Arizona The Latest To Explore Dumb Porn Filter Law, This Time To Help Fund Trump's Fence

from the filtering-the-naughty-bits dept

For some time now, a man by the name of Chris Sevier has been waging a fairly facts-optional war on porn. Sevier first became famous for trying to marry his computer to protest same sex marriage back in 2016. He also tried to sue Apple after blaming the Cupertino giant for his own past porn addiction, and has gotten into trouble for allegedly stalking country star John Rich and a 17-year-old girl. Sevier has since been a cornerstone of an effort to pass truly awful porn filter legislation in more than 15 states under the disingenuous guise of combating human trafficking.

Dubbed the "Human Trafficking Prevention Act," all of the incarnations of the law would force ISPs to filter pornography and other "patently offensive material." The legislation would then force state residents interested in viewing porn to pony up a one-time $20 "digital access fee" to whitelist the internet's naughty bits for each internet-connected device in the home. The proposal is patently absurd, technically impossible to implement, and yet somehow these bills continue to get further than they ever should across a huge swath of the boob-phobic country.

Once people have realized the ignorant futility (and under-handed sales pitch) of such model legislation, it usually fails to gain any steam in most states. But it's back this week with a decidedly new wrinkle in Arizona, where State Rep. Gail Griffin is pushing Arizona House Bill 2444. HB 2444 would mandate that any Arizona internet user would need to file a request if they want to access porn online, proving they're at least 18 years of age. Porn seekers would then pay a one-time fee of $20 (plus additional fees) to access porn. Of course since this effort (like past efforts) is technically futile, the proposal is going nowhere.

But it's getting some extra attention this week because the bill mandates the creation of something called the "John McCain Human Trafficking and Child Exploitation Prevention Fund," which, if past precedent for these bills holds, likely has less than nothing to actually do with, and was never sanctioned by, the family of John McCain.

That fund, in turn, would go to a number of different causes, including a program designed "to uphold community standards of decency" and develop "programs for victims of sex abuse." But Arizona's incarnation of this dumb law has a small wrinkle in that Griffin is trying to claim this money could also be used to help fund Trump's unnecessary border fence:

"At the top of the list of 10 explicit things the grants can be used for is “build a border wall between Mexico and this state or fund border security." Other grant purposes include mental health services, temporary housing, assisting victims, training, assisting school districts and assisting law enforcement. It is unclear if the McCain family is supportive of the legislation or a fund created in the late senator’s name."

Again though, that funding is never going to happen because this law, like the last fifty times we've covered it, isn't likely to pass. It isn't likely to pass because filtering porn on such a level is arguably impossible, as we've seen every time someone attempts to erect such government-mandated censorship of porn. And it's not going to pass because the folks behind the draft legislation it's based on not only have absolutely no idea how the internet actually works, they consistently misrepresent what the law is supposed to actually do (and fund).

But the real story here isn't the dumb filter, or the Trump wall wrinkle (though both will happily feed the clickbait machine for much of the week). The real story is how successful Sevier has been, despite his very checkered past, at getting more than a dozen state legislatures to mindlessly embrace terrible, unworkable legislation that happily gives a giant middle finger to the Constitution.

Filed Under: arizona, chris sevier, donald trump, filters, gail giffien, human trafficking prevention act, john mccain, porn, porn laws, porn license, wall

Politicians Who Said SESTA Was Needed To Takedown Backpage Claim Victory Over Backpage Takedown... Without SESTA

from the say-what-now? dept

From the very beginning of SESTA and FOSTA, its backers kept insisting that the bill was necessary to takedown Backpage.com. Indeed, Senator Rob Portman, in announcing SESTA, entitled his press release "Senators Introduce Bipartisan Legislation to Hold Backpage Accountable." And he's spent the past six months pointing to Backpage as the reason we absolutely needed SESTA. At launch, his quote was the following:

For too long, courts around the country have ruled that Backpage can continue to facilitate illegal sex trafficking online with no repercussions. The Communications Decency Act is a well-intentioned law, but it was never intended to help protect sex traffickers who prey on the most innocent and vulnerable among us.

Except, as we pointed out multiple times, that's not at all what courts have said. What they've said is that CDA 230 immunizes the site from certain types of liability. But as two recent courts -- not to mention the DOJ shutting down Backpage on Friday -- have made clear, nothing in CDA 230 immunizes Backpage from illegal activity that it directly engaged in.

So you'd think that maybe, just maybe, Senator Portman would recognize that SESTA was a giant unnecessary boondoggle that puts a ton of people and speech at risk. But, nope. Instead, he's released a statement praising the action and pretending that SESTA will "hold online sex traffickers accountable."

