The FBI Says It Can Neither Confirm Or Deny Social Media Monitoring Programs It Publicly Secured Contracts For

from the who-are-you-going-to-believe,-us-or-your-lying-search-results? dept

It's no secret the FBI engages in social media surveillance. It has a contract with Dataminr to sift through tweets directly from Twitter's firehose. For years it has engaged in suspicionless pre-investigation "assessments," which compile every publicly-available piece of information the agency can gather without a warrant or subpoena. (Assessments also allow the agency to gather info from law enforcement-only databases, but that's not the issue at hand here.) From this starting point, the FBI can decide whether or not the person it targeted in its non-investigation investigation is worth investigating.

Public posts on social media services have zero expectation of privacy. All the same, one likes to believe the government has better things to do with its limited resources than scour the public-facing web for unlawful tweets or whatever. Clearly, the software the agency uses limits manpower expenditures while allowing the feds to act as unseen followers/friends of thousands of people's social media timelines, but it's still haystacks someone needs to make sense of.

The FBI's social media surveillance is an open secret. Of course, now that it's being pressed for details by the ACLU, it's trying to pretend it has no idea what everyone -- including the FBI -- is talking about.

In recent years, the federal government has significantly ramped up its efforts to monitor people on social media. The FBI, for one, has repeatedly acknowledged that it engages in surveillance of social media posts. So it was surprising when the bureau responded to our Freedom of Information Act request on this kind of surveillance by saying that it “can neither confirm nor deny the existence of records.”

The six other federal agencies we submitted the FOIA request to haven’t produced a single document. The request, filed last May, seeks information on how the agencies collect and analyze posts from Facebook, Twitter, and other social media sites.

It's been more than eight months since the ACLU asked for records. All it's received is categorical non-denial. So, the ACLU is suing the agency (and a few others) to force the release of these records. The FBI's public acknowledgment of its surveillance really isn't going to help it keep these records hidden. Here are a few publicly-available resources that suggest the FBI should be able to do far more than pretend it can't say anything at all about its social media surveillance programs. From the lawsuit [PDF]:

DOJ and its component agencies use social media surveillance for law enforcement purposes. In 2012, the FBI sought information from contractors on a planned automated tool that would enable the FBI to search and monitor information on social media platforms. The FBI also revealed in November 2016 that it would acquire social media monitoring software that would give it full access to Twitter data, searchable using customizable filters “tailored to operational needs.” Federal Bureau of Investigation, Requisition Number DJF17-1300-PR00000555, Limited Source Justification at 1 (Nov. 8, 2016).

News reports further indicate that the FBI has established a social media surveillance task force. See Chip Gibbons, “The FBI Is Setting Up a Task Force to Monitor Social Media,” The Nation, Feb. 1, 2018. The purpose and scope of the task force remain unclear.

Why should we care if the government is sweeping up content from our public social media accounts? Well, because of the side effects, which include damage to First Amendment protections and the possibility of finding yourself in the custody of government agents thanks to their innate inability to consider comments in context.

Online speech is generally subject to the full protections of the First Amendment and should not serve as the basis for surveillance, investigation, or other adverse government actions, like placing people on watchlists. Government surveillance and retention of online speech without any connection to the investigation of actual criminal conduct makes it more likely that innocent people will wrongly be investigated, surveilled, or watchlisted. Additionally, public awareness that the government systematically monitors social media discourages the expression of disfavored or potentially controversial speech, which the First Amendment protects.

The FBI -- and other federal agencies -- need to let the public know what they're doing with all this "public" information. If they feel the lack of privacy protections makes it ok to engage in widespread monitoring of social media accounts, the least they can do in return is explain how this information will be used and what safeguards, if any, are in place to deter abuse or erroneous investigations.

Filed Under: fbi, foia, media monitoring, social media, transparency
Companies: aclu

FBI Forensic Experts Claim Mass-Produced Jeans And Shirts Are As Distinct As Fingerprints And DNA

from the evidentiary-clown-show dept

The evidence the feds use to lock people up continues to be laughable. Well, laughable under any other circumstances. Freedom is a high price to pay for bad science, but the FBI seems to believe the tradeoff between lost freedom and junk science is a net gain for society. Judges seem to agree. It's difficult to challenge the sufficiency of evidence against you, nevermind the underlying "science" backing dubious forensic evidence like hair or bite mark matching.

The gold standards in forensic evidence aren't even gold. DNA is a hitchhiker which can put people never involved with a crime at the scene just by hitching a ride on first responders. Fingerprints have been considered individual markers for years, but even that assessment appears to have been overstated.

But dig deep enough into the FBI's forensic toolkit and you'll find some truly surprising forms of "evidence." ProPublica has done exactly that, uncovering so-called science that far more resembles faith. Convictions have been obtained thanks to FBI forensic experts claiming mass produced products like shirts and jeans are just as distinct as fingerprints and DNA.

