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NYT-After N.S.A. Disclosures, Yahoo Moves to Encrypt Internal Traffic

NOVEMBER 18, 2013, 11:41 PM

By NICOLE PERLROTH

Thanks to the revelations of Edward Snowden, technology companies are feverishly enabling new security features in an effort to assure users, particularly abroad, that they are doing everything possible to secure their data from hackers and the National Security Agency.

On Monday, Yahoo’s chief executive, Marissa Mayer, said Yahoo had plans to add extra levels of security to the company’s business operation.

“As you know, there have been a number of reports over the last six months about the U.S. government secretly accessing user data without the knowledge of tech companies, including Yahoo,” Ms. Mayer wrote. “I want to reiterate what we have said the past: Yahoo has never given access to our data centers to the NSA or any other government agency. Ever.”

Both Yahoo and Google secure their data centers with full-time security details and state-of-the-art heat sensors, video cameras and, even in some cases, iris scanning technology. When servers at Google pass their prime, employees bludgeon them with steel pistons and put them through industrial shredders before recycling them, to ensure no data is left behind.

But that data flows from center to center on fiber optic cables owned by Internet backbone providers — and that, Google executives believe, is where intelligence agencies are tapping them.

Even before Mr. Snowden began releasing classified materials to journalists last June, Google grew suspicious that outsiders could tap its traffic between data centers and began encrypting that traffic. After the Snowden revelations, Google said it was accelerating those efforts.

On Monday, Ms. Mayer said Yahoo now planned to follow suit and encrypt the user traffic flowing between its data centers in 2014. “As we have said before, we will continue to evaluate how we can protect our users’ privacy and their data,” Ms. Mayer said.

The FISA Courts Are Even Worse Than You Knew

By Jeffrey Rosen

Last week, with little fanfare, the Foreign Intelligence Surveillance Court (FISA) released a previously secret opinion upholding the National Security Agency’s mass surveillance of telephone metadata. The opinion, which deserves more attention than it has received, is a cavalier piece of work. Judge Claire Eagan fails even to consider, let alone to rebut, the strong arguments suggesting that the NSA programs violates both the U.S. Constitution and section 215 of the Patriot Act, the statutory provision the government has invoked to authorize it. The Electronic Privacy Information Center (EPIC) has asked the Supreme Court to conduct an independent review of the legality of the NSA surveillance program, and Justice Antonin Scalia said yesterday that he expects the Court to eventually hear a version of the case. But because the Court may be unlikely, for technical reasons, to rule squarely on the merits, congressional reform of the FISA court is now more urgent than ever.

Read rest of the article here http://www.newrepublic.com/article/114853/fisa-court-decision-upholding-surveillance-joke

Cellphone privacy issue heats up

By Lyle Denniston

More than 80 percent of adult Americans have a cellphone, and they make heavy use of them: calling for more than 2.3 trillion minutes a year and sending nearly 2.2 trillion text messages annually.  And it is fair to assume that a good many of those users consider what they do with their devices to be private.  It is far from certain, though, that the Constitution protects cellphone privacy.  The courts are starting to give answers to that question.

Even as courts struggle with the issue of whether they have any role to play in reviewing the government’s sweeping global surveillance of all kinds of electronic communications, including cell phone calls and texting, other courts are deeply involved in examining the constitutionality of government monitoring of cell phone use as part of investigations of crime.

This week, in back-to-back decisions, two federal appeals courts explored the privacy issue, and came to quite different conclusions, though in different settings.   In both cases, the constitutional issue was the same: whether the Fourth Amendment requires the government to get a court-approved search warrant to monitor cell phone use.  One court said yes, the other no.

One of those rulings involved a routine illegal drug case originating in Boston, the other focused on three FBI investigations in Texas.  In the Boston case, officers learned where a suspect lived, and got other information about him, by examining the contents of a cell phone that the man had with him when he was arrested.   The focus of the Texas investigations remains under wraps but the case involves a request by federal agents to obtain tracking data from cell towers operated by telephone companies – in other words, electronic tracks of the places where a cell phone has been used.

In the Boston case, the officers did not have a search warrant; indeed, they believed that they did not need one.  They got access to the man’s cell phone at the police station, and they simply engaged it to get information, just as they might look into his pockets to make sure he had no weapons. They turned out to be wrong about their authority to do that.   The Circuit Court of Appeals for the First Circuit had ruled earlier, and essentially reaffirmed on Monday, that the officers’ operation of the cell phone to get calling data was a search, requiring a warrant under the Fourth Amendment.

