Topic: Law and Civil Liberties

How the NSA Stole the Keys to Your Phone

A blockbuster story at The Intercept Thursday revealed that a joint team of hackers from the National Security Agency and its British counterpart, the Government Communications Headquarters (GCHQ), broke into the systems of one of the world’s largest manufacturers of cell phone SIM cards in order to steal the encryption keys that secure wireless communications for hundreds of mobile carriers—including companies like AT&T, T-Mobile, Verizon, and Sprint.  To effect the heist, the agencies targeted employees of the Dutch company Gemalto, scouring e-mails and Facebook messages for information that would enable them to compromise the SIM manufacturer’s networks in order to make surreptitious copies of the keys before they were transmitted to the carriers. Many aspects of this ought to be extremely disturbing.

First, this is a concrete reminder that, as former NSA director Michael Hayden recently acknowledged, intelligence agencies don’t spy on “bad people”; they spy on “interesting people.”  In this case, they spied extensively on law-abiding technicians employed by a law-abiding foreign corporation, then hacked that corporation in apparent  violation of Dutch law. We know this was hardly a unique case—one NSA hacker boasted in Snowden documents diclosed nearly a year ago about “hunting sysadmins”—but it seems particularly poetic coming on the heels of the recent Sony hack, properly condemned by the U.S. government.  Dutch legislators quoted in the story are outraged, as well they should be.  Peaceful private citizens and companies in allied nations, engaged in no wrongdoing, should not have to worry that the United States is trying to break into their computers.

Second, indiscriminate theft of mobile encryption keys bypasses one of the few checks on government surveillance by enabling wiretaps without the assistance of mobile carriers. On the typical model for wiretaps, a government presents the carrier with some form of legal process specifying which accounts or lines are targeted for surveillance, and the company then provides those communications to the government.  As the European telecom Vodaphone disclosed last summer, however, some governments insist on being granted “direct access” to the stream of communications so that they can conduct their wiretaps without going through the carrier.  The latter architecture, of course, is far more susceptible to abuse, because it removes the only truly independent, nongovernmental layer of review from the collection process. A spy agency that wished to abuse its power under the former model—by conducting wiretaps without legal authority or inventing pretexts to target political opponents—would at least have to worry that lawyers or technicians at the telecommunications provider might detect something amiss. But any entity armed with mobile encryption keys effectively enjoys direct access: they can vacuum up cellular signals out of the air and listen to any or all of the calls they intercept, subject only to internal checks or safeguards. 

There are, to be sure, times when going to the target’s carrier with legal process is not a viable option—because the company is outside the jurisdiction of the United States or our allies. Stealing phone keys in bulk is certainly a much easier solution to that problem than crafting interception strategies tailored to either the specific target or specific uncooperative foreign carriers. Unfortunately, the most convenient solution in this case is also a solution that gives the United States (or at least its intelligence community) a vested interest in the systematic insecurity of global communications infrastructure. We hear a great deal lately about the value of information sharing in cybersecurity: Well, here’s a case where NSA had information that the technology American citizens and companies rely on to protect their communications was not only vulnerable, but had in fact been compromised. Their mission is supposed to be to help us secure our communications networks—but having chosen the easy solution to the problem of conducting cellular wiretaps, their institutional incentives are to do just the opposite.

Finally, this is one more demonstration that proposals to require telecommunications providers and device manufacturers to build law enforcement backdoors in their products are a terrible, terrible idea. As security experts have rightly insisted all along, requiring companies to keep a repository of keys to unlock those backdoors makes the key repository itself a prime target for the most sophisticated attackers—like NSA and GCHQ. It would be both arrogant and foolhardy in the extreme to suppose that only “good” attackers will be successful in these efforts. 

Police Officers Must Keep the Cameras Rolling

Recently released dash camera footage of an arrest in St. Louis, Missouri offers an example of the disturbing flippancy with which cameras can be turned off during police interactions with the public.

According to a police report, on the evening of April 10, 2014, officers Nathaniel Burkemper and Michael Binz stopped a silver Ford Taurus after it made an illegal U-turn and “abruptly parked.” Only minutes earlier, 911 operators had received calls reporting shots fired. One of the calls mentioned a silver car with big rims.

Footage from the dash camera on Burkemper and Binz’s cruiser shows that shortly after the Ford Taurus pulls over, Binz moves to the passenger side of the vehicle, where he searches and handcuffs the passenger. Burkemper speaks to the driver, Cortez Bufford. Burkemper filed a report stating that he smelled marijuana and that both Bufford and his passenger did raise their hands when asked. However, Bufford reportedly “became agitated.” From the St. Louis Post-Dispatch:

Bufford “became agitated,” Burkemper wrote, refusing to give his name and reaching for a pants pocket before the officer warned him to keep his hands in view. Bufford refused orders to get out. Burkemper called for backup when Bufford became “increasingly hostile.”

