Advocacy Group Says Canadian ISPs Should Be Required To Hand Over Subscriber Data Without A Warrant

from the unintended-consequences,-anyone? dept

Rob Hyndman points us to the news that a Canadian "victims advocacy group" called Victims of Crime has put out a report on how the government should deal with "internet-facilitated child sexual abuse." You should recognize that the recommendations are ridiculous by the way they describe the problem: "internet-facilitated child sexual abuse." Notice that they're including the internet as a part of the problem, rather than just a tool that's being used. The report starts off by making a bad assumption: that the internet is responsible for an increase in child sexual abuse by stating: "internet-facilitated child sexual abuse is growing at an alarming rate. Between 1998 and 2003, the number of charges for production or distribution of child pornography increased by 900 percent...." Now, that could mean that there has been an increase... or it could mean that more resources have been put towards lawsuits or (perhaps) that the internet has enabled law enforcement to collect more evidence to bring charges. In other words, you could easily interpret that evidence to mean that the internet has been an amazing help in bringing justice to those involved in such evil acts.

But where the report gets really troubling is the suggestions on what the government should do:

• introducing legislation to make it mandatory for Internet service providers to give law enforcement basic customer name and address information upon request;
• requiring internet service providers to keep data and internet surfing records for longer periods to ensure that evidence is not destroyed; and
• making it a criminal offence to refuse to give law enforcement a password or encryption information during an investigation.

In other words, throw all privacy rights out the window, don't require any evidence of wrongdoing or a court warrant and massively increase the costs for ISPs. And do they not think such laws would be abused? If police can simply request detailed information with no oversight, how quickly will it be abused to seek out anonymous detractors? Law enforcement and politicians have tried to seek out anonymous commenters many times, but usually a court is there to try to protect the right to anonymity and privacy. Yes, it's no doubt that child sexual abuse is a horrific crime and we're all for law enforcement doing whatever they can to crack down on it. But throwing out all privacy rights or due process is likely to have many, many, many negative unintended consequences.

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Mixed Decisions Concerning Police Searches Of Your Mobile Phone On Arrest

from the legal-or-not? dept

A year ago, we had a lively discussion around here concerning the legal question of whether or not police could search your mobile phone if you are stopped for a traffic violation. It seems that the question is far from settled. Declan McCullagh details two separate lawsuits in which judges came to opposite conclusions about the rights of police to search mobile phones or other devices on persons being arrested. It's clearly allowed to search through physical belongings -- but when it comes down to digital belongings, it's not at all clear. It comes down to the same issue being debated concerning laptop searches at the border. Traditional law concerning such searches assumes that what you have on you is stuff you purposely chose to bring on that trip. However, in a digital age, where your devices "keep everything" the opposite is true. You automatically bring everything and only exclude that which you purposely choose to leave out. Thus, the old laws don't really make much sense and could lead to some dangerous and highly questionable scenarios. Hopefully, the courts will recognize this before too long.

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Court Says Feds Need A Warrant To Listen To Touchtone Beeps Too

from the beep-boop-bop-beep-beep-beep-beep dept

While there are still arguments over the legality of the government's warrantless wiretap program, apparently there's been a separate court case looking at whether or not a warrant is needed if the authorities are just listening to your touchtone dialing, rather than the contents of the call itself. The feds felt that if it was just the touchtone beeps, then they didn't need any warrant at all -- but a court has now shot that theory down. The feds tried to claim that such data was not "content" which would trigger the need for a warrant -- but considering that with today's touchtone IVR systems, such data could include passwords, PINs, social security numbers and other private data, it seems perfectly reasonable to suggest a warrant is necessary.

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UK Police Now Allowed To Hack Home PCs Without Court Approved Warrant

from the that-doesn't-seem-right... dept

In the US, the FBI has been known to use various hacking techniques, such as installing spyware or a keylogger on suspects' computers -- though it's unclear if they obtain warrants before doing so. Over in the UK, police are now allowed to hack into computers of suspects without any court-approved warrant. Not surprisingly (and, reasonably) this has civil libertarians up in arms. It's difficult to understand how any country that believes in civil liberties could do such a thing without some form of checks and balances in the form of a warrant. Otherwise, you're just asking for such a program to be widely abused.

