Senator Wyden Lays Out New 'Compact For Privacy & Security In The Digital Age' In Response To Surveillance/Encryption Fights

Say That Again

from the something-to-get-behind dept

Thu, Mar 31st 2016 6:30am — Mike Masnick

Yesterday, at the excellent RightsCon event in San Francisco, Senator Ron Wyden gave a barn burner of a speech, in which he detailed why it was so important to protect our privacy and security in a digital age, at a time when law enforcement and the intelligence communities are digging deeper and deeper into all of our personal information. He started out with a clear and emphatic statement on how he will block any attempt by Congress to undermine encryption:

I am here to tell you why I will use every power I have as a senator to block plans to weaken strong encryption. I am here to tell you why FBI Director Comey’s plans and expected legislation will be a lose-lose - they would lead to less security and less liberty

Furthermore, he made it clear that anyone who says that this just a debate between privacy and security has it totally wrong:

And let me be clear at the outset that the debate about data security is not about choosing security or choosing privacy. It is about choosing less security or choosing more security. People who think that the government should have more surveillance powers will often try to frame this debate as a choice between privacy and security. They are wrong. Our job is to convince the public that when politicians or the news media say that, we are here to tell you it’s not the case. It’s less security versus more security.

He further pointed out that, contrary to the claims of James Comey and others in law enforcement, this is the "golden age of surveillance" in that modern technologies have given law enforcement much more access to private information than they've ever had before. And he compared the freakout claims from law enforcement to similar claims 50 years ago, when the Supreme Court ruled in Miranda v. Arizona that law enforcement had to read people their rights -- and law enforcement and the media insisted this would lead to much more criminal activity:

I think that it is useful to compare this discussion to another one that was playing out fifty years ago. Fifty years ago this summer, the Supreme Court handed down a landmark decision in the case of Miranda vs. Arizona, in which the Court ruled that before law enforcement officers interrogate a suspect, they must advise that person of his or her constitutional rights. Everyone who’s ever watched a TV cop show knows this – you have the right to remain silent, you have the right to an attorney, and so forth. Today, this is a very important feature of the American justice system. It helps ensure that poor people know that they have the same rights under the law as rich people who can afford high-priced lawyers. And it helps reduce the likelihood of innocent people who are unsure about their rights being pressured to sign false confessions. The Miranda ruling helped bring our country closer to the promise of equal justice for all.

But if you had been following the public debate back in the summer of 1966, you would have heard a lot of politicians and prosecutors saying that the sky was falling. A few weeks after the decision, a New York Times headline read “Miranda Decision Said to End Effective Use of Confessions.” The article quoted some of the most respected prosecutors and law enforcement officials in the country warning that this decision was an absolute catastrophe. Future president Richard Nixon called the ruling a “Dickensian legalism” that would “hamstring” law enforcement, and he even suggested that the Constitution should be amended to overturn it.

Needless to say, the sky did not fall. In fact, crime rates have been dropping for the past twenty or thirty years. The national murder rate and burglary rate are both lower than they were the day that the Miranda ruling was handed down. Obviously there are a lot of factors that go into crime rates, but I think it’s clear that despite all of the dire warnings from both politicians and respected law enforcement officials, this ruling did not lead to the end of law enforcement in America. Fifty years later, the Miranda ruling remains a cornerstone of American due process.

From there, he announced what he's calling a new "Compact for Privacy and Security in the Digital Age" with four key prongs:

Protecting strong encryption to safeguard Americans’ private data. Wyden’s Secure Data Act would ban the government from forcing companies to build backdoors or otherwise weaken the security of their products.

Overhauling the Third Party Doctrine to make clear individuals do not lose their privacy rights just because they share some of their personal information with a particular company.

Increasing transparency by holding at least three congressional hearings each year on the privacy impacts of surveillance laws, authorities and practices.