A bank robbery trial 16 years ago was a watershed for such testimony. Prosecutors charged an ex-convict with robbing a string of banks across South Florida over two years. Richard Vorder Bruegge, an FBI image examiner, told jurors that the button-down plaid shirt found in the defendant’s house was the exact shirt on the robber in black-and-white surveillance pictures. The examiner said he matched lines in the shirt patterns at eight points along the seams.

The prosecutor asked Vorder Bruegge what were “the odds in which two shirts would be randomly manufactured by the company, having all those eight points of identification lining up exactly the same?”

Only 1 in 650 billion shirts would randomly match so precisely, Vorder Bruegge said, “give or take a few billion.”

The following image -- used in court to send Wilbur McKreith to prison for 92 years -- was part of the FBI's collection of circumstantial evidence, which included seeing McKreith's vehicle near some banks that were robbed and McKreith spending around $10,000 in cash around the time of the robberies.

Where Vorder Bruegge got his "1-in-650-billion" estimate, no one knows. There's is no body of work -- at least, not outside of the FBI -- on clothing pattern matching. There's no data available detailing the number of identical shirts created during manufacturing runs or how many variations an examiner should expect to find in a lot of manufactured clothes. Nor is there any specific training required to turn an FBI examiner into an expert on clothing features. From what's been obtained by ProPublica, the only requirement appears to be a functioning pair of eyes.

After Congress passed a law in 1968 requiring banks to have security equipment, most banks installed surveillance cameras. Meanwhile, Eastman Kodak sold the public millions of pocket-size cameras and amateur photographers took billions of exposures of life and, occasionally, of crimes.

Pictures flooded the bureau as evidence. The lab formed a team called the Special Photographic Unit to find information in images and manage the bureau’s inventory of 35 mm cameras. No scientific background or advanced degrees were required.

Unlike other areas where examiners focused on one thing (fingerprints, bullet casings, hair), "image examiners" looked at everything: facial features, clothing, and anything else that might help them make a match. But how much of a match? The FBI was trying something new, using low-quality photos and some unscientific hunch that clothing, ears, freckles, etc. were unique. As of 2005, the FBI still wasn't offering any formal courses to train its "image examiners," despite claiming in court shirts and jeans were as unique as fingerprints.

Like anything else, this "science" is prone to confirmation bias. But in these cases, it's much worse. FBI image examiners aren't given control images or items to guard against this. They're only given images and the items investigators believe are evidence, so it guides examiners to inevitable conclusions. The "research" tends to be little more than finding ways images and items match, working backwards from the assumption the item being examined is evidence of a criminal act.

Since the FBI is considered to be staffed with the smartest and most technically-astute investigators and examiners, courts generally have granted deference to their testimony in court, even when they make claims of scientific certainty that can't possibly be true. The examiner/expert claiming mass produced shirts were unique also claimed mass produced denim jeans were unique, in direct opposition of what's known about mass production.

[Vonder Bruegge] wrote that manufacturing defects like dropped stitches, where a stitch is missing, are identifying features — the equivalent of a facial scar.

Not at all, said Alicia Carriquiry, director of the Center for Statistics and Applications in Forensic Evidence and an Iowa State University professor. Sewing machines can drop stitches in a consistent manner, embedding the same set of stitches in garment after garment.

“This could be that the same sewing machine in China is producing a drop stitch in the same position in every last pair of jeans until they change that needle,” Carriquiry said. Thousands of pairs of jeans would have the same feature.

The barcode pattern is unique because the stitching varies between pairs, Vorder Bruegge wrote.

But jean manufacturing has been standardized across the industry for a long time, said Charles Jebara, chief executive of Alpha Garment, which sells jeans under Nicole Miller and other labels. The number of stitches per inch along a seam is much the same from one factory floor to another. “They’re using the same kinds of machines, the same general processes to get that operation done,” Jebara said.

The supply chain for denim jeans is so standardized the FBI no longer does fiber comparisons for denim fibers recovered from crime scenes. And yet, the FBI's champion of image examining claims [PDF] wear marks and creasing in jeans is unique enough to act as supporting evidence in criminal trials.

This isn't science. This is jargon-laden hunchery masquerading as evidence. And despite the DOJ's vows to dial back statements of certainty from its experts, people are still going to jail because someone with no specialized training said a pair of jeans is more distinct than a DNA strand.

Filed Under: clothing, doj, fbi, forensics, mass production

Judge Recommends Vacating The Sentence Of One Of The FBI's Handcrafted Terrorists

from the well...-half-the-sentence-has-already-been-served-so... dept

Nearly 13 years after the FBI managed to turn a California cherry picker into a international terrorist, one of its self-created terrorists is about to be turned back into regular California resident, albeit one missing more than a decade from his life.

