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Here’s why the FBI forcing Apple to break into an iPhone is a big deal

February 17, 2016

When U.S. Magistrate Sheri Pym ruled that Apple must help the FBI break into an iPhone belonging to one of the killers in the San Bernardino, Calif., shootings, the tech world shuddered.

Why? The battle of encryption “backdoors” has been longstanding in Silicon Valley, where a company’s success could be made or broken based on its ability to protect customer data.

The issue came into the spotlight after Edward Snowden disclosed the extent to which technology and phone companies were letting the U.S. federal government spy on data being transmitted through their network.

Since Edward Snowden’s whistleblowing revelations, Facebook, Apple and Twitter have unilaterally said they are not going to create such backdoors anymore.

So here’s the “backdoor” the FBI wants: Right now, iPhone users have the option to set a security feature that only allows a certain number of tries to guess the correct passcode to unlock the phone before all the data on the iPhone is deleted. It’s a security measure Apple put in place to keep important data out of the wrong hands.

Federal prosecutors looking for more information behind the San Bernardino shootings don’t know the phone’s passcode. If they guess incorrectly too many times, the data they hope to find will be deleted.

That’s why the FBI wants Apple to disable the security feature. Once the security is crippled, agents would be able to guess as many combinations as possible.

Kurt Opsahl, general counsel for the Electronic Frontier Foundation, a San Francisco-based digital rights non-profit, explained that this “backdoor” means Apple will have to to write brand new code that will compromise key features of the phone’s security. Apple has five business days to respond to the request.

What does Apple have to say about this? Apple CEO Tim Cook said late Tuesday that the company would oppose the ruling. In a message to customers published on Apple’s website, he said: “We can find no precedent for an American company being forced to expose its customers to a greater risk of attack. For years, cryptologists and national security experts have been warning against weakening encryption. Doing so would hurt only the well-meaning and law-abiding citizens who rely on companies like Apple to protect their data.”

Back in December, Cook defended the company’s use of encryption on its mobile devices, saying users should not have to trade privacy for national security, in a broad interview with 60 Minutes. In the interview, Cook stood by the company’s stance of refusing to offer encrypted texts and messages from users.

What does this mean for the next time the government wants access? The order doesn’t create a precedent in the sense that other courts will be compelled to follow it, but it will give the government more ammunition.

What do digital rights experts have to say? There are two things that make this order very dangerous, Opsahl said. The first is the question is raises about who can make this type of demand. If the U.S. government can force Apple to do this, why can’t the Chinese or Russian governments?

The second is that while the government is requesting a program to allow it to break into this one, specific iPhone, once the program is created it will essentially be a master key. It would be possible for the government to take this key, modify it and use it on other phones. That risks a lot, that the government will have this power and it will not be misused, he said.

And the lawmakers? Well, they are torn. Key House Democrat, Rep. Adam Schiff, D-Calif., says Congress shouldn’t force tech companies to have encryption backdoors. Congress is struggling with how to handle the complex issue.

On the other side of things, Senate Intelligence Committee Chairman Richard Burr, R-N.C., and Vice Chair Dianne Feinstein, D-Calif., say they want to require tech companies to provide a backdoor into encrypted communication when law enforcement officials obtain a court order to investigate a specific person.

What now? This could push the tech companies to give users access to unbreakable encryption. To some extent, it’s already happening. Companies like Apple and Google — responding to consumer demands for privacy — have developed smart phones and other devices with encryption that is so strong that even the companies can’t break it.

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How Justice Scalia Defended Your Digital Privacy—and Also Held It Back

February 15, 2016

A new Supreme Court justice could tip the scales away from the controversial third party doctrine.

The passing of Justice Antonin Scalia has brought a wave of speculation about current and future U.S. Supreme Court cases. One area where there might be a significant impact will be the 4th Amendment, which provides the primary constitutional protection against government surveillance and information gathering. A new justice could usher in a dramatic expansion in 4th Amendment protections against government surveillance.

