Google raises alarm over global search warrants

Google used loaded language on Wednesday to warn that a Justice Department proposal will make it easier for U.S. law enforcement to reach into remote computers, and that it could upset diplomatic relations with other countries.

“[The change] could have profound implications for the privacy rights and security interests of everyone who uses the Internet,” Richard Salgado, a Legal Director for Google, wrote in a blog post.

The issue at stake is how far a search warrant authorizing a computer search should reach. Currently, federal judges are typically restricted to issuing warrants that allow a search of computers and servers located in their district.

A proposed amendment, however, would let judges give law enforcement the right to conduct remote searches. The Justice Department said in the proposal that the current system is a strain for investigators and judges in cases where criminals use proxy IP addresses, or deploy computers across multiple jurisdictions:

“Because the target of the search has deliberately disguised the location of the media or information to be searched, the amendment allows a magistrate judge in a district in which activities related to a crime may have occurred “to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district,” said the Justice Department in a document describing the draft change (my emphasis).

Google, however, claimed that this could give U.S. enforcement extra-territorial legal power, and justify access to computers and devices worldwide. The company argued instead that the U.S. should rely on existing diplomatic conventions that call for companies to cooperate on criminal investigations.

“The U.S. has many diplomatic arrangements in place with other countries to cooperate in investigations that cross national borders, including Mutual Legal Assistance Treaties … The significant foreign relations issues associated with the proposed change to Rule 41 should be addressed by Congress and the President, not the Advisory Committee.”

The issue has also been a sore spot for Microsoft, which is running the risk of contempt of court proceedings as a result of a hardline position it is taking in a case before the Second Circuit of Appeals in New York. That case is about whether a U.S. search warrant obliges the company to hand over data stored on a server in Dublin, Ireland.

The warnings from Google and Microsoft are driven in part by self-interest. The companies are anxious to reassure overseas cloud computer customers, who are skittish about the Edward Snowden revelations, that their data will not be subject to U.S. jurisdiction.

The Justice Department, meanwhile, has suggested that imposing territorial limits on computer searches is unrealistic when anyone can store data anywhere.

The Google blog post comes at the close of a comment during which the Justice Department asked for comment on a variety of rule changes, including to “Rule 41” on search powers (the National Journal profiled Rule 41 in detail last year). A final version of the rule is still pending.

How tech trials force a choice between bad people and bad law

Of course Ross Ulbricht was guilty. Despite his far-fetched claims of mistaken identity, a New York jury confirmed the obvious: that Ulbricht (aka Dread Pirate Roberts) was the criminal mastermind who took on a villain’s name, and became rich by running an online marketplace that sold any drug imaginable.

All the same, protestors on the internet and at the courthouse still insisted Ulbricht was innocent. More broadly, the Dread Pirate (who is now awaiting sentencing) also enjoyed sympathy from many in the tech press, which often downplayed the bad things he did, and instead cast the FBI as the villain in the case.

Such moral indulgence is odd, and doesn’t extend to Ulbricht alone. Other tech rogues, including a corpulent charlatan and a Nazi sadist, also enjoy public sympathy. But why? A big part of it may lie with the government’s heavy-handed approach to internet-related crime.

Bad people

Ross Ulbricht didn’t start out bad. Indeed, accounts of his past life from his mother and Ulbricht reveal a very different sort of person: an Eagle Scout, and then a bright and sensitive physics student who worked hard to build a used books company.

But then he became someone else. He started the Silk Road marketplace, which began as a relatively benign forum for finding magic mushrooms, but then devolved into a free-wheeling playground for hard drugs, forged documents and prostitution.

The notorious bazaar also changed Ulbricht himself: FBI evidence from a seized laptop suggests that he attempted to hire hit men to murder those he believed had betrayed him (the “hit men” turned out to be government agents but Ulbricht believed they were real).

This tragic arc, which saw the Eagle Scout become the Dread Pirate Roberts, may explain some of the sympathy for Ulbricht. But that’s hardly the case for Weev, another famous figure in internet circles who is also facing prosecution by the Justice Department.

Weev, whose real name is Andrew Auernheimer, was sentenced to three years in prison for what the government describes as a hack on AT&T. But he is better known for his other legacy as one of the cruelest trolls on the internet, whose antics have exposed women to death threats. And last year, Weed reinvented himself as a Jew-hating White Supremacist.

