Search and Seizures - interception of communication: US

For the US, but to which extent it applies elsewhere?

Judge Says DHS Can't Hang Onto Travelers Laptops To Search Much Later Without A Warrant (TechDirt 11 June 2010)

Police And Courts Regularly Abusing Wiretapping Laws To Arrest People For Filming Cops Misbehaving In Public Places (TechDirt, 04 June 2010)

Court Says Border Patrol Can Take Your Laptop For Off-Site Search If They Have Reasonable Suspicion (TechDirt, 03 June 2010)

Hyping issues up: distortions when it comes to internet

1 - "The Real Problem With Internet Comments Isn't Anonymity" (TechDirt, 12 April 2010). That I would agree; people before internet could be anonymous for the better or for the worse (blackmail...). They could also be discovered and were accepting the risk; so why not now? Why the internet should change anything in us allowing anonymity? What we need is better education for people to understand the impact of their behaviours and better policing, but not an end to anonymity.
"Judge Who Was Revealed As Anonymous Commenter Sues Newspaper For $50 Million" (TechDirt, 8 April 2010)
"Israeli Supreme Court Says There Is No Legal Way To Reveal Anonymous Commenters Online" (TechDirt, 1 April 2010)
Columnist Claims Anonymity Is Bad For Our Country (TechDirt, 31 March 2010)


2 - "Dear Journalists: There Is No Cyberwar" (TechDirt, 9 April 2010). I don't completely agree. Governments use and will use the new technologies to attack and the disruptions will be different.

3 - As Cyberbullying Moral Panics Heat Up, Actual Rates Of Cyberbullying Decreasing (TechDirt, 9 April 2010). Well yes and no. Cyberbullying is a problem like its off-line version, but it is probably not so much of a problem as it is made up.

Similar distortion in the understanding of the law in order to catch behaviours we find offensive but which are not necessarily legal:
Son Gets Mom Charged With Harassment Over Facebook Account Hijacking (TechDirt, 8 April 2010) - apparently, the son lets the computer logged in; that is unauthorised access in the UK!
And if this is true, it is even worse: Sarkozy Kicks Off Criminal Investigation Into Blog/Twitter Reports He Had An Affair (TechDirt, 7 April 2010)

4 - or distortion in the use of the law: "Court Says President Bush Violated Wiretapping Laws With Warrantless Wiretap" (TechDirt, 31 March 2010) with Wired having published the decision from NorthDistrict Court of California http://www.wired.com/images_blogs/threatlevel/2010/03/walker.pdf

This affair echoes two others about procedure and the difficulties to conceptualise it:
"Leaving Your WiFi Open Decreases Your Fourth Amendment Rights To Privacy?" (TechDirt, 10 February 2010) - I can't see how there is less privacy if you leave your mobile phone or your landline accessible to people from the outside
"Duh, Don't Leave A Thumb Drive With Child Porn Plugged Into A Shared Computer" (TechDirt, 22 April 2010) - no expectation of privacy for a US court when the thumb drive is plugged in. I would agree (like Masnick and unlike Kerr with whom I seem to disagree quite a lot - he writes on VWs). Kerr argues the thumb drive is like a suitcase in a public space; inaccurate if it is plugged in as everybody can see what's in it, like an open suitcase (aka Masnick).

and see "Les points-clés du projet de loi Loppsi" (LeMonde, 09 February 2010)

Surveillance

Apparently, "Obama Quietly Issues Ruling Saying It's Legal For The FBI To Break The Law On Accessing Phone Records" (TechDirt, 22 January 2010)

and I find this even more astonishing: the harm exists, it is to each individual. "Judge Dismisses Lawsuit Over Warrantless Wiretapping, Appeal Planned" (TechDirt, 22 January 2010)

It is as astonishing as Bill Gates stating it's business and if Google does not want to comply to China, too bad! http://www.business-humanrights.org/Documents/MicrosoftreChinacensorship (25 January 2010)

Surveillance

"Rather Than Blaming Twitter, NY Police Using It To Track Gang Activity" (TechDirt, 01 December 2009)

Surveillance

"US gov't agencies sued over Facebook surveillance" (ZDnet.co.uk, 02 December 2009) Different watchdogs decided to ask the US federal government for their guidelines in how they use social networks to monitor citizens' behaviours.

