Controversial Spyware Vendor NSO Group Is Helping The Israeli Government Spy On Its Own Citizens

Privacy

from the for-their-health,-of-course dept

Israel’s leading malware purveyor is pitching in to help with the pandemic. NSO Group — which has pitched its spy tools to a number of questionable governments — is trying to help track the spread of the virus with its proprietary surveillance tool.

This would be the third effort by the country to keep tabs on the disease, starting with the Israeli government’s authorization of the use of phone/location data to monitor infected individuals. There’s also a more voluntary effort, created by the country’s Ministry of Health, that allows users to “check in” by providing data about where they’ve been and whether or not they’ve tested positive for the disease.

But it’s NSO’s spyware that’s the most worrying. Motherboard was able to observe the software in action and Lorenzo Franceschi-Bicchierai reports it’s a pretty scary piece of spycraft.

The spyware company has adapted the user interface and analytical tool that they already had developed to be used alongside its powerful malware known as Pegasus, which can hack into mobile phones and extract data like photos, messages, and phone calls, from them. NSO is not collecting location data from phones. It only provides the software to governments, which then get the location data from telecom companies and ingest it within the software, according to the source.

At least NSO isn’t injecting itself into users’ phones, but that’s about the only positive thing that can be said about it. The software — code named Fleming — takes this data and creates heat maps showing people’s movements: where they go, how long they stay, and who they come in contact with. Sure, the data is anonymized, but that’s a dodge. Anonymized data can be de-anonymized with very little effort. But with NSO’s offering, de-anonymization is just another bullet point on the feature list.

With the goal of protecting people’s privacy, the tool tracks citizens by assigning them random IDs, which the government—when needed—can de-anonymize, the source explained.

With NSO on board, the Israeli government is looking towards a more China-esque management of the country’s citizens. China has “citizen scores.” Israelis will now be tagged with health scores.

On Monday, Israel’s Defense Minister Naftali Bennett tweeted that the Israeli government is working on “world-leading” AI system that will give every citizen a grade between 1 and 10 to determine how likely they are to spread the coronavirus and if they need to be tested, but that it hasn’t gotten all the necessary approvals yet. On Tuesday, Israeli news outlet Calcalist reported that Bennet was referring to NSO’s solution.

If every citizen is getting a score, it would appear the government isn’t going to have much use for anonymized data. Seemingly unable to see the downsides of inflicting mass domestic surveillance on Israel’s residents, Bennett is fully embracing the involuntary sacrifice of citizens’ privacy in exchange for unproven pandemic-fighting gains. The Defense Minister has made it clear he thinks other governments should follow Israel’s dubious lead.

Of course, once this pervasive tracking is in place, it will stay there long after the virus is under control. There’s no set expiration date for this worldwide health crisis. Once it does retreat into the background, the usual national security and law enforcement concerns will replace it and the access government agencies have taken for granted for months or years won’t be relinquished without a fight. And there’s a good chance the officials that decided it was necessary to place the country’s citizens under surveillance won’t see the need to roll things back to their pre-coronavirus level.

Filed Under: covid-19, disease tracking, israel, privacy, spyware, surveillance, tracking
Companies: nso group

Judge Benchslaps Cops And Courts For Turning Law Enforcement Lies Into 'Objectively Reasonable' Mistakes

Legal Issues

from the probable-cause-of-one's-own dept

It’s always fun to read a good benchslap of cops who’ve tried to turn nothing at all into “probable cause.” It doesn’t happen very often because courts are far too obliging far too often. The standard law enforcement officers are held to — objective reasonableness — rarely seems reasonable, no matter how objectively you approach it.

This ruling [PDF] by a Florida federal court does not coddle the officer who made a mockery of both objective reasonableness and probable cause. You can tell this is headed into unconstitutional territory during the recounting of the events that led to the arrest of Jorge Sanchez. (via FourthAmendment.com)

Local officers were working with the DEA on a drug trafficking investigation. They decided to pull over someone heading away from the house they were surveilling. But the officers had nothing approaching probable cause. All they had was someone driving away from a house they suspected might be tied to drug sales. But that wasn’t going to stop them from stopping Sanchez. So, they did what they had to do.

Deputy Steuerwald asked Sgt. Beuer to “develop his own probable cause and conduct a traffic stop on the car.”

This would be a lot more shocking if it wasn’t nearly pretty much every pretextual stop ever. You can’t fish unless you have someone else’s (drivers) license in your hand, so any real or imagined traffic violation will do. Only this one was so imaginary the court’s not having any of it.

Sgt. Beuer did so—or at least he thought he did (more on this later)—and pulled Sanchez over for violating the Florida “stop bar” statute.

The “more on this later” is the best part of the suppression order. The bogus stop led to a search of the vehicle and the arrest of Sanchez. None of that matters any more because Sgt. Beuer was objectively awful at creating probable cause.

The state’s stop bar statute says this:

[E]very driver of a vehicle approaching a stop intersection indicated by a stop sign shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection.

And here’s what Sgt. Beuer testified Sanchez had done:

At the hearing, Sgt. Beuer identified this intersection and confirmed that Sanchez brought his vehicle to a complete stop at a position in relation to the stop sign as depicted in this photo.

There’s no stop bar on the road and the vehicle is stopped “where the driver has a view of approaching traffic.”