Hayat went to Pakistan in 2003 to visit his mother and get married. The FBI and prosecutors insisted he went there to train to be a terrorist. When he returned to the US, he was arrested and indicted. Prosecutors tacked on some lying to federal agents charges because of course they did, pushing Hayat's sentence to 24 years.

This conviction was upheld by the Ninth Circuit Court of Appeals but Hayat's motion to vacate his sentence has found some sympathy from a federal magistrate judge.

A federal magistrate on Friday recommended overturning the controversial 2006 conviction of a California man accused of attending a terrorist training camp in Pakistan and plotting an attack in the United States.

Hamid Hayat, now 36, who was then a young cherry-picker from Lodi, has served about half his 24-year sentence.

But U.S. Magistrate Judge Deborah Barnes said he likely never would have been convicted were it not for the inexperience of his defense attorney, who failed to call alibi witnesses.

Hayat's lawyer was clearly inexperienced, having never defended a client during a criminal trial before. The results speak for themselves. Judge Barnes' examination of the case shows Hayat was possibly coerced into a false confession and had a decent alibi for his visit to Pakistan that -- if explored more fully -- would likely have shown the FBI's speculations about his reason for returning to Pakistan were wrong.

His attorneys argue that much of the evidence used against him was faulty, including prosecution claims that Hayat attended a terror training camp in Balakot, Pakistan, in 2003 and 2004 – a facility they say had been shut down before Hayat even got to Pakistan.

Hayat's confession was obtained during a "marathon" questioning session by FBI agents. This apparently included a special agent lying about the evidence the FBI had on Hayat's supposed terrorist training.

According to court testimony, the Hayats were interviewed twice by the FBI. The first time, they both denied they knew anything about terrorism. But during a second interview at Sacramento FBI headquarters, after many hours of grilling without a lawyer, Hamid Hayat changed his story and confessed he attended a terrorist training camp for about three months. The jury asked for a read-back of FBI Special Agent Harry Sweeney’s trial testimony.

Sweeney testified that Hamid Hayat admitted to going to the camp after Sweeney asked him, “Would there be any reason why we would have a satellite image of you at a camp in 2003?”

Under cross-examination, Sweeney acknowledged there was no such photo.

Unfortunately, there's nothing illegal about federal agents lying to suspects during questioning. But there's certainly a law against lying to federal agents. The background of the case suggests the FBI may have been looking for something -- anything -- to justify its infiltration of a local mosque by one its surprisingly-expensive informants.

Naseem Khan claimed to have seen four of the world's most-wanted terrorists in Lodi, California. Over the course of three years, the FBI paid Khan $230,000 to infiltrate a local mosque, despite discovering his claims of seeing top world terrorists were completely false. It was Khan who suggested Hayat visit a terrorist training camp while visiting Pakistan. The government apparently had no evidence Hayat ever visited a training camp, relying almost solely on a confession that appears to have been coerced.

The court says there's not much here that makes the FBI look like a competent anti-terrorism force. There's a questionable confession, an even more questionable informant telling people to engage in terrorist activities, and a bunch of speculation about Hayat's activities while not under direct surveillance. As the judge points out, citizens shouldn't be locked up for things the FBI THINKS they may have done. More evidence is needed and a more competent attorney might have been able to stop this farce before it took more than a decade away from Hamid Hayat.

Filed Under: 9th circuit, doj, fake terrorists, false confession, fbi, hamid hayat, harry sweeney, own plot, terrorism

Sixth Circuit Appeals Court Latest To Say It's Cool If The FBI Broke The Law During Its Playpen Investigation

from the deterrents-never-used-will-rarely-exhibit-a-deterrent-effect dept

The seventh Appeals Court to weigh in [PDF] on the FBI's Network Investigative Technique deployed in the Playpen child porn investigation has weighed in. Unfortunately, it makes the Sixth Circuit the seventh appeals court to find the FBI's warrant problematic, but willing to apply the "good faith" band-aid.

The problem with the application of the "good faith exception" is it assumes good faith on behalf of the FBI. There's no reason to believe the FBI acted in good faith, though. While it was in the process of obtaining a single warrant allowing it to search computers all over the world, it was well aware Rule 41 limited searches to the jurisdiction where the warrant was obtained. It knew this because the DOJ was in the process of asking the Supreme Court and Congress to change Rule 41 to remove the jurisdiction limits while it was pursuing this investigation.