“I’m pleased that Congress has taken additional steps by passing my SESTA legislation to let sex trafficking victims seek justice and allow state and local law enforcement to swiftly prosecute websites that violate federal sex trafficking laws. This bipartisan measure will make it easier to hold online sex traffickers accountable, and I look forward to seeing President Trump sign this bill into law next week.”

Except not a single thing in SESTA holds online sex traffickers accountable. Indeed, it does the exact opposite of that, in that it makes it that much more difficult for law enforcement to track down actual sex traffickers. Prior to SESTA, websites (including Backpage) frequently worked with law enforcement to help them track down those using their platforms for illegal activity. Under SESTA, no site will be willing to assist law enforcement in such a manner, because doing so will provide evidence of "knowledge" and thus, potentially, criminal liability. This sweeps the problem of sex trafficking under the rug, which might make Senator Portman feel better, but does nothing to tackle the actual problem, and makes it that much more difficult to find and prosecute actual traffickers, let alone find and rescue victims held against their will.

Still, at least Senator Portman acknowledges that SESTA/FOSTA has not been signed into law yet. That basic fact apparently escaped Representative Mimi Walters, who provided the amendment that attached SESTA to FOSTA in the House. She actually took to Twitter to claim that Backpage was shut down because of her amendment:

That's pretty incredible, considering her bill hasn't been signed into law yet. You would think that a Representative would know that her own bill wasn't a law yet, wouldn't you? Or does Congress not work that way? Anyway, SESTA/FOSTA is not the law yet, and it clearly wasn't used to take down Backpage. And, of course, what was Rep. Walters' reason for pushing SESTA in the first place? The need to take down Backpage. So, not only is she not admitting that her law (which she said was necessary) was not, in fact, necessary, she's now living in a fantasy world where her law must have helped, despite it not yet being a law.

Can we elect better people to Congress please?

Then we have Senator John McCain. His wife has been at the forefront of the anti-Backpage campaign for many years. Indeed, many people I spoke to on Capitol Hill said that it was John and Cindy McCain's support for SESTA that made the bill viable in the first place. So it's no surprise that Cindy McCain was quick to tell the media how good the seizure is, calling it a "good day." And then the Senator put out the following statement celebrating the takedown, but oddly insisting it proves why SESTA was needed.

The seizure of the malicious sex marketplace Backpage.com marks an important step forward in the fight against human trafficking. This builds on the historic effort in Congress to reform the law that for too long has protected websites like Backpage from being held liable for enabling the sale of young women and children. Today’s action sends a strong message to Backpage and any other company facilitating online sex trafficking that they will be held accountable for these horrific crimes.

But, considering that Backpage was taken down prior to SESTA becoming law, how can McCain honestly claim that the law protected Backpage from being held liable? It did not. It only protected them from liability for actions of third parties. It has never protected the site from liability for its own actions. And the takedown on Friday proved that. So it's quite bizarre for McCain to pretend otherwise.

Either way, all of this is yet more evidence that SESTA was never truly about going after Backpage. That was all just a convenient excuse to gut Section 230 of the CDA and pave the way for changing some of the fundamental open parts of the internet, closing them off and putting up more and more gatekeepers. That those who supported SESTA and insisted it was necessary to take down Backpage are now pretending otherwise just underlines that fact.

Filed Under: cda 230, cindy mccain, doj, fosta, intermediary liability, john mccain, mimi walters, rob portman, sesta
Companies: backpage

Almost Every Word Of John McCain's Response To Chelsea Manning's Sentence Commutation Is Flat Out Wrong

from the hypocrites-in-congress dept

It's hardly a surprise that a bunch of people who have been fed a load of bullshit about what Chelsea Manning did years ago are now quite angry over President Obama's decision to commute Manning's sentence. But I don't think any are quite as painstakingly wrong as Senator John McCain. Someone should call up the Guinness World Record folks, because the wrong-per-sentence ratio of McCain's angry statement might just set a new world record. Let's dig in.

President Obama’s commutation of Chelsea Manning’s sentence is a grave mistake that I fear will encourage further acts of espionage and undermine military discipline.

Wait. Really? Manning has been in prison for seven years, with a significant portion of that being held in solitary confinement, sometimes being made to strip naked before being able to sleep. This was called "cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture" by the United Nations. You would think, of all people, Senator John McCain, who similarly was held in solitary confinement and tortured for extended periods while being held captive for 5 and a half years in Vietnam, would recognize that "only" 7 years of such treatment wouldn't exactly encourage more of Manning's behavior.

