Tag: Telecom

FCC Takes Eye Off Ball, Leaves Court in Defeat

On Tuesday, the U.S. Court of Appeals for the D.C. Circuit served the Tennis Channel a crushing blow, essentially holding that government agencies cannot tell cable operators what networks should be disseminated to consumers.  

The court found that the FCC had made an unforced error in ruling that Comcast had acted illegally against the Tennis Channel by refusing to distribute it as widely as Comcast’s own sports networks, Golf Channel and Versus.  This was a challenge based on Section 616 of the Communications Act, which gives the FCC authority to prevent “multichannel video programming distributors” from restraining the ability of unaffiliated “video program vendors” from competing “fairly by discriminating” – a broad power that the FCC still managed to abuse here.

Initially, the Tennis Channel contracted with Comcast to distribute its content on Comcast’s less broadly distributed sports tier.  It later approached Comcast with a proposal to reposition the channel onto a tier with broader distribution.  Comcast backhanded this proposal, citing financial impracticability – a basic analysis of whether such a move would make sense given ratings, market demand, etc.  An FCC administrative law judge, without citing contrary financial studies (or even a video replay) then corrected what he deemed to be marketplace “discrimination” and ordered Comcast to pay $375,000 to the government and make the Tennis Channel more widely available to consumers.

On appeal, the D.C. Circuit smashed that finding of unlawful discrimination. Indeed, substituting the judgment of an administrative agency for a freely agreed distribution deal for no good reason flouts basic principles of administrative and contract law.  Even in this day of government overreach, it’s just not cricket!

Judge Brett Kavanaugh’s concurring opinion warrants special attention – and applause.  He concluded that Section 616’s prohibition on discrimination only applies when a distributor possesses market power and that Comcast has no such advantage in the national video programming distribution market. According to Kavanaugh, applying Section 616 to a video programming distributor that lacks market power is not only outside the lines of the Communications Act, but the First Amendment as well.

That is, when Comcast distributes specific channels, it’s transmitting speech.  Overruling a cable operator’s programming choices thus interferes with editorial discretion to select and transmit a protected form of speech.  Courts should continue to umpire federal agencies that grant themselves the power to distort the marketplace of ideas.

For more on this case and the important First Amendment and rule of law issues it raises, see Randolph May of the Free State Foundation.

Designing an Insecure Internet

If there were any doubt that the 90s are back in style, witness the Obama administration’s attempt to reignite the Crypto Wars by seeking legislation that would force Internet services to redesign their networks and products to provide a centralized mechanism for decrypting user communications. It cannot be stressed enough what a radical—and terrible—idea this is.  I’ll be writing on this at greater length this week, but a few quick points.

First, while the Communications Assistance for Law Enforcement Act (CALEA) already requires phone and broadband providers to build in interception capacity at their network hubs, this proposed requirement—at least going on the basis of the press description, since there’s no legislative text yet—is both broader and more drastic. It appears that it would apply to the whole panoply of online firms offering secure communication services, not just big carriers, imposing a greater relative burden. More importantly, it’s not just mandating that already-centralized systems install a government backdoor. Rather, if I understand it correctly, the proposal would insist on a centralized (and therefore less secure) architecture for secure communications, as opposed to an end-to-end model where encryption is handled client-side. In effect, the government is insisting on the right to make a macro-design choice between competing network models for thousands of companies.

Second, they are basically demanding that providers design their systems for breach. This is massively stupid from a security perspective.  In the summer of 2004, still unknown hackers exploited surveillance software built in to one of Greece’s major cell networks to eavesdrop on high government officials, including the prime ministers. The recent hack of Google believed to originate in China may have used a law-enforcement portal to acquire information about dissidents. More recently, we learned of a Google engineer abusing his access to the system to spy on minors.

Third, this demand has implications beyond the United States. Networks designed for interception by U.S. authorities will also be more easily tapped by authoritarian governments looking to keep tabs on dissidents. And indeed, this proposal echoes demands from the likes of Saudi Arabia and the United Arab Emirates that their Blackberry system be redesigned for easier interception. By joining that chorus, the U.S. makes it more difficult for firms to resist similar demands from unlovely regimes.