The government said Sgt. Beuer’s lie was reasonable enough to generate probable cause for a stop. The court disagrees, using evidence Beuer agreed was true, as well as his own testimony about the stop.

While generally familiar with stop bars, and believing them to be fairly ubiquitous, Sgt. Beuer acknowledged he was not overly familiar with this area of Rockledge, Florida. (Doc. 30.) But Sgt. Beuer had walked back and forth on Skelly Drive at or near the intersection with Florida Avenue, so he had an opportunity to view the road surface condition and the general “lay of the land,” both in his vehicle and on foot.

Looking at the photographic evidence, which Sgt. Beuer accepts as properly depicting the scene (Doc. 31-5; Doc. 32-8, p. 8), it is difficult to imagine how a motorist might, at this particularly odd intersection, have any ability to see oncoming traffic from the left if stopped anywhere short of the point where Sgt. Beuer concedes Sanchez stopped his vehicle on this night. An added stop bar would have made the situation worse from a safety perspective.

This isn’t even subjectively reasonable, says the court.

In short, it was not objectively reasonable for Sgt. Beuer to believe that Sanchez violated Florida Statute § 316.123 by failing to stop at a stop bar that not only was not there, but where there was nothing about this intersection to suggest it would be there—quite the contrary. When you add the fact that Sgt. Beuer actually traversed the area on foot, the reasonableness of his predication is further undermined.

Now, here’s where the order gets really good. The court not only slaps the government, but judges who are far too willing to overlook blatant Constitutional violations by law enforcement officers because it’s presumably too difficult to do police work and respect rights at the same time.

If these facts qualify as “objectively reasonable”, then the Fourth Amendment’s protection against unreasonable search and seizure is simply not applicable to a pretextual traffic stop. The Court should stop imbuing the “objectively reasonable” officer with a cloak of constitutional comfort for justifications that strain credulity and discount the facts out of deference to their necessary “game time decisions”. See Chanthasouxat, 342 F.3d at 1276. While deference is a necessary component of the analysis, it does not warrant a rubber stamp. The Fourth Amendment still has some teeth in a traffic stop.

Courts are supposed to act as a bulwark against government overreach, not as an enabler of unconstitutional behavior. But qualified immunity, the good faith exception, and other defenses cops can raise when accused of illegal behavior — defenses that aren’t available to citizens — have turned the courts into an entity that rarely allows for the actual redress of grievances.

Filed Under: benchslap, dea, florida, law enforcement, objectively reasonable, police, probable cause

New Inspector General's Report Finds Even More Problems With The FBI's FISA Surveillance Applications

Legal Issues

from the demanding-the-best-people-but-demanding-nothing-from-them dept

The FBI’s inability (or unwillingness) to craft factual FISA court affidavits was exposed late last year by an investigation by the DOJ’s Inspector General. During the FBI’s surveillance of former Trump advisor, Carter Page, information known by the agency was omitted to allow agents to continue its interception of Page’s communications. Despite having obtained info showing Page was likely not acting on behalf of a foreign power, the FBI continued its surveillance for months by hiding this key finding from the FISA court.

The fallout from this report continues. The FISA Court banned the FBI agent who lied on the warrant applications. The court also instructed the FBI to start cleaning up its Carter Page mess, including tracking down where any other info it might have illegally collected in this case might have gone, in order to prevent further violations by other agencies in the future.

Current and former DOJ/FBI officials made it clear the FBI’s questionable actions in this case were only the agency’s most current violations. The skirting of internal guidelines and the truth itself was a common practice dating back nearly 20 years.

The Inspector General’s findings in the Page investigation were the tip of the unexpected iceberg. The IG is now looking at the rest of the FBI’s FISA work. And the office is finding even more to be concerned about.

The finding of broader failings in the Foreign Intelligence Surveillance Act program came in a review launched by Justice Department Inspector General Michael Horowitz after an earlier inquiry found numerous errors in applications to monitor former Trump campaign foreign policy adviser Carter Page. In a bid to assess whether the faults in the Page’s surveillance process were an aberration or a chronic problem, Horowitz’s audit team zeroed in on 29 applications for surveillance of U.S. citizens or green-card holders over a five-year period.

Horowitz found an average of 20 errors in each of the applications.

It’s impossible to say how many of these errors were accidental or deliberately induced. But an average of 20 errors per application is breathtaking, considering the FISA court’s national security focus. This is where the government should be the most careful and the FBI clearly isn’t. And if this is where the FBI’s top agents end up, you have to wonder how many errors normal, non-FISA applications contain.

There’s a specific set of policies the FBI is supposed to adhere to when asking the FISA court for permission to engage in domestic surveillance. Even the most minimal conditions of the Woods Procedures aren’t being followed by agents. The Procedures say the FBI must compile and retain supporting documentation to ensure FISA applications are “scrupulously accurate.” We already know the applications aren’t accurate. The report [PDF] points out at least one reason why:

[W]e could not review original Woods Files for 4 of the 29 selected FISA applications because the FBI has not been able to locate them and, in 3 of these instances, did not know if they ever existed…

The system appears to be broken from the ground up. The applications contain errors. The supporting information isn’t accurate when it isn’t missing completely. Interviews with agents and supervisors by the IG reveal this has been an ongoing problem for years now. And no one up top is doing anything to fix it.

