What Was Wrong With the Old FISA?

The Get FISA Right group is publicizing our need to re-think the laws. They have discussion going on on their site, as well as on The Daily Kos. I recommend catching up there, or reading Adam’s recent post here.

I have to ask what was wrong with the old FISA? It wasn’t a bad system, had a lot tradeoffs as well as emergency provisions. The government could, for example, get a warrant after the fact in an emergency.

But the old FISA was very Cold War. It was also very much adapted to the previous century’s technology in which wired technologies were static and protected and wireless or mobile technologies were highly regulated.

So let’s look at some of the things that are indeed worth changing.

  • I think it is important to note upfront that getting a warrant trumps all this discussion. We are talking about Fourth Amendment considerations, and that means what can be done without a warrant. But it also concerns a certain amount of how the government can operate when it has one, when they’re operating completely above board.
  • In the past, FISA was overly concerned with devices rather than persons. Changing it so that it affects persons is a good idea. If there is permission to spy on a person, then it should be to spy on the person. Making it the person and device is awfully restrictive, especially when it’s hard to know what counts. Rather than debate about what happens when DHCP gives you a new address, it’s better to just make things apply to persons. That probably makes the law adapt better to changing technology.

    I would not want end up having interesting new technologies like femtocells end up in some odd legal limbo because of some peculiarity of the technology. It’s better for us all to just agree that when it is okay to spy on a person, it’s that person.

  • In the past, FISA worried a lot about about where the pipes were. It also seems reasonable to have that abstracted away. This goes along with focusing on the persons. A phone call between non-US persons does not suddenly become a US thing just because some glass runs across the US.

    Now, this has consequences. I wouldn’t blame non-US telecom companies to proudly avoid the US as a result of that. It’s from the viewpoint of a civil libertarian who is trying to make sense out of the rules of spying that I think that.

    It is also the converse of thinking that when I am in another country, they’ll spy on me or not according to their rules, not mine.

  • The flip side of this is that US persons are protected everywhere. It seems fair that if we’re going to tune the law to make it easier to spy on non-US persons no matter where they are, the US persons should get full protection. This strikes me as being the way that things ought to be. My government shouldn’t spy on me (without a warrant) just because I’m traveling outside the country. This may be as things ought to be, but it used to be at least de facto that if you were outside the country, your calls would be monitored.
  • It is a point of our common law that non-US persons are subject to US law when they are in the US. If a foreigner is arrested in the US, they get a jury trial, for example. In this particular case, however, non-US persons in the US should have some extra measure of protection, the question is what.

I can go on, particularly about the new features of the new FISA. However, that strays away from this discussion. What didn’t work well in the old one.

What Should FISA Look Like?

wiretap america.jpg
Jim Burrows is working to kick off a conversation about what good reform of US telecom law would be. He kicks it off with “What does it mean to “get FISA right”?” and also here.

To “get it right”, let me suggest that we need:

  1. One law that covers all spying
  2. Require warrants when the US spies on
    1. Anyone in the US
    2. US persons (citizens and resident aliens) anywhere
  3. Allow the intelligence agencies to spy freely on foreigners oversees, even if the taps are in the US
  4. Require Executive, Judicial and Congressional oversight when protected and unprotected communications are entangled.
  5. Criminalize violation of the Constitution.

I think we need a law which works cross medium, and addresses both content and routing information. It should lay out broad principles of privacy protection for Americans and people in America, and the times when spying is acceptable in ways that enable debate and discussion. We also need to address the very real abuses of past wiretapping statues, perhaps with increasing oversight as time goes by.

This is a hard area, and I encourage you to join in the discussion here, on Jim’s blogs, or on your own.

I hit post to soon, I’d meant to explain the image. I picked the image because I believe that listening to phone calls is sometimes something we should allow a government to do. If we do it right, it’s a valuable tool. If we do it wrong, it becomes an intrusion and a betrayal of our values. To date, we are doing it wrong, with secret courts rubber stamping requests under complex laws that few can understand. The result is that legitimate wiretapping is harder than it needs to be. Getting FISA right includes restoring public trust.