Being on high alert for fresh attempts to undermine checks on government power. Right now the Justice Department is seeking a change to the rules for getting warrants to track computer hackers that would allow DOJ to use a single warrant to remotely access any computer that a suspected hacker is believed to have broken into. This rule change could potentially allow federal investigators to use a single warrant to access millions of computers, and it would treat the victims of the hack the same as the hacker himself.

Finally, the government must do much more to hire people who understand technology and the implications of weakening digital security and privacy.

He spent some time in his speech blasting the concept of the third party doctrine and how ridiculous it is in practice:

Here’s the problem. A few decades ago, courts began ruling that if you provide information to a third party, like your bank or your phone company, you are no longer keeping it private, and it is no longer protected under the Fourth Amendment to the Constitution.

There is a huge, glaring problem with that logic. When you share your information with a single private company, that is not the same thing as making it public. Your phone company may have records of who you call, and your bank may have records of how you spend your money, but your contract with them will have rules for when and how they are allowed to share that information. They are not allowed to just disclose it freely.

This is true in the digital world as well. When I post a handsome new profile picture on Facebook, or send out a tweet to tell people that I’m holding a town hall in Oregon, I’ve chosen to make that information public. But when I send an email to my wife, or store a document in the cloud so I can work on it later, my service provider and I have an agreement that my information will stay private. The premise in current law is that I have agreed to make that information public just because my service provider is holding it. And that premise is simply absurd.

It's yet another great speech on an important topic from Senator Wyden -- and he includes a call to action to get people who support this vision to speak out on it. As it stands right now there are a few others in Congress who get how important all of this is, but many do not. And that needs to change. And while many people will be quite cynical about this and say that we'll never get others in Congess to recognize this issue, Senator Wyden reminded everyone that many people had the same view about SOPA/PIPA and the public eventually shifted Congress' position on that as well:

We can win this fight for security and liberty. It obviously won’t be easy, but we’ve done it before. Remember in the January of 2012, we were talking about the anti-Internet SOPA and PIPA bills. The first vote was on whether to override my hold on PIPA. Talk about long odds. The Chamber of Commerce, Hollywood, all the powerful special interests were against us. When that debate started, no one gave us a chance. Then the Internet community mobilized. Websites went dark in protest. And when the dust settled, well, everyone here knows how that ended. We won. Let’s work together and do it again.

While I do worry about the tendency of some to always roll out the "SOPA example" as proof, it is true that when enough people speak up, all the lobbyists and money in the world can be defeated. And this is a time when it would be nice to see that happen again.

Ron-Wyden-on-Encryption (PDF)Ron-Wyden-on-Encryption (Text)

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Filed Under: compact for privacy & security, encryption, fbi, going dark, james comey, privacy, ron wyden, security, third party doctrine

48 Comments

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BentFranklin (profile), 31 Mar 2016 @ 6:14am

This guy is an American hero. Vote with your dollars:
https://act.myngp.com/Forms/-5547459973236783104

But, I think an Act of Congress does not go far enough. I think there needs to be a new Electronic Bill of Rights, as amendments to the Constitution.
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- Anonymous Coward, 31 Mar 2016 @ 6:58am
  
  Re:
  The Constitution already protects, it is just he endless parade of scum saying otherwise, followed up by the worthless citizens that do not know better.
  
  The 4th makes it clear that all of your effects are protected from unreasonable search and seizure.
  
  3rd party doctrine is a farce, and there are more than enough people in government and courts that have corrupted this beyond all comprehension. The expectation of Privacy is NOT THE TEST FOR WHEN LAW ENFORCEMENT CAN GATHER PERSONAL DATA OF ANY KIND. A DAMN WARRANT IS, just as stated in the 4th. Getting a warrant is the ONLY reasonable method of search and seizure of a citizens personal data, regardless of it going through a 3rd party or NOT and regardless of whether its form of transport is paper or organized electrons!
  
  But sure lets just add more fucking laws that will get ignored, continuing to ignore the real problem... that is the bastards that ignore the law and the bastards that allow them to get away with it!
  
