Privacy The Fourth Amendment and Government Systems CSC 301 Spring 2018 Howard Rosenthal

Privacy The Fourth Amendment and Government Systems CSC 301 Spring 2018 Howard Rosenthal

Course Notes: Much of the material in the slides comes from the books and their associated support materials, below as well as many of the references at the class web site Baase, Sara and Henry, Timothy, A Gift of Fire: Social, Legal, and Ethical Issues for Computing Technology (5th Edition) Pearson, March 9, 2017, ISBN-13: 978-0134615271 Quinn, Michael, Ethics for the Information Age (7th Edition), Pearson, Feb. 21, 2016,ISBN-13 978-0134296548 2

Lesson Goals The Fourth Amendment and privacy The Supreme Court and privacy Wiretapping E-mail privacy Tracking and privacy The Privacy Act of 1974 Government data collection and abuses The Real ID Act The National Security Agency and your privacy FISA Courts The Patriot Act 3

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The Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized This right is specific to the United States Constitution and has very high levels of support across all political parties, classes, etc. and is protected by the Supreme Court Most countries do not have such protections, even in many Western Democracies The Information and Electronic Age has added new challenges to this Amendment and the right to privacy While this amendment was really directed against the government, many other organizations now exist that can invade our privacy electronically 5

Different Types Of Privacy Initially only applied to physical privacy within the home A man s home is his castle!! No seizure without proper warrant Much of our personal information is no longer safe in our homes It resides in huge databases outside our control New technologies allow the government to electronically search our homes without entering them and search our persons from a distance without our knowledge Surveillance Wiretaps Phone records police can look at your phone records to prove that you were texting while driving Data searches Medical records Lost or stolen data can be revealed (WikiLeaks) Businesses search the Internet before hiring watch what you put on Facebook Everything is exposed when we get on an airplane 6

The Supreme Court And Privacy (1) Olmstead vs. United States 1928 The court decides that wiretapping is legal, no matter what the reason or motivation, because it is not expressly prohibited in the Constitution Interpreted the Fourth Amendment to apply only to physical intrusion and only to the search or seizure of material things, not conversations. Used to put many gangsters out of business Justice Brandeis' dissent lays the groundwork for future understandings of privacy. Katz v. United States (1967) Reversal of Olmstead In this case, a reasonable expectation of privacy test was created. Federal agents had attached a listening device to the outside of a phone booth Evidence of Katz s end of the conversations obtained by the listening device was admitted in his trial in which he was accused of transmitting wagering information by telephone. The Supreme Court ruled that the electronic "listening to" and recording of Mr. Katz's conversation violated the privacy upon which he justifiably relied and thus constituted a search and seizure under the Fourth Amendment. In summary, the Fourth Amendment protects people, not places. To intrude in a place where reasonable person has a reasonable expectation of privacy requires a court order U.S. vs. Jones (2012) Cars cannot be tracked via GPS without a warrant 7

The Supreme Court And Privacy (2) United States v. Miller 1976 If we share information with an institution such as a bank, then we can t have a total expectation of privacy Government can look at bank records In general, if we publicly share information we may not have a true expectation of privacy Electronic Privacy Information Center vs U.S. (2013) The NSA received secret Surveillance Court approval to collect vast amounts of metadata from telecom giant Verizon and leading Internet companies, including Microsoft, Apple, Google, Yahoo and Facebook. The information includes the numbers and location of nearly every phone call to and from the United States in the past five years, but did not actually monitor the conversations themselves - to do so would require a separate, specifically targeted search warrant. Supreme Court refused to over turn Surveillance Court decision, bur gave EPIC option of going through the lower courts Riley vs. California (2014) The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. This overturned previous rulings which stated that phones were like other personal property which could be searched when a person was arrested FBI vs Apple Government wanted Apple to write code to break into phone of San Bernardino terrorists A court told Apple to comply Never reached the Supreme Court as FBI hired another firm which somehow broke the phone, and FBI withdrew the case 8