The Appeals Court grants good faith anyway, despite this background. It does do us (and the appellant) the favor of discussing good faith in light of the DOJ's simultaneous attempt to codify searches it was already performing, but just because the discussion is expanded a bit doesn't mean it makes much sense. Here's the opening of the Sixth Circuit's federal forgiveness pitch:

The good-faith exception is not concerned with whether a valid warrant exists, but instead asks whether a reasonably well-trained officer would have known that a search was illegal.

A "well-trained officer" should never have sought the search warrant in the first place, because a "well-trained officer" would have known search warrants were limited to the jurisdiction they were issued in. But the agent sought the warrant anyway and a magistrate judge actually approved it. The judge's approval means more to the Sixth Circuit than the FBI's bad faith proposition.

For the same reasons articulated in Master, we conclude that the good-faith exception is not categorically inapplicable to warrants found to be void ab initio. The difference between a state court judge acting without authority and a federal magistrate judge acting without authority is of little significance—in both instances, the individual who signed the warrant (arguably) had no power to do so. Master’s holding that the good-faith exception applies to one applies with equal force to the other. Accordingly, the good-faith exception to the exclusionary rule is not categorically inapplicable to warrants that are void ab initio because of a magistrate judge’s jurisdictional error.

But the case cited (Master) isn't applicable to this situation. In that case, an officer presented a warrant request to the wrong county judge, accidentally obtaining permission to search outside of the judge's jurisdiction. A similar mistake could not have possibly been made with this warrant request. A federal magistrate -- whose jurisdiction covers an entire state -- could not have been mistakenly approached to grant permission to search an entire nation. The FBI's warrant affidavit clearly states it sought to search computers without knowing where any of the targets were located. The judge saw this and signed it anyway. Even if the judge blew the call, there's no way anyone can argue with a straight face the FBI did not know the warrant request violated the law as it stood when it requested permission to deploy its NIT.

It may have been "reasonable" for the FBI agent to rely on the issued warrant, but only if you ignore what was happening at the DOJ during the time this investigation was occurring. In fact, it can be argued this investigation and a similar one in 2014 expedited the DOJ's efforts on this front as it surely recognized some judges were going to find its NIT warrant invalid.

This explanation by the Sixth Circuit of its decision to extend good faith to the FBI agent doesn't help. In fact, it doesn't make sense.

But reasonable jurists have come to different conclusions about whether the NIT Warrant was valid. Compare United States v. Austin, 230 F. Supp. 3d 828, 833 (M.D. Tenn. 2017) (finding the NIT Warrant does not violate Rule 41(b) because it is the equivalent of a “tracking device” and therefore falls under the ambit of Rule 41(b)(4)), with United States v. Croghan, 209 F. Supp. 3d 1080, 1089 (S.D. Iowa 2016) (concluding that the magistrate judge lacked authority to issue the NIT Warrant), overruled on other grounds by Horton, 863 F.3d at 1052. We cannot, therefore, expect officers to have known that this type of warrant was invalid at the time it was sought. See Workman, 863 F.3d at 1321 (“[I]f a violation took place, it has escaped the notice of eight federal judges who have held that the same warrant complied with federal law and the federal rules even though data was being extracted from computers outside the Eastern District of Virginia. . . . [E]xecuting agents could reasonably have made the same mistake and reasonably relied on the magistrate judge’s decision to issue the warrant.”).

The court is saying an FBI agent -- requesting a warrant in 2015 -- can be excused for his Rule 41 ignorance because court decisions made 1-2 years after the warrant was sought suggest the NIT warrant area might have been a bit more gray than previously imagined. Furthering the retroactive forgiveness, the court goes on to point out -- as others have -- that Rule 41 changes, which went into effect more than two years after the warrant was obtained, now makes this sort of search legal. Since suppressing evidence is supposed to deter bad behavior by law enforcement, a past abuse that has been codified into law does not present further opportunities for exactly this same abuse of authority.

Certainly it would be impossible to violate rights in the same exact way again, what with the rules having been changed following the abuses contained in this investigation. But the deterrent effect of suppression would discourage law enforcement from seeking permission to perform illegal searches, even if there's a chance those searches may become Constitutional in the future due to changes in the law. This is the court telling law enforcement to roll the dice in edge cases because you just never know what the future might bring. This encourages misconduct because it demonstrates the extent of the federal courts' capacity to forgive.

Filed Under: 4th amendment, 6th circuit, doj, fbi, good faith, jurisdiction, playpen

FBI Officially Has A Leak Investigation Unit

from the because-why-not dept

The Obama Administration was never a fan of leakers and whistleblowers. The Trump Administration isn't either. And it's continuing to ramp up investigations in response to a steady stream of leaks that tend to arrive moments after executive proclamations in order to undermine or contradict whatever has just been proclaimed.

Fired company man Jeff Sessions thought the best plan to tackle leaks was prosecuting the recipients: journalists. Not really the best plan of action in a country with enshrined speech rights, but that's the way things are being done in the nation's capital. True to form, the DOJ has gone after leakers with a vengeance, threatening to rewrite all of Obama's personal prosecution records.