  When this nation falls, it will because of the myriad fucking retards that actually don't give a shit about liberty, refuse to learn it, and act like they care.
  
  Your comment on their needing to be an electronic bill of rights seems to imply you like so many others don't get anything!
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Ken, 31 Mar 2016 @ 6:48am

Third party doctrine
So based on a broad reading of Third Party Doctrine, if I store something in a safe deposit box at a bank it is then in the public and freely accessible? Am i stating that correctly?

Not how I would belive most pee opl think that works....
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- Anonymous Coward, 31 Mar 2016 @ 7:05am
  
  Re: Third party doctrine
  if I store something in a safe deposit box at a bank it is then in the public and freely accessible?
  
  Only if a government agency wants access, and the way they are going they will use the same doctrine to search where you live if you do not own the property, (that is a fully paid up with no mortgage or other loan on the property).
  
  /Should be sarc, but......
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  - Anonymous Coward, 31 Mar 2016 @ 8:39am
    
    Re: Re: Third party doctrine
    Oh, you're renting your place? Well, then it's a public place!
    [ link to this | view in chronology ]
- John Fenderson (profile), 31 Mar 2016 @ 10:09am
  
  Re: Third party doctrine
  This is a great question, and I hope one of the lawyers here will address it.
  
  My guess is that the third party doctrine doesn't apply for the same reason it doesn't apply to your rental home: there is a long-established expectation of privacy with them, in the sense that whoever is renting the box or your home to you does not have legal access to its contents except under very specific circumstances.
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  - Anonymous Coward, 31 Mar 2016 @ 10:52am
    
    Re: Re: Third party doctrine
    Don't forget non-USPS owned PO Boxes.
    [ link to this | view in chronology ]
- Anonymous Coward, 31 Mar 2016 @ 10:57am
  
  Re: Third party doctrine
  if I store something in a safe deposit box at a bank
  If you leave something in the care of a banker, then you can trust that bankers are sorta-kinda rich and powerful members of society, and will side with their own class. Bankers may not be the richest and most powerful oligarchs, of course, but they will suck up to men(*) who command greater power than they.
  
  (*) Not to be sexist.
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Anonymous Coward, 31 Mar 2016 @ 6:50am

And it helps reduce the likelihood of innocent people who are unsure about their rights being pressured to sign false confessions.

If you don't know your rights then you don't have them, and likely do not deserve them!

I don't care about the fucking idiots that need to be informed of their rights for they are the enemies of a Free Republic!
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- Anonymous Coward, 31 Mar 2016 @ 7:08am
  
  Re:
  That is not the way rights, or governments are meant to work. What you are suggesting is that those who cannot defend their rights have none, and in that direction lies the rule of warlords and other tyrants.
  [ link to this | view in chronology ]
  - Anonymous Coward, 31 Mar 2016 @ 7:24am
    
    Re: Re:
    Perfect, another fellow human being that gets nothing, did not read what I said, or failed to comprehend it.
    
    Nothing I said that people who cannot defend their rights have none.
    
    What I said was that people that do not KNOW their rights have none. Not because they should not have them (they should have them), but because their ignorance can be easily taken advantage of by tyrant police officers and government officials! And depending on their age and education... there is a certain point at which you do not deserve your rights because you refuse to learn & understand them and therefore become a tax on society by allowing these tyrants to successfully establish precedent to continue to fuck citizens over because it has become so common that the rest of the idiots in the chain no longer resist the corruption and foolishly believe that it is in fact OKAY!
    
    Reality only works THIS WAY! The citizens MUST, REQUIRED, HAVE TO keep those in power REMINDED of their RIGHTS so they do not become the JOKE they have become today!
    [ link to this | view in chronology ]
    - Anonymous Coward, 31 Mar 2016 @ 8:57am
      
      Re: Re: Re:
      What I said was that people that do not KNOW their rights have none.
      