Despite all this, many tech outlets hailed an appeals court decision last year to vacate Weev’s conviction on the hacking charges on procedural grounds, and to release him from prison. And while Weev doesn’t exactly enjoy public sympathy, stories of his legal battle often elide the bad things he has done.

Other antiheroes of the tech worlds include Julian Assange, the self-aggrandizing Wikileaks leader who faces sexual assault accusations in Sweden, and outlaw music mogul Kim Dotcom.

Dotcom has done a litany of bad things, including making millions from purloined movies and allegedly ratting on his rivals, but he is still hugely popular with many internet communities. The 300-pound fugitive is even dabbling in mainstream politics in New Zealand, where he is living while he fights U.S. efforts to extradite him to face multiple criminal charges.

The celebrity-style adulation that Dotcom and the others receive is no doubt frustrating for the law enforcement officials trying to convict them. The reason for it, however, is not just because the outlaws are good at gulling the public (though that’s part of it), but because of people’s legitimate misgivings about the laws that the U.S. is using to prosecute them.

Bad laws

Aaron Swatrz was a genius so beloved in the tech community that a film-maker made an acclaimed movie about him called “The Internet’s Own Boy.” But he was also a criminal in the eyes of the government, and some believe the Justice Department’s relentless effort to prosecute led the 26-year-old Swartz to commit suicide in his Brooklyn apartment two years ago.

What crime led to this end? In 2009, Swartz used MIT computers to download millions of academic articles from a database called JSTOR – articles whose authors are typically unpaid, but that are licensed to universities at high fees. His action may have been ill-advised, but hardly amounts to a serious crime.

Nonetheless, the Justice Department came at Swartz with a law called the Computer Fraud and Abuse Act that gave prosecutors discretion to seek a prison term of 35 years and a $1 million fine.

The CFAA is a clumsy statute dating from long ago that relies on vague concepts like “unauthorized access,” and lawmakers have tried to reform it. Yet those efforts have so far failed, and the Justice Department keeps using it in all sorts of cases — including that of Weev.

In the government’s view, Weev committed illegal hacking under the CFAA when he “accessed” the AT&T website to demonstrate a security flaw that spat out private email addresses. Skeptics, however, point out that Weev simply entered information into a public website available to anyone with an internet browser, and ask how this amounts to hacking.

The CFAA also grounded one of the seven charges– “conspiracy to commit hacking” — on which Ross Ulbricht was convicted, although that charge was overshadowed by other elements of the trial (including a theory that the government itself had violated the CFAA.)

Meanwhile, the CFAA is hardly the only questionable law that is at issue in tech-related prosecutions.

Before the Silk Road case, Ulbricht’s mother made a forceful argument that her son’s prosecution should be seen through the lens of systemic abuse by the Justice Department of surveillance and drug laws. She has a point: whatever harms caused by Silk Road drug deals, they pale in comparison to the destruction wrought by America’s ruinous “war on drugs.”

As for Kim Dotcom, his use of a mass piracy company to get rich is impossible to justify. But so too are many aspects of U.S. copyright laws, whose absurd terms and harsh penalties serve to benefit a narrow sector of the entertainment industry at the expense of the general public. Is it a surprise that knee-jerk attitudes to digital media by government and industry has led some to cheer for Dotcom instead of the industry that wants him prosecuted?

The hard choice

The cases against Ulbricht, Weev and Dotcom raise a dilemma because they can force us to choose between supporting a bad person or a bad law. A choice to convict such men may serve to legitimize unjust laws, while exonerating them amounts to giving them a free pass for unacceptable actions.

The cases can be harder still since they often involve technology (like TOR, peer-to-peer tools and bitcoin) that is unfamiliar to average people, but that the government often characterizes as inherently suspicious and related to “hacking.”

All of this helps to explain why the tech community can embrace antiheroes over Justice Department prosecutors who are apt to employ every legal tool at their disposal — even if it is one that is harsh or outdated.

The solution then is to give the prosecutors better tools, and not simply more of them. If the U.S. government is going to retain credibility in its effort to go after what it sees as online bad guys, it will have to do a better job of defining crime, and matching crime to punishment.