To put it more directly: who, in their right mind, is going to leak a bunch of documents thinking "oh, perhaps after going through literal torture, character assassination and basically hell on earth, it'll be okay, because maybe some other President will commute my insane 35 year sentence to just 7 years? No one. The idea that this commutation is going to lead to further leaks is ridiculous. If anything will lead to further leaks it's Manning's courage in seeing something wrong in the system and actually doing something about it.

In fact, it was things like Manning's courage that helped inspire Ed Snowden and other whistleblowers to step up. They didn't do it on the idea that they might "only" suffer 7 years of torture.

Second, what Manning did was not "espionage" and for McCain to suggest it is, means McCain either has no idea what he's talking about, or is lying. Manning leaked diplomatic cables and related information exposing vast wrongdoing by the US, to Wikileaks, who partnered with a number of respected press outlets to reveal the wrongdoing. That's not espionage. That's classic whistleblowing. And, yes, in case you've forgotten, Manning's leaks revealed a hell of a lot of wrongdoing by the US government.

It also devalues the courage of real whistleblowers who have used proper channels to hold our government accountable.

Oh come on. We've highlighted repeatedly how the "proper channels" claim is a complete joke. The "proper channels" have a long history of retaliating against whistleblowers such that everyone now knows the best way to destroy your life is to use the proper channels.

It is a sad, yet perhaps fitting commentary on President Obama’s failed national security policies that he would commute the sentence of an individual that endangered the lives of American troops, diplomats, and intelligence sources by leaking hundreds of thousands of sensitive government documents to Wikileaks, a virulently anti-American organization that was a tool of Russia’s recent interference in our elections.

First of all, Manning did not endanger the lives of American troops, diplomats and intelligence sources. During Manning's sentencing hearing, following her conviction, the US military admitted no one died because of Manning's leaks. So why does this myth still persist? Mainly because it's politically convenient to lie and pretend that whistleblowing leaks must "cost lives."

Thousands of Americans have given their lives in Afghanistan and Iraq upholding their oaths and defending this nation. Chelsea Manning broke her oath and made it more likely that others would join the ranks of her fallen comrades. Her prison sentence may end in a few months’ time, but her dishonor will last forever.

This has been pointed out over and over again: the oath that people take is to defend the Constitution. And a big part of that is calling out unconstitutional behavior by "this nation." Which is exactly what Manning did. Manning clearly felt that part of defending our nation and upholding her oath was to reveal wrongdoing by the US government. Furthermore, once again, the US military itself admitted that Manning didn't cause anyone to die.

Finally, as Marcy Wheeler correctly points out, McCain isn't just completely wrong with most of his statement, he's a total hypocrite as well. After all, McCain has been one of the most vocal supporters of General David Petraeus, a man who was convicted of giving classified information (much more serious than anything leaked by Manning) to his mistress. When there was talk of demoting Petraeus for this fairly serious breach, McCain said he was going to launch a Congressional investigation. And, more recently, McCain had this to say about Petraeus:

People make mistakes in life, they pay a price and move on.

So, uh, yeah. Compare that to his statement about the commutation (not pardon) of Manning's sentence and explain how McCain is not an utter and total hypocrite. If commuting Manning's sentence after "just" 7 years of torture and inhuman treatment will incentivize more leaks, wouldn't that also mean that Petraeus getting basically no punishment at all for leaking much more serious material will lead to more leaks, since it seems top government and intelligence community officials are clearly being given the message: it's okay to give up the nation's biggest secrets if it means you get laid.

Filed Under: chelsea manning, commutation, espionage, harm, john mccain, oath, whistleblowing

Senator John McCain Uses Cybersecurity Hearing To Try To Shame Twitter For Not Selling Data To The CIA

from the NO-ONE-CARES dept

John McCain -- fighting for the government's right to get all up in your everything -- has decided to embrace the "grumpy" part of his "grumpy old legislator" personality.

Back in July, McCain expressed his displeasure with Apple declining his invitation to show up and get yelled at/field false accusations at his hearing on encryption. He dourly noted that he was "seeking the widest variety of input," but his invited guests included Manhattan DA Cy Vance, a former Bush-era Homeland Security advisor and former NSA deputy director Chris Inglis. Not having Apple to kick around peeved McCain, who finished off the "discussion" with subpoena threats.

Another encryption hearing hosted by McCain devolved into the senator ranting about something no one cares about but him: a tech company not immediately prostrating itself in front of an intelligence agency. Here's Marcy Wheeler's summation of McCain's "contribution" to the discussion.