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Overview The Fourth Amendment protects our right to privacy Most searches, including wiretaps, seizure of property, etc. require warrants and probable cause Technology has changed the scope and boundaries of communications, in particular in the past 20 years The Communications Assistance for Law Enforcement Act (CALEA) of 1994 Actually requires that communications systems be designed or modified to allow law enforcement agencies the ability to intercept various forms of communications Note the government creating its own claim right and imposing it through law and regulation Expanded on several occasions to keep up with technology changes Obviously a major clash point in trade-off between privacy and the law Must your phone have a Back door to comply with this law? Kyllo v United States (2001) Supreme Court ruled that police could not use thermal-imaging devices to search a home from the outside without a search warrant Court stated that where government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search 10

Wiretapping and Email Protection (1) Telephone and telegraph communications have been used by for unlawful or other less than ethical purposes from the outset Organized crime Drug trade Human trafficking Spying Money laundering Eavesdropping (party line phones) Wiretapping followed soon after the advent of the telegraph and telephone Especially used by the FBI and other law enforcement agencies against organized crime Temptations were great and many times public officials and others were wiretapped (without a warrant) for political or economic data collection Congress established the Communications Act in 1934 Only the sender may authorize the release of any sent message warrants weren t mentioned Supreme Court said this applied to wiretapping as well note that these were no longer just physical, but any type of message FBI and other agencies often ignored these rules FBI Director J. Edgar Hoover collected lots of information for leverage (Kennedy, M. L. King, etc.) Robert Kennedy (as Attorney General) used illegal wiretaps against the Mafia on a regular basis, even while Hoover was using illegally collected information as leverage against the Kennedy s 11

Wiretapping and Email Protection (2) In 1967 (Katz v. U.S.) court declared that all wiretapping and other electronic surveillance was illegal without a warrant In 1968 Congress explicitly allowed wiretapping and other electronic surveillance with a court order, affirming the Katz decision in law As E-mail and other forms of communications evolved Congress added new protections Electronic Communications Privacy (1986, amended 1994) extended wiretapping prohibition and warrant requirements to e-mail and other forms of electronic communications, including wireless communications Warrant requirements even extend to third parties that store your e-mail or other electronic communications Patriot Act (to be discussed shortly) loosens some of these restrictions, especially on collection of metadata 12

Complying With The Communications Assistance for Law Enforcement Act Government wanted to make sure that law enforcement could keep up with technological advancements and passed CALEA in 1994 Complying with CALEA requires: Designers must cooperate with and seek approval from the government for new technological innovations that improve security Providers must allow the government to obtain access to metadata and data, and sometimes place monitoring tools in their systems Suppliers must provide access to encryption techniques and keys, and allow for reverse engineering Makes an assumption that the government won t misuse the information 13

Mobile Devices, GPS Tracking and Privacy Rules The court has in general extended Fourth Amendment protections to new technologies Should a search warrant before the police can search the contents of a cell phone Riley vs. California (2014) The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. The information in a cell phone is so extensive that the different items being searched for each requires a warrant Stingrays allow you to triangulate the location of a phone Is it a violation of privacy to track a publicly broadcast location signal? Due to publicity, most federal and other government agencies obtain a warrant before tracking a person s cell phone Can GPS trackers be secretly installed on a car in order to track a person s movements U.S. v Jones (2012) Court ruled that a vehicle is one of a person s personal effects and therefore a warrant is required to place the tracking device on the car Tracking a car 24 hours/day goes beyond observing a car passing in public 14

New Technologies and Court Decisions Kyllo v. United States (2001) said that you could not use thermal imaging devices without a warrant Does Kyllo apply to other types of radar and motion sensors Are drones allowed to track vehicles, even if GPS trackers aren t allowed? Many of these issues have yet to come before the courts 15

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Video Surveillance Courts so far have upheld video surveillance in public locations Used to provide security Used to identify criminals after a crime Sometimes used to enforce curfews and other laws Combined with facial recognition to identify criminals Issue arising as data is mined to correlate new types of information Persons visiting a home (think of the Godfather movie opening wedding scene and the FBI) Facial recognition Release of photos to the public to help in identifying suspects Could be combined with location tracking to prove or disprove that you were at a certain location at a certain time 17