This story was updated on 2/15 to replace the word “charges” with “accusations” to describe the sexual assault allegations against Assange.

U.S. sued over planes that suck up cell phone data

A civil liberties group has filed a lawsuit against the U.S. Marshals Service, demanding more information about a controversial surveillance tactic involving airplanes that fly over urban areas in order to sweep up cell phone signals.

The Electronic Frontier Foundation’s lawsuit, filed in Washington, claims that the group demanded documents about the plane program under freedom-of-information laws last November, but that the federal government has so far failed to turn them over as required.

The plane program in question came to light last after the Wall Street Journal revealed how the Justice Department straps small devices known as “dirtboxes” to Cessna planes in order to lock on to cell signals. The devices, which measure two feet square, are reportedly capable of recording location, phone data and even conversations.

The device-equipped planes also allegedly locks on to the phones of suspects and innocent people alike, but then discards data gathered from the non-suspects.

A spokesperson from the Justice Department on Tuesday declined to comment about the plane program or the FOIA lawsuit.

The lawsuit itself asks a judge to order the government to comply with the freedom-of-information law demands, which the EFF says it originally sent to the Justice Department, the FBI and the Marshals Service. These included requests for records about the plane program, about related criminal cases, and information about which state and federal agencies are using the devices.

If the lawsuit gains traction, it could bring new attention to the government’s use of stingrays, which is the name commonly used to describe devices that mimc cell phone towers in order to trick cell phones into connecting to them. The plane program appears to be just an airborne extension of that practice.

Meanwhile, the federal government’s surveillance policies are also under scrutiny in light of the recent disclosure of a cross-agency license-plate program that is amassing driver data at record rates.

Rivals launch “Don’t Comcast the Internet” to oppose TWC merger

In the current debate over how the U.S. should oversee the internet, the worst case scenario for many is the web reinvented as cable TV: a service where subscribers pay a lot of money for a limited number of channels, and in which the distributor chooses which shows can even appear on the platform.

Rivals of the telco giant [company]Comcast[/company] fear this is exactly what the company is trying cook up through acquiring its next largest competitor, [company]Time Warner Cable[/company]. The proposed merger is already unpopular with consumer groups, and now industry opponents are going into high gear to try a stop it.

On Monday, a consortium of smaller phone and broadband companies launched a campaign called “Don’t Comcast The Internet” to draw attention to a parade of potential horribles that could arise if regulators allow the merger.

At an event in Washington to kick off the campaign, the group presented antitrust authorities who predicted that a combined Comcast-TWC would stifle would-be competitors. One way it could allegedly do so is by using its market power to pressure content partners to keep their content — which is the lifeblood of both TV and broadband — away from new entrants.

The group also warned of danger to another part of the internet, predicting that younger internet and content companies would struggle to obtain permission from Comcast-TWC to appear before subscribers in the first place.

Nick Grossman of venture capital firm Union Square Ventures said he worried that start-ups could find themselves asking “Will Comcast greenlight it?” as a pre-condition to launching their business on the internet.

Others worried that the Comcast would exploit its set-top box to control the user experience and business ecosystem, much as Microsoft exploited its operating system monopoly in the 1990s.

It’s too soon of course to say if all — or any — of these dire predictions might come to pass. The FCC and the Justice Department still appear to be months away from finishing a review of the merger, a process that Comcast VP David Cohen had earlier predicted would be finished by the end of 2014.

In recent months, however, Comcast critics appear to have gained momentum as approval for the merger, which once seemed a near-sure thing, has come under growing doubt.

Comcast, meanwhile, appeared unfazed by the appearance of the coalition, offering the following statement:

“There’s no real news here — just another group of existing opponents making the same arguments they have already made at the FCC for months, many of which weren’t found to be credible in our past transaction reviews, and all of which we’ve refuted directly with evidence in the FCC record.  The real facts remain the same:  consumers don’t lose choice in the broadband or video markets.  Consumers will see real benefits in faster broadband speeds and better video products, and a host of other benefits.  And there are no transaction-specific harms to this merger.”