His tertiary point seems to have been to attack Apple and Twitter for making efforts to protect their customers. After getting a witness to comment about Twitter’s long-term refusal to let Dataminr to sell Twitter data to the CIA, he suggested perhaps the response should be to “expose” the company.

"Expose" how? This was "exposed" already, with the aftershocks of the exposure being "so what?" and "who cares?" Twitter simply enforced a pre-existing policy, pointing out to a third-party data mining company that it wasn't allowed to sell Twitter data to the government for surveillance use. This blocked the CIA from drinking from the Dataminr/Twitter firehose, which made the CIA sad and Twitter look stalwart and -- generally speaking -- didn't prevent the government from using any number of other methods to scoop up public tweets for surveillance purposes.

It also made McCain mad and he's still aching about it three months later. So, Wheeler has decided to help McCain out by publicizing Twitter's decision to hold a third-party social media data miner to the terms of its agreement with the government. Two more headlines have been added to her post, both breaking the news that was broken months ago and did little to appreciably nudge surveillance/outrage needles in any direction.

But it's still a big deal to McCain. He spent a little over two minutes (starting about 46:50 in the recording posted here) crafting his molehill into a mountain before cajoling NSA director Michael Rogers into answering what should have been a hypothetical question. While Admiral Rogers uncomfortably admitted he "didn't understand" why Twitter would enforce a pre-existing policy, McCain was unable to get anyone in the room to say anything on the record about "exposing" Twitter for its apparently nefarious decision to enforce the rules of Dataminr's agreement.

Wheeler has a better question:

Of course, you might ask why McCain is demanding that our tech companies to make money off of surveillance of you. And why he considers Twitter such an exception.

Filed Under: data, john mccain, surveillance
Companies: twitter

Former Homeland Security Advisor: Tech Companies Have The Burden Of Proving Harm Of Backdoored Encryption

from the FORTUNES-READ-AND-IGNORED---$5 dept

Last week's one-sided "hearing" on encryption -- hosted by an irritated John McCain, who kept interrupting things to complain that Apple hadn't showed up to field false accusations and his general disdain -- presented three sides of the same coin. Manhattan DA Cyrus Vance again argued that the only way through this supposed impasse was legislation forcing companies to decrypt communications for the government. The other two offering testimony were former Homeland Security Advisor Ken Wainstein and former NSA Deputy Director Chris Inglis.

Not much was said in defense of protections for cellphone users. Much was made of the supposed wrongness of law enforcement not being able to access content and communications presumed to be full of culpatory evidence.

But one of the more surprising assertions was delivered by a former government official. Wainstein's testimony [PDF] -- like Vance's -- suggested the government and phone makers start "working together." "Working together" is nothing more than a euphemism for "make heavy concessions to the government and prepare to deliver the impossible," as Patrick Tucker of Defense One points out. Wainstein says phone manufacturers must do more than theorize that weakened encryption would harm them or their companies. They must hand over "hard data" on things that haven't happened yet.

Kenneth L. Wainstein, a former assistant attorney general for national security at the Department of Justice, told lawmakers that the burden is on technology companies and privacy advocates to show how backdoors would harm user security, rather than on law enforcement to prove that altering the encryption scheme would be safe.

“For the tech industry and civil liberties groups, this means laying out technically specific support for the contention that a government accommodation would undermine the integrity of default encryption. They should provide hard data that demonstrates exactly how—and how much—each possible type of accommodation would impact their encryption systems. It is only when Congress receives that data that it can knowledgeably perform its deliberative function and balance the potential cybersecurity dangers posed by a government accommodation against the national security and law enforcement benefits of having such an accommodation in place,” he said.

The only thing harder than proving a negative is proving how badly things might go if backdoors are inserted or companies are required to retain encryption keys.

As usual, the "smart guys" are ahead of the curve on this bizarre demand. Last year, multiple encryption experts collaborated on a research paper [PDF] that laid out the problems that would result from government-mandated access.

In this report, a group of computer scientists and security experts, many of whom participated in a 1997 study of these same topics, has convened to explore the likely effects of imposing extraordinary access mandates. We have found that the damage that could be caused by law enforcement exceptional access requirements would be even greater today than it would have been 20 years ago. In the wake of the growing economic and social cost of the fundamental insecurity of today's Internet environment, any proposals that alter the security dynamics online should be approached with caution. Exceptional access would force Internet system developers to reverse forward secrecy design practices that seek to minimize the impact on user privacy when systems are breached. The complexity of today's Internet environment, with millions of apps and globally connected services, means that new law enforcement requirements are likely to introduce unanticipated, hard to detect security flaws.