The FBI is getting in on the action, according to a document obtained by Ken Klippenstein of The Young Turks. The word "espionage" is tossed around, but most of what the Trump Administration has dealt with has been embarrassing, rather than a concerted effort to hand secret documents over to our country's enemies. Nonetheless, hunting leakers is official FBI business.

"By law, the FBI is the lead federal agency responsible for the investigation of violations of the espionage laws of the United States,” one document, bearing the subheader “Functions and Mission Statement” reads.

“The complicated nature of — and rapid growth in — unauthorized disclosure and media leak threats and investigations has necessitated the establishment of a new Unit,” the document continues.

The file, dated November 10, 2017, is heavily redacted — as are the rest of the records provided to TYT. One document, dated May 24, 2018, shows that the Bureau’s Resource Analysis Unit approved a request by its Counterintelligence Division to establish a new cost code, apparently for the new leaks unit.

As Klippenstein notes, the obtained document [PDF] indicates Jeff Sessions was a man of words, rather than a man of action. The establishment of the unit -- meaning the point at which it started being funded -- didn't occur until May 2018. Sessions claimed in August 2017 the FBI already had a leak-fighting unit in place and that leak probes had already increased by 800%.

Sessions' leak-targeting premature ejaculation may have been meant to scare government employees into keeping the feds' secrets. If so, it wasn't too effective. The rate of leaks has slowed from "daily," but there's no shortage of insiders willing to spill dirt on the chaotic White House to journalists.

The government isn't opposed to leaks, per se. It just likes to ensure the narrative it wants to project makes its way to the public before the truth even gets its pants on. That hasn't worked for years, as the Obama Administration discovered prior to its war on leakers and whistleblowers. It's not going to work here either, but it does raise the odds the First Amendment is going to suffer for the sins our government fails to keep covered up.

Filed Under: doj, fbi, investigation, jeff sessions, leaks, retaliation, whistleblowers

FBI Swept Up Info About Aaron Swartz While Pursuing An Al-Qaeda Investigation

from the stocking-the-back-room-for-a-rainy-day-of-searches dept

The FBI has the power to collect massive amounts of data and communications during its investigations. This power periodically ingests NATSEC steroids, pumping the FBI's data stores full of stuff not relevant to the NSA's work, but possibly relevant to the FBI's crime-fighting duties.

You would think the FBI would toss anything not relevant to an investigation. Just in terms of storage and haystack-sorting, it would only make sense to discard data/communications not needed for ongoing investigations. But you'd be wrong. The FBI holds on to everything it gets because you never know: the irrelevancies you hoovered up yesterday might be useful today.

That's pretty much what happened to Aaron Swartz, according to documents published by Dell Cameron of Gizmodo.

Nearly two years before the U.S. government’s first known inquiry into the activities of Reddit co-founder and famed digital activist Aaron Swartz, the FBI swept up his email data in a counterterrorism investigation that also ensnared students at an American university, according to a once-secret document first published by Gizmodo.

The email data belonging to Swartz, who was likely not the target of the counterterrorism investigation, was cataloged by the FBI and accessed more than a year later as it weighed potential charges against him for something wholly unrelated.

The data collected -- most likely obtained with an NSL -- came from Pittsburgh University. It was part of a data haul associated with the FBI's terrorism investigation. Swartz was never the target of this Al-Qaeda investigation but the information obtained remained in the FBI's data stores even though the FBI had no reason to hold onto non-hit data.

When the FBI did start looking in Swartz's activities, it found his email address in the stored data it had obtained from the university in 2007. This apparently happened in 2008, around the time the FBI was trying to determine if Swartz had violated any laws by freeing millions of court documents from PACER.

The FBI targeted a foreign terrorist entity but ended up with an untold amount of email metadata originating from US persons' accounts. The only reason we're seeing any evidence of the FBI's backdoor domestic searches come to light is Aaron Swartz's inadvertent involvement. If it hadn't been for a high-profile prosecution and Swartz's tragic suicide, public interest in the FBI's investigative activities surrounding Swartz would likely have minimal public interest. But Swartz's prosecution and death have put more eyes on the case, including those of transparency group Property of the People, which obtained this document through an FOIA lawsuit against the agency.

This document is more evidence the FBI abuses its investigative privileges. The agency engages in foreign-facing terrorism investigations, hoovering up as much "relevant" data as it can. Rather than discard everything not related to the investigation, the FBI stores it indefinitely. When the FBI opens a domestic investigation, it can give itself a head start by digging through its data stores for info it has "inadvertently" gathered on American citizens. The information the FBI already has on hand -- info it really can't justify keeping -- helps build cases against Americans while depriving them of their right to challenge the evidence against them. Americans don't know about this evidence because it's laundered by NSLs, warrants, and whatever else the FBI needs to deploy to duplicate the results of data store searches the agency has already performed.