Justice Scalia was not antagonistic to the 4th Amendment, and in many cases he supported 4th Amendment protections. Most notably, in Kyllo v. United States, 533 U.S. 27 (2001), Justice Scalia wrote for the majority in a 5-4 decision holding that the 4th Amendment required a warrant to use thermal sensors to detect heat patterns emanating from inside a home. Justice Scalia also wrote the majority opinion in United States v. Jones, 132 S. Ct. 945 (2012), holding that the police needed a warrant to affix a GPS surveillance device to a car.

Kyllo and Jones are two of the most important U.S. Supreme Court cases of this century involving technology, and both come out in favor of 4th Amendment protection. So why would a new justice potentially lead to more 4th Amendment protection?

Justice Antonin Scalia Speaks with Staff at the U.S. Mission in Geneva. Photo via WikiCommons
Justice Scalia hearkened back to a very old test for when a search falls under the scope of the 4th Amendment

The reason is that Justice Scalia had a narrow view of original intent. Kyllo turned heavily on the fact that the thermal sensor was used on a home—the quintessential private place to the Framers of the Constitution. Scalia’s opinion in Jones turned on the placement of the GPS device on a car—a trespass to a person’s property. Hearkening back to a very old test for when a search falls under the scope of the 4th Amendment, Justice Scalia focused on the fact that putting the device on the car was a physical trespass. This led to a very narrow holding. Five justices in concurring opinions suggested a much broader approach, holding that people had a reasonable expectation of privacy in not being exposed to very extensive surveillance—even in public.


The first issue in a 4th Amendment case is whether a particular instance of government surveillance or data gathering activity even falls under the 4th Amendment’s scope. If the 4th Amendment is implicated, then the 4th Amendment generally provides protection by requiring the government to obtain a warrant supported by probable cause—the government must justify its search, and the judiciary evaluates. Searches are circumscribed and limited. The prevailing test for whether the 4th Amendment applies is whether there is a reasonable expectation of privacy in what the government is searching.

When the 4th Amendment applies, a warrant and probable cause aren’t always required—there are a lot of exceptions—but if the 4th Amendment doesn’t apply, then there is often no protection at all against a particular instance of government surveillance unless there is a federal statute restricting it. State constitutions and state statutes can limit state law enforcement, but not federal officials. An enormous amount of government surveillance and information gathering is not regulated by federal statute, so if the 4th Amendment doesn’t apply, there might be nothing to require any oversight or limitation on these government surveillance powers. Thus the determination of whether certain government surveillance measures fall within the scope of the 4th Amendment is often one of enormous significance.

A new justice replacing Justice Scalia might take a more expansive approach to the applicability of the 4th Amendment, and be the vote that tips the scales against a controversial doctrine that has dramatically limited the scope of the 4th Amendment in the digital age: the third party doctrine.

Under the third party doctrine, the U.S. Supreme Court has held that that there is no reasonable expectation in privacy for information known or exposed to third parties. In United States v. Miller, 425 U.S. 435 (1976), the Court held that there is no reasonable expectation of privacy in financial records maintained by one’s bank because “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities.” In Smith v. Maryland, 442 U.S. 735 (1979), the Court concluded that there was no reasonable expectation of privacy when the government obtained a list of phone numbers a person dialed from the phone company because people “know that they must convey numerical information to the phone company” and cannot “harbor any general expectation that the numbers they dial will remain secret.”

The implications of the third party doctrine for the digital age are enormous. Today, so much of our data is maintained by third parties. Countless companies maintain records about us. We store documents and photos with cloud service providers. Credit card companies keep detailed records about our purchases. Our location information is available to telecommunications companies. Our Web surfing activity is in the hands of ISPs. Merchants such as Amazon.com have records about our purchases of books and movies and other things. The government no longer needs to enter a person’s home to learn about that person—the books that person is reading, the person’s communications, hobbies, interests, intellectual exploration, and more can all be learned from third party records. I wonder whether the justices writing in the 1970s had any idea of how profound the implications of the third party doctrine would be in today’s age.

The third party doctrine is one of the main reasons why the 4th Amendment has often not had much relevance when digital data is involved. Several courts have held that broad government surveillance programs, including some of the NSA’s surveillance programs, escape the reach of 4th Amendment protection due to the third party doctrine.