The “Don’t Comcast the Internet” crowd consists of industry umbrella groups Comptel, ITTA (The Independent Telephone & Telecommunications Alliance) and NTCA–The Rural Broadband Association. It’s not the first anti-Comcast posse to spring up of late: content providers like Netflix and Dish launched an initiative late last year called “Stop Mega Comcast” to point out the alleged downsides of the deal.

This story was updated on Tuesday at 12:30pm ET to include Comcast’s statement.

Google, gag orders and WikiLeaks: who’s lying?

The political fallout of WikiLeaks has passed, but the fury of law enforcement has not. More than four years after the organization published a trove of U.S. diplomatic cables, federal agents continue to wage a secret legal campaign to put the screws to those responsible.

This month, a new twist to the story emerged as lawyers for WikiLeaks accused Google of betraying its users by secretly turning over their communications to the Justice Department. Google shot back that it did all that it could, but the government stifled the company with gag orders.

The dispute suggests someone is not telling the truth but, at a deeper level, points to the problem of secret rabbit holes in the U.S. justice system that obscure the existence of criminal investigations.

Google said, WikiLeaks said

Right before Christmas, three WikiLeaks staffers received notice from Google that the search giant had turned over information about their Gmail accounts to law enforcement in early 2012. The news, while unpleasant, can hardly have come as a total surprise: the government has aggressively gone after others involved in the cable dump, and it’s widely known that prosecutors made similar search demands of Twitter.

Lawyers for the WikiLeaks staffers, however, issued a public letter to Google, saying they were “shocked and disturbed” that the company took two and half years to notify them about the requests. They implied Google sold out the staffers, who regard themselves as journalists, to the federal government.

In response, Google took to the press through one of its lawyers, who told the Washington Post that the company had been silenced by court-imposed gag orders, and that it has repeatedly gone to court for the right to tell WikiLeaks users about the search requests.

This does not appear to have satisfied Michael Ratner, a lawyer who represents the staffers.

“To this date we have had no answer to our questions from Google.  To accept that they challenged the gag order, or any other matters, we would need a written answer from Google to our letter,” Ratner told me by email last week. “We also want to be assured that they challenged the gag order before they turned over any of the material.”

He added that the group also wants full copies of all the legal papers that were served on Google, and suggested that the company is not as vigilant in standing up for its customers’ privacy as are Twitter and Microsoft.

The result is a standoff in which it’s impossible for journalists or anyone else to know for certain whether Google is being truthful. Court records and further conversation with a lawyer for Google do, however, provide a better picture of what’s going on.

“Google is still muzzled”

It can be a surprise for lawyers and journalists, who are used to treating court records as public documents, to discover just how

Photo by Alain Bachellier/Flickr

Photo by Alain Bachellier/Flickr

much the Justice Department cloaks its legal process in the name of national security. In cases related to mass data collection, for instance, many of the dockets are sealed, and the tech companies involved are precluded from even disclosing they are before a judge in the first place.

A similar situation surrounds the WikiLeaks investigation. Under laws that govern special subpoenas and search warrants, the Office of the U.S. Attorney in Eastern Virginia has obtained gag orders that forbid Google from telling users that law enforcement has demanded access to their email accounts.

The gag orders normally last 90 days. But according to Al Gidari, a lawyer for Perkins Cole who represents Google, the Justice Department has been pushing judges to renew the order over and over — even though Google presumably gave up information about the accounts long ago. He also suggested that this behavior was tied to public outcry over the government’s demands to obtain Twitter accounts of those it believed were tied to WikiLeaks-related suspects (including an Icelandic member of Parliament).

“[They] became aggressive immediately in the wake of the Twitter backlash and opposed Google notice to users out of the box. Thereafter, it was always a fight to get any notice. Ultimately, Google prevailed with the passage of time and was able to give notice to users but it still can’t discuss the orders,” Gidari said.

Gidari also said that, while all gag orders related to notifying WikiLeaks staff about Google searches have been lifted, other restrictions remain in place.

“The [Assistant U.S. Attorneys] did everything they could to muzzle Google, and Google is still muzzled so I can’t answer specific questions about any order other than to tell you that Google is seeking to have all of it unsealed.”

Gidari added that the reason Google hasn’t released documents about the investigation, or provided formal answers to WikiLeaks’ recent letter, is because it can’t. Under the terms lifting the gag order, Google can’t do anything more than tell the affected users that law enforcement has demanded access to their account.