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GPS Device Data Increasingly Being Used By Police To Determine Where You Were

from the privacy-schmivacy dept

Late last years, the news broke that law enforcement officials had figured out a neat little loophole to obtain location data on you without having to seek a warrant on you using the probable cause standard. Instead, they're seeking warrants not on the individual, but on the companies that may have data on your location, which only requires a magistrate judge's approval, and no showing of probable cause. So, how is this playing out? Well, reader JB points us to the news of a sudden growth in lawsuits where police are using data from GPS units to help convict people based on their location at the time of the crime. Since the police can get that data directly from the company without needing to show probable cause, it's much easier for them to get the data to convict people or push them into plea bargaining. So, while those turn-by-turn directions may be useful, recognize that they may also be used by the police against you in court.

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FBI Apparently Believes That Court Orders Are For Suckers

from the data-mining-the-FBI dept

Wired's invaluable Ryan Singel has been panning for gold in the muddy stream of FBI e-mails and other documents recently obtained by the Electronic Frontier Foundation under a Freedom of Information Act request, and has already hit a couple of intriguing nuggets, such as overeager agents' willingness to bypass court-order requirements when seeking cell phone records. The documents reveal how this caused tension and dispute even within the Bureau.

One e-mail, from a tech specialist in the FBI's Minneapolis office, complained that other agents would even pose as that specialist when calling telecom carriers, hoping to persuade them to turn over cell records without a judge's order. The cell information would apparently then be used as part of a high-tech tracking program that allowed agents to pinpoint a cell user's location.

Equally intriguing is the report that the Bureau's national-security wiretapping software recorded almost 28 million "session" intercepts in 2006. While it's not clear precisely what counts as a "session," this is obviously vastly more than the 2,176 FISA warrants (pdf) obtained by the government that year, at least some of which only covered physical searches. Unless terror suspects talk on the phone far more than the average teenager, the discrepancy hints that each warrant may have covered a very large number of individuals.

Julian Sanchez is an expert at the Insight Community. To get insight and analysis from Julian Sanchez and other experts on challenges your company faces, click here.

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Secrecy Plus Immunity Eliminates Accountability

from the trust-us,-we're-from-the-government dept

Former Attorney General John Ashcroft takes to the pages of The New York Times to defend legal immunity for telecom companies that cooperate with government surveillance programs. Ashcroft cites the "inherent unfairness of requiring companies to second-guess executive-branch legal judgments" when they have received "explicit assurances from the highest levels of the government that the activities in question were authorized by the president and determined to be lawful."

Yet the Protect America Act passed this summer, which the White House has been pushing to make permanent, apparently expects them to do precisely that. One of the very few provisions for judicial oversight of the secretive surveillance authorized by that act is a clause allowing companies to challenge requests for information before the Foreign Intelligence Surveillance Court. As Qwest has already discovered, firms deemed uncooperative by the government may face serious consequences, such as the loss of lucrative contracts. If the countervailing threat of private lawsuits is eliminated—and in particular if legislators create the expectation that cooperation with extralegal demands can always be retroactively blessed—firms have no motive beyond sheer public-spiritedness to raise objections to specific requests, however unreasonable those requests might seem.

Under the current law, the court's only other point of contact with the wiretap program comes at the most general and abstract level. Traditionally, though, courts have entertained both "facial" and "as applied" challenges to statues—objections in practice as well as in principle. Since the point of secret surveillance is that its subjects may never learn it occurred, removing the telecoms' incentive to raise questions effectively dispenses with that second check. As legal scholar Jack Balkin has argued, secrecy plus immunity eliminates accountability.

Julian Sanchez is an expert at the Insight Community. To get insight and analysis from Julian Sanchez and other experts on challenges your company faces, click here.

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