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Pending before federal magistrate judge James Orenstein is the government’s request for an order obligating Apple, Inc. to unlock an iPhone and thereby assist prosecutors in decrypting data the government has seized and is authorized to search pursuant to a warrant. In an order questioning the government’s purported legal basis for this request, the All Writs Act of 1789 (AWA), Judge Orenstein asked Apple for a brief informing the court whether the request would be technically feasible and/or burdensome. After Apple filed, the court asked it to file a brief discussing whether the government had legal grounds under the AWA to compel Apple’s assistance. Apple filed that brief and the government filed a reply brief last week in the lead-up to a hearing this morning.

We’ve long been concerned about whether end users own software under the law. Software owners have rights of adaptation and first sale enshrined in copyright law. But software publishers have claimed that end users are merely licensees, and our rights under copyright law can be waived by mass-market end user license agreements, or EULAs. Over the years, Granick has argued that users should retain their rights even if mass-market licenses purport to take them away. The government’s brief takes advantage of Apple’s EULA for iOS to argue that Apple, the software publisher, is responsible for iPhones around the world. Apple’s EULA states that when you buy an iPhone, you’re not buying the iOS software it runs, you’re just licensing it from Apple. The government argues that having designed a passcode feature into a copy of software which it owns and licenses rather than sells, Apple can be compelled under the All Writs Act to bypass the passcode on a defendant’s iPhone pursuant to a search warrant and thereby access the software owned by Apple. Apple’s supplemental brief argues that in defining its users’ contractual rights vis-à-vis Apple with regard to Apple’s intellectual property, Apple in no way waived its own due process rights vis-à-vis the government with regard to users’ devices. Apple’s brief compares this argument to forcing a car manufacturer to “provide law enforcement with access to the vehicle or to alter its functionality at the government’s request” merely because the car contains licensed software. 

This is an interesting twist on the decades-long EULA versus users’ rights fight. As far as we know, this is the first time that the government has piggybacked on EULAs to try to compel software companies to provide assistance to law enforcement. Under the government’s interpretation of the All Writs Act, anyone who makes software could be dragooned into assisting the government in investigating users of the software. If the court adopts this view, it would give investigators immense power. The quotidian aspects of our lives increasingly involve software (from our cars to our TVs to our health to our home appliances), and most of that software is arguably licensed, not bought. Conscripting software makers to collect information on us would afford the government access to the most intimate information about us, on the strength of some words in some license agreements that people never read. (And no wonder: The iPhone’s EULA came to over 300 pages when the government filed it as an exhibit to its brief.)

On the 21st floor of a high-rise hotel in Cleveland, in a room full of political operatives, Microsoft’s Research Division was advertising a technology that could read each facial expression in a massive crowd, analyze the emotions, and report back in real time. “You could use this at a Trump rally,” a sales representative told me. At both the Republican and Democratic conventions, Microsoft sponsored event spaces for the news outlet Politico. Politico, in turn, hosted a series of Microsoft-sponsored discussions about the use of data technology in political campaigns. And throughout Politico’s spaces in both Philadelphia and Cleveland, Microsoft advertised an array of products from “Microsoft Cognitive Services,” its artificial intelligence and cloud computing division. At one exhibit, titled “Realtime Crowd Insights,” a small camera scanned the room, while a monitor displayed the captured image. Every five seconds, a new image would appear with data annotated for each face — an assigned serial number, gender, estimated age, and any emotions detected in the facial expression. When I approached, the machine labeled me “b2ff” and correctly identified me as a 23-year-old male.

“Realtime Crowd Insights” is an Application Programming Interface (API), or a software tool that connects web applications to Microsoft’s cloud computing services. Through Microsoft’s emotional analysis API — a component of Realtime Crowd Insights — applications send an image to Microsoft’s servers. Microsoft’s servers then analyze the faces and return emotional profiles for each one. In a November blog post, Microsoft said that the emotional analysis could detect “anger, contempt, fear, disgust, happiness, neutral, sadness or surprise.” Microsoft’s sales representatives told me that political campaigns could use the technology to measure the emotional impact of different talking points — and political scientists could use it to study crowd response at rallies.

Facial recognition technology — the identification of faces by name — is already widely used in secret by law enforcement, sports stadiums, retail stores, and even churches, despite being of questionable legality. As early as 2002, facial recognition technology was used at the Super Bowl to cross-reference the 100,000 attendees to a database of the faces of known criminals. The technology is controversial enough that in 2013, Google tried to ban the use of facial recognition apps in its Google glass system. But “Realtime Crowd Insights” is not true facial recognition — it could not identify me by name, only as “b2ff.” It did, however, store enough data on each face that it could continuously identify it with the same serial number, even hours later. The display demonstrated that capability by distinguishing between the number of total faces it had seen, and the number of unique serial numbers. Photo: Alex Emmons

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.

EU-U.S. Privacy Shield Program Overview The EU-U.S. Privacy Shield Framework was designed by the U.S. Department of Commerce and European Commission to provide companies on both sides of the Atlantic with a mechanism to comply with EU data protection requirements when transferring personal data from the European Union to the United States in support of transatlantic commerce. On July 12, the European Commission deemed the Privacy Shield Framework adequate to enable data transfers under EU law (see the adequacy determination). The Privacy Shield program, which is administered by the International Trade Administration (ITA) within the U.S. Department of Commerce, enables U.S.-based organizations to join the Privacy Shield Framework in order to benefit from the adequacy determination. To join the Privacy Shield Framework, a U.S.-based organization will be required to self-certify to the Department of Commerce (via this website) and publicly commit to comply with the Framework’s requirements. While joining the Privacy Shield Framework is voluntary, once an eligible organization makes the public commitment to comply with the Framework’s requirements, the commitment will become enforceable under U.S. law. All organizations interested in joining the Privacy Shield Framework should review its requirements in their entirety. To assist in that effort, Commerce’s Privacy Shield Team has compiled resources and addressed frequently asked questions below. ResourcesKey New Requirements for Participating Organizations How to Join the Privacy ShieldPrivacy Policy FAQs Frequently Asked questions

Months before the debate about Internet censorship raged as SOPA and PIPA dominated the concerns of web users, President Obama signed an international treaty that would allow companies in China or any other country in the world to demand ISPs remove web content in the US with no legal oversight whatsoever.

The White House has circumvented the necessity to have the treaty confirmed by lawmakers by presenting it an as “executive agreement,” although legal scholars have highlighted the dubious nature of this characterization.

In presenting ACTA as an “international agreement” rather than a treaty, the Obama administration managed to circumvent the legislative process and avoid having to get Senate approval, a method questioned by Senator Wyden. “That said, even if Obama has declared ACTA an executive agreement (while those in Europe insist that it’s a binding treaty), there is a very real Constitutional question here: can it actually be an executive agreement?” asks TechDirt. “The law is clear that the only things that can be covered by executive agreements are things that involve items that are solely under the President’s mandate. That is, you can’t sign an executive agreement that impacts the things Congress has control over. But here’s the thing: intellectual property, in Article 1, Section 8 of the Constitution, is an issue given to Congress, not the President. Thus, there’s a pretty strong argument that the president legally cannot sign any intellectual property agreements as an executive agreement and, instead, must submit them to the Senate.”