Finally, this demand highlights how American law enforcement and intel agencies have been circumventing reporting requirements designed to provide information on this very problem. As the Crypto Wars of the 90s drew to a close, Congress amended the Wiretap Act, which creates strong procedural protections when the government wants to use intrusive electronic surveillance, to add a requirement that agencies report each instance in which they’d encountered encryption.  The idea was to get an objective measure of how serious a problem this posed. The most recent report, however, cited only one instance in which encryption was encountered, out of 2,376 wiretap orders. Why, then, are we now being told encryption is a huge problem? Almost certainly because law enforcement and intelligence agencies aren’t using the Wiretap Act to intercept electronic communications—preferring, instead, to avail themselves of the far more lax standards—and spare reporting requirements—provided by the Stored Communications Act.  It’s always easier to claim you need sweeping new powers from Congress when you’ve managed to do an end-run around the provisions Congress put in place to keep itself informed about how you’re using your existing powers, after all.

Accountability for ‘Exigent Letter’ Abuse At Last?

It is more than three years since the Office of the Inspector General first brought public attention to the FBI’s systematic misuse of the National Security Letter statutes to issue fictitious “exigent letters” and obtain telecommunications records without due process. Nobody at the Bureau has been fined, or even disciplined, for  this systematic lawbreaking and the efforts to conceal it. But the bipartisan outrage expressed at a subcommittee hearing of the House Judiciary Committee this morning hints that Congress may be running out of patience—and looking for some highly-placed heads to roll. Just to refresh, Committee Chairman John Conyers summarized the main abuses in an opening statement:

The IG found that more than 700 times, such information was obtained about more than 2,000 phone numbers by so-called“exigent letters” from FBI personnel. In some cases, the IG concluded, FBI agents sent the letters even though they believed that factual information in the letters was false. For more than 3,500 phone numbers, the call information was extracted without even a letter, but instead by e‐mail, requests on a post‐it note, or “sneak peaks” of telephone company computer screens or other records…. In one case, the FBI actually obtained phone records of Washington Post and New York Times reporters and kept them in a database, leading to an IG conclusion of “serious abuse” of FBI authority and an FBI public apology.

It’s probably actually worse than that: Since these letters often requested a “community of interest” analysis for targeted numbers, the privacy of many people beyond the nominal targets may have been implicated—though it’s hard to be sure, since the IG report redacts almost all details about this CoI mapping.

And as Rep. Jerry Nadler pointed out, the IG report suggests a “clear pattern here of deliberate evasion,” rather than the innocent oversight the Bureau keeps pleading.  Both Nadler and the Republican ex-chair of the committee, Rep. James Sensenbrenner, expressed frustration at their sense that, when the FBI had failed to win legislative approval for all the powers on its wish list, it had simply ignored lawful process, seizing by fiat what Congress had refused to grant. Sensenbrenner, one of the authors of the Patriot Act, even declared that he felt “betrayed.” But we’ve heard similar rhetoric before. It was the following suggestion from Conyers (from my notes, but pretty near verbatim) that really raised an eyebrow:

There must be further investigation as to who and why and how somebody in the Federal Bureau of Investigation could invent a practice and have allowed it to have gone on for three consecutive years.  I propose and hope that this committee and its leadership will join me, because I think there may be grounds for removal of the general counsel of the FBI.

That would be Valerie Caproni, one of the hearing’s two witnesses, and an executive-level official whose dismissal would be the first hint of an administration response commensurate with the gravity of the violations that occurred. Caproni’s testimony, consistent with previous performances, was an awkward effort to simultaneously minimize the seriousness of FBI’s abuses—she is fond of saying “flawed” when le mot juste is “illegal”—and also to assure legislators that the Bureau was treating it with the utmost seriousness already. Sensenbrenner appeared unpersuaded, at one point barking in obvious irritation: “I don’t think you’re getting the message; will you get the message today?” The Republican also seemed to indirectly echo Conyers’ warning, declaring himself “not unsympathetic” to the incredulous chairman’s indictment of her office. Of course, the FBI has it’s own Office of Professional Responsibility which is supposed to be in charge of holding agents and officials accountable for malfeasance, but apparently the wheels there are still grinding along.