So, if Wanstein is looking for answers, he already has them. So does James Comey. So does Cyrus Vance. (Although, to be fair, Vance hasn't really feigned much concern for tech companies or their customers.) They just don't like the answers they've received. This is why they continue to claim that a perfectly safe, government-mandated encryption backdoor is just a "smart guy" breakthrough away. Any day now, someone at Apple or Google will shout "Eureka" and hand over the unicorn Comey, et al insist must exist.

Filed Under: chris inglis, crypto wars, cy vance, encryption, homeland security, john mccain, ken wainstein

Sen. McCain Unhappy Apple Turned Down His Invitation To Be Encryption Hearing Punching Bag

from the Sad! dept

Last Friday's hearing on encryption was hosted by the Senate Committee on Armed Services and a visibly-irritated John McCain. McCain is no fan of encryption and, apparently, no fan of Apple. Kieren McCarthy of The Register reports (and delivers a stellar headline).

Opening the Committee on Armed Services' hearing on cybersecurity this morning, McCain went out of his way to note that Cook has declined the senator's invitation to give testimony alongside three opponents of end-to-end encryption on the company's iPhone.

"I must note for the record that these were not our only invited guests," McCain said.

"This committee extended an invitation to Apple CEO Tim Cook to offer his perspective on these important issues. He declined. I hope he will reconsider in the future so that this committee can benefit from the widest possible variety of perspectives."

"Widest possible variety." The other three "guests" included noted encryption opponent Cyrus Vance, former Bush Homeland Security Advisor Ken Wainstein, and -- producing the only measured take on the issue -- former NSA deputy director Chris Inglis. So, the deck was stacked, and Apple likely felt its testimony would be largely undercut by having to defend itself against baseless assertions and wild allegations, like it did at the last hearing it attended.

Back in April, the "intelligence commander" of the Indiana State Police, Charles Cohen, suggested Apple had provided iOS source code to the Chinese -- something it wasn't willing to hand over to the US government. So, while attempting to speak about the issue at hand, Apple's reps had to address idiotic statements like these instead.

That's where I was going to conclude my comments. But I think I owe it to this committee to add one additional thought. And I want to be very clear on this: We have not provided source code to the Chinese government. We did not have a key 19 months ago that we threw away. We have not announced that we are going to apply passcode encryption to the next generation iCloud. I just want to be very clear on that because we heard three allegations. Those allegations have no merit.

Thanks, but no thanks. McCain and others attending the hearing pretend the encryption problem can be solved by "working together." But Manhattan DA Cyrus Vance used part of his testimony to basically accuse Apple of offering encryption-by-default just to spite the government. The others testifying didn't go quite as far as Vance did in portraying the company as the enemy of justice, but there was really nothing in it for Apple. There's no "working together" going on here, not if the committee offers three invitations to people opposed to encryption (or at least far more sympathetic to law enforcement's requests) but the only outsider asked to attend is one that spent the running time of the last hearing listening to ignorant statements and wild allegations.

Not having Apple to kick around obviously bothered McCain.

As the hearing progressed and McCain was faced with the fact that all three panelists were effectively saying the same thing, he grew increasingly frustrated at the failure of Cook to serve as a legislative punching bag and repeatedly referred to his absence.

His committee "has subpoena power" McCain grumpily noted, implying that he would compel Cook to attend a future kangaroo court. And at the end of the hearing, McCain still wouldn't let the matter drop and complained that it was "unacceptable" that Cook had failed to attend.

That's what passes for "working together" in Washington. Threats of forced attendance at upcoming hearings where tech representatives can be sat on one side and angrily glared at when not attempting to defend themselves from speculative assertions and allegations.

Filed Under: encryption, going dark, john mccain
Companies: apple

Cy Vance Still Arguing For Mandated Encryption Backdoors; Believes Third Party Doctrine Supports His Theory

from the a-bunch-of-bad-ideas,-all-wrapped-up-in-self-righteousness dept

The United States Senate Committee on Armed Services held a hearing about the coming darkness cellphone encryption Friday morning. There was almost no attempt made to address both sides of the issue, most likely because Senator John McCain -- who headed up the "discussion" -- has already made up his mind on how this problem should be handled.

Testimony -- all from government officials -- was presented, with Manhattan DA Cyrus Vance leading off. Vance's tune hasn't changed. Encryption is still (apparently) an insurmountable problem and the only "answer" runs directly through Congress. Vance spent most of his speaking time [PDF] criticizing Apple and suggesting its decision to provide encryption by default on its phones was done purely to spite him and the government.

