Victory for Privacy as Supreme Court Rules Warrantless Phone Location Tracking Unconstitutional

This is a very important ruling that should serve as a good precedent for technologically-based privacy rights in the future.

The Supreme Court handed down a landmark opinion today in Carpenter v. United States, ruling 5-4 that the Fourth Amendment protects cell phone location information. In an opinion by Chief Justice Roberts, the Court recognized that location information, collected by cell providers like Sprint, AT&T, and Verizon, creates a “detailed chronicle of a person’s physical presence compiled every day, every moment over years.” As a result, police must now get a warrant before obtaining this data.

This is a major victory. Cell phones are essential to modern life, but the way that cell phones operate—by constantly connecting to cell towers to exchange data—makes it possible for cell providers to collect information on everywhere that each phone—and by extension, each phone’s owner—has been for years in the past. As the Court noted, not only does access to this kind of information allow the government to achieve “near perfect surveillance, as if it had attached an ankle monitor to the phone’s user,” but, because phone companies collect it for every device, the “police need not even know in advance whether they want to follow a particular individual, or when.”

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Perhaps the most significant part of today’s ruling for the future is its explicit recognition that individuals can maintain an expectation of privacy in information that they provide to third parties. The Court termed that a “rare” case, but it’s clear that other invasive surveillance technologies, particularly those than can track individuals through physical space, are now ripe for challenge in light of Carpenter. Expect to see much more litigation on this subject from EFF and our friends.

Verizon and AT&T Want to Run Invasive Phone Ad-Tracking Networks

Smartphones today are essentially surveillance devices — perhaps the most intimate surveillance devices in general. If they’re left on (as is common), they know where people travel (it’s a necessity to keep a connection to phone towers and many apps track location), who they associate with (probably who they have sex with), what they do (seeing as they’re computers that people interact with on average for hours a day), and to top it all off, they can be turned into listening devices if the phone is hacked. Adding more intrusive surveillance to this (via more ad-tracking) would be horrible news for consumer privacy, and since privacy and security are so often intertwined today, it’ll end up being bad news for consumer security somehow too.

 

Snowden Interview in The Intercept

Mass surveillance is worse than five years ago, and it’s cool to think about the initial disclosures and then fast forward to this interview. Also, if you haven’t seen the documentary Citizenfour, I recommend watching it.

Mehdi Hasan: I’m Mehdi Hasan, welcome to Deconstructed.

My guest today is the NSA whistleblower Edward Snowden. Yes, the man himself, who became a global household name almost exactly five years ago.

[…]

So I started off by asking Edward Snowden: “Is privacy dead?”

ES: No, and I think this is the thing that is really taken out of context by politicians and all of these corporate powers that are working to use that as a justification to extend and further the abuses that we’ve seen in the last decade or so. When you look at the polling and all of these different issues and you ask young people, particularly, you know: Do you care about privacy? They actually seem to care more than older generations because this is affects their lives everyday. They understand what it means to make a mistake, have someone with a smartphone in the room and then have it haunt you for the rest of your time in high school or college or whatever.

There is this feeling of powerlessness that’s surrounding all of us every day on this issue, because we see that we are being abused. People openly admit that they’re abusing us. You know, Mark Zuckerberg in front of Congress is talking about this quite unashamedly.

[…]

MH: Your enemies here in the U.S. have accused you of being ultra-critical of the. U.S. government but soft on the Russian government, on President Vladimir Putin. And yet in March, I saw that you were on Twitter suggesting there had been vote-rigging in the Russian presidential election. You even called on Russians to “demand justice.” More recently you called the Russian government’s attempt to crack down on the messaging app Telegram “totalitarian.”

Now, from where I’m sitting, those were pretty bold, ballsy, principled moves by you, but were they also foolish moves? Aren’t you risking pissing off Putin and him then sending you back into the U.S. in a fit of rage?

ES: You know, yeah there’s definitely risks involved. And it’s not a smart thing to do. Every one of my lawyers tells me it’s a mistake to keep criticizing the Russian government. They say: Look, you’ve done enough. But that’s not what I’m here for, right? If I wanted to be safe, I never would have left Hawaii. I believe that this world can be better. I believe that this world should be better, but it’s not going to get better unless we make it better. And that requires risk, that requires hard work, that ultimately might require sacrifice.

[…]

MH: Where do you think you’ll be another five years from now?