It’s also worth noting that Inspector General Glenn Fine, who also testified, specifically urged Congress to look into a secret memo issued in January by the Office of Legal Counsel, apparently deploying some novel legal theory to conclude that many of the call records obtained by the FBI were not covered by federal privacy statutes after all. This stood out just because my impression is that OIG usually limits itself to straight reporting and leaves it to Congress to judge what merits investigation, suggesting heightened concern about the potential scope of the ruling, despite FBI’s pledge not to avail itself of this novel legal logic without apprising its oversight committees. Alas, the details here are classified, but Caproni did at one point in her testimony conclude that “disclosure of approximately half of the records at issue was not forbidden by ECPA and/or was
connected to a clear emergency situation.”  There were 4,400 improperly obtained “records at issue” in the FBI’s internal review, of which about 150 were ultimately retained on the grounds that they would have qualified for the emergency exception in the Electronic Communications Privacy Act.  Since that tally didn’t include qualifying records for which legitimate process had nevertheless been issued at some point, the number of “real” emergencies is probably slightly higher, but that still suggests that the “half” Caproni alludes to are mostly in the “disclosure…not forbidden by ECPA” category.  Since ECPA is fairly comprehensive when it comes to telecom subscriber records—or at least, so we all thought until recently—we have to assume she means that these are the types of records the OLC opinion has removed from FISA’s protection. If those inferences are correct, and the new OLC exception covers nearly half of the call detail records FBI obtains, that would not constitute a “loophole” in federal electronic privacy law so much as its evisceration.

Of course, it’s possible that the specific nature of the exception would allay civil libertarian fears. What’s really intolerable in a democratic society is that we don’t know. Operational facts about specific investigations, and even specific investigatory techniques, are rightly classified. But an interpretation of a public statute so significant as to potentially halve its apparent protections cannot be kept secret without making a farce of the rule of law.

Surveillance, Security, and the Google Breach

Yesterday’s bombshell announcement that Google is prepared to pull out of China rather than continuing to cooperate with government Web censorship was precipitated by a series of attacks on Google servers seeking information about the accounts of Chinese dissidents.  One thing that leaped out at me from the announcement was the claim that the breach “was limited to account information (such as the date the account was created) and subject line, rather than the content of emails themselves.” That piqued my interest because it’s precisely the kind of information that law enforcement is able to obtain via court order, and I was hard-pressed to think of other reasons they’d have segregated access to user account and header information.  And as Macworld reports, that’s precisely where the attackers got in:

That’s because they apparently were able to access a system used to help Google comply with search warrants by providing data on Google users, said a source familiar with the situation, who spoke on condition of anonymity because he was not authorized to speak with the press.

This is hardly the first time telecom surveillance architecture designed for law enforcement use has been exploited by hackers. In 2005, it was discovered that Greece’s largest cellular network had been compromised by an outside adversary. Software intended to facilitate legal wiretaps had been switched on and hijacked by an unknown attacker, who used it to spy on the conversations of over 100 Greek VIPs, including the prime minister.

As an eminent group of security experts argued in 2008, the trend toward building surveillance capability into telecommunications architecture amounts to a breach-by-design, and a serious security risk. As the volume of requests from law enforcement at all levels grows, the compliance burdens on telcoms grow also—making it increasingly tempting to create automated portals to permit access to user information with minimal human intervention.

The problem of volume is front and center in a leaked recording released last month, in which Sprint’s head of legal compliance revealed that their automated system had processed 8 million requests for GPS location data in the span of a year, noting that it would have been impossible to manually serve that level of law enforcement traffic.  Less remarked on, though, was Taylor’s speculation that someone who downloaded a phony warrant form and submitted it to a random telecom would have a good chance of getting a response—and one assumes he’d know if anyone would.

The irony here is that, while we’re accustomed to talking about the tension between privacy and security—to the point where it sometimes seems like people think greater invasion of privacy ipso facto yields greater security—one of the most serious and least discussed problems with built-in surveillance is the security risk it creates.