Filed Under: aaron swartz, al qaeda, backdoor searches, fbi, foia, nsa, terrorism

Inspector General: FBI Lost Six Months Of Important Text Messages Because Its Retention System Sucks

from the all-the-smart-people-at-the-agency-etc dept

It's great to know the FBI wants encryption broken so it can forensically molest any devices in its possession to find the mother lode of culpatory evidence these devices always contain. ("Always," you ask? The FBI irritatedly taps the word "always" repeatedly in response.)

The reason this is such good news is that the FBI can't even manage to reliably extract content from phones it issues to agents and other personnel. If you can't expertly handle data migration/storage from phones in your control at all times, how badly are you going to bungle forensic evidence extraction at scale if the government ever green lights encryption backdoors?

The DOJ Inspector General has just released a report [PDF] detailing its investigation of missing text messages sent by two agents at the center of a Congressional hearing about supposed biased behavior during the FBI investigation of Hillary Clinton and Mueller's investigation of Donald Trump. Agents Peter Strzok and Lisa Page exchanged text messages expressing their dislike of Trump and made some comments suggesting they would do something to harm his presidential chances. Critics believed this showed these agents -- if not the agency itself -- were guided by political bias when investigating Trump's ties with Russia.

Maybe there was more to this than there first appeared to be. Thousands of text messages from the agents' devices went missing -- a gap that stretched from December 2016 to May 2017. The Inspector General's office used forensic tools to recover roughly 19,000 text messages from the two phones. The culprit appears to be standard operating procedure rather than a deliberate attempt to destroy evidence.

Strzok and Page had each returned their DOJ-issued iPhones six months earlier when their assignments to the SCO (Special Counsel's Office) had ended. The OIG was told that the DOJ issued iPhone previously assigned to Strzok had been re-issued to another FBI agent… CYBER obtained a forensic extraction of the iPhone previously assigned to Strzok; however, this iPhone had been reset to factory settings and was reconfigured for the new user...

The same thing happened to Page's phone. It was reset in July 2017 by personnel at the DOJ's Justice Management Decision. It hadn't been issued to another agent but it had been restored in preparation for reassignment.

Resetting phones just makes sense. Nothing about the FBI's handling of records its supposed to be retaining does. Text messages are official communications. They're subject to public records requests and they're often responsive to subpoenas in criminal cases. Wiping a phone without ensuring existing communications have been backed up is monumentally stupid and possibly illegal.

To the agency's credit, it does try to retain these communications before resetting issued devices. The problem is its tool works poorly. As does its management:

FBI Assistant General Counsel [redacted for some fucking reason] informed OIG that there does not appear to be a directive for preservation of texts by ESOC [Enterprise Security Operations Center], but that ESOC retains text messages as a matter of practice.

Define "retain" and "matter of practice" in the context of a six-month gap of non-retention of Strzok/Page text messages. I guess it's the thought that counts?

[E]SOC could not provide a specific explanation for the failure in the FBI's text message collection relating to Strzok's and Page's S5 phones…

ESOC did offer up a set of possible explanations for the failure, none of which are reassuring. First, it could have been a bug reported by the vendor in 2016 but not fixed until March 2017. The application itself could have been misconfigured. The application may not have been compatible with device software updates.

Efforts were made to mitigate the issue. But those failed as well. The FBI phased out Samsung S5s and replaced them with S7s. Nothing changed but the phone model.

[A]ccording to FBI's Information and Technology Branch, as of November 15, 2018, the data collection tool utilized by FBI was still not reliably collecting text messages from approximately 10 percent of FBI issued mobile devices…

That the OIG was able to recover thousands of messages from forensic extraction and scouring the FBI's enterprise database isn't really good news. It's unlikely the FBI will make the same effort when hit with discovery demands and it already won't thoroughly search databases it has full access to when responding to FOIA requests. So, records are going to go missing and it won't be until the OIG steps in that any effort will be made to find the missing records, much less take a good look at the broken processes that caused them to go missing in the first place.

Filed Under: data retention, fbi, inspector general, lisa page, peter strzok, public records, text messages

The FBI Is Now Looking Into Those Bogus Net Neutrality Comments

from the ill-communication dept

So we already knew numerous reporters, the GAO, and the New York State AG's office are already looking into who was behind the millions of bogus comments that plagued the FCC's net neutrality repeal. And we've already noted how the Ajit Pai FCC has been trying its very best to hinder those inquiries, whether we're talking about the way that it has been blocking and stalling on journalist FOIA requests, or actively ignoring numerous, previous inquiries from law enforcement.