A similar policy would not be amiss in the UK given the new UK cybersecurity Centre and the complete inadequacy of the RIPA to protect citizens' privacy from interference by whichever government agencies "Government curbs councils' Ripa powers" (ZDnet.co.uk, 04 November 2009)

"UK cybersecurity centre starting operations in March" (ZDnet.co.uk, 13 November 2009)

and the more general view of Thomas Berners-Lee "Web under threat from 'snooping' authorities" (Euractiv, 04 December 2010)

data retention - analysis of policies

The German Working group on data retention produced the following report:

Position on the processing of traffic data for “security purposes” (21 March 2009) on the statewatch website

Surveillance: EU Commission & responses to the Stockholm programme

In its Communication 262/4, on 10 June 2009, to the EU Parliament and the COuncil, the EU Commission seems to favour "wider freedom in a safer environment" so that there can be "An area of freedom, security and justice serving the citizen" (p. 2, 16).
http://www.statewatch.org/news/2009/jun/eu-com-stockholm-prog.pdf

The problem is as usual: safety is done through sharing of information. But how this information is collected and used remained very much undefined... So not surprisingly, there are oppositions to the Stockholm programme
See the Statewatch's summary: http://www.statewatch.org/future-group.htm (
and also the seminar organised on 31 may 2009 http://www.statewatch.org/news/2009/may/surveillance-states-seminar.pdf

with references to the European Civil Liberties Network's own analysis http://www.ecln.org/ECLN-statement-on-Stockholm-Programme-April-2009-eng.pdf

One can only agree when one looks at the EU Council's report of the "Check the Web" project launched in 2007 and presented by Europol to the COuncil on 15 May 2009 http://www.statewatch.org/news/2009/jun/eu-europol-use-of-personal-data-in-the-check-the-web-project-9604-09.pdf
and the analysis provided by Cryptohippie on Statewatch's website, which describes well what is a police state and how blissfully unaware we can be until it is too late http://www.statewatch.org/news/2009/jun/electronic-police-state-2008.pdf

See also, Watching the computers. Function creep allows EU states to use intrusive remote computer searches to target any crime, however minor (TheGuardian, 9 June 2009)

the fact that the surveillance attitude is widespread does not help Canadian Politicians Want To Pass Internet Snooping Legislation (TechDirt, 19 June 2009)

And contrary to the wide-spread feeling, security is not a justification per se for surveillance even if obviously increased CCTV and the like can help detecting crime As Google Agrees To Delete Unblurred Street View Images In Germany, One Is Used To Solve A Crime

Finally, see EU Parliament on the subject
with its "REPORT with a proposal for a European Parliament recommendation to the Council on strengthening security and fundamental freedoms on the Internet
(2008/2160(INI))" (25 February 2009)

and the HL view on procedural rights in EU criminal proceedings http://www.statewatch.org/news/2009/may/eu-hol-ec-procedural-rights.pdf

"pro"-piracy policy, anti-piracy policy and distorted language and

Woman Who Owned No Computer, But Got Sued By The RIAA, 'Settles' Techdirt: "Woman Who Owned No Computer, But Got Sued By The RIAA, 'Settles'" (TechDirt, 19 June 2009)

As pointed out, one cannot settle when the facts established demonstrate an impossibility to commit the action. The RIAA is manipulating the language to appear victorious when its actions embody utter failure.
More troubling, is the issue of evidence. What would have happened if this woman owned a computer but never filed share? How is the RIAA collecting its evidence? Are we not here faced with illegal surveillance?