Three Keys to Surveillance Success: Location, Location, Location

The invaluable Chris Soghoian has posted some illuminating—and sobering—information on the scope of surveillance being carried out with the assistance of telecommunications providers.  The entire panel discussion from this year’s ISS World surveillance conference is well worth listening to in full, but surely the most striking item is a direct quotation from Sprint’s head of electronic surveillance:

[M]y major concern is the volume of requests. We have a lot of things that are automated but that’s just scratching the surface. One of the things, like with our GPS tool. We turned it on the web interface for law enforcement about one year ago last month, and we just passed 8 million requests. So there is no way on earth my team could have handled 8 million requests from law enforcement, just for GPS alone. So the tool has just really caught on fire with law enforcement. They also love that it is extremely inexpensive to operate and easy, so, just the sheer volume of requests they anticipate us automating other features, and I just don’t know how we’ll handle the millions and millions of requests that are going to come in.

To be clear, that doesn’t mean they are giving law enforcement geolocation data on 8 million people. He’s talking about the wonderful automated backend Sprint runs for law enforcement, LSite, which allows investigators to rapidly retrieve information directly, without the burden of having to get a human being to respond to every specific request for data.  Rather, says Sprint, each of those 8 million requests represents a time when an FBI computer or agent pulled up a target’s location data using their portal or API. (I don’t think you can Tweet subpoenas yet.)  For an investigation whose targets are under ongoing realtime surveillance over a period of weeks or months, that could very well add up to hundreds or thousands of requests for a few individuals. So those 8 million data requests, according to a Sprint representative in the comments, actually “only” represent “several thousand” discrete cases.

As Kevin Bankston argues, that’s not entirely comforting. The Justice Department, Soghoian points out, is badly delinquent in reporting on its use of pen/trap orders, which are generally used to track communications routing information like phone numbers and IP addresses, but are likely to be increasingly used for location tracking. And recent changes in the law may have made it easier for intelligence agencies to turn cell phones into tracking devices.  In the criminal context, the legal process for getting geolocation information depends on a variety of things—different districts have come up with different standards, and it matters whether investigators want historical records about a subject or ongoing access to location info in real time. Some courts have ruled that a full-blown warrant is required in some circumstances, in other cases a “hybrid” order consisting of a pen/trap order and a 2703(d) order. But a passage from an Inspector General’s report suggests that the 2005 PATRIOT reauthorization may have made it easier to obtain location data:

After passage of the Reauthorization Act on March 9, 2006, combination orders became unnecessary for subscriber information and [REDACTED PHRASE]. Section 128 of the Reauthorization Act amended the FISA statute to authorize subscriber information to be provided in response to a pen register/trap and trace order. Therefore, combination orders for subscriber information were no longer necessary. In addition, OIPR determined that substantive amendments to the statute undermined the legal basis for which OIPR had received authorization [REDACTED PHRASE] from the FISA Court. Therefore, OIPR decided not to request [REDACTED PHRASE] pursuant to Section 215 until it re-briefed the issue for the FISA Court. As a result, in 2006 combination orders were submitted to the FISA Court only from January 1, 2006, through March 8, 2006.

The new statutory language permits FISA pen/traps to get more information than is allowed under a traditional criminal pen/trap, with a lower standard of review, including “any temporarily assigned network address or associated routing or transmission information.” Bear in mind that it would have made sense to rely on a 215 order only if the information sought was more extensive than what could be obtained using a National Security Letter, which requires no judicial approval. That makes it quite likely that it’s become legally easier to transform a cell phone into a tracking device even as providers are making it point-and-click simple to log into their servers and submit automated location queries.  So it’s become much more  urgent that the Justice Department start living up to its obligation to start telling us how often they’re using these souped-up pen/traps, and how many people are affected.  In congressional debates, pen/trap orders are invariably mischaracterized as minimally intrusive, providing little more than the list of times and phone numbers they produced 30 years ago.  If they’re turning into a plug-and-play solution for lojacking the population, Americans ought to know about it.