FBI and NSD officials we interviewed indicated to us that there were no efforts by the FBI to use existing FBI and NSD oversight mechanisms to perform comprehensive, strategic assessments of the efficacy of the Woods Procedures or FISA accuracy, to include identifying the need for enhancements to training and improvements in the process, or increased accountability measures.

Every 90 days, the FBI is supposed to justify continued surveillance to the FISA Court. It did this multiple times during the Carter Page investigation, continuously omitting facts that would have resulted in its surveillance being terminated. The FBI does this in multiple cases, apparently. A mixture of malice, stupidity, and laziness has resulted in the mess observed by the Inspector General.

[B]ased on the results of our review of two renewal files, as well as our discussions with FBI agents, it appears that the FBI is not consistently re-verifying the original statements of fact within renewal applications. In one instance, we observed that errors or unsupported information in the statements of fact that we identified in the initial application had been carried over to each of the renewal applications. In other instances, we were told by the case agents who prepared the renewal applications that they only verified newly added statements of fact in renewal applications because they had already verified the original statements of fact when submitting the initial application. This practice directly contradicts FBI policy.

The FBI agrees with the IG’s assessment that it’s terrible at following its own policies. But the response attached to the IG report — crafted by the Deputy FBI director — says things will be fine because… the FBI is creating more policies!

[T]he FBI has been intensely focused on implementing these remedial measures with the goal of ensuring that our FISA authorities are exercised with objectivity and integrity. Among many other changes, we revised FISA request and verification (Woods) forms, developed a new confidential human source checklist, developed and released training on this checklist, developed and provided new training on revised FISA forms, and developed new FISA process rigor training. The revised Woods form now requires agents and supervisors to attest to their diligence in re-verifying facts from prior applications. All Woods forms, both for initial applications and renewals, must now be scanned and maintained in the electronic case file. These already-implemented changes will drive accountability, accuracy, and completeness in the FISA process.

All of this new paperwork doesn’t mean anything if the FBI isn’t going to make sure agents follow it. The problems seen in 2002 still exist nearly 20 years later, and that’s after the implementation of additional policies following every successive reaming from the Inspector General and the FISA Court. If the FBI isn’t going to start engaging in serious oversight — including meaningful discipline of agents who fail to follow policies — the problems will continue. The only change will be the length of oversight reports, which will contain details of all the new ways the FBI is ignoring its own protocols.

Filed Under: 4th amendment, carter page, doj, fbi, fisa, fisa court, fisa warrants, fisc, inspector general, surveillance

Teleconferencing Company Zoom Pitching End-To-End Encryption That Really Isn't End-To-End

(Mis)Uses of Technology

from the some-sort-of-magic-happens-at-both-ends-so-probably-good-enough dept

As Karl Bode wrote what feels like a decade ago on March 19, 2020, privacy and encryption will be more important than ever during this pandemic and the future that succeeds it. Plenty of governments have been sacrificing citizens’ privacy for better virus tracking and plenty of governments were already throwing shade at encryption well before the pandemic became a pandemic. That includes our government, which has been agitating against encryption for several years now and fighting against our privacy in federal courts for decades.

An influx of remote workers makes encryption and privacy even more important, as there’s plenty of sensitive company business being done over open networks with minimal protections. The beneficiaries of this new normal are responding quickly to the unexpected demand, but protection of work-at-home employees and their employers seems to have been forgotten.

The field is crowded with lots of telecommuting software providers. Standing out is key if you’re going to take advantage of the current health crisis. Video conference software developer Zoom, however, is playing fast and loose with terminology in an attempt to scoop up more market share. As Micah Lee and Yael Grauer report for The Intercept, words don’t seem to mean what they normally mean when they’re being used by Zoom.

Zoom offers reliability, ease of use, and at least one very important security assurance: As long as you make sure everyone in a Zoom meeting connects using “computer audio” instead of calling in on a phone, the meeting is secured with end-to-end encryption, at least according to Zoom’s website, its security white paper, and the user interface within the app.

Sounds comforting, but Zoom is apparently using a proprietary definition of “end-to-end encryption.” Zoom explained that phrase means something else when used in marketing materials or when users hover over the green padlock on their session screens that delivers a pop-up saying “Zoom is using an end to end encrypted connection.”

This is what “E2EE” means when Zoom says it:

[W]hen reached for comment about whether video meetings are actually end-to-end encrypted, a Zoom spokesperson wrote, “Currently, it is not possible to enable E2E encryption for Zoom video meetings. Zoom video meetings use a combination of TCP and UDP. TCP connections are made using TLS and UDP connections are encrypted with AES using a key negotiated over a TLS connection.”

Well, if it’s not possible to do the thing people think you’re doing when you say “end to end encryption,” maybe you should stop saying you’re using end-to-end encryption. All Zoom is doing is encrypting the endpoints, much in the way sites using HTTPS do. This protects you from outsiders wishing to eavesdrop on your internet connection. But it doesn’t mean Zoom can’t access the content of teleconferencing sessions. And it means anyone that can find a way to access what Zoom can access is going to be able to do access possibly-sensitive communications.

One offering is actually encrypted end-to-end: Zoom’s text chat. But that’s not a standout feature. There are plenty of encrypted messaging apps. There’s been no increase in demand for those. But when privacy and security matter most, Zoom is misleading users about what it’s doing to protect them.