In that sense, Norway's position to avoid general surveillance for just an issue of IP makes much more sense.
Norway Decides Privacy Is More Important Than Protecting The Entertainment Industry's Business Model (TechDirt, 24 June 2009)

Obviously, Norway's position obliges to rethink piracy and the IP rules. The analysis of Shakespeare's work and how the famous poet and writer borrowed from traditional folk tales and their various interpretations by other authors is quite enlightening about the real issue IP legislation create, especially in a world which works on the basis of networks and sharing.
"Would King Lear Ever Have Been Written If Copyright Law Existed?" (TechDirt, 23 June 2009)
"The Guardian Embraces Crowdsourcing The News In Useful Ways" (techDirt, 24 June 2009) (The Guardian put online all the data on the MPs' expenses scandal - ordinary people digged out what they found interesting and journalists just check and put the information within a broader perspective

Fight against fraud

"Soca puts a clamp on cybercrime" (ZDnet.co.uk, 15 May 2009)

"The Rise Of Corporate Identity Fraud" (TechDirt, 11 May 2009)

Databases and data retention: are we giving up our liberties?

the five databases on custody, crime, intelligence, child abuse and domestic abuse should be put together via the use of new technologies.
Apart from the usual privacy issues, I don't think it is bad in itself. Let's face it: it was bound to happen because that what new technologies do. When fingerprinting arrived in 19th century, massive information (especially at the time) was collected and used. Nobody sees anything against it nowadays. And whatsoever, it is one way or another controled by the courts as it is related to criminal offences

"Police database is 'major new weapon' against crime" (ZDNet.co.uk, 6 April 2009)

On the other hand, I find it troubling that internet data can be retained. Apart from the technical side of how to use the data (frankly, if one does not use traditional investigatory techniques, how do you go through the materials?), I am puzzled by what it means in terms of control on citizens. Schematically, internet is used for e-mail, blogs (and the like), and website/shopping.
I don't see where Government can justify spying on e-mail traffic: one of the greatest advances in human rights in the 18th century was the privacy of letters (contents and where they go); why should it be different with the internet? the fear of crime CANNOT be an excuse to give away one of our liberties that our ancestors thought for, sometimes risking their lives in order to obtain those liberties.
Similarly, I don't see how we can justify spying on blogs/facebook type of traffic: do we spy on phone conversations? Well officially you need a warrant, don't you?
Similarly, for the rest of the traffic: I can't understand the basis of such a measure.

Internet data-retention law comes into force (ZDnet.co.uk, 6 April 2009)

"Just So We're Clear: More Data Isn't Better Data" (TechDirt, 8 April 2009)

"EFF: Obama DOJ's Warrantless Wiretapping Arguments Are Worse Than Bush's" (TechDirt, 8 April 2009)

At the end of the day, our liberties are eroded in the name of crime and fear of crime. Liberties are not better protected by giving them up. Time to stand up. In that sense, I just finished going through the near 300 pages of Hypercrime. the new geometry of Harm by M. McGuire (Routledge, 2007). Although I don't agree with all what the author is saying, it conforts what I always thought: before affirming that the internet is per se different, let's compare with what happened in the past. McGuire's study is sociological and very valuable; I wish a lawyer could write the same book on a legal perspective. It would deflate the Government and media's hype we keep hearing about cybercrime.

ISPs and investigations - report of abuse

Absolutely right, ISPs should not be the primary interface into dealing with investigations. The threat does not justify to forgo our liberties.

New Jersey The Latest To Try To Regulate Social Networks... For The Children (TechDirt, 3 April 2009)

Same reflection: since when Government asks us the names in our address book? That it is online is absolutely no excuse.

"British Goverment Wants To Know Who Your Facebook Friends Are" (TechDirt, 31 March 2009)

No limits to surveillance? crime, internet, secret agencies, and police forces' wishes to hack

1. The following interview is extremely interesting in terms of technical aspects of surveillance and implied human rights/ethics breaches. First, F-secure as an anti-virus company never received information from Government when police forces use Trojan. In other words, F-secure blocks Trojans without discrimination on their origing. So the question is: can police forces overcome the barrier anti-virus softwares create? I wonder who will answer that one.
   Secondly, hacking if used by police forces creates technical difficulties: how do you cypher through the mass of data? how do you comply with basic procedural rules if you do not want evidence to be later discarded? The answer is our third point: the interviewee suggests that the main reason for wanting to hack would be organised crime like drug-trafficking. For those, there are often specific rules about covert investigations.
   