The Privacy Act of 1974 (1) Faced with a growing amount of collected data the Privacy Act of 1974 was enacted to ensure the the government did not abuse its ever growing collection of information Key provisions and principles: Government can only record what is relevant and necessary to the legal purpose for which the government collected the information There must be no personal data record-keeping system whose very existence is secret. There must be a Federal Registry of all systems and databases that hold personal information, with exceptions for some security databases There must be a way for an individual to find out what information about him is in a record and how it is used. There must be a way for an individual to prevent information about him that was obtained for one purpose from being used or made available for other purposes without his consent. There must be a way for an individual to correct or amend a record of identifiable information about him. Any organization creating, maintaining, using, or disseminating records of identifiable personal data must assure the reliability of the data for their intended use and must take precaution to prevent misuse of the data. 18

The Privacy Act of 1974 (2) No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains There are specific exceptions for allowing the use of personal records: For statistical purposes by the Census Bureau and the Bureau of Labor Statistics For routine uses within a U.S. government agency For archival purposes "as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government" For law enforcement purposes For congressional investigations Other administrative purposes 19

The Privacy Act of 1974 (3) The Computer Matching and Privacy Protection Act of 1988, P.L. 100 503, amended the Privacy Act of 1974 by adding certain protections for the subjects of Privacy Act records whose records are used in automated matching programs. These protections have been mandated to ensure: Procedural uniformity in carrying out matching programs Due process for subjects in order to protect their rights Oversight of matching programs through the establishment of Data Integrity Boards at each agency engaging in matching to monitor the agency's matching activity. 20

Data Collection By The Government Problems In Practice Have you ever put something away and then forgotten about it? The government has all types of collected information that it hasn t even discovered Computerized systems and electronic recording make it much easier to get at that data for both good and bad purposes 21

Agencies That Collect Data About You Social Security and the SSN has become a de facto ID for many purposes The IRS (which uses the SSN) The DMV for a while the SSN was displayed on your license or ID in many states Your license is now part of the Real ID program and is the minimum needed to get onto a plane (in lieu of a passport) The Transportation Safety Administration (TSA) which keeps track of all your airplane travels, and is ready to greet you when you return from abroad The Census Bureau although this is supposed to be anonymous Your school or university many use your SSN as your ID Medical records are often collected and shared with the government Social Welfare agencies Police, the FBI, other law enforcement agencies Even if you are not a criminal, just getting a security clearance requires turning over lots of personal data Public records are readily available and published Property or business ownership Once information is collected it may be subject to release under the Freedom of Information Act 22

Government and Private Data Sources Government sometimes pays companies to mine data The Patriot Act allow the government to mine phone company records The government is often monitoring Facebook and other sites in the counterterrorism fight Government contains records on every college student The use is meant to be benign trying to track how students are doing in these universities Who graduates and how long does it take This data could also be used for less benign purposes Can someone back door into your health history? 23

Uses and Misuses of Government Data Collection Some purposes are good, useful and generally supported Understanding population demographics and movements Allocating representation (one of the original purposes of the census, along with taxation) Tax collection, college loan collection, etc. Maintaining security this can also be abused Draft registration Tracking criminals and sex offenders in particular Going after a parent owing child support Other purposes can be bad or illegal Release of personally embarrassing information Identity theft Misidentification (people have been put on the no-fly list due to mistaken identity) Denial of credit Identification of political beliefs by donations (overrides the secret ballot concept) Industrial espionage Other political mischief We would like to evaluate each use of the data individually, but sometimes this doesn t happen Therefore we need to evaluate the collection of data types, or aggregated data, against all the pros and cons a risk/reward identification and trade-off 24

The Real ID Act of 2005 Congress wanted to have a more uniform and fair way for people to be identified, especially when getting onto airplanes or entering federal facilities Set a federal standard for each driver s license or personal ID You need a new driver s license by 2020 in California in order to board a plane (unless you have a passport) Required each person to provide supporting documentation such as a birth certificate, with the states evaluating the information according to the standard, before the state issued the license or ID 25

A National ID Card? (1) The national identification card uses a large database that links all of the 50 states' databases together. This national database, containing every card holder's personal information, can be accessed from anywhere, including schools, airport security checks, police stations, etc. Pros for national identification system: You would need the actual card with biometrics to verify identity. The cards would be more secure than the current Social Security Card You d be able to use one card instead of the many you carry with you now Could help reduce credit card, government benefits, and other types of fraud Used to e-verify before employment Easier to track criminals and terrorists Easier for police to check criminal backgrounds 26