ES: I don’t know. I honestly don’t know. There have been so many times, over the last five years, where I’ve been sure that things were going to change, that people understood, there were days I was sure that nothing was ever going to change, and it’s status quo forever. But it’s that uncertainty that actually gives me optimism, that gives me hope.

So many people look at the world today, they look at how broken and ruined things are, and they are just disempowered and lost. But what I want people to focus on is the fact that things changed, right. And if they can change for the worse, they can change for the better. And the only reason the world is changing for the worse is because bad people are working to make it happen that way. And if more good people are organizing, if we’re talking about this stuff, if we’re willing to draw lines that we will not allow people to cross without moving us out of the way, the pendulum will swing, and I’ll be home sooner than you think.

NSA Expands Mass Surveillance to Triple Its Collection of U.S. Phone Records

Mass surveillance is damaging to privacy generally and ineffective at preventing stateless terror attacks — its main effect is to increase repressive control.

The National Security Agency (NSA) collected over 530 million phone records of Americans in 2017—that’s three times the amount the spy agency sucked up in 2016.

The figures were released Friday in an annual report from the Office of the Director of National Intelligence (ODNI).

It shows that the number of “call detail records” the agency collected from telecommunications providers during Trump’s first year in office was 534 million, compared to 151 million the year prior.

“The intelligence community’s transparency has yet to extend to explaining dramatic increases in their collection,” said Robyn Greene, policy counsel at the Open Technology Institute.

The content of the calls itself is not collected but so-called “metadata,” which, as Gizmodo notes, “is supposedly anonymous, but it can easily be used to identify an individual. The information can also be paired with other publicly available information from social media and other sources to paint a surprisingly detailed picture of a person’s life.”

The report also revealed that the agency, using its controversial Section 702 authority, increased the number of foreign targets of warrantless surveillance. It was 129,080 in 2017 compared to 106,469 in 2016.

As digital rights group EFF noted earlier this year,

Under Section 702, the NSA collects billions of communications, including those belonging to innocent Americans who are not actually targeted. These communications are then placed in databases that other intelligence and law enforcement agencies can access—for purposes unrelated to national security—without a warrant or any judicial review.

“Overall,” Jake Laperruque, senior counsel at the Project On Government Oversight, said to ZDNet, “the numbers show that the scale of warrantless surveillance is growing at a significant rate, but ODNI still won’t tell Americans how much it affects them.”

Disturbing: Surveillance Database of Journalists Being Built in the U.S.

A large threat to press freedom with Orwellian undertones — more mass surveillance means more repression. It also means an attempted suppression of effective activism due to what’s known as the “chilling effect” of mass surveillance, where people generally take different actions (such as not visiting the Wikipedia pages on terrorism as much) due to being aware that they’re under intrusive surveillance.

Donald Trump is not known for being a friend of the media. Now he seems to be taking up new methods to control unfavorable journalists. The Department of Homeland Security wants to create a database of journalists and bloggers from around the world that can be filtered by location, content and sentiment. While the DHS claims this is standard PR practice, the alarm bells must ring. After all, surveillance is what upcoming autocrats commonly use to undermine democracy.

The Department of Homeland Security (DHS) is looking for contractors to build up a Media Monitoring Service. Details seem to be based on instructions by George Orwell: The DHS asks for the ability to scan more than 290.000 news sources within and outside the US, and store “journalists, editors, correspondents, social media influencers, bloggers etc.” in a database that must be searchable for “content” and “sentiment”.

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The current development in the US is very worrisome, particularly as the freedom of the press is under attack worldwide.

Reporters without Borders state: “Once taken for granted, media freedom is proving to be increasingly fragile in democracies as well. In sickening statements, draconian laws, conflicts of interest, and even the use of physical violence, democratic governments are trampling on a freedom that should, in principle, be one of their leading performance indicators.”

The Freedom of the Press Report 2017 by Freedom House concludes that global media freedom has reached its lowest level in the past 13 year. This is not only down to “further crackdowns on independent media in authoritarian countries like Russia and China.” The report also blames “new threats to journalists and media outlets in major democracies”.

Some Swedes Beginning to Realize the Danger of Being in a Cashless Society

Allowing largely unaccountable corporations to track the overall financial activities and flow of resources among an entire population presents a power imbalance that will inevitably lead to problems. The anonymous ability to pay with cash — and soon hopefully a legitimately privacy-focused cryptocurrency — is an imperative function in maintaining stability in today’s world.

In February, the head of Sweden’s central bank warned that Sweden could soon face a situation where all payments were controlled by private sector banks.