Update: Zoom has since put out two fairly detailed blog posts, the first one much more clearly explaining the encryption issue, and then a more important one explaining what the company is doing to respond to recent security concerns, including freezing all feature development to focus solely on “trust, safety, and privacy issues.” It remains to be seen how that plays out in practice, but it’s much better than the typical defensive response that most companies have.

Filed Under: encryption, end to end, privacy, security, video conferencing
Companies: zoom

Court Tells Lying Cops That Someone Asserting Their Rights Isn't 'Reasonably Suspicious'

Legal Issues

from the but-for-video dept

A couple of lying cops who couldn’t perform a traffic stop without violating the driver’s rights have just seen their illegally-obtained evidence tossed and their successful drug bust busted. The Louisiana Second Circuit Court of Appeal not only finds the officers untrustworthy but also points out there’s nothing reasonably suspicious about someone’s invocation of their rights.

The traffic stop that resulted in the discovery of methamphetamines was clearly pretextual. There’s nothing legally wrong with using traffic stops to engage in other investigations, but officers must have the reasonable suspicion to navigate away from the initial purpose of the stop. The Supreme Court’s Rodriguez decision removed a lot of the leeway law enforcement officers have exploited for years.

This stop began with the accusation that the car’s driver, Michael Glen Robinson, was failing to stay in his own lane. Robinson’s driving was recorded by the officer’s dash cam, along with the entire traffic stop. The court says it’s not clear Robinson actually violated the law. From the decision [PDF]:

On two occasions, Robinson’s truck can be seen to drift toward the boundary of his lane, perhaps so far as his vehicle’s tires touching the lines marking the boundaries of the lane within less than a minute. The video does not definitively establish that Robinson crossed the boundary line.

The appeals court isn’t willing to overturn the stop itself. But it has nothing good to say about the officers whose testimony was repeatedly contradicted by their dashcam recordings.

It all starts here, with the usual cop claim that the person they stopped seemed nervous.

Officer Lavrinc testified that, at this point, he tried to engage Robinson in conversation to ascertain if Robinson was intoxicated. Officer Lavrinc testified that Robinson’s “mannerisms and his demeanor were a little more intensified than that of somebody on most of the traffic stops of minor traffic violations,” and that Robinson started to get a little agitated and his carotid artery was pulsing “extremely hard.” He also stated that Robinson was sweating, his hands were shaking, and that the more he (Officer Lavrinc) spoke with Robinson, the more irritated and agitated Robinson became.

But that testimony is contradicted by the officers’ recordings:

Officer Lavrinc then asked where they were headed to, and Robinson replied “to visit a friend.” Robinson then indicated he was not able to produce his current insurance card, and asked Officer Lavrinc, “What did I do wrong?” Officer Lavrinc explained that he observed Robinson “riding the line” a couple of times and asked whether Robinson had been drinking, which Robinson denied, stating “No, sir.” Thus far in the interaction, Robinson’s voice did not sound agitated or nervous.

[…]

When other officers arrived as backup, Officer Lavrinc returned to Robinson’s truck, and had Robinson step out of his truck and put his hands on it. Officer Lavrinc conducted a Terry frisk of Robinson, and Robinson asked what the officer was doing. Robinson’s voice did not sound agitated, irritated, or nervous at any point thus far either.

[…]

The video then shows Robinson leaning against the hood of Officer Lavrinc’s patrol unit and talking with Officer Lavrinc. Robinson asked “What’s the problem?” Again, his tone of voice did not sound particularly nervous or irritated.

Robinson was also calm when he exercised his right to be free of unreasonable searches.

After explaining why he had Robinson get out of his truck, Officer Lavrinc asked whether there were any “guns, knives, bombs, [or] open containers” in the truck, which Robinson denied. Officer Lavrinc retorted, “So then you don’t mind if I take a look in the truck?” Robinson denied consent to search the vehicle, stating “You don’t need to take a look in the truck.” Again, at this point Robinson still did not seem particularly agitated or nervous.

And there are more lies:

According to Officer Lavrinc’s testimony, around this time, he conducted a standard horizontal gaze nystagmus (“HGN”) test on Robinson, seeking to detect signs of intoxication. Essentially, Officer Lavrinc testified that an HGN test is conducted by holding an object in front of the subject’s face and moving it back and forth horizontally, and that he conducted the test on Robinson using a pen tipped with a blue light. Officer Lavrinc detected no indication that Robinson was intoxicated. Contrary to this testimony, Officer Lavrinc never did an HGN field sobriety test on Robinson on camera, and Robinson never left the view of the dashboard camera video from Officer Lavrinc’s patrol unit at any relevant time.

And the search Robinson never consented to occurred anyway.

Meanwhile, Officer Hackett, who had initially walked over with Officer Shane Griffith to Robinson’s location, went to the passenger side window of Robinson’s truck and leaned his head through the window and reached in with his arm. He leaned in far enough that the sole of one of his feet came off the ground as he did so, and the illuminated flashlight in his hand can be seen well inside the truck.

The officer said this was “plain view” when it clearly wasn’t. He was far inside the vehicle when he saw the baggie. The baggie held Robinson’s insurance card. Officer Lavrinc apparently felt this was the probable cause he needed to perform a more thorough search of the truck.

Without first asking Officer Hackett whether he had already grabbed the bag and looked at it, Officer Lavrinc entered Robinson’s truck through the driver’s side door and, after searching for a short amount of time, found marijuana in the center console.