   "Privacy vs protection: Police and the right to hack" (ZDnet.co.uk, 17 March 2009)
   
2. Overall, what is surprising is how the internet and its characteristics seem to be used to justify a level of surveillance that simply never existed and a breach of basic human rights that is unthinkable outside the world of cybercrime/ technology-based crime. Why that fear of crime?

Even the creator of the web opposes it: "Berners-Lee says no to internet 'snooping' " (ZDnet.co.uk, 11 March 2009)

"Gov't may track all UK Facebook traffic" (ZDnet.co.uk, 18 March 2009) and Facebook's response"Facebook attacks gov't web-monitoring plans" (ZDnet.co.uk, 24 March 2009)

"Does 'Cyber-Security' Mean More NSA Dragnet Surveillance?" (TechDirt, 17 March 2009)

"White House Says Feds Should Have Unfettered Access To Mobile Phone Location Info" (TechDirt, 18 March 2009)

3. Lastly, the study by Cl. Guerrier (in French - abstract in English) shows that in the US, Germany, and France, interception of communications is at the same time authorised and controled by the creation of an agency. The problem is the effectiveness of the control done.

"Aux USA, en Allemagne, en France, quelle protection de la vie
privée en matière d’interceptions de télécommunication ?" (Juriscom, 9 March 2009)

Skype and interception of communication (update)

A very interesting article (because of the details provided) has been written in French. The reason why Skype's communications are difficult to intercept is that they are using encryption keys that Skype, so far, has refused to communicate.
A software is available that allows for decryption: Digitask. But it costs, according to the article, 3500 euros to acquire, and more importantly, 2500 euros to use and for each interception; in other words, a fortune for police forces. This is why police officers are so keen in obtaining the keys from Skype itself.
Given that both Germany and Italy were concerned about this, not surprising the EU started to look at the issue. Hence the Judicial Co-operation Unit launched an investigation into the possibilities to tap internet conversations, on the basis that organised crime uses Skype facilities already

"Bientôt des écoutes policières sur la VoIP ?" (JDN, 25 February 2009)

"EU to investigate VoIP-tapping techniques" (ZDnet.co.uk, 20 February 2009)

Skype and interception of communications

Skype does not allow for easy wiretapping of conversations. Anyone can imagine the potential for criminals, but also, on the good side, for dissidents. However, I don't think the loophole will remain for long; somebody somewhere will invent a good wiretapping device , if it has not already be done in China for example, as the article below suggests.

"Italian Cops Complain That They Can't Listen In On Skype" (TechDirt, 18 February 2009)

Investigation - Interception of com... - terrorism

I always found the whole idea and process of Guatanamo scary, unjustifiable and a flagrant violation of what we stand for, i.e. human rights. The use of terrorism legislation is part of the problem as it circonvenes most if not all safeguards democracy took so long to implement in the course of criminal investigations and trials. After centuries of fighting for fairness, in less than a decade, we went back to the Middle Ages and for the UK, the Star Chamber.
This issue of warrantless wiretapping is just one example out of many..."Warrantless Wiretapping Lawsuit Allowed To Move Forward Despite Ridiculous Levels Of Secrecy" (TechDirt, 6 January 2009)
Is it the legacy we want to give to our children?

Investigations - interception of communications

After "UK Releases Details, But Delays, Plan To Surveil Every Bit Of Communication" (TechDirt, 17 October 2008),
it seems to finally come into force "UK Police Now Allowed To Hack Home PCs Without Court Approved Warrant" (TechDirt, 5 January 2009)
"Police set to step up hacking of home PCs" (Times, 4 January 2009)

"Plan to extend police-hacking powers gathers pace " (ZDNet.uk, 5 January 2009)

However, I have a problem with the way the issue is presented. The Home Office has no legislative power; the main legislation regulating this area is the RIPA 2000 and statutory instruments implementing the legislation have to comply with its requirement. If the Home Office's plan becomes/is a SI, then the question is whether the RIPA provides sufficient protection.