Image: Dr. Bulldog & Ronin.

MI5 Head Critiques Government on Liberties

The BBC reports:

A former head of MI5 has accused the government of exploiting the fear of terrorism to restrict civil liberties. Dame Stella Rimington, 73, stood down as the director general of the security service in 1996…”Furthermore it has achieved the opposite effect – there are more and more suicide terrorists finding a greater justification.”

What’s new? It’s gone far enough that even former spy chiefs are speaking out.

Let’s stop the madness, and embrace liberty and the risk that the chaos won’t be all for the good.

Thanks to Nicko for the pointer.

The New Openness?

This photograph was taken at 11:19 AM on January 20th. It’s very cool that we can get 1 meter resolution photographs from space. What really struck me about this photo was.. well, take a look as you scroll down…

Obama inauguration from space.jpg

What really struck me about this is the open space. What’s up with that? Reports were that people were being turned away. Why all the visible ground? Were those areas still filling in? Did security procedures keep away that many?

You can click through for a much larger version at the Boston Globe. [update: even larger version at GeoEye, purveyors of fine space imagery.]

Children, Online Risks and Facts

There’s an interesting (and long!) “Final Report of the Internet Safety Technical Task Force to the Multi-State Working Group on Social Networking of State Attorneys General of the United States.” Michael Froomkin summarizes the summary.” Adam Thierer was a member of the task force, and has extensive commentary on the primary online safety issue today is peer-on-peer cyber-harassment, not adult [sexual] predation, along with a great link roundup. Kim Zetter at Wired gives unfortunate credence to hyperbolic claims by some attorneys general that “harsh reality defies the statistical academic research underlying the report.” Uh huh. I’m glad Richard Blumenthal knows the truthy, and isn’t going to let facts stand in his way. I’m less glad that Wired chose to portray that as a ‘controversy.’ I’d call it an embarrassment to the state of Connecticut.

Biometric Fail reported

A South Korean woman entered Japan on a fake passport in April 2008 by slipping through a state-of-the-art biometric immigration control system using special tape on her fingers to alter her fingerprints, it was learned Wednesday…

During questioning, the woman allegedly told the immigration bureau that she had bought a forged passport from a South Korean broker who told her to purchase an air ticket for Aomori Airport.

The woman also was quoted as saying that the broker gave her the special tape with someone else’s fingerprints on, and that she slipped past the biometric recognition system by holding her taped index fingers over the scanner.

So reports the Yomiuri Shimbun, “S. Korean woman ‘tricked’ airport fingerprint scan.” The story doesn’t mention a name, but if anyone has more details, I’d love to know more.

[Update: DanT has some interesting speculation in the comments about both operational aspects of the entry being an inside job, and that the bureaucracy in question would re-assign the insider rather than prosecute.]

Terrifying Financial Blacklists Falling Down

There’s a list, maintained by the UN security council, of people who can’t have their money. Once you’re on the list, there’s no way to get off.

The global blacklisting system for financiers of al-Qaeda and other terrorist groups is at risk of collapse, undermined by legal challenges and waning political support in many countries, according to counterterrorism officials in Europe and the United States.

In September, the European Court of Justice threw the future of the United Nations’ sanctions program against al-Qaeda and the Taliban into doubt when it declared the blacklist violated the “fundamental rights” of those targeted. The Luxembourg-based court said the list lacked accountability and made it almost impossible for people to challenge their inclusion.

See “Terrorism Financing Blacklists At Risk” in the Washington Post.

Actually, Randall, We Tried That

Crypto + 2nd Amendment

And the reason it doesn’t work is that just because you’re allowed to own something doesn’t mean you’re allowed to export it. The use, ownership, production, etc. of crypto was never restricted, only its export. In an Intenet-enabled world, export control brings lots of hair with it, which is why it was important to fight export restrictions. I could go on, but I’ve already ruined an otherwise amusing strip.