      Rights are such that other people should defend and respect everybody else's rights, even if others are not aware of their rights. To work on any other principle is to allow rights to be removed at any justification, like they are a criminal, or they are a terrorist, or they are black and therefore do not have any rights,
      [ link to this | view in chronology ]
      - Anonymous Coward, 31 Mar 2016 @ 9:01am
        
        Re: Re: Re: Re:
        Rights are such that other people should defend and respect everybody else's rights, even if others are not aware of their rights. To work on any other principle is to allow rights to be removed at any justification, like they are a criminal, or they are a terrorist, or they are black and therefore do not have any rights,
        
        That's how it should work, in theory.
        
        Sadly, reality doesn't align well with theory.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 31 Mar 2016 @ 10:52am
        
        Re: Re: Re: Re: Re:
        Sadly, reality doesn't align well with theory.
        
        This is a constant problem with most people. Theory, theory, theory and then acting like it is fact.
        
        take the 2nd for example. Anti-Gun agents think it is okay to require gun registration, but there is a problem with that.
        
        The 2nd says shall not be infringed, and this means you cannot make anyone wait for a single second to obtain a firearm because getting one without any questions asked is a constitutional right.
        
        And as long as you are okay with trampling that right, you have ZERO standing to complain when any other right is trampled on.
        
        If you don't like a right, have it constitutionally amended. That is the ONLY legitimate avenue for requiring a gun register of any kind.
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    - Anonymous Coward, 31 Mar 2016 @ 11:31am
      
      Re: Re: Re:
      This is plain old victim blaming, nothing else.
      [ link to this | view in chronology ]
      - Anonymous Coward, 31 Mar 2016 @ 12:48pm
        
        Re: Re: Re: Re:
        We are the victims and we are the cause, this is one case where "victim blaming" applies.
        
        If "We Victims" would get off our asses and do something about it, then we stop becoming victims... don't we? YOU are part of the problem, YOU do not deserve Liberty!
        
        The first step to doing something about it is to get idiots like you informed! Yes, I know up, hill battle and all that jazz, but we have to try before we are forced to go the route of the founders and do it by force rather than much prefer peaceful methods. And when force much to applied to bring reason back around again... the people getting stepped on during the process have no right to complain!
        
        Give me liberty or give me death... ring any bells for you?
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        Anonymous Coward, 31 Mar 2016 @ 1:27pm
        
        Re: Re: Re: Re: Re:
        The first step to doing something about it is to get idiots like you informed!
        You folks need to get in FORMATION.
        
        Organize to understand. Then march.
        
        Great jumpin' jeezers, already—tomorrow's April.
        
        Fool.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 31 Mar 2016 @ 6:12pm
        
        Re: Re: Re: Re: Re:
        Blow it out yer ass
        [ link to this | view in chronology ]
- jupiterkansas (profile), 31 Mar 2016 @ 7:54am
  
  Re:
  "Enemies of a Free Republic!" - gotta love that rhetoric.
  
  Rights are something you have whether you know about them or not. In a Free Republic, EVERYONE deserves rights.
  [ link to this | view in chronology ]
  - Anonymous Coward, 31 Mar 2016 @ 10:48am
    
    Re: Re:
    All that is necessary for evil to proceed is for decent to do nothing.
    
    Yes, this makes you an enemy of a free republic, because no matter how you slice the pie, you either participate in the solution or you ARE a part of the problem.
    
    The Price of Liberty is ETERNAL Vigilance, therefore there is no room for part time vigilance because the moment you take a break, is the moment seized by the corrupt to act!
    
    And you are wrong, everyone does not deserve rights! Everyone HAS rights, even when they do not deserve them.
    
    You are correct about everyone having them whether they know it or not, but again... that has NOTHING to do with whether you deserve them or not!
    [ link to this | view in chronology ]
    - Anonymous Coward, 31 Mar 2016 @ 11:32am
      
      Re: Re: Re:
      All this in a "civil" society ... yeah right.
      [ link to this | view in chronology ]
    - Anonymous Coward, 31 Mar 2016 @ 1:11pm
      
      Re: Re: Re:
      "So, Lone Starr, now you see that evil will always triumph, because good is dumb." - Dark Helmet.
      