A GPS tracking device like that involved in the Jones case. Photo via iFixit
Actually, Justice Scalia’s opinion in Jones provides very little protection against government location tracking

Justice Scalia’s opinion in Jones actually provides very little protection against government location tracking. Only the physical affixing of a GPS device to a car violates the 4th Amendment according to his view. But under the third party doctrine, the government can readily obtain GPS data from third parties that provide GPS services without a physical trespass to the car. People’s location can also be tracked from their phones. Scalia’s view misses a key fact: It’s not the device that matters; it’s the data.

Jones is a bizarre case because five justices wrote or joined concurring opinions that suggested a much bolder approach to the reasonable expectation of privacy. Until Jones, U.S. Supreme Court cases had generally held in a rather binary way that there is no reasonable expectation of privacy from surveillance in public places. The five concurring justices articulated a different view that extensive surveillance—even in public—could fall under the scope of the 4th Amendment.

Justice Sotomayor, writing a solo concurring opinion, explicitly called the third party doctrine into question. She stated that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily exposed to third parties. This approach is ill suited to the digital age.”

The other concurring opinion, authored by Justice Alito, doesn’t say anything about the third party doctrine. My sense is that Justice Alito might be tepid about how far he would expand 4th Amendment protection. The other three justices joining Alito’s concurrence—Justices Ginsburg, Breyer, and Kagan—all might be good candidates to join Justice Sotomayor in reversing the third party doctrine sometime in the future. One more vote is needed for five votes, and that could be the demise of the third party doctrine.

The end of the third party doctrine would herald a dramatic increase in 4th Amendment protection in today’s digital age. The third party doctrine is, in my view, the most significant and wrongheaded impediment to effective 4th Amendment regulation of government surveillance. (For more about my concerns about the third party doctrine, see my 2002 Southern California Law Review article, Digital Dossiers and the Dissipation of Fourth Amendment Privacy.)


Another key case turning on Justice Scalia’s vote was Clapper v. Amnesty International, 568 U.S. __ (2013). There the Supreme Court held, with Justice Alito writing for the majority, that plaintiffs lacked standing to challenge NSA surveillance because they couldn’t know for sure that they were subjected to it. The fact of whether they were under surveillance was classified, so the government had quite the chutzpah to argue that the plaintiffs’s case should be dismissed because they couldn’t prove they were under surveillance.

The plaintiffs put forth evidence that they were very likely under surveillance and claimed that they were harmed because they had to expend time and money to take measures to avoid the surveillance. The U.S. Supreme Court held that they failed to show the required injury for standing because all they couldn’t confirm the surveillance with certainty and their evasive measures were just an attempt to “manufacture standing based on hypothetical future harm.” Justice Scalia was in the majority. Justices Breyer, Ginsburg, Sotomayor, and Kagan dissented. So a change in Scalia’s vote would mean the case would come out the other way 5-4.

NSA Utah Data Center. Photo via Parker Higgins / EFF
A different outcome on Clapper would have a significant impact on future cases challenging government surveillance. It would also have an impact on data breach litigation cases, which often cite to Clapper to hold that plaintiffs whose data is compromised in a data breach lack standing to sue because they are not yet harmed.

But would the Supreme Court overrule Clapper so soon after it was decided? Ironically, perhaps, Justice Scalia would have no problem with that.

Dissenting in South Carolina v. Gathers, 490 U.S. 95 (1989), Justice Scalia wrote:

Overrulings of precedent rarely occur without a change in the Court’s personnel. The only distinctive feature here is that the overruling would follow not long after the original decision. . . . Indeed, I had thought that the respect accorded prior decisions increases, rather than decreases, with their antiquity, as the society adjusts itself to their existence, and the surrounding law becomes premised upon their validity. The freshness of error not only deprives it of the respect to which long established practice is entitled, but also counsels that the opportunity of correction be seized at once, before state and federal laws and practices have been adjusted to embody it.
The U.S. Supreme Court appears to be very close to making some dramatic changes in 4th Amendment law. With Justice Scalia’s passing, a sometimes-champion of the 4th Amendment has been lost. Will the next justice also have a narrow version of originalism or will he or she have a more progressive approach? If the latter, we might see some dramatic shifts in 4th Amendment protection of government surveillance.