Responses to Terror: Boston and Ashdod, Israel

An Israeli teenager has been arrested after he donned a mask and prowled the streets of his town with a big rucksack and toy gun for a school project. The boy, 15, was seized by police in the southern town of Ashdod suspecting he was a Palestinian militant. The student was quoted as saying he was researching police reactions in the town and “just wanted to get an A+”. The stunt was considered highly risky in Israel, where attackers are often shot by police or civilians.

The youth was later released on bail and was not charged.

“It’s fine – he tested the police reaction,” [Ashdod police commander] Elgaret said. (From the BBC, “Israel teen ‘gunman’ wanted an A+

Contrast that response to that in Boston, where the police said Star Simpson was “extremely lucky she followed the instructions or deadly force would have been used,” and where she was then charged with wearing a fake bomb.

In both cases there was a failure of judgement on the part of the kid. In the Israeli case, the failure was substantially larger: he tried to look like a terrorist, rather than doing so accidentally.

But in Israel, the police didn’t over-react, and didn’t charge the student.

The Israelis have regular incidents of terrorism, they know that being tested is an important part of maintaining their readiness. Much more importantly, their leadership that knows that panic and terror are exactly what the terrorists want. What societies facing terror should want is exactly what the Ashdod police displayed at all levels: a professional and restrained response.

Ridiculing the Ridiculous: Terrorist Tweets

A group of soldiers with the US Army’s 304th Military Intelligence Battalion have managed to top previous military research on terrorist use of World of Warcraft.

Realizing that mentioning the word “terrorist” can allow researchers to acquire funding to play the popular MMOG, they turned attention to the popular, if architecturally unscalable micro-blogging system, Twitter.

Surpassing the threat-analysis skill of super-spy Chad Feldheimer from the recent documentary “Burn After Reading,” they mention not only the threat of “socialists,” “communists,” and “anarchists,” in using Twitter to “communicate with each other and to send messages to broader audiences,” but the wider and more up-to-date threats from “religious communities,” “atheists,” “political enthusiasts,” “human rights groups,” “vegetarians,” and last but not least, “hacktivists.” They notably left out delinquent teenagers, so one presumes they don’t use systems like Twitter.

The Military Intelligence group also discovered that people can use GPS in phones like the Nokia 6210 and Nokia Maps to know where they are. This could let terrorists who want to illegally cross a border know where that border is, or to know that a certain large triangular stone thing is the Pyramid of Cheops (category: Attraction).

The report’s cutting edge thinking also discusses how terrorists could use voice-changing software such as AV Voice Changer Diamond to make prank phone calls and effectively hide under an abaya.

The full report, marked “For Official Use Only,” can be found here. It also redacts with a dark gray splash of ink the email address of sarah.e.womer@ugov.gov, from whom you can get a copy of the report if you do not have access to INTELINK, Cryptome, or the Federation of American Scientists.

I think the report speaks for itself. I just can’t make this stuff up, apart from the bit about hiding under an abaya.

The Skype Issue

According to The New York Times in, “Surveillance of Skype Messages Found in China,” the Chinese provider TOM has software in place that reads Skype text messages, and blocks ones that use naughty words and terms, like “Falun Gong,” “Independent Taiwan,” and so on.

A group of security people and human rights workers not only found out that TOM-Skype is not secure, but found the list of banned words because, as usual, someone didn’t set up their servers very well. A report can be found here.

Skype president Josh Silverman replied to the issue today in this article. He says that yes, it’s happening:

It is common knowledge that censorship does exist in China and that the Chinese government has been monitoring communications in and out of the country for many years. This, in fact, is true for all forms of communication such as emails, fixed and mobile phone calls, and instant messaging between people within China and between China and other countries. TOM, like every other communications service provider operating in China, has an obligation to be compliant if they are to be able to operate in China at all.