      It's all good though. The Voice and Keeping up with the Kardashians are on tonight.
      [ link to this | view in chronology ]
- nasch (profile), 31 Mar 2016 @ 1:12pm
  
  Re:
  If you don't know your rights then you don't have them
  
  You have a different understanding of what rights are than I do.
  [ link to this | view in chronology ]
  - Anonymous Coward, 31 Mar 2016 @ 1:27pm
    
    Re: Re:
    Maybe a better way to phrase it is "If you don't know your rights, you won't exercise them."
    [ link to this | view in chronology ]
    - nasch (profile), 31 Mar 2016 @ 1:53pm
      
      Re: Re: Re:
      Maybe a better way to phrase it is "If you don't know your rights, you won't exercise them."
      
      Better, yes.
      [ link to this | view in chronology ]
    - Anonymous Coward, 31 Mar 2016 @ 1:59pm
      
      Re: Re: Re:
      "If you don't know your rights, you won't exercise them."
      Hayfoot. Strawfoot.
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John (profile), 31 Mar 2016 @ 6:59am

typo?
Barn Burnder? Burner better?
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- jupiterkansas (profile), 31 Mar 2016 @ 7:55am
  
  Re: typo?
  Feel the Burnd!
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Anonymous Coward, 31 Mar 2016 @ 7:41am

i no longer even tell my doctor things that i don't want broadcast all over the world. if that limits my existence, then so be it.

give me liberty or give me death. give me security and privacy or give me death.
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- Anonymous Coward, 31 Mar 2016 @ 7:45am
  
  Re:
  A fellow Patriot, nice to meat you.
  
  "Give me Liberty or Give me death" is more than enough to ensure that you have your privacy.
  
  Because they moment they can invade your privacy without Warrant, is the moment your liberty is gone anyways.
  [ link to this | view in chronology ]
  - Groaker (profile), 31 Mar 2016 @ 8:34am
    
    Re: Re:
    Already long gone.
    [ link to this | view in chronology ]
    - Anonymous Coward, 31 Mar 2016 @ 11:01am
      
      Re: Re: Re:
      Sadly, so true...
      
      We now only have the rights people can afford to buy, or sweet talk Media into shaming law enforcement to allow us to have.
      
      The police can arrest you for anything they want and can even murder you with little to no punishment of any kind.
      [ link to this | view in chronology ]
  - Anonymous Coward, 31 Mar 2016 @ 11:36am
    
    Re: Re:
    You guys left the Malheur National Wildlife Refuge in a mess.
    [ link to this | view in chronology ]
Whatever (profile), 31 Mar 2016 @ 7:44am

This ad sponsored by the Wyden4PresidentPAC.
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- Anonymous Coward, 31 Mar 2016 @ 11:23pm
  
  Re:
  Stick to your day job, comedy is clearly not your thing.
  [ link to this | view in chronology ]
  - Whatever (profile), 1 Apr 2016 @ 7:43am
    
    Re: Re:
    Not comedy... remember this space a few years from now when Wyden is running for the big office and Mike is part of his campaign staff...
    [ link to this | view in chronology ]
    - Anonymous Coward, 3 Apr 2016 @ 10:50pm
      
      Re: Re: Re:
      So you want to be part of Comey's campaign staff? Why're you wasting time here?
      [ link to this | view in chronology ]
- Anonymous Coward, 1 Apr 2016 @ 5:33am
  
  Re:
  You want weaker encryption, that's your business. Vote for Comey, then.
  [ link to this | view in chronology ]
Anonymous Coward, 31 Mar 2016 @ 8:27am

Does the DMCA apply to the government? When the DOJ circumvents the access controls on a phone, doesn't this place them in violation of the DMCA?
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- Anonymous Coward, 31 Mar 2016 @ 8:48am
  
  Re:
  Nope.
  
