In NSA Appeals, DOJ Misleads About Medical and Financial Records

Earlier this week, the Ninth Circuit heard oral arguments in a challenge to the NSA’s phone metadata program. While watching, I noticed some quite misleading legal claims by the government’s counsel. I then reviewed last month’s oral arguments in the D.C. Circuit, and I spotted a similar assertion.

In both cases, the government attorney waved away constitutional concerns about medical and financial records. Congress, he suggested, has already stepped in to protect those files.

With respect to ordinary law enforcement investigations, that’s only slightly true. And with respect to nation security investigations, that’s really not right.

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Executive Order 12333 on American Soil, and Other Tales from the FISA Frontier

When the National Security Agency collects data inside the United States, it’s regulated by the Foreign Intelligence Surveillance Act. There’s a degree of court supervision and congressional oversight.

When the agency collects data outside the United States, it’s regulated by Executive Order 12333. That document embodies the President’s inherent Article II authority to conduct foreign intelligence. There’s no court involvement, and there’s scant legislative scrutiny.

So, that’s the conventional wisdom. American soil: FISA. Foreign soil: EO 12333. Unfortunately, the legal landscape is more complicated.

In this post, I’ll sketch three areas where the NSA collects data inside the United States, but under Executive Order 12333. I’ll also note two areas where the NSA collects data outside the United States, but under FISA.
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Continuing the Phone Metadata Program Without Congress: Three Options

In the debates surrounding intelligence reform, many observers have made a critical assumption. If Congress doesn’t act by mid-2015, it goes, the NSA’s controversial phone metadata program will turn into a pumpkin. In this post, I’m going to sketch why that view is so common—and why, regrettably, the clock may not strike midnight.
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How Verizon’s Advertising Header Works

Over the past couple of days, there’s been an outpouring of concern about Verizon’s advertising practices. Verizon Wireless is injecting a unique identifier into web requests, as data transits the network. On my phone, for example, here’s the extra HTTP header.1

X-UIDH: OTgxNTk2NDk0ADJVquRu5NS5+rSbBANlrp+13QL7CXLGsFHpMi4LsUHw

After poring over Verizon’s related patents and marketing materials, here’s my rough understanding of how the header works.
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A Funny Thing Happened on the Way to Coursera

I’m excited to be teaching Stanford Law’s first Coursera offering this fall, on government surveillance. In preparation, I’ve been extensively poking around the platform; while I found some snazzy features, I also stumbled across a few security and privacy issues.

  1. Any teacher can dump the entire user database, including over nine million names and email addresses.
  2. If you are logged into your Coursera account, any website that you visit can list your course enrollments.
  3. Coursera’s privacy-protecting user IDs don’t do much privacy protecting.

The balance of this piece provides some detail on each of the vulnerabilities.

Update 9/4: Coursera has acknowledged the issues, and claims they are “fully addressed.” The second vulnerability, however, still exists.

Update 9/6: Coursera appears to have imposed rate limiting on the APIs associated with the second vulnerability, mitigating the risk to users. A malicious website can now iterate over about 10% of the course catalog before having to wait.

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Mobile Phone Unlocking, Now Less Illegal?

On Friday, President Obama signed a mobile phone unlocking bill into law. Some observers have taken to describing S. 517, the Unlocking Consumer Choice and Wireless Competition Act, as a permission slip for consumers. Here’s a sample:

The New York Times: “you will no longer be breaking the law if you unlock your cellphone”
The Los Angeles Times: “makes it legal once again for consumers to unlock their cellphones”
CNET: “makes unlocking a cell phone legal again”

Those explanations aren’t quite accurate. The new law (temporarily) shields consumers from the Digital Millennium Copyright Act. It is, by design, a narrow fix; it expressly leaves other sources of legal liability untouched. … 

Is Instacart Deceptive?

A few weeks ago, a Stanford colleague stormed into my office. He had ordered some groceries from Instacart, a buzzy get-it-now startup that recently raised $44 million. My friend thought he had paid a flat $3.99 for delivery from a local store. In fact, he had paid about $20 net of store prices. How, he fumed, could this be legal? From a quick Googling, he isn’t the only one steamed about Instacart’s subtle surcharge.

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Questionable Crypto in Retail Analytics

Retail analytics is a fraught field. The premise is straightforward: enable brick-and-mortar stores to track their customers. The technology is straightforward, too: monitor broadcasts from shoppers’ smartphones. Privacy concerns have, however, put a damper on the nascent industry. Regulators, legislators, and advocacy groups have questioned the legitimacy of surreptitiously monitoring shoppers’ gadgets.

Last fall, Senator Schumer announced a grand bargain with retail analytics firms. They will be bound by a “Mobile Location Analytics Code of Conduct,” a set of voluntary practices intended to assuage privacy fears. The document has already been widely panned, both as a product of backroom dealing, and for providing little substantive protection to consumers.

One particular point of contention is how the industry proposes to preserve privacy through cryptography. This post explains the Code of Conduct’s crypto, and demonstrates how it can trivially be undone.

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MetaPhone: The Sensitivity of Telephone Metadata

Co-authored by Patrick Mutchler.

Is telephone metadata sensitive? The debate has taken on new urgency since last summer’s NSA revelations; all three branches of the federal government are now considering curbs on access. Consumer privacy concerns are also salient, as the FCC assesses telecom data sharing practices.

President Obama has emphasized that the NSA is “not looking at content.” “[T]his is just metadata,” Senator Feinstein told reporters. In dismissing the ACLU’s legal challenge, Judge Pauley shrugged off possible sensitive inferences as a “parade of horribles.”

On the other side, a number of computer scientists have expressed concern over the privacy risks posed by metadata. Ed Felten gave a particularly detailed explanation in a declaration for the ACLU: “Telephony metadata can be extremely revealing,” he wrote, “both at the level of individual calls and, especially, in the aggregate.” Holding the NSA’s program likely unconstitutional, Judge Leon credited this view and noted that “metadata from each person’s phone ‘reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.’”

This is, at base, a factual dispute. Is it easy to draw sensitive inferences from phone metadata? How often do people conduct sensitive matters by phone, in a manner reflected by metadata?
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Advancing Empirical Legal Scholarship: State Materials

Over the past year, I have shared various federal primary legal materials formatted in XML. The project’s focus has been enabling empirical legal scholarship with machine-readable government documents.

This final post is accompanied by state materials, including statutes, court opinions, regulations, and administrative rulings. I continue to welcome feedback from fellow researchers.

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