Given Apple’s own statements about the security of iOS 7, shortly after Apple’s reengineering of its phones to prevent search warrant access by law enforcement, I asked it in a letter dated March 2015, whether there was a bona fide security reason to make its new operating system, iOS 8, warrant-proof. Apple chose not to answer me, but in March of this year, the House Judiciary Committee compelled Apple to answer the same question. That Committee asked Apple the following question, in writing, “Was the technology you possessed to decrypt these phones”—and the clear reference is iOS7 phones and their predecessors—“ever compromised?” Apple’s written response was: “The process Apple used to extract data from locked iPhones running iOS 7 or earlier operating systems was not, to our knowledge, compromised.” (Emphasis added.)

Apple’s answer to this crucial question shows what we have long suspected: That Apple’s method of data extraction under iOS 7 posed no documented security problems. That being so, then there should be no unreasonable security risk going forward if we return to the procedure where court-ordered warrants can be honored by extracting responsive data off of smartphones.

In Vance's view, encryption protocols should not be altered until they've been compromised -- a view that aligns nicely with his presumption that the government should always have access to phone contents but runs counter to good security practices. Vance wants Apple to go back to holding the encryption keys and be on hand to unlock the door whenever the government asks.

Vance is still pushing his "encryption is a godsend to criminals" narrative -- based on little more than same single recorded prison phone call he referenced months ago. Vance may have a pile of cellphones law enforcement can't break into, but that hardly suggests a majority of criminals are gravitating towards encrypted services. The rise in the number of encrypted communications methods will benefit some criminals, but even high-profile terrorist attacks have been coordinated and planned using methods still open to interception and investigation.

The solution is legislation, according to the DA. Vance provides a list of prior legislation crafted to aid law enforcement as support for his theory the government should be allowed access to phone contents. However, his list covers only records collected and stored by third parties -- not the content and communications he's seeking access to.

Federal regulation is already important in the communications industry. When telephone companies went from using copper wires to using fiber optics and digital signals, the police could no longer use their old techniques of executing wiretap orders, and so Congress passed the Communications Assistance for Law Enforcement Act (CALEA), mandating that telecom providers build into their systems mechanisms for law enforcement to install court-ordered wiretaps. CALEA has worked. It has saved lives, and it has withstood Constitutional challenge. It has not stifled innovation, as its opponents feared…

[...]

Here are a few other examples: DEA regulations require all U.S. pharmacies to maintain paper and electronic prescriptions bearing the name of the patient and prescriber, drugs dispensed, and dates filled. FTC regulations require any business that checks a customer’s identification to maintain and provide victims and law enforcement with transaction records relating to identity theft. State regulations require private schools to maintain student data records, including records of attendance and suspected child abuse. I could go on.

The point is that companies in nearly every industry are required by law to maintain voluminous customer records and produce criminal evidence when they receive a court order. When your introduction of goods and services into the stream of commerce overlaps with public safety, this is the price of doing business in the United States.

In other words: the government should have access to iPhone contents because it has access to other stuff. It's a clumsy comparison at best. At worst, it's a blueprint for unprecedented government intrusion. Vance may be trying to demonstrate that the government has historically had access to a wealth of information thanks to regulators and the Third Party Doctrine and should continue to be granted access, but this inept analogy is worse than apples-to-oranges. Connecting Vance's dots suggests he views personal data and communications as just another set of records "collected" by cellphone providers. He may not openly suggest these are nothing more than "third party" records, but he obviously believes private corporations "owe" this sort of access to the government.

Vance says he doesn't want a legislated encryption backdoor, but his solution is basically a legislated encryption backdoor.

My Office’s proposed solution is to enact a federal statute providing that data on any smartphone made or sold in the United States must be accessible—not by law enforcement, but by the maker of the smartphone’s operating system—when the company is served with a valid search warrant. And if a person or entity such as Apple offers encryption software, it has to have the ability to provide data in response to a judicial order.

The backdoor may be located at the company's headquarters, but it's a backdoor all the same.

His testimony also suggests more legislation might be needed to further subvert encryption. Like James Comey, Vance suggests harder nerding will make the impossible possible.

This solution is limited to data at rest on smartphones. It would not affect encryption of data in motion. I cannot at this time offer a technical fix to address data in motion. I am confident, however, that engineers from industry and government, working together in good faith, can find one.

"Good faith." That's hilarous. The only time law enforcement is interested in a "good faith" discussion is when it's trying to salvage an illegal search.

