Category Archives: Privacy

The Supremes Get One Right

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The Supreme Court ruled Friday that authorities generally need a search warrant before they can obtain broad access to data that shows the location of cellphone users, a decision that sets privacy boundaries in the digital age.
The court, in a 5-4 opinion by Chief Justice John Roberts, cited the Fourth Amendment’s guarantee to be free from unreasonable government searches.

And

We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information[.]

Yewbetcha.

Privacy!?

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You ain’t got no privacy.  You don’t need any stinking privacy!

Using facial recognition software in combination with image storage houses like drivers license databases can be highly useful in tracking down criminal suspects.

But the combination can be highly dangerous, too, as this attitude by Joseph Michael, Washington County Deputy State’s Attorney in Maryland, demonstrates:

the expectation of privacy ends when you sit down and smile at the government desk.

Pinellas County (FL) Sheriff Bob Gualtieri argued

This is no different than if I laid out all those photos in front of me…and said “No, that doesn’t look like him, that doesn’t look like him, here we go, that’s him[.]”  The only thing is I am doing it in a different way, a more automated way, a more efficient way.

Sometimes that faster, more automated—human-removed—way is less efficient, though, as it removes thought and care and consideration of individual liberty from the process, favoring as it does getting a conviction over getting a just outcome.

Michael’s attitude illustrates the conundrum.  His attitude, the attitude of a Government Man, is precisely why we have a Bill of Rights in our Constitution.  His attitude is just an extension of “If you’ve got nothing to hide, you should let Government snoop if it wants to.”  Folks like Gualtieri can be better trained.  Folks like Michael are unfit for office in a free country.

Another Facebook Fail

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Chinese firms Huawei, Lenovo, Oppo and TCL were among numerous handset makers that were given access to Facebook data in what the US company said was “a controlled operation.”

The social media giant’s vice president of mobile partnerships, Francisco Varela, confirmed a report in The New York Times Tuesday that Facebook had given Chinese device makers deep access to the data of users’ friends without their explicit consent.

A “controlled operation.”  Meaning the accesses were deliberately granted, consents were deliberately not requested in advance.  Which raises the question: were any consents actively withheld and those denials ignored by Facebook?

Huawei already has been identified as a threat to our national security.  Lenovo is headquartered in Beijing, Oppo (Electronics Corporation) is headquartered in Dongguang near the south coast of the People’s Republic of China, and TCL is headquartered in Huizhou, just down the road a piece from Dongguang.  These three are each under the influence, if not the control, of the PRC government.  Facebook knew these things at the time they engaged in their “controlled operation.”

Here’s Varela again, this time in his best What, me worry? impression:

…we wanted to make clear that all the information from these integrations with Huawei was stored on the device, not on Huawei servers[.]

Well, that settles it, then.  Huawei has no way at all to copy data “stored on [its] device” to its servers.  Nope.  Can’t be done.

Sure.

A Concept of Privacy

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Personal privacy and protections against warrantless searches got a boost from the Supreme Court earlier this week.

The Supreme Court said Tuesday that police need a warrant to search vehicles parked at private homes, the second time this month the justices rejected government arguments for expanding the “automobile exception” to Fourth Amendment rules against unreasonable searches.

The case at hand involved a stolen motorcycle parked in the driveway of a private residence and protected from the elements (and perhaps (even probably) from being seen by police) by a tarp.  A police officer recognized from Facebook postings the residence, saw the fact of a motorcycle under the tarp, entered the property, lifted the tarp, and looked over the motorcycle—all without a warrant.

Writing for the Court in an 8-1 decision, Justice Sonya Sotomayor wrote

Just like the front porch, side garden or area “outside the front window,” the driveway enclosure where Officer [David] Rhodes searched the motorcycle constitutes [the area where] activity of home life extends….

And

Given the centrality of the Fourth Amendment interest in the home and its curtilage and the disconnect between that interest and the justifications behind the automobile exception, we decline Virginia’s invitation to extend the automobile exception to permit a warrantless intrusion on a home or its curtilage[.]

Justice Samuel Alito was the lone dissenter.

…the officer should have been permitted to search the motorcycle visible in the driveway, just as he could have were it parked in a public street. “Officer Rhodes’s brief walk up the driveway impaired no real privacy interests,” he wrote.

Surprising out of Alito; it seems he doesn’t completely understand curtilage or of privacy.  Notwithstanding, I’d further curtail the motor vehicle exception* allowing warrantless searches to bar such from motor vehicles parked on the street in front of the vehicle owner’s residence (or beside it in the case of a corner lot) or parked in an apartment complex’s parking lot near the vehicle owner’s apartment or in the apartment renter’s designated parking slot.

 

*The motor vehicle exception to the requirement for search warrants allows warrantless searches based on a prohibition era ruling that motor vehicles were too mobile and could be moved before a warrant could be obtained.  That ruling was itself erroneous IMNSHO because it assumed that the police were incapable of keeping a motor vehicle under surveillance until the warrant arrived.

The FBI and Backdoors

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Recall that the FBI has long wanted government-accessible backdoors into our personal but encrypted communications.  “Trust us,” FBI leadership assures us, “we wouldn’t misuse that access; we’ll only use for ‘criminal’ investigations, and only with government authorization.”  And they’ve claimed in support of that wide-eyed innocence that they can’t break into over 7,000 cell phones in the pursuit of criminal investigations.  Current FBI Director Christopher Wray even put the number at over 7,700.

However.

On Tuesday, the FBI told PCMag that a programming error resulted in a “significant overcounting” of the encrypted devices. “The FBI is currently conducting an in-depth review of how this over-counting previously occurred,” the agency said in a statement.

PCMag went on to cite the Washington Post as putting the actual number at around 1,200.

Oops, indeed.

According to the agency, starting in April 2016, it began using a new “collection methodology” with how it counted the encrypted devices. But only recently did the FBI become aware of flaws in the methodology, it said, without elaborating.

Right.

“Given the availability of these third-party solutions, we’ve questioned how and why the FBI finds itself thwarted by so many locked phones,” the Electronic Frontier Foundation said in a blog post.

Indeed.  Whether this government agency was being dishonest in its characterization of the encryption “problem,” or it was just being incredibly sloppy in using “collection methodology” that it has so plainly inadequately tested, this incident is just one more reason Government cannot be trusted with back doors into privately encrypted personal correspondence.