Daniel J. Solove is the John Harlan Marshall Research Professor of Law at the George Washington University Law School. He founded TeachPrivacy, a company providing privacy and data security training.

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According to these court documents, turning your phone on is consent to being tracked

February 12, 2016

In 2014, Baltimore Police obtained a warrant for the arrest of Kerron Andrews for attempted murder. To find him, law enforcement requested a pen register to record his location data and all outgoing phone calls. The request, however, didn’t ask about using a Hailstorm (a type of Stingray — a bulk collection device meant to intercept data meant for cell towers) to collect this data.

The police used it anyway.

Warrantless bulk collection by use of a Stingray isn’t anything new. The secrecy is often due to an NDA (like this one) between law enforcement and the FBI itself.

After learning about the non-disclosure of the use of a Stingray, a judge concluded the police had violated Andrews’ Fourth Amendment right and granted the defense’s request to suppress the evidence collected by the Stingray.

But here’s where it gets interesting.

The state appealed the decision.

It argued that the court erred in its original ruling by claiming that Andrews voluntarily shared his cellphone information with law enforcement (and other third parties) when he turned the phone on.

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This is dangerous precedent.

If the Maryland court overturns the ruling and says that the suppressed evidence collected by the Stingray device is admissible, look for other state courts to begin citing this ruling when justifying the use of bulk collection tools without a warrant.

For now, just revel in the fact that, according to the State of Maryland, turning your phone on is giving implicit consent to being tracked.

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Secret US flight flew over Scottish airspace to capture Snowden

February 3, 2016

THE UK GOVERNMENT is facing demands to reveal the details of a secret flight through Scottish airspace which was at the centre of a plot to capture whistleblower Edward Snowden.

The plane, which passed above the Outer Hebrides, the Highlands and Aberdeenshire, was dispatched from the American east coast on June 24 2013, the day after Snowden left Hong Kong for Moscow. The craft was used in controversial US ‘rendition’ missions.

Reports by Scottish journalist Duncan Campbell claim the flight, travelling well above the standard aviation height at 45,000 feet and without a filed flight plan, was part of a mission to capture Snowden following his release of documents revealing mass surveillance by US and UK secret services.

That the flight passed over Scotland, airspace regulated by the UK, has raised questions over UK complicity in a covert mission to arrest Snowden and whether any police, aviation or political authorities in Scotland were made aware of the flight path.

Alex Salmond, the SNP foreign affairs spokesman and Scotland’s First Minister when the flight took place, has called for full transparency from the UK Government over the case.

He said: “As a matter of course and courtesy, any country, particularly an ally, should be open about the purposes of a flight and the use of foreign airspace or indeed airports.”

“What we need to know now is, was this information given to the UK Government at the time. If so, then why did they give permission? If not, then why not? As a minimum requirement, the UK authorities should not allow any activity in breach of international law in either its airspace or its airports.

“That is what an independent Scotland should insist on. Of course, since no rendition actually took place in this instance, it is a moot point as to whether intention can constitute a breach of human rights. However, we are entitled to ask what the UK Government knew and when did they know it.”

The flight took place after US federal prosecutors filed a criminal complaint against Snowden on June 14. Regular meetings with the FBI and CIA, convened by US Homeland Security adviser Lisa Monaco, then planned Snowden’s arrest for alleged breaches of the Espionage Act, according to The Washington Post.

New documents, revealed by Danish media group Denfri, confirm that the N977GA plane was held at a Copenhagen airport for “state purposes of a non-commercial nature”. Two days later Danish authorities received an “urgent notification” from the US Department of Justice to cooperate in arresting Snowden.

N977GA was previously identified by Dave Willis in Air Force Monthly as an aircraft used for CIA rendition flights of US prisoners. This included the extradition of cleric Abu Hamza from the UK. Snowden accused the Danish Government of conspiring in his arrest. In response to flight reports, he said: “Remember when the Prime Minister Rasmussen said Denmark shouldn’t respect asylum law in my case? Turns out he had a secret.”