Vance -- like Comey -- believes all concessions must come from the private sector. That's how he defines "working together." He's also concerned a 12-month study from a Congressional committee won't address the issue fast enough.

Twelve months of taking testimony resulting in non-binding recommendations in a report will not adequately address the urgency of the problem that local law enforcement faces. Time is not a luxury that local law enforcement, crime victims, or communities can afford.

With a nod to civil liberties:

Our laws require speedy trials. Victims require justice. And criminals must be held accountable before they can reoffend.

I would think that if you don't have the evidence -- if it's on phones that can't be broken into -- you just don't have the evidence. I sincerely hope people aren't being locked up until Congress creates the backdoor Vance is looking for. Of course, we know that is happening, but hopefully not on the scale Vance suggests with his list of police-resistant devices still being held by law enforcement agencies (who assume they contain evidence of criminal activity).

The end result of the encryption study can't be determined at this point. But given the nature of this committee -- and its decision to only present one side of the issue -- it appears its greatest purpose may be nothing more than buying time until backdoor/ban legislation is reintroduced.

Vance's side hasn't budged an inch. While deference is continually paid to the "smart people" at tech companies, it's only done so under the assumption that they're just holding out on the government. The solution Vance, et al want is supposedly possible, even if it isn't. Any arguments to the contrary are continually treated as deliberate antagonism, rather than basic facts. Backdoored encryption -- no matter who holds the keys -- is a security problem. And it's not going to go away, no matter how many times the same arguments are repeated.

Filed Under: cy vance, cyrus vance, encryption, going dark, john mccain, manhattan da
Companies: apple

Senate Just Barely Rejects Plan To Expand FBI Surveillance Powers

from the two-votes dept

Just yesterday we wrote about how the Senate was, somewhat ridiculously, rapidly pushing forward plans on a vote for an amendment to the laws concerning what information the FBI can gather using National Security Letters (NSLs). Despite the fact that the big push for this bill began a few weeks ago, and the fact that it had absolutely nothing whatsoever to do with the Orlando shooting, cynical Senators including John McCain and Mitch McConnell pointed to the shootings in Orlando as a reason that this expansion of FBI surveillance powers was needed. Of course, the reality is that it wasn't needed, and the law is really there to paper over the fact that the FBI has already been widely abusing its NSL powers to get information it's not allowed to request.

After a vocal debate this morning, the measure (somewhat surprisingly) failed to pass, but by just two votes. It need 60 votes to move forward (it was a vote for "cloture" on debate, which requires 60 votes), and it only received 58. But McConnell already made it clear that the amendment will be reconsidered soon, which means he's likely going to be pushing strongly to get those two remaining votes.

In other words, this particular debate is far from over, and thus it's important to make sure your Senator knows not to support this. You can see the roll call on the votes here to see what your Senators voted. Somewhat surprisingly, neither of my Senators in California voted for it. Feinstein didn't vote or wasn't present and Boxer voted against. I'm guessing that Feinstein would likely vote for it in a revote, given her willingness to support greater surveillance, so it's possible that McConnell really only needs one more vote, unless people can convince some of the "Yea" voters to change their mind.

Filed Under: 4th amendment, doj, fbi, john mccain, mitch mcconnell, national security letters, nsls, politics, warrants

Seeing Opportunity, Congress Tries To Rush Through Its Plan To Legalize FBI Abuses Citing 'Orlando!'

from the let-no-crisis-go-unwasted dept

Just a few weeks ago, we wrote about the FBI pushing strongly for an update to the law that covers National Security Letters (NSLs) to cover up the fact that the FBI has been using them to get electronic communications records. The current law on NSLs doesn't cover that information, though the FBI insists that it's just a "typo" in the law, and still frequently asks for them in its NSLs, because NSL recipients often don't know the law themselves and will still turn over the info. Of course, it helps that the NSLs often come with gag orders. Reports going back a decade have shown that the FBI has a serious problem with abusing its NSL powers to get lots of information it's not supposed to have. And rather than do something to stop such abuses, the FBI's friends in Congress have, instead, been trying to legalize such abusive practices to allow the FBI to do even more.

And, in the spirit of "leave no crisis unexploited," Senator Mitch McConnell is pushing forward on the amendment put forth by Senators McCain and Cornyn to expand NSLs. And, cynically, they're citing the Orlando shootings as the reason why, despite the fact that this amendment was being pushed for before the shootings even occurred and the fact that this would have done absolutely nothing to stop the shootings.

“In the wake of the tragic massacre in Orlando, it is important our law enforcement have the tools they need to conduct counterterrorism investigations,” Senator John McCain, an Arizona Republican and sponsor of the amendment, said in a statement.