Unfortunately, Gidari’s explanation can’t be verified since the company hasn’t shared the judge’s ruling that lifted the gag order — and is likely forbidden from doing so.

Meanwhile, an Assistant U.S. Attorney named Andrew Peterson who is involved in at least one case involving WikiLeaks and Google did not respond to multiple requests to explain the state of the gag orders. A spokesman for his office, Joshua Stueve, declined to comment.

Did Wikileaks know all along?

The dearth of documents (recall the government won’t even acknowledge that most of them exist) about the WikiLeaks Julian Assangeinvestigation is frustrating, but the court docket does supply one important clue about what is going on: a few pages of court rulings from 2012 that suggest someone in WikiLeaks knew the Justice Department was targeting Gmail accounts.

I came upon these pages in March of 2012 and surmised they related to either WikiLeaks or to file-sharing kingpin Kim Dotcom (another high-profile fugitive of the U.S. government). Google told me at the time it could not say who the filings were about, while while the government refused to say anything.

Now, we know the filings were about WikiLeaks. And, like the current dispute between Google and the WikiLeaks staffers that came to light around Christmas, they relate to when the company can tell someone that the Justice Department has asked for their emails.

In a crucial passage from the earlier Google file, U.S. Magistrate Judge Thomas Rawles Jones, Jr. tells the government why it can no longer bar Google from telling its subscribers about the search demand (emphasis mine):

However, the court now finds that the government’s interest in concluding its investigation no longer outweighs disclosure to the subscriber of the existence of the warrant.

The sole potential problem that notification might create that was raised by the government with specificity has now been eliminated by subsequent events.

In a related order issued a month later, Judge Rawles issued a further, important clarification: he said his first ruling not only allowed Google to notify the subscriber, but also allowed the subscriber to tell others about the search (the judge added the order would not go into effect for 14 days to grant the government time to appeal, but no such appeal appears to have succeeded).

Google appears to have mounted a successful challenge in 2012 to tell someone in the WikiLeaks organization  — perhaps its leader, Julian Assange — that the Justice Department had carried out a search of their account. If so, this raises the question of why that person failed to broadcast that fact and, in doing so, warn others to be on guard.

In response to a question about the orders that appeared in early 2012, the lawyer for the WikiLeaks staffers simply stated by email, “I don’t know who these orders concern.”

Who is lying?

The recent back and forth between Google and WikiLeaks, along with the existence of the 2012 documents, suggest Google is likely being truthful about its efforts to challenge the gag orders. Meanwhile, someone in WikiLeaks may have failed to use an earlier legal window to tell others in the organization — and the general public — the Justice Department was searching Gmail accounts.

But it’s impossible to know for sure. And that, in turn, points to the biggest liar in the Google-WikiLeaks affair: the U.S. government, which claims that national security requires it to disregard even the most basic principles of procedural justice by scrubbing the very existence of certain dockets — including ones that appear to have no obvious tie to security.

Keep in mind that the secret court orders related to the Google-WikiLeaks conflict are not about disrupting potential terrorist plots. Instead, they represent a process for the Justice Department to search the correspondence of people who consider themselves to be journalists, and to use gag orders to ensure it takes years to learn a search has taken place at all.

This is just the latest spread of a shadow justice system that serves to breed paranoia and distrust. Whether you believe Google or WikiLeaks, their current dispute wouldn’t exist in the first place if the Justice Department scaled back its use of secret investigations.

“Central to this whole question, is not just Google, but the federal government,” Ratner said. “This entire investigation, including the search warrants, is a broad attack on free speech and free press. It should have never begun, and certainly should have ended long ago.”

Judges question Apple ebook verdict and Amazon’s role

In a new twist in the long running antitrust case against Apple, an appeals court on Monday cast doubt on the Justice Department’s theory that the company brokered an illegal conspiracy among book publishers, and asked instead why the government’s focus has not been on Amazon.

The 90-minute hearing, which took place at the Second Circuit Court in Manhattan, represented a major shift in momentum in a case that has until now gone completely against Apple. On Monday, the three appeals court judges suggested that District Judge Denise Cote might have been too quick to conclude that Apple’s pricing arrangements with five publishers violated antitrust laws.