A cellphone, according to the First Circuit’s view, is not just a telephone; some of those devices have huge electronic storage capacity, and they contain much that is highly personal in nature – photos, videos, messages of all kinds, contacts, Internet searches, purchases, financial and medical records.  To the millions of Americans who carry around such devices, with them virtually everywhere they go, they are a trove of private data, that court found.

In the Texas probes, the federal agents were relying upon a federal law, the Stored Communications Act of 1986, which allows access to cellphone data upon a government request based on less suspicion than would be required for a search warrant.  In a ruling on Tuesday, the U.S. Court of Appeals for the Fifth Circuit decided that no warrant was necessary.  It approved the applications for cellphone tracking data, finding that the location information belonged to the telephone company and was not private for the phone users.

Once an individual makes a call, leaving an electronic data point at the nearest cell tower, that location has been exposed to the telephone company, and the phone user cannot complain if the company later hands that information over to the government, the Fifth Circuit Court said.

Although the facts differ in significant ways, the issue for the courts in each instance was whether the users of the cellphones had a “reasonable expectation of privacy,” one that most people would respect.  Over the years, as technology has advanced, the Supreme Court has not moved in a straight line in defining when government use of a new device or method intrudes on privacy in violation of the Fourth Amendment.

Just recently, the Supreme Court ruled that it did not invade the privacy of a person arrested on suspicion of a serious crime for police to use the new technology of DNA testing to take a sample from the suspect to seek a possible link to a different crime.   But the year before, the court ruled that police ordinarily should get a warrant before they attach a GPS tracking device to monitor, for a period of time, the movements a suspect made in his car.

In earlier decisions, the court has allowed police to conduct aerial surveillance of someone’s outdoor yard, even though they could not go into the yard at ground level, but the court also barred police from using a heat-sensing device aimed at the exterior wall of a house to see if marijuana was being grown inside.   The court also has reached varying results on police authority to use drug-sniffing dogs.

So far, the court has had little opportunity to explore the Fourth Amendment implications of cellphones’ use.  In fact, it recently turned down two appeals seeking clarification of claims to cell phone privacy.

But the conflicts among lower courts on that very issue have been growing deeper, thus increasing the chances that the Justices will, perhaps soon, get drawn into a case that provides a clear-cut test.  The Boston case may be such a case, because the federal government had fought energetically against the need to obtain a search warrant to examine the contents of a cellphone obtained during an arrest procedure.

And, while the Texas investigations case is not subject to appeal to the Supreme Court, because it only involved an effort by the government to get a cellphone location data order from a court, and there was no formal party on the other side of the case, other federal appeals courts are considering the privacy issue surrounding such data in cases involving actual criminal convictions, and rulings in that setting might well wind up in the Supreme Court.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

http://blog.constitutioncenter.org/2013/08/cellphone-privacy-issue-heats-up/

Do you Know your Rights?

People call me about a criminal case and state “Police didn’t read me my Rights”, thinking that means their case will be thrown out.  Unfortunately most people do not know that the police only have to warn you of your right to remain silent and that you can have a lawyer, if the interview is after you have been arrested or where you feel that you are in custody.  And if the police fail to do that, it only means that your statement can be thrown out of court.  That does not mean the case against you will be dismissed.

What are the rights a person has that has been accused of a crime?

a. Right to remain silent
b. Right to have an attorney present when interviewed by the police while in custody.
c. Right to for their house, car  or personal property searched without a warrant or pressing circumstances outline in the law.
d. Right not to be searched other than for weapons for the safety of the officer
e. Right for their phone and other electronic devices not to be searched without a warrant.
f. Right to not disclose their passwords and usernames to the police without a warrant.

The law is still developing regarding the expectation of privacy in the online world.  The police should  be required to get a warrant to get your emails, online activity, and search history from internet providers and companies, but that does not always happen.

We will address the law as it develops in the area of a person’s rights in the regards to their interaction with the police.

Know your rights, but most importantly EXERCISE THOSE RIGHTS.  Say to the officer I am not answering your questions without an attorney present, you cannot search my property without my attorney present.  Always be polite and respectful, but firm.

The back of my card that I hand out to my clients states “My attorney has told me not to talk to anyone about my case, to not answer any questions, and to not reply to accusations.  Call my attorney if you want to ask me questions, search me or my property, do any test, do any lineups, or any other I.D. procedures.  I do not agree to any of these things without my attorney present and do not waive any of my Constitutional Rights.”  I ask my clients to keep that card in their wallet and to pull it out when questioned by the police and hand it to the police officer.  Exercise your rights.

Know and Exercise your rights.