He’s right: one of the quandaries of business in China is that you have to put your belief in freedom in a trust when you go there. This is why many of us do not like doing business there.

However, he also said:

We also learned yesterday about the existence of a security breach that made it possible for people to gain access to those stored messages on TOM’s servers. We were very concerned to learn about both issues and after we urgently addressed this situation with TOM, they fixed the security breach. In addition, we are currently addressing the wider issue of the uploading and storage of certain messages with TOM.

In other words — it’s bad for the Chinese to spy, and bad for people to catch them at it. Oh, naughty Chinese, and shame on you too, Infowar for dragging this into the daylight.

This comes on top of April’s flap in which the German and Austrian governments essentially said that they have no trouble listening in to Skype. Skype hasn’t commented on that. This is a different issue, as it appears that the surveillance is being done via malware.

Despite the fact that we still don’t know what goes on inside of Skype, it appears that the software is basically secure — or at least the voice parts are. Or was at one time. The noted cryptographer Tom Berson did an analysis of Skype and showed that it was reasonably secure. There were also reverse-engineering analyses done on Skype by Philippe Biondi and Fabrice Desclaux, presented at Black Hat in 2006 that showed it was secure, if eccentric in its design.

However, despite the security of the voice parts, the text parts are obviously not secure. And we have this uncomfortable set of circumstances:

  • Skype voice, while apparently secure in architecture, can be compromised by commercially available malware.
  • Skype text chat is obviously not secure, as shown by TOM-Skype in China.
  • Josh Silverman has washed his hands of l’affaire TOM-Skype.
  • We still don’t know what’s in the Skype source code.

The problem here is one of labeling, and the market effects. I’m sophisticated enough to know that when Josh Silverman says:

… Allowing the world to communicate for free empowers and links people and communities everywhere.

that he is stating that free (as in beer) is important, even if he’s unable to do a lot about free (as in speech) in repressive countries and in the face of law enforcement technologies.

But Skype has always touted itself as a secure technology. The reason that it became popular for free (as in beer) conversations was that we thought and were assured that it was also free (as in speech). Skype themselves paid for a security analysis.

Skype thus became not only the proverbial eight-hundred pound gorilla, but (it seems) the proverbial dog in the manger. Skype’s presence has actively hindered other secure-voice technologies. Phil Zimmermann’s Zfone, for example, has had to answer the question, “why do we need you when there’s Skype?” It seems that he’ll be answering that question less. Josh Silverman needs to do something to show us the basic integrity of the system. Presently it appears that he has empowered us to have communities everywhere but China, or Germany, or any place with a sophisticated and powerful government. At the very least, he should protect eBay’s investment, because if people conclude that Skype is not secure, eBay may wish they’d invested that $1.6 billion in mortgage-backed instruments instead.

Cleared Traveler Data Lost

Finger on print reader

Verified Identity Pass, Inc., who run the Clear service have lost a laptop containing information of 33,000 customers. According to KPIX in “Laptop Discovery May End SFO Security Scare” the “alleged theft of the unencrypted laptop” lost information including

names, addresses, birth dates and some applicants’ driver’s license numbers and passport information, but does not include applicants’ credit card information or Social Security numbers, according to the company.

We are also told:

The information is secured by two levels of password protection, the company reported.

Two levels of passwords. Wow. I guess you don’t need to encrypt if you have two levels of passwords.

The TSA suspended enrollment of new customers, but existing customers can still use the service. So if you stole the data and can use it, you’re Clear.

Update: They found the device. Chron article here. “It was not in an obvious location,” said a spokesperson.

Paper Breach

The Missing Docs

The BBC reports in “Secret terror files left on train” that an

… unnamed Cabinet Office employee apparently breached strict security rules when he left the papers on the seat of a train.