Snowden was behind the largest leak of classified information in history, revealing spying activities that were later deemed illegal on both sides of the Atlantic. He was elected rector at the University of Glasgow in February 2014, yet is unable to fully carry out his duties.

Patrick Harvie, co-convener of the Scottish Green Party, echoed calls for an inquiry into the flight: “It will certainly raise suspicions that an aircraft previously identified as involved in rendition flew through UK airspace at that time. We have a right to know what UK and Scottish authorities knew about this flight given it is implicated in the US response to whistleblowing about global surveillance.”

ATTEMPTS to arrest Snowden have failed as Russian authorities refused to comply. However, pressure from US authorities made it dangerous for Snowden to travel from Russia to Latin America, where Ecuador, Nicaragua, Bolivia, and Venezuela have all offered him asylum.

The presidential plane of Bolivian leader Evo Morales was forced to ground in Vienna, after four EU nations refused airspace access on the mistaken belief that Snowden was hidden on board.

In 2013 Police Scotland launched an investigation into whether other US rendition flights – where prisoners were taken to blacklist torture sites – used Scottish airports or airspace.

In 2006 aviation expert Chris Yates said it was likely that a US rendition flight had passed through Scottish airspace to Syria, in a case where the prisoner, Maher Arar, said he was tortured.

In 2008 then foreign secretary David Miliband admitted that UK airports had been used for US rendition flights and apologised for previous government denials.

American politics lecturer John MacDonald, director of foreign policy group the Scottish Global Forum, said: “Given the constitutional arrangements, there are a number of areas in which the Scottish Government may well have interests or concerns but will be excluded because security arrangements with the US are deemed ‘out of bounds’ for Scotland.

“However, if you take serious the supposition that all responsible governments have a moral and legal obligation to raise questions about flights which may be involved in dubious security and intelligence activities, then the Scottish Government may well have an interest in – or even be obliged to –raise questions.

“Questions have already been raised about the nature of military and intelligence air traffic through Scotland and if this activity is raising concerns within Scottish civil society – and it seems to be – then it is surely incumbent upon the Scottish Government to raise the issue with London.”

National Air Traffic Control Systems (Nats), who control flight access to UK airspace, said rendition flights are an issue for the UK Government. In response to questions, the UK Government refused to provide details on attempts to arrest Snowden or on the passage of the N977GA flight.

The Scottish Government also avoided a direct statement on the case on legal grounds. A spokesman said: “There is already an ongoing Police Scotland investigation, directed by the Lord Advocate. This investigation will seek to gather all available evidence of rendition flights using Scottish airports. As this is a live investigation it would be inappropriate to comment further.”

During his two and a half years in Moscow, Snowden has caused diplomatic ruptures and a worldwide debate on privacy and state security. In October 2015 the European Parliament voted narrowly, in a non-binding motion, to drop charges against him in recognition of “his status as [a] whistle-blower and international human rights defender”.

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Official: Withheld Clinton emails contain ‘operational’ intel, put lives at risk

February 2, 2016

EXCLUSIVE: Highly classified Hillary Clinton emails that the intelligence community and State Department recently deemed too damaging to national security to release contain “operational intelligence” – and their presence on the unsecure, personal email system jeopardized “sources, methods and lives,” a U.S. government official who has reviewed the documents told Fox News.

The official, who was not authorized to speak on the record and was limited in discussing the contents because of their highly classified nature, was referring to the 22 “TOP SECRET” emails that the State Department announced Friday it could not release in any form, even with entire sections redacted.

The announcement fueled criticism of Clinton’s handling of highly sensitive information while secretary of state, even as the Clinton campaign continued to downplay the matter as the product of an interagency dispute over classification. But the U.S. government official’s description provides confirmation that the emails contained closely held government secrets. “Operational intelligence” can be real-time information about intelligence collection, sources and the movement of assets.

The official emphasized that the “TOP SECRET” documents were sent over an extended period of time — from shortly after the server’s 2009 installation until early 2013 when Clinton stepped down as secretary of state.