Concerning the Brussels' move, note it is not EU Parliament but the Council of Minister's decision. It is extremely controversial if it is a means to avoid legislation restricting covert operations. Note that the ECHR Court is extremely severe in its safeguard of privacy against covert investigations.

Interception of communications and filtering

No link apparently between interception of communication in the US of phone calls and filtering in Australia with very little opt-out. Yet both methods are means to control the flow of information on the internet and give little chance on users to fight back.

"Australian Internet Filters Have No Real Opt-Out; Only Opt-In To Fewer Filters" (13 October 2008)
"NSA Abused Wiretap Rights: Intercepted, Shared Private Calls Of Americans" (9 October 2008)

Interception of communication - illegality

Just another example that the internet should not escape the rules... "Chinese Skype service censoring messages" (2 October 2008) and on TechDirt
Actually I wonder to which extend Skype's responsibility should not be engaged. But under which laws, may you reply?
(09 october 2008): the new episode of the affair is that Skype was apparently sub-contracting to a company that was spying. This is a typical case of vicarious liability both in contract law and criminal law.

To which extend tracking data by ISPs is also interception of communication I wonder... "Most People Don't Realize Their ISPs Are Already Spying On Them" (2 October 2008)

Interception of communications

Yes, interception of communications is a criminal offence; the question is what do we require and understand as a criminal intent to intercept? The City of London Police thinks it cannot be proved about BT's use of Phorm in trials. The reasoning is unclear. I just wonder if there is not a confusion here between motivation/motives and intent. Intent to intercept is knowledge that the action taken, here the use of Phorm, will lead to the ability to know about e-mails' communications by BT customers. Whether it is to improve the customer service or not is of no relevant to the criminal intent given that this would constitute the motive not the intent.

See https://nodpi.org/2008/09/22/city-of-london-police-to-complex-to-spend-public-money/ and "UK Says Phorm Clickstream Tracking Is Okay... If Clearly Explained To Customers" (19 September 2008) - well I think it is slightly different but...

Addition: obviously BT has not been detered to reuse the technology (29 September 2008) but at least customers will be asked their consent

Cyber-Investigations and human rights

To monitor the internet to detect (and deter?) crime seems a good idea at first sight. Yet objections are many:

• practical objection: is it realistic to consider being able to control the internet? It's like wanting to monitor the mail correspondance of users throughout the world. Can we imagine the FBI or Europol controlling data held by post offices? Inachievable and therefore a pretence. I don't see how the physical world of letters could be much different from the cyberworld.
• second practical objection: how on earth can you succesfully detect crime when faced with a mass of information? the old fashioned way of doing detective work (on the web understandibly) is a much more efficient than trying to cast a net so vast it would take centuries to find the problematic fish.
• theoritical objection: again, parallels with the so-called physical world enlighten thoughts. Data "held" by post offices are private even when their contents are terrorist or criminal; why should data on the web not considered as private and thus submitted to the same regulations as for obtaining private correspondance? Where are the human rights?

And yet the FBI seriously considers asking the ISPs retention of data http://www.techdirt.com/articles/20080423/184451932.shtml (23rd April 2008)

as well as Russia's authorities who would even go further by blocking traffic like China does http://www.techdirt.com/articles/20080423/185834933.shtml (24th April 2008)

Similar problem with the 9th U.S. Circuit Court of Appeals (so federal law) agreed to let searches of laptop with no specific purposes that looking in the hard drive. Why should we set up conditions for the search of a house, but not the search of a computer when nowadays the computer is like a portable home with sometimes all the documents one needs? Where are the human rights of the accused here? Gone with the wind of fear of crime...

"Is This The Best Homeland Security Can Do In Defending Laptop Searches At The Border?" (TechDirt, 10 July 2008)

http://www.techdirt.com/articles/20080422/235343924.shtml (23rd April 2008) with an update for the Electronic Frontier Foundation asks for Congress to intervene http://www.eff.org/press/archives/2008/05/01 (1 May 2008)