A fellow passenger spotted the envelope containing the files and gave it to the BBC, who handed them to the police.

We are also told:

Just seven pages long but classified as “UK Top Secret”, this latest intelligence assessment on al-Qaeda is so sensitive that every document is numbered and marked “for UK/US/Canadian and Australian eyes only”, according to our correspondent.

The person who lost them is

… described as a senior male civil servant, works in the Cabinet Office’s intelligence and security unit, which contributes to the work of the Joint Intelligence Committee.

His work reportedly involves writing and contributing to intelligence and security assessments, and that he has the authority to take secret documents out of the Cabinet Office – so long as strict procedures are observed.

Apparently the documents were not encrypted. Cue rimshot.

Apparently The State Department Didn’t Learn From Regular Passports

passport-card-frame.jpgThe Washington Times reports that the State Department is going to be producing “passport cards” for people who regular travel by car or boat to/from Canada, Mexico and Carribean.

About the size of a credit card, the electronic-passport card displays a photo of the user and a radio frequency identification (RFID) chip containing data about the user. The State Department announced recently that it will begin producing the cards next month and issue the first ones in July.

That’s right RFID just like booklet style passports. Only it won’t be encrypted and it won’t be shielded. It will even be “vicinity” aka long range RFID, so the very intent is to read them from a distance. While the card isn’t supposed to have any personal information on it, it will link back to a database that does contain personal information. I for one don’t have a lot of confidence that that database can be kept properly secure.

Security specialists told The Washington Times that the electronic-passport card can be copied or altered easily by removing the photograph with solvent and replacing it with one from an unauthorized user.

And if that wasn’t bad enough only about 10% of border sites will actually have readers:

Kelly Klundt, a spokeswoman for U.S. Customs and Border Protection, said the deployment of passport card readers to the largest and busiest 39 border-entry points was intended to expedite travel. The more than 300 remaining points of entry without passport card scanners are in remote locations, and officials will visually inspect passport cards at those entry points, she said.

Joel Lisker, a former FBI agent who spent 18 years countering credit-card fraud at MasterCard, said the new cards pose a serious threat to U.S. security. “There really is no security with these cards,” he said.

So there you have it. Once again the government is engagins in security theater rather than actual security.
[Image from: http://www.uspasscard.com/]

Who Watches the Watchlists?

The idea of “watchlists” has proliferated as part of the War on Terror. There are now more than 63 of them:

As part of its regular “risk management” service, which provides screening, tracing, and identity and background checks on potential clients or trading partners, MicroBilt will now offer a “watch list” service that checks these individuals against 63 different lists from 35 sources, including OFAC, the FBI, and Interpol, Bradley says. (“Companies May Be Held Liable for Deals With Terrorists, ID Thieves“, DarkReading)

I say more than 63 because some unknown number are secret. The poor souls who find themselves on these lists have, in essence, no recourse. Convincing 35 or more agencies that their presumption of your guilt is incorrect might, in theory, be possible. In reality, the agency has no reason to do anything but drag its feet: there are no penalties to them for declaring you guilty. In contrast, a failure to put your name on the list risks them not having prevented you from your future thoughtcrime.

But there’s hope. And it’s not in MicroBilt’s stock price (MicroBilt is a subsidiary of First Advantage). Rather, it’s in the courage of a judge, who ruled that any American who has been routinely detained because they are on a watch list knows that they are on a list, and thus the government’s ‘State Secrets’ privilege isn’t applicable:

since the government admits it has stopped the six men and two women more than 35 times, federal Magistrate Judge Sidney Schenkier of the United States Northern Illinois District Court dismissed that argument. Instead he found that the government “failed to establish that, under all the circumstances of this case, disclosure of that information would create a reasonable danger of jeopardizing national security.” (“ Court: Government Must Reveal Watch-List Status to Constantly Detained Americans,” Wired’s excellent 27B-6 Mk IIa blog)