The FCC's efforts to obfuscate the culprit by refusing to share data on this subject may have just become more... complicated. Over the weekend, Daily Beast reporter Kevin Collier noted that two additional AG's offices (Massachusetts and Washington, DC) -- and the FBI -- have also started digging into those fake comments as well:

"The Justice Department is investigating whether crimes were committed when potentially millions of people’s identities were posted to the FCC’s website without their permission, falsely attributing to them opinions about net neutrality rules, BuzzFeed News has learned. Two organizations told BuzzFeed News, each on condition that they not be named, that the FBI delivered subpoenas to them related to the comments."

New York's AG began its investigation last year, but stated in a public letter a year ago that the FCC had actively blocked all efforts by the AG to obtain server, API, and other data that could help identify who was behind the fraudulent comments, some of them mysteriously made by dead people. The AG's office stated Pai's office ignored nine inquiries over a period of five months for more details:

"We made our request for logs and other records at least 9 times over 5 months: in June, July, August, September, October (three times), and November.

We reached out for assistance to multiple top FCC officials, including you, three successive acting FCC General Counsels, and the FCC’s Inspector General. We offered to keep the requested records confidential, as we had done when my office and the FCC shared information and documents as part of past investigative work.

Yet we have received no substantive response to our investigative requests. None."

According to the NY AG's office, about 9.5 million of the more than 22 million comments filed with the FCC during the repeal's open comment period were filed using peoples' names without their consent (including my own and those of two Senators). Last October, the New York AG announced they had expanded their probe, issuing subpoenas to both numerous ISP-linked lobbying and policy organizations (like the industry's dubious Broadband for America policy vessel) as well as a few pro net neutrality consumer groups.

Last week, numerous outlets falsely reported that "Russia" was behind these comments. There's no actual evidence of that (500,000 Russian email addresses were used, but that doesn't mean Russia itself was involved). As we've seen during the similar bogus comments plaguing other US government proceedings in recent years, the usual culprit is almost always the companies that stand to benefit from the regulatory efforts in question, since there's several DC policy shops that apparently sell these kinds of services (read: bogus support for terrible policies) as a value added service.

And while it's pretty clear that the Ajit Pai FCC doesn't want anybody knowing which firm tried to stuff the ballot box and who was funding the initiative, the involvement of the DOJ and several additional AG offices means hiding the truth just got immeasurably more difficult. And depending what investigators find, that could seriously complicate next February's opening arguments in the net neutrality lawsuit against the FCC, which, if the FCC and its ISP allies lose, could end with the restoration of the FCC's 2015 rules, bringing us fill circle.

If it turns out the broadband industry or some proxy organization paid a DC lobbying firm to stuff the ballot box (which has always seemed the most likely explanation given historical precedent), such a self-inflicted wound would be utterly legendary.

Filed Under: ajit pai, bogus comments, comments, doj, fbi, fcc, net neutrality, new york

Deputy AG Claims There's No Market For Better Security While Complaining About Encryption At A Cybercrime Conference

from the an-actual-thing-that-happened dept

The FBI still hasn't updated its bogus "uncrackable phones" total yet, but that isn't stopping the DOJ from continuing its push for holes in encryption. Deputy AG Rod Rosenstein visited Georgetown University to give a keynote speech at its Cybercrime 2020 Conference. In it, Rosenstein again expressed his belief that tech companies are to blame for the exaggerated woes of law enforcement.

Pedophiles teach each other how to evade detection on darknet message boards. Gangs plan murders using social media apps. And extortionists deliver their demands via email. So, it is important for those of us in law enforcement to raise the alarm and put the public on notice about technological barriers to obtaining electronic evidence.

One example of such a barrier is “warrant-proof” encryption, where tech companies design their products or services in such a way that they claim it is impossible for them to assist in the execution of a court-authorized warrant. These barriers are having a dramatic impact on our cases, to the significant detriment of public safety. Technology makers share a duty to comply with the law and to support public safety, not just user privacy.

Rosenstein says this has resulted in a "significant detriment [to] public safety," but can't point to any data or evidence to back that claim up. The FBI's count of devices it can't access is off by at least a few thousand devices, by most people's estimates. In terms of this number alone, the "public safety" problem is, at best, only half as bad as the DOJ has led us to believe.

Going beyond that, crime rates remain at historic lows in most places in the country, strongly suggesting no crime wave has been touched off by the advent of default encryption. Law enforcement agencies aren't complaining about cases they haven't cleared -- if you exclude encryption alarmist/Manhattan DA Cyrus Vance. (Anyone hoping to have an honest conversation about encryption certainly should.)