The court says none of these justifications add up.

Moments later, Officer Lavrinc returned from searching Robinson’s truck and announced that he had found marijuana. He placed Robinson and Jones under arrest, and then the officers further searched the truck and discovered the methamphetamine. However, the plastic baggie containing Robinson’s insurance card was not seized or placed in evidence, despite the fact that the officers attempted to justify the protective search in part based on the presence of the baggie in Robinson’s truck. Thus, Officer Hackett must have known that it did not contain drugs prior to Officer Lavrinc’s protective search.

The court says neither officer is credible. Their testimony is contradicted several times by the recording.

Officer Lavrinc’s testimony that he performed an HGN field sobriety test on Robinson irreconcilably contradicts the video/audio recording from his dash camera and body microphone. His testimony regarding the actions he took after Officer Hackett informed him about the plastic baggie also appears to contradict the dash camera video. Additionally, his testimony regarding his suspicion that there were drugs and weapons in the vehicle is internally inconsistent and implausible on its face.

Lavrinc’s testimony was about 90% lies and 10% logical inconsistencies.

In summary, Officer Lavrinc testified that he suspected Robinson was intoxicated, and that he believed he had reasonable suspicion that there were drugs and weapons in Robinson’s truck. Nonetheless, Officer Lavrinc testified that he was planning to release Robinson and Jones to go free in Robinson’s truck – but only after he searched the truck for a weapon to ensure the officers’ safety upon releasing Robinson and Jones. This is inconsistent, illogical and implausible. If Officer Lavrinc believed he had reasonable suspicion that Robinson was driving while intoxicated and carrying illegal drugs, why would he plan to release Robinson (to drive away in his truck) without conducting a dog sniff or a field sobriety test?

And Officer Hackett is no better. His “plain view” assertions are contradicted by his actions and statements, which were all caught on camera.

In the audio recording integrated with his police vehicle’s dashboard camera video, Officer Hackett admitted that he reached in the truck and grabbed the clear plastic bag containing Robinson’s insurance or vehicle registration to check and see if it contained illegal drugs.

This in itself constituted a warrantless search of Robinson’s truck, not a “plain view look” as Officer Hackett testified. Officer Hackett even went as far as attesting specifically that he was not searching the vehicle at this point. Finally, in glaring contradiction to his statement recorded live at the scene of the incident, he also testified that he did not touch the plastic baggie.

Cue benchslap — one that hits Officer Hackett hard enough the trial court can feel it.

Based on this testimony in direct contradiction to the video/audio recordings from the incident, we conclude that Officer Hackett’s testimony is incredible in its entirety. The trial court committed manifest error to the extent it relied on Officer Hackett’s testimony in denying the motion to suppress.

Finally, the court says someone’s insistence that their rights be respected cannot be viewed as “suspicious.”

In light of these facts, and the officers’ lack of credibility, these characterizations provide no support for a finding of reasonable suspicion. Indeed, La. C.Cr.P. art. 218.1, supra, commands police officers, upon detaining a citizen in connection with the investigation or commission of any offense, to fully advise the detained citizen of the reason for the detention. It is a corollary that a citizen has the right to ask for a full explanation of why he is being detained. As a matter of law, the officers’ characterizations of Robinson’s requests for this explanation cannot serve as a basis for reasonable suspicion. The same is true of Robinson’s refusal to consent to a search of his truck, and his objection to Officer Hackett’s unconstitutional search of the truck.

And with that, all the evidence is gone. The suppression motion is granted and these two lying cops are left empty-handed. One would hope this would encourage them to be better cops and respect the rights of citizens. But it will probably only deter them from activating their cameras during roadside fishing expeditions.

Filed Under: invoking rights, lying, police, reasonable suspicion

Appeals Court Tells Baltimore PD To Start Coughing Up Information About Its Cell Site Simulators

Privacy

from the no-more-hanging-around-in-the-shadows dept

The Baltimore Police Department was an enthusiastic early adopter of cell site simulator technology. In 2015, a Baltimore detective admitted the department had deployed its collection of cell tower spoofers 4,300 times since 2007.

The best estimate on how many of those 4,300 deployments ever showed up in court documents remains near zero. The Baltimore PD hid its deployments behind pen register orders, ensuring judges and defendants never knew the departments was using cell site simulators to track down suspects.

A little bit of information has reached the public domain in recent years, showing the Baltimore PD was more willing to toss cases than expose its use of Stingray devices. Judges were willing to toss cases too, once it was determined these secret deployments violated the Fourth Amendment.

There are now three Supreme Court rulings that directly affect Stingray deployments, with the most recent being the Carpenter decision. If the government needs a warrant to obtain historical cell site location info, it stands to reason a warrant should be required to engage in real-time tracking using Stingrays, even if the court did not specifically address this.

There’s also the Kyllo decision, which found the use of an infrared device to search a house for occupants violated the Fourth Amendment. An intrusion in which the government never actually enters the house is still an intrusion. Cell site simulators force phones inside houses to give up certain identifying information even if officers never approach the residence.

Finally, there’s the Riley decision that implemented search warrants for cellphones. A Stingray device searches cellphones, even if the search is “limited” to identifying info and location data. (Stingrays can also be used to intercept communications, but there’s been no confirmed use of this particular configuration by US law enforcement agencies.)