The Riksbank governor, Stefan Ingves, called for new legislation to secure public control over the payments system, arguing that being able to make and receive payments is a “collective good” like defence, the courts, or public statistics.

“Most citizens would feel uncomfortable to surrender these social functions to private companies,” he said.

“It should be obvious that Sweden’s preparedness would be weakened if, in a serious crisis or war, we had not decided in advance how households and companies would pay for fuel, supplies and other necessities.”

[…]

The central bank governor’s remarks are helping to bring other concerns about a cash-free society into the mainstream, says Björn Eriksson, 72, a former national police commissioner and the leader of a group called the Cash Rebellion, or Kontantupproret.

[…]

In this sense, Sweden is far from its famous concept oflagom – “just the right amount” – but instead is “100% extreme”, Eriksson says, by investing so much faith in the banks. “This is a political question. We are leaving these decisions to four major banks who form a monopoly in Sweden.”

[…]

No system based on technology is invulnerable to glitches and fraud, says Mattias Skarec, 29, a digital security consultant. Yet Sweden is divided into two camps: the first says “we love the new technology”, while the other just can’t be bothered, Skarec says. “We are naive to think we can abandon cash completely and rely on technology instead.”

Skarec points to problems with card payments experienced by two Swedish banks just during the past year, and by Bank ID, the digital authorisation system that allows people to identify themselves for payment purposes using their phones.

Fraudsters have already learned to exploit the system’s idiosyncrasies to trick people out of large sums of money, even their pensions.

[…]

But an opinion poll this month revealed unease among Swedes, with almost seven out of 10 saying they wanted to keep the option to use cash, while just 25% wanted a completely cashless society. MPs from left and right expressed concerns at a recent parliamentary hearing. Parliament is conducting a cross-party review of central bank legislation that will also investigate the issues surrounding cash.

The Pirate Party – which made its name in Sweden for its opposition to state and private sector surveillance – welcomes a higher political profile for these issues.
Look at Ireland, Christian Engström says, where abortion is illegal. It is much easier for authorities to identify Irish women who have had an abortion if the state can track all digital financial transactions, he says. And while Sweden’s government might be relatively benign, a quick look at Europe suggests there is no guarantee how things might develop in the future.

“If you have control of the servers belonging to Visa or MasterCard, you have control of Sweden,” Engström says.

Also a relevant entry: Pitfalls of a Cashless Society.

Dangerous Cloud Act Legislation Appears in Congress

The Cloud Act would allow for dangerous violations of consumer privacy rights through abusing the stored data corporations have on people. U.S. citizens, I encourage you to oppose this type of legislation. Privacy rights are going to become much more important in the next several years ahead as more and more of society is effused with technological infrastructure.

Civil libertarians and digital rights advocates are alarmed about an “insidious” and “dangerous” piece of federal legislation that the ACLU warns “threatens activists abroad, individuals here in the U.S., and would empower Attorney General Sessions in new disturbing ways.”

The Clarifying Lawful Overseas Use of Data or CLOUD Act (S. 2383 and H.R. 4943), as David Ruiz at Electronic Fronteir Foundation (EFF) explains, would establish a “new backdoor for cross-border data [that] mirrors another backdoor under Section 702 of the FISA Amendments Act, an invasive NSA surveillance authority for foreign intelligence gathering” recently reauthorized by Congress.

Ruiz outlines how the legislation would enable U.S. authorities to bypass Fourth Amendment rights to obtain Americans’ data and use it against them:

The CLOUD Act allows the president to enter an executive agreement with a foreign nation known for human rights abuses. Using its CLOUD Act powers, police from that nation inevitably will collect Americans’ communications. They can share the content of those communications with the U.S. government under the flawed “significant harm” test. The U.S. government can use that content against these Americans. A judge need not approve the data collection before it is carried out. At no point need probable cause be shown. At no point need a search warrant be obtained.

The EFF and ACLU are among two dozen groups that banded together earlier this month to pen a letter to Congress to express alarm that the bill “fails to protect the rights of Americans and individuals abroad, and would put too much authority in the hands of the executive branch with few mechanisms to prevent abuse.”

[…]

“This controversial legislation would be a poison pill for the omnibus spending bill,” declared Fight for the Future’s deputy director, Evan Greer. “Decisions like this requires rigorous examination and public debate, now more than ever, and should not be made behind closed doors as part of back room Congressional deals.”

The group also pointed out that big tech companies such as Apple, Facebook, and Google are among those lobbying lawmakers to include the CLOUD Act in the spending bill:

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