacy.

If successful, the lawsuit could land a crippling blow to the web of secretive spying powers wielded by the NSA and exposed by Edward Snowden nearly two years ago. Despite initial outrage after Snowden’s leaks, Congress has yet to make any serious reforms to the NSA, and many of the programs continue largely unchanged.The lawsuit targets the NSA’s “upstream” surveillance program, which taps into the fiber cables that make up the backbone of the global Internet and allows the agency to collect vast amounts of information about people on the Web.“As a result, whenever someone overseas views or edits a Wikipedia page, it’s likely that the N.S.A. is tracking that activity — including the content of what was read or typed, as well as other information that can be linked to the person’s physical location and possible identity,” Tretikov and Wikipedia founder Jimmy Wales wrote in a joint New York Times op-ed announcing the lawsuit. Because the operations are largely overseen solely by the secretive Foreign Intelligence Surveillance Court — which operates out of the public eye and has been accused of acting as a rubber stamp for intelligence agencies — the foundation accused the NSA of violating the guarantees of a fair legal system.In addition to the Wikimedia Foundation and The Nation, the other groups joining the lawsuit are the National Association of Criminal Defense Lawyers, Human Rights Watch, Amnesty International, the Pen American Center, the Global Fund for Women, the Rutherford Institute and the Washington Office on Latin America. The groups are being represented by the American Civil Liberties Union.

In 2013, a lawsuit against similar surveillance powers brought by Amnesty International was tossed out by the Supreme Court on the grounds that the organization was not affected by the spying and had no standing to sue. That decision came before Snowden’s leaks later that summer, however, which included a slide featuring Wikipedia’s logo alongside those of Facebook, Yahoo, Google and other top websites. That should be more than enough grounds for a successful suit, the foundation said. In addition to the new suit, there are also a handful of other outstanding legal challenges to the NSA’s bulk collection of Americans’ phone records, a different program that has inspired some of the most heated antipathy. Those suits are all pending in appeals courts around the country.