All of these are in play in this recent decision [PDF] by the Fourth Circuit Court of Appeals. The court does not explicitly find that a Hailstorm deployment by the Baltimore PD in 2014 was unconstitutional. But it does find that the lower court did not do enough fact-finding to determine whether it fell on the wrong side of the Fourth Amendment.

The Baltimore PD has pretty much conceded some of these points already.

Defendants concede that the Hailstorm simulator searched, at minimum, Andrews’s phone, and that its use thus required a warrant. Nor do Defendants controvert Andrews’s assertion that the Hailstorm simulator searched other cellular devices in the vicinity, or that it searched nearby homes by transmitting spoofed cell tower signals through the walls.

But the PD is still arguing that its use of a pen register order was the Constitutional equivalent of a search warrant.

Defendants instead argue that the Pen Register Order satisfied the warrant requirement and that any intrusions on third parties’ privacy interests are irrelevant to Andrews.

Those “third parties” would be everyone else in the vicinity of Andrews whose phone connected to the PD’s fake cell tower and coughed up identifying info.

Andrews prevailed in the state court, resulting in the suppression of evidence. However, his federal civil rights lawsuit hit a wall when the lower court inexplicably decided “possibly relevant to an ongoing investigation” = “probable cause.”

The federal district court found that the Pen Register Order constituted a warrant authorizing use of a Hailstorm simulator.

Pen registers do not require probable cause. If the judge had been informed that the PD was going to deploy a device that would search dozens of phones to find the one possessed by Andrews (and locate him that way), they would likely have demanded a higher standard than this bare minimum.

The Appeals Courts says there’s not enough on the record to reach a conclusion about the Constitutionality of this cell site simulator deployment. So, it’s handing it back to the lower court with a long list of questions that need to be answered before a decision can be reached.

Specifically, on remand, the district court is directed to conduct factfinding into the following characteristics of the Hailstorm cell site simulator:

(1) The maximum range at which the Hailstorm simulator can force nearby cellular devices to connect to it.

(2) The maximum number of cellular devices from which the Hailstorm simulator can force a connection.

(3) All categories of data the Hailstorm simulator may collect from a cellular device, regardless of whether such data is displayed to the Hailstorm simulator’s operator in the course of locating a target phone, including by way of example and without limitation: cellular device identifiers (such as international mobile equipment identity (“IMEI”) numbers, international mobile subscriber identity (“IMSI”) numbers, and electronic serial numbers (“ESN”)); metadata about cellular device operations (such as numbers dialed or texted, or webpages visited); and, most especially, the content of voice or video calls, text messages, emails, and application data.

(4) What data in (3) may be stored by the Hailstorm simulator.

(5) What data in (4) are accessible by law enforcement officers.

(6) All means by which the Hailstorm simulator was configured to minimize data collection from third party cellular devices not belonging to Andrews.

We’ll see what the Baltimore PD chooses to do on remand. That’s a lot of info it’s not in any hurry to share with the general public. It may be able to keep some of this out of the public hand’s with sealed filings but it can’t keep all of this buried. It may decide it’s time to settle. I hope it doesn’t. This info should have been made public years ago. The PD spent years hiding this from everyone. It’s time to open the books.

Filed Under: baltimore, baltimore police, cell site simulator, stingray, transparency

We Know The FBI Can't Count Phones. A New Report Shows It Can't Count Guns And Ammo Either.

Failures

from the multi-billion-dollar-agency-using-pen-and-paper-to-track-weapons dept

We know the FBI can’t accurately track how many encrypted devices it has in its possession. Two consecutive directors have pushed a “going dark” narrative using an inflated number of uncracked phones. At one point the FBI claimed it had nearly 8,000 phones in its possession, each one presumably full of evidence. When pressed for information by members of Congress, the FBI suddenly realized it had overstated this number by at least 6,000 phones. It discovered its error in May of 2018. It has yet to release an updated number.

The FBI can’t track seized phones so it should come as no surprise it can’t accurately track the guns and ammo in its possession. The DOJ Inspector General has completed its audit [PDF] of the FBI’s weapons control system and found that the FBI isn’t really controlling its weapons.

The FBI claims to have nearly 58,000 firearms in its inventory. This is pretty much the extent of the good news in the IG report:

We found that the FBI has strong physical controls over its unassigned firearms, and Special Agents are personally responsible for properly safeguarding assigned firearms. The FBI tracks its firearms using the Asset Management System (AMS), its automated property management system. During our physical inventory we were able to locate all firearms selected for our sample.

And here comes the bad news. The IG found over 360 firearms that had no designated property custodian, which is against FBI policy. Its audit sample also found two guns the FBI could not explain how or why they were in its possession.

We were unable to trace two firearms back to AMS, both of which were located in a gun safe in the Madison Resident Agency. The Firearms Instructor in Madison explained that the origins of the firearms were unknown.

The FBI also has trouble tracking firearms that have been lost or stolen.

Of the 45 lost or stolen firearms, 24 have been recovered, 1 of which was used in a crime. We also found that the FBI did not maintain complete documentation for 8 of the 45 lost or stolen firearms, including its make, model, or serial number; and a stolen firearm that was subsequently recovered more than 1 year ago was still marked as lost or stolen in AMS.