“Would it not matter that all those people got together to defeat a monopolist? It’s like the mice that got together to put a bell on a cat,” U.S. Circuit Judge Dennis Jacobs told the Justice Department’s lawyer, Malcolm Stewart.

The cat in question here is [company]Amazon[/company], which controlled over 90 percent of the ebook market in early 2010 when Apple and the publishers introduced “agency pricing,” which lets publishers set an ebook’s retail price and pay the publisher a commission. Amazon had previously used the wholesale model for all ebooks.

On Monday, Apple’s lawyer Theodore Boutros urged the appeals court to regard the pricing tactic as a legitimate business arrangement used to “come into a market dominated by a monopolist.”

The judges appeared to give weight to this suggestion, and to accept Boutros’ contention that a brief price spike, which damned Apple and the publishers before Judge Cote, should not result in an automatic finding of illegal price-fixing. Instead, Boutros said the price spike was limited only to the five publishers, and that the overall effect of Apple’s entry to the ebook market dramatically benefited consumers since many more players were willing to enter the market.

The appeals court judges also expressed skepticism over Stewart’s repeated attempts to liken the agency pricing arrangements to a criminal drug conspiracy in which [company]Apple[/company] was the driver.

“When you’re dealing with the illegal drug industry, you’re looking at one of the few areas where the law doesn’t look favorably on new entrants,” said Circuit Judge Debra Livingston.

$450 million settlement at risk

If the appeals court decides to disturb Judge Cote’s verdict, their ruling would have an immediate ripple effect on a related legal proceeding, involving class action lawyers and state governments, in which Apple has agreed to pay out $400 million to consumers and another $50 million in legal fees.

But in an unusual arrangement, the $450 payout is contingent on the Second Circuit upholding the verdict. If the appeals court judges remand the verdict, the payout could drop to a total of $70 million and, if they reverse it entirely, the payout will be nothing.

At the hearing, Boutros suggested that the appeals should overturn Court’s ruling as a matter of law, or at least remand it to a different judge.

The major legal issue at stake turns turns on competing antitrust doctrines known as “per se” versus “rule of reason” — which specify how courts should assess situations in which companies are found to have colluded on a given business issue.

The appeals court, however, may be hard-pressed to reverse Judge Cote, who found in a 160-page decision that Apple was liable under either standard.

In the event the appeals court does remand or reverse, its finding is likely to turn on whether Apple and the publishers’ behavior was justified in the context of what Judge Jacobs called a “new entrant breaking the hold of a monopolist” using “arguably predatory” tactics.

For the publishers, the outcome will not effect their liability since they have already agreed to pay out millions as a result of voluntary settlements.

A five-year cooling off period

A portion of Monday’s arguments were taken up by lawyers from Simon & Schuster and Macmillan, which are two of the five publishers that were caught up in the antitrust investigations (the others are Hachette, HarperCollins and Penguin, which has since merged with Random House).

Macmillan and Simon & Schuster were there to object to a part of Judge Cote’s order in which Apple must engage in a five-year “cooling off period” with the publishers, and engage in only arms-length negotiations. For practical purposes, this means that the publishers will not be able to limit Apple’s ability to engage in discounting, which could in turn complicate their negotiations with other retailers.

The publishers claim this five-year provision is unfair since they are this month coming to the end of their own two-year settlements with the government. They claim that the Justice Department is, in essence, reneging on its earlier agreement with them since the five-year arrangement with Apple will have knock-on effects in their negotiations with other ebook retailers.

The publishers asked the judges to excise a part of Judge Cote’s order that applies the five-year cooling-off period and, if necessary, to make a special preliminary decision on this matter so their pricing strategies are not compromised.

Finally, the appeals court judges also mulled what to do with the special monitor that Justice Cote appointed to oversee Apple’s compliance. The appointment has drawn criticism because the monitor selected by Cote was a friend of the judge who lacked antitrust experience and hired a special advisor at extra cost.

The appeals court said it will reserve its decision, meaning a ruling is likely to come sometime in 2015.

US government is using planes to spy on cell phones, suck up data

It’s the sort of thing that makes you want to hide in a cave with a tin foil hat: a new report reveals that the Justice Department is using airplanes to scan the cell phone data of suspected criminals, and anyone who might be standing near them.