If you’re interested enough in this stuff to have made it through that discussion, incidentally, come check out our debate at Cato this afternoon, either in the flesh or via webcast. There will be a simultaneous “tweetchat” hosted by the folks at Get FISA Right.

Who Reads the Readers?

This is a reminder, citizen: Only cranks worry about vastly increased governmental power to gather transactional data about Americans’ online behavior. Why, just last week, Rep. Lamar Smith (R-TX) informed us that there has not been any “demonstrated or recent abuse” of such authority by means of National Security Letters, which permit the FBI to obtain many telecommunications records without court order. I mean, the last Inspector General report finding widespread and systemic abuse of those came out, like, over a year ago! And as defenders of expanded NSL powers often remind us, similar records can often be obtained by grand jury subpoena.

Subpoenas like, for instance, the one issued last year seeking the complete traffic logs of the left-wing site Indymedia for a particular day. According to tech journo Declan McCullah:

It instructed [System administrator Kristina] Clair to “include IP addresses, times, and any other identifying information,” including e-mail addresses, physical addresses, registered accounts, and Indymedia readers’ Social Security Numbers, bank account numbers, credit card numbers, and so on.

The sweeping request came with a gag order prohibiting Clair from talking about it. (As a constitutional matter, courts have found that recipients of such orders must at least be allowed to discuss them with attorneys in order to seek advise about their legality, but the subpoena contained no notice of that fact.) Justice Department officials tell McCullagh that the request was never reviewed directly by the Attorney General, as is normally required when information is sought from a press organization. Clair did tell attorneys at the Electronic Frontier Foundation, and  when they wrote to U.S. Attorney Timothy Morrison questioning the propriety of the request, it was promptly withdrawn. EFF’s Kevin Bankston explains the legal problems with the subpoena at length.

Perhaps ironically, the targeting of Indymedia, which is about as far left as news sites get, may finally hep the populist right to the perils of the burgeoning surveillance state. It seems to have piqued Glenn Beck’s interest, and McCullagh went on Lou Dobbs’ show to talk about the story. Thus far, the approved conservative position appears to have been that Barack Obama is some kind of ruthless Stalinist with a secret plan to turn the United States into a massive gulag—but under no circumstances should there be any additional checks on his administration’s domestic spying powers.  This always struck me as both incoherent and a tragic waste of paranoia. Now that we’ve had a rather public reminder that such powers can be used to compile databases of people with politically unorthodox browsing habits, perhaps Beck—who seems to be something of an amateur historian—will take some time to delve into the story of COINTELPRO and other related projects our intelligence community busied itself with before we established an architecture of surveillance oversight in the late ’70s.

You know, the one we’ve spent the past eight years dismantling.

Understanding the Consequences of Internet Regulation

In an effort to achieve “network neutrality” online, the FCC is starting to write new regulations for Internet providers.  Reuters reports:

U.S. communications regulators voted unanimously Thursday to support an open Internet rule that would prevent telecom network operators from barring or blocking content based on the revenue it generates.

The proposed rule now goes to the public for comment until Jan. 14, after which the Federal Communications Commissions will review the feedback and possibly seek more comment. A final rule is not expected until the spring of next year.

Cato Director of Information Policy Studies Jim Harper appeared on Fox News this week to discuss the FCC decision. “This is governmental tinkering with a market place that is working really well and growing right now,” said Harper. “The last thing we need is to cut that off.”

Watch:

There are ways to achieve net neutrality without regulation, says Timothy B. Lee:

An important reason for the Internet’s remarkable growth over the last quarter century is the “end-to-end” principle that networks should confine themselves to transmitting generic packets without worrying about their contents. Not only has this made deployment of internet infrastructure cheap and efficient, but it has created fertile ground for entrepreneurship. On a network that respects the end-to-end principle, prior approval from network owners is not needed to launch new applications, services, or content.

…Like these older regulatory regimes, network neutrality regulations are likely not to achieve their intended aims. Given the need for more competition in the broadband marketplace, policymakers should be especially wary of enacting regulations that could become a barrier to entry for new broadband firms.

Read the whole thing.