The list of lost/stolen guns is an interesting read. In every case, agents who lost weapons were suspended. But safely handling firearms appears to be an ongoing problem. Guns were stolen from vehicles, left behind in restrooms and hotel rooms. One was apparently “left on a bumper.” But the best/worst missing gun synopsis is this: “stolen by daughter.”

The agency’s control of ammunition is even worse. Only one of the sites visited by the IG is doing this job properly.

The FBI maintained duty ammunition at 14 of the 15 sites we reviewed. We found that the FBI stored its ammunition in secured areas with access limited to FBI personnel. However, we identified weaknesses in the FBI’s ammunition tracking and physical inventory policies that increase the risk of ammunition being lost or stolen without detection. As a result, we found that 6 of the FBI sites included in our audit were not tracking over 1.2 million rounds of ammunition, and another 7 sites were not adequately tracking ammunition.

Explosives tracking fared a little better, but the system used for keeping tabs on explosives contains weaknesses that could increase the risk of explosives being lost or stolen. Only two of the eight sites with explosives on the premises were adequately tracking these items.

The Inspector General obviously recommends the FBI do better at tracking guns, ammo, and explosives. The FBI pretty much agrees with all of the IG’s suggestions. But it’s had plenty of time to improve things and it hasn’t done all that much. The FBI loses far fewer weapons than it used to, so it at least has this area mostly under control. A 2007 audit showed the FBI had 354 weapons lost or stolen over a 22-month period in 2001-2002. By 2007, it had cut that number in half. The most recent audit shows only 45 lost/stolen weapons over a three-year period.

But this report highlights the agency’s inability to count and control things in its possession. So, it’s hardly surprising it has no idea how many encrypted devices it has on hand. And if it doesn’t know that, it can’t present an accurate picture of device encryption and its impact on investigations.

Filed Under: counting, evidence, fbi, phones

Yet Another Court Says Suing Twitter For Terrorist Acts Is A Waste Of Everyone's Time

Legal Issues

from the litigation-as-junk-mail-as-a-service dept

Every tragedy should be exploited. That’s the theory behind a string of Excolo Law and 1-800-LAW-FIRM lawsuits that seek to hold social media companies responsible for acts of terrorism. So far, not a single court has been willing to ignore Section 230 of the CDA or the First Amendment to give these opportunists any satisfaction. Notwithstanding some very bizarre arguments from one Ninth Circuit judge, it’s been a long run of shutouts for lawyers I fucking hope are working on contingency.

However you may feel about social media companies’ efforts to cut down on “terrorist” content, the reality of the situation is Twitter, Facebook, et al are not directly or indirectly responsible for acts of violence. Moderation at scale is impossible and allowing litigants to target social media companies directly is only going to result in lousier moderation, rather than whatever it is each litigant desires. (See also: numerous lawsuits about “anti-conservative bias.”)

This lawsuit is a particularly durable loser. Eric Goldman has the details at his blog. How many times do litigants need to be told “No?” Well, I told you once and I told you twice, but you never listen to my advice:

This lawsuit alleges that social media providers contributed to the 2016 Pulse Nightclub terrorist attack in Orlando that killed 49 people and injured dozens more. If that sounds familiar, that’s because those facts formed the basis of the Crosby v. Twitter litigation from Michigan, which failed in the lower court in 2018 and then on appeal to the Sixth Circuit in 2019. In a litigation move I’ll charitably characterize as tenacious, after the emphatic loss in the 6th Circuit, the plaintiffs’ lawyers immediately recruited new plaintiffs and filed a new lawsuit in Florida over the exact same terrorist attack. The do-over attempt works about as well as you would expect.

Three attempts. Three losses. And since these law firms apparently have unlimited money to blow, the lawsuit was refiled in a different jurisdiction. Not that it changed anything. It certainly didn’t make the lawyering any better. As Goldman points out, the courts didn’t limit themselves to criticizing the weak legal arguments. One court took time to chastise the law firm for its inability to follow the court’s formatting rules. It may seem petty but it’s important: if you can’t follow easy-to-follow rules, chances are you’re not paying that much attention when loading the court up with lawsuits so baseless they may as well be pro se.

Welcome to pandemic litigation, punks. Before informing the plaintiffs (yet again!) of the weakness of their arguments, the court reminds their representatives that this kind of thing isn’t making the court any more sympathetic to their arguments. From the decision [PDF]:

“Filing identical lawsuits in multiple district courts is abusive and wasteful of judicial resources.” Daker v. Bryson, No. 5:15-cv-00088-TES-CHW, 2019 U.S. Dist. LEXIS 27392, at *9 (M.D. Ga. Feb. 21, 2019). While Plaintiffs’ counsel may have selected different named Plaintiffs with which to do so, this is essentially what he has done. Despite the outcome of dismissal in the Michigan Case, Plaintiffs’ counsel filed the same lawsuit—with different Plaintiffs—here in the Middle District of Florida.

The court goes on to point out the obvious: a terrorist committed the act of terrorism (the Pulse nightclub shooting) but the plaintiffs have chosen to sue social media companies rather than the person who killed their loved ones. Suing the shooter’s relatives would be a similar waste of time as blood draws from stones are seldom effective, but suing social media companies isn’t the better option.

The court dismisses the lawsuit. But, inexplicably, it allows the plaintiffs to try again. So far, the plaintiffs have had six chances to compose an actionable claim. Somehow this court thinks giving them a seventh chance is in everyone’s best interest — even the court that just said this was a “waste of judicial resources.”