  17 USC § 1202 - Integrity of copyright management information
  
  Paragraph D:
  
  (d)Law Enforcement, Intelligence, and Other Government Activities.—
  This section does not prohibit any lawfully authorized investigative, protective, information security, or intelligence activity of an officer, agent, or employee of the United States, a State, or a political subdivision of a State, or a person acting pursuant to a contract with the United States, a State, or a political subdivision of a State. For purposes of this subsection, the term “information security” means activities carried out in order to identify and address the vulnerabilities of a government computer, computer system, or computer network
  [ link to this | view in chronology ]
  - Anonymous Coward, 31 Mar 2016 @ 11:55am
    
    Re: Re:
    What about for Cellebrite (or whomever it was that developed the crack). Unless the DOJ contracted with that company to gain access to the phone, shouldn't the DOJ have charged them with DMCA violations when they demoed the procedure?
    [ link to this | view in chronology ]
    - Anonymous Coward, 31 Mar 2016 @ 1:05pm
      
      Re: Re: Re:
      It's buried, but it's in there:
      
      "or a person acting pursuant to a contract with...."
      
      remembering that corporations are people, as long as Cellebrite (or whoever) has a contract to do forensics work with a/any governmental agency in the US, they're pretty much exempted from the DMCA in this case.
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SpaceLifeForm, 31 Mar 2016 @ 9:34am

Would love to hear Senator Wyden comment on this
http://arstechnica.com/tech-policy/2016/03/uk-cops-tell-suspect-to-hand-over-crypto-keys-in-us-hacki ng-case/

Even though he is not charged with any crime.
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Steve R. (profile), 31 Mar 2016 @ 9:44am

Lifelock - How Can they Protect You?
The encryption issue demands that our personal/business information needs to be protected through unbreakable encryption. While watching TV today, I had one of those epiphany moments, in watching the LifeLock commercial.

Exactly how do they collect all the personal information to verify whether your identity is in the process of being stolen?.

They assert that they monitor xxx millions of transactions per second. For them to verify that the data does or does not belong to you implies that they must be sniffing un-encryptic packets. A security shortfall. LifeLock could be using other means too, but their ability to sniff would imply other security shortfalls.

The fact that LifeLock can somehow "monitor" you implies weak ineffective security. We need unbreakable encryption.
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Anonymous Coward, 31 Mar 2016 @ 10:44am

Rule 41 change
From Senator Wyden's speech—

Fourth: … [R]ight now the Justice Department is seeking a change to Federal Rule of Criminal Procedure 41, about how agents get warrants to track computer hackers. Specifically, they are asking to use a single warrant to remotely access any computer that a suspected hacker is believed to have broken into. This rule change could potentially allow federal investigators to use one warrant to access millions of computers, and it would
treat the victims of the hack the same as the hacker himself. The rule change will go into effect later this year unless committed people mobilize to stop it. I’m going to be working hard to mobilize opposition to it, and I hope that many of you will join me in that effort.

If this rule 41 change does go into effect later this year, I think many victims of computer intrusions may simply be forced to view federal investigators as no different than any other computer trespassers.

The federal government has already engaged in spreading malware.

They don't even pretend interest in helping ordinary folks who fall victim to computer intrusions… and now the government intends to deepen the damage caused by remote trespasses.
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nasch (profile), 31 Mar 2016 @ 1:16pm

3rd party doctrine
Overhauling the Third Party Doctrine

Would this require a constitutional amendment, since it's a Supreme Court decision? Or could an act of Congress be enough?
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Anonymous Coward, 31 Mar 2016 @ 1:26pm

I see Wyden is grandstanding early, but that's all he's doing. Like Obama, et all, Wyden makes a lot of promises that he never keeps.
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Chuney Fourchette, 1 Apr 2016 @ 10:25am

Burning barn
Turns out barnburner is a standard-issue compound word---since the 1840s.
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