Separately, Rep. Mike Pompeo, R-Kan., who sits on the House intelligence committee, said the former secretary of state, senator, and Yale-trained lawyer had to know what she was dealing with.

“There is no way that someone, a senior government official who has been handling classified information for a good chunk of their adult life, could not have known that this information ought to be classified, whether it was marked or not,” he said. “Anyone with the capacity to read and an understanding of American national security, an 8th grade reading level or above, would understand that the release of this information or the potential breach of a non-secure system presented risk to American national security.”

Pompeo also suggested the military and intelligence communities have had to change operations, because the Clinton server could have been compromised by a third party.

“Anytime our national security team determines that there’s a potential breach, that is information that might potentially have fallen into the hands of the Iranians, or the Russians, or the Chinese, or just hackers, that they begin to operate in a manner that assumes that information has in fact gotten out,” Pompeo said.

On ABC’s “This Week” on Sunday, one day before the Iowa caucuses, Clinton claimed ignorance on the sensitivity of the materials and stressed that they weren’t marked.

“There is no classified marked information on those emails sent or received by me,” she said, adding that “Republicans are going to continue to use it [to] beat up on me.”

Clinton was pressed in the same ABC interview on her signed 2009 non-disclosure agreement which acknowledged that markings are irrelevant, undercutting her central explanation. The agreement states “classified information is marked or unmarked … including oral communications.”

Clinton pointed to her aides, saying: “When you receive information, of course, there has to be some markings, some indication that someone down the chain had thought that this was classified and that was not the case.”

But according to national security legal experts, security clearance holders are required to speak up when classified information is not in secure channels.

“Everybody who has a security clearance has an individual obligation to protect the information,” said national security attorney Edward MacMahon Jr., who represented former CIA officer Jeffrey Sterling in the high-profile leak investigation regarding a New York Times reporter. “Just because somebody sends it to you … you can’t just turn a blind eye and pretend it never happened and pretend it’s unclassified information.”

These rules, known as the Code of Federal Regulations, apply to U.S. government employees with security clearances and state there is an obligation to report any possible breach by both the sender and the receiver of the information. The rules state: “Any person who has knowledge that classified information has been or may have been lost, possibly compromised or disclosed to an unauthorized person shall immediately report the circumstances to an official designated for this purpose.”

The Clinton campaign is now calling for the 22 “TOP SECRET” emails to be released, but this is not entirely the State Department’s call since the intelligence came from other agencies, which have final say on classification and handling.

“The State Department has no authority to release those emails and I do think that Secretary Clinton most assuredly knows that,” Pompeo said.

Meanwhile, the release of other emails has revealed more about the high-level exchange of classified information on personal accounts. Among the latest batch of emails released by the State Department is an exchange between Clinton and then-Sen. John Kerry, now secretary of state. Sections are fully redacted, citing classified information – and both Kerry and Clinton were using unsecured, personal accounts.

Further, a 2009 email released to Judicial Watch after a federal lawsuit — and first reported by Fox News — suggests the State Department ‘s senior manager Patrick Kennedy was trying to make it easier for Clinton to check her personal email at work, writing to Clinton aide Cheryl Mills a “stand-alone separate network PC is … [one] great idea.”

“The emails show that the top administrator at the State Department, Patrick Kennedy, who is still there overseeing the response to all the inquiries about Hillary Clinton, was in on Hillary Clinton’s separate email network and system from the get-go,” Judicial Watch President Tom Fitton said.

Kennedy is expected to testify this month before the Republican-led Benghazi Select Committee.

Catherine Herridge is an award-winning Chief Intelligence correspondent for FOX News Channel (FNC) based in Washington, D.C. She covers intelligence, the Justice Department and the Department of Homeland Security. Herridge joined FNC in 1996 as a London-based correspondent.

Pamela K. Browne is Senior Executive Producer at the FOX News Channel (FNC) and is Director of Long-Form Series and Specials. Her journalism has been recognized with several awards. Browne first joined FOX in 1997 to launch the news magazine “Fox Files” and later, “War Stories.”

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