As discussed above, Plaintiffs’ counsel has essentially had six opportunities to assert the allegations in the TAC—two complaints in the Michigan Case and four here. In light of this, the Court would like to better understand from Plaintiffs why leave to amend should be granted after Plaintiffs’ counsel has been, as of yet, unable to cure the deficiencies in the TAC. Therefore, the Court will defer ruling on Plaintiffs’ request for leave to amend and will set this issue for a brief telephonic status conference.

Chances are there will be no arguments that move the court to give the plaintiffs leave to amend after this conference. But the door is still slightly open when it should have been slammed shut by this judge. So, this means more tax dollars will be wasted in addition to whatever fees the law firm has collected from the crime victims it’s exploiting.

This is not to make light of the tragic circumstances that led to these lawsuits. The families of the victims have suffered unimaginable damage. But this has nothing to do with Facebook, Twitter, or any other social media network. No court is going to find in their favor — not unless they want to do some legislating from the bench. These companies are doing what they can to limit the spread of content that might radicalize impressionable people. It’s an impossible job but someone’s trying to do it. And the only people responsible for acts of terrorism are the people committing acts of terrorism.

Filed Under: material support for terrorism, section 230, social media, terrorism
Companies: twitter

FOIA'ed DOJ Report Points Out The Downsides Of Relying On 'Predictive Policing' To Fight Crime

Legal Issues

from the making-tradeoffs-without-considering-the-majority-of-stakeholders dept

The Electronic Privacy Information Center (EPIC) has obtained a DOJ report on predictive policing via a FOIA lawsuit. The document dates back to 2014 but it shows the DOJ had concerns about the negative side effects of predicting where crime may occur by using data that details where crime has happened.

The report [PDF] contains some limited data from trial runs of predictive policing efforts. One of these tests ran from 2009 to 2012 in Shreveport, Louisiana. Using historic property crime data, along with 911 calls and the number of residents on parole or probation, the analytic software attempted to predict where future crime might occur and where police presence might be increased to prevent crime.

The results were inconclusive:

The RAND Corporation evaluated the program and found that property crime decreased by approximately 35% in the first four months of the seven-month evaluation period as compared with the control districts. After those first four months, however, the SPD reduced its intervention efforts, and property crime reverted back to the same level as the control districts. The RAND evaluation concluded that additional research should be done.

More research was underway at the time the report was written, but the results hadn’t been compiled at the time of this publication. Other efforts not involving the DOJ reported similar results: an immediate drop in the type of crime targeted. But there’s no data in the report indicating this resulted in long-term declines in criminal activity or whether targeting one area resulted in criminal activity migrating elsewhere.

The report notes that almost all federal law enforcement agencies are (or were) using some sort of analytics to determine crime hot spots and areas where enforcement should be targeted. As of 2014, none of them were using actual “predictive policing” software, but all were engaged in some sort of crime-modeling.

The DOJ says predictive policing efforts show promise but contain numerous downsides. Efforts like these could conceivably result in more efficient law enforcement activity, directing already-depleted resources to areas in need of the most attention. The DOJ even theorizes that swamping “high crime areas” with additional officers might somehow result in better relationships with those communities. But that theory really doesn’t square with the downsides noted in the report, which indicate flooding certain areas with more cops is only going to increase the tension between these public servants and the public they serve.

Part of the problem is “garbage in/garbage out.” If law enforcement agencies have historically engaged in biased policing and enforcement efforts, all predictive policing software does is tell those officers they were correct to do so. Junk data created by biased policing will only generate biased predictions.

Legal authorities provide some guidance about the degree to which race, national origin, and other protected or immutable characteristics may be considered. Critics have noted that proxies for protected characteristics, or for socioeconomic characteristics, can make their way into analyses as well. Even when the variables seem neutral, any model is susceptible to importing any biases reflected in the underlying data.

Biased policing is a problem everywhere. This has been the rule, rather than the exception, in the US, resulting in dozens of consent decrees with the DOJ meant to eliminate bias and restrict unnecessary use of force. Feeding a bunch of unjustified stops and arrests into a system wholly reliant on the data being fed to it turns supposedly-neutral software into a confirmation-bias generator.

Equally as troubling is the unavoidable outcome of predictive policing: the permission to punish people for things other people did.

There is also a fundamental question about what decisions should be based on historical, broad-based data rather than on individualized conduct. It would make little sense to deploy resources without an understanding of where they are most needed, and fewer concerns have been raised about the potential for misuse of data for these purposes (although, at a basic level, additional police deployment can mean additional law enforcement scrutiny for individuals who live in those areas).

In practical terms, living in the wrong zip code — or even the wrong end of a block — turns people into suspected criminals, even when there’s no evidence they’ve committed any crimes. You can’t mend a broken community relationship by flooding an area with cops just because crimes were committed there at some point in the past. Predictive policing allows cops to view everyone in certain areas as inherently suspicious, which isn’t going to result in residents feeling better about the influx of officers flooding their neighborhoods.

Despite the DOJ’s caveats, law enforcement agencies are still looking to predictive policing to solve their problems. As far as the limited data shows, it’s at best a temporary fix. But those looking for a decline in crime numbers seem willing to ignore the long-term negative effects of focusing on areas where crime might be happening based on little more than where crime once was.

Filed Under: doj, predictive policing