The FBI and others in law enforcement already have plenty of tools to do counterterrorism investigations (and, again, it's not even clear that the Orlando shooting was a terrorist activity in the first place). Nothing in this amendment would change how the FBI was investigating the attack. This is just McCain, McConnell and others exploiting the shooting to help the FBI further abuse its surveillance powers.

Filed Under: john mccain, mitch mcconnell, national security letters, nsls

John McCain, Forgetting His Own Support Of Fair Use On YouTube, Tries To Use Copyright To Take Down His Own Ad

from the hypocrite dept

You may recall that, back during the 2008 Presidential election, the Presidential campaign of John McCain sent YouTube a letter, complaining that the video site did not take fair use into account when deciding to pull down videos after receiving copyright complaints. Apparently, some people had been issuing copyright claims on videos related to his campaign that he believed were fair use, and he was quite upset about it. In particular, McCain was upset about videos his campaign had uploaded that included news clips that were taken down. He insisted this was not just fair use, but that YouTube was an important platform for political speech, and should be much more careful before pulling down political videos. If you can't read that, here are just a few choice quotes from the letter:

YouTube is to be congratulated on the groundbreaking contributions it has made to the political discourse....

... overreaching copyright claims have resulted in the removal of non-infringing campaign videos from YouTube, thus silencing political speech.....

... It is unfortunate because it deprives the public of the ability to freely and easily view and discuss the most popular political videos of the day....

We recognize that the DMCA provides a counternotice procedure (of which we have availed ourselves several times), but this procedure, and the way YouTube has implemented it, provides inadequate protection for political speech, particularly in the context of a fast-paced political campaign.....

From there, the McCain campaign went on to propose that political campaigns get special treatment, and that any videos associated with a political campaign get a more thorough human legal review prior to a takedown. If this sounds familiar, it's the same idea we actually heard proposed by the Copyright Office at their recent hearings. That suggestion of carving out political speech for special rights is a very bad idea, but McCain wasn't wrong to note the problem of copyright being used to censor political speech.

You know where this is heading, right? It appears that McCain's current campaign (for Senate re-election in Arizona) has... issued a copyright takedown on a video posted by Rep. Ann Kirkpatrick, who is challenging him for his Senate seat. Kirkpatrick apparently uploaded a McCain campaign ad from his 2010 Senate campaign about completing "the danged wall" on the border with Mexico, and uploaded a version with Spanish subtitles. Here's the original ad: Obviously, "the wall" is a political hot potato -- especially this election season -- and Kirkpatrick is (quite reasonably) trying to remind voters (especially Hispanic voters) of McCain's strong support for the wall. That seems like pretty clearly protected free speech in a political campaign. The exact kind of thing that a former McCain campaign once suggested deserved extra protection as fair use. But, now he's just abusing the copyright takedown process against a rival. McCain's campaign suggestion that this was purely about copyright is laughable:

The ad in question was not blocked because of its content, according to Lorna Romero, a McCain campaign spokeswoman.

"The Kirkpatrick campaign launched a digital ad which was a clear copyright violation and YouTube agreed," Romero said.

Again, there's a strong argument that this is fair use. It's certainly not undermining the market for 2010 McCain campaign spots. And, of course, it's not like McCain created the commercial because of the copyright. The whole thing is obviously done to censor a political rival because the message is embarrassing in the context Kirkpatrick raised it in.

It seems like the McCain campaign of today, might want to refresh what the McCain campaign of 2008 had to say:

While the issues presented by YouTube and other Internet technologies are new, the need to prevent meritless copyright claims from chilling political speech is decidedly not. Thirty years ago, a federal judge confronting a copyright claim over the use of music in a political advertisement correctly recognized the importance of preventing copyright from interfering with political candidates' free and full exercise of their First Amendment right to vigorously debate the issues of the day:

In the context of this case, the Court must be aware that it operates in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.... [T]here is practically universal agreement that the major purpose of that Amendment was to protect the free discussion of governmental affairs, including discussions of candidates. This is a reflection of our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, because the identities of those who are elected will inevitably shape the course that we follow as a nation.

[....] Though the judge who wrote those words had never used YouTube, the values he articulated are as true today as they were when he wrote them three decades ago.

And, yes, they are as true today as well. If only the McCain campaign were familiar with what the McCain campaign wrote, because right now, it appears to be doing the exact opposite, in trying to use copyright to censor political debate.

Filed Under: ann kirkpatrick, copyright, debate, fair use, free expression, john mccain, political speech, politics, takedowns, youtube