The report says Binz told Burkemper he had found two bullets in the passenger’s pocket. Burkemper then ordered Bufford out again, saying he was under arrest. Bufford unlocked his door, but refused to exit.

The dash camera footage shows officers pulling Bufford from the car. Then, at least seven officers are involved in kicking, tasing, and subduing Bufford while he is on the street. According to Burkemper’s report, once Bufford was on the street he struggled and reached for his pocket. The  Post-Dispatch reports that Binz “recovered a Kel-Tec 9mm semi-automatic pistol with four rounds in the magazine and one in the chamber.”

Defending the Right to Offend

Between 1861 and 1865, Texas was in a state of rebellion, waging war against the United States under the flag of the Confederacy. Texas has never offered any indication that it’s ashamed of this history. Indeed, the state recognizes April as Confederate History Month and spends January 19 celebrating Confederate Heroes Day. Yet now Texas is before the Supreme Court, arguing that its citizens’ sensibilities must be spared the sight of the Confederate flag in one particular context.

The case involves a state agency that knows well what it is to cause universal offense: the Department of Motor Vehicles. Texas’s DMV, like that of many states, runs a program that allows private organizations such as charities, universities, and businesses to design their own “specialty” license plates—not to be confused with “vanity” plates, where the vehicle owner chooses the letters/numbers on her plate—which can then be purchased through the DMV. The current range of customized plates on offer in the Lone Star State include messages that are patriotic (“God Bless America”), fannish (“Dallas Cowboys”), socially conscious (“Be a Blood Donor”), commercial (“Dr. Pepper”), and completely immoral (“Young Lawyers”).

These custom plates include a near-limitless variety of slogans, symbols, logos, and color patterns—something for everyone’s taste. Except the Sons of Confederate Veterans. Their design, which included a miniature depiction of the Confederate battle flag, was rejected by the DMV on the grounds that some members of the public would find it offensive.

It’s certainly right about that—and the relevant statute authorizes the DMV to reject any design that “might be offensive to any member of the public”—but do we really want the government determining what’s “too offensive”?

Federal Judge Stops Obama’s Executive Action on Immigration

Late last night, as the DC area braced for a snowstorm, a federal judge in Brownsville, Texas granted a temporary injunction to the executive action that President Obama announced in November. The expanded Deferred Action for Childhood Arrivals (DACA) was set to go into effect tomorrow, with the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) starting up in May, so a quick ruling was expected after Judge Andrew Hanen held a hearing last month. And based on how that hearing went, it’s no surprise that Texas and the 25 other states suing the federal government succeeded in stopping the executive action at least temporarily.

Is “Colorado’s Marijuana Money Going Up In Smoke?”

NPR has an interesting story about the interaction between Colorado’s tax revenue from legalized marijuana and its Taxpayer Bill of Rights (TABOR):

Colorado voters overwhelmingly supported state taxes on marijuana, and the state collected tens of millions of dollars in the first year of legalization. But in a strange twist, all those taxes raised from pot may have to be refunded because of a quirk in the state’s constitution. That means money earmarked for schools and drug prevention programs could be lost unless lawmakers agree on a solution.

Liberal supporters of legalization will worry that this conflict threatens to invalidate a key argument for legalization; conservative opponents will use the conflict to claim legalization was oversold.

But libertarian legalizers should not care much either way.  The crucial arguments for legalization are increased freedom for marijuana users and decreased prohibition costs for everyone, not increased tax revenue.

So if Coloradans end up with legal marijuana and an income tax refund, that’s just fine.

Judges Say No To Obama Labor Regulators’ Hot Blueberry Crush

What does federal labor law have in common with civil forfeiture law? As I write at Reason:

Under a provision of the 1938 Fair Labor Standards Act, the U.S. Department of Labor can seek what is known as a “hot goods” order, freezing the physical output of an employer that it suspects of having violated wage and hour law, all without having to prove its case at a trial.

Until lately the procedure was little known to the general public, but the Obama administration, amid its general all-fronts offensive to expand wage and hour law and intensify its enforcement, has begun using it against farmers in a series of actions. Applied to agriculture, a “hot goods” order is even more than usually coercive, because both sides know the crop will rot if not brought to market soon. Moreover, as in many forfeiture cases, the freezing of a target’s most valuable asset may mean that it cannot afford legal help to appeal or otherwise challenge what has happened — all of which gives the federal government the leverage to get what it wants in resulting negotiations without having to test the strength of its case at trial.

Now, however, a federal judge has slapped down the administration hard in a Pacific Northwest case that farm groups had described as “extortion.” In a humiliating defeat, the Department of Labor has agreed to drop charges against two Oregon blueberry growers and refund the moneys extracted from them. It’s a case that should rally attention to the need to roll back the Department’s powers in this area.

My whole Reason piece is here.