Somehow, Rosenstein believes the public would experience a net safety gain by making their devices and personal info more easily accessed by criminals. Holes in encryption can be marked "law enforcement only," much like private property owners can hang "no trespassing" signs. But neither is actually a deterrent to determined criminals.

Rosenstein goes on to tout "responsible encryption" -- a fairy tale he created that revolves around the premise tech companies can break/unbreak encryption at the drop of a warrant. But broken encryption can't be unbroken, not even with some form of key escrow. The attack vector may change, but it still exists.

That Rosenstein is advocating inferior encryption during a cybercrime conference speaks volumes about what the DOJ actually considers to be worth protecting. It's not businesses and their customers. It's law enforcement's access. He spends half the run time talking about security breaches involving tech companies and follows it up by suggesting they take less care securing all this info they collect.

He even goes so far as to claim better security is something customers don't want and is bad for tech companies' bottom lines.

Building secure devices requires additional testing and validation—which slows production times — and costs more money. Moreover, enhanced security can sometimes result in less user-friendly products. It is inconvenient to type your zip code when you use a credit card at the gas station, or type a password into your smartphone.

Creating more secure devices risks building a product that will be later to market, costlier, and harder to use. That is a fundamental misalignment of economic incentives and security.

The implicit statement Rosenstein's making is that ramped-up security -- including default encryption -- is nothing more than companies screwing shareholders just so they can stick it to The Man. Following this bizarre line of thought is to buy into Rosenstein's conspiracy theory: one that views tech companies as a powerful cabal capable of rendering US law enforcement impotent.

And as much as Rosenstein hammers tech companies for security breaches that have exposed the wealth of personal data they collect, he ignores the question his encryption backdoor/side door advocacy raises. This question was posed in an excellent post by Cathy Gellis at the beginning of this year:

"What is a company to do if it suffers a data breach and the only thing compromised is the encryption key it was holding onto?"

We're headed into 2019 and no one in the DOJ or FBI is willing to honestly discuss the side effects of their proposals. Rosenstein clings to his "responsible encryption" myth and the director of the FBI wants to do nothing more than make it the problem of "smart people" at tech companies he's seeking to bend to his will. No one in the government wants to take responsibility for the adverse outcomes of weakened encryption, but they're more than willing to blame everyone else any time their access to evidence seems threatened.

Rosenstein's unwavering stance on the issue makes this statement, made at the closing of his remarks, ring super-hollow.

We should not let ideology or dogma stand in the way of constructive academic engagement.

Fair enough, Rod. You go first.

Filed Under: backdoors, blame, doj, encryption, fbi, going dark, responsible encryption, rod rosenstein

EFF, ACLU Petition Court To Unseal Documents From DOJ's Latest Anti-Encryption Efforts

from the talk-to-us,-DOJ dept

Back in August, the DOJ headed to court, hoping to obtain some of that sweet sweet anti-encryption precedent. Waving around papers declaring an MS-13 gang conspiracy, the DOJ demanded Facebook break encryption on private Messenger messages and phone calls so the government could eavesdrop. Facebook responded by saying it couldn't do that without altering -- i.e., breaking -- Messenger's underlying structure.

Not that breaking a communications platform would give the FBI any sleepless nights. Worthless encryption is better than good encryption when it comes to demanding the content of communications or, as in this case, operating as the unseen man-in-middle when suspected gang members chatted with each other.

Unfortunately (for the FBI), this ended in a demurral by the federal court. The details of the court's decision are, just as unfortunately, unknown. Reuters was able to obtain comments from "insiders familiar with the case," but the public at large is still in the dark as to how all of this turned out.

The EFF and ACLU are hoping to change that.

In our petition filed today in the United States District Court for the Eastern District of California, EFF, the ACLU, and Riana Pfefferkorn of Stanford Law School’s Center for Internet and Society seek to shed light on this important issue. We’re asking the court to release all court orders and related materials in the sealed Messenger case.

Given the importance of encryption in widely used consumer products, it is a matter of public interest any time law enforcement tries to compel a company to circumvent its own security features.

The petition [PDF] points out the First Amendment guarantees access to courtroom proceedings and the courts are supposed to adhere to this by operating with a presumption of openness. Only in rare, rare cases should they side with the government and allow the public to be cut out of the loop by sealing documents.

This is doubly true in cases of significant public interest. Any time the DOJ is in court agitating for broken encryption, it's safe the say the public will be affected by the case's outcome. At this point, we don't know anything more than the DOJ didn't get what it wanted. What we don't know is why, or what impact the ruling here will have on similar cases in the future. And we should know these details because, if nothing else, the FBI has proven it cannot be trusted to deal with device encryption honestly.

Filed Under: breaking encryption, compelled access, doj, encryption, facebook messenger, fbi, going dark, ms-13, public records, sealed court documents, transparency
Companies: facebook