A National ID Card? (2) Cons for national identification system: History when a government has so much control over information it tends to use it. Potential for invasion of privacy is tremendous If your identity is hacked it may be even more troublesome Every system so far created has been hackable The national ID card is supposed to be harder to forge than our ID cards of today; However, this challenge may actually increase the risk of identity theft. Many people will have access to the national database with so much information about you. There have already been incidents of identity theft with this system in other countries. Recently in Russia, policemen and civilians were apprehended after having forged ID cards that would have allowed them direct access to President Vladimir Putin's office. National identification cards are facing opposition all across the globe. Countries such as Australia, New Zealand, the Philippines, Thailand, and the United Kingdom have been fighting the installation of a national identification system for the past 11 years. Class Discussion What do you think make your own lists that add to the ideas shown above Develop evaluation criteria and give a score to the National ID Card idea (Positive means yes, negative no) 27

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A Brief Summary Of Early Activities (1) Operation Shamrock Continuation of World War II interception of international telegrams by the National Security Agency (1952) Expanded to telephone calls Kennedy (continued even after wiretapping without a warrant made illegal) Organized crime figures Cuba-related individuals and businesses Johnson and Nixon Nixon Vietnam war protesters War on drugs Carnivore Surveillance System Created by FBI in late 1990s Monitored Internet traffic, including email exchanges Carnivore = Windows PC + packet-sniffing software Captured packets going to/from a particular IP address Replaced with commercial software 29

A Brief Summary Of Early Activities (2) TALON Database Created by US Department of Defense in 2003 Supposed to contain reports of suspicious activities or terrorist threats near military bases Reports submitted by military personnel or civilians Reports assessed as credible or not credible by military experts Reports about anti-war protests added to database Many of these reports later deleted from database In 2007 new Under Secretary of Defense for Intelligence recommended that TALON be terminated PRISM Program NSA had obtained access to servers of most major service providers in order to access messages and monitor communications outside the U.S. This program was exposed by Edward Snowden 30

The National Security Administration, Intelligence Gathering and FISA Courts (1) The NSA has a legal role in the collection of data Created in secret by Truman in 1952 Has been limited in the past to collecting information outside the U.S. In 1978 the Foreign Intelligence Surveillance Act was passed to monitor the NSA Set up secret FISA courts with the ability to issues warrants, allowing interception of communications to and from the U.S. in response to government requests to monitor spies and terrorists, in particular if they are U.S. citizens or other operating within the U.S. Law prohibited the NSA from collecting masses of telegrams (this was 1978) and from compiling lists of Americans to watch without a court order 31

The National Security Administration, Intelligence Gathering and FISA Courts (2) NSA started monitoring metadata (data about data) Some of this seemed to be outside the scope of warrants, since personal content of the data was not collected unless a pattern was found NSA set up collection facilities at many communications companies to collect data FISA was amended in 2007 to allow the government to wiretap communications to/from foreign countries without oversight by FISA Court FISA Act of 2008 protects companies from law suits when they cooperate with the government In terrorism cases some of the rules of the Fourth Amendment, such as revealing all data collected to the accused, does not apply There will always be trade-offs between security and privacy Ultimately we need to ask who owns the information Once we know who owns information we can discuss the Fourth Amendment Rights 32

The Patriot Act (1) Ten basic provisions (I-IV) Title I: Enhancing domestic security against terrorism Section 102 expresses the Sense of Congress condemning discrimination against Arab and Muslim Americans. Title II: Enhanced surveillance procedures Includes enhanced wiretapping under court supervision Allows law enforcement to seize voice mail messages. Allows law enforcement to subpoena additional subscriber records from service providers such as records of sessions and durations and means and source of payment. Allows information to be gathered prior to collection of a warrant in time critical situations Title III: Anti-money-laundering to prevent terrorism Title IV: Border security 33

The Patriot Act (2) Ten basic provisions (V X) Title V: Removing obstacles to investigating terrorism Authorizes the Attorney General to make funds available for the payment of rewards for assistance in combating terrorism. Includes payments to an individual who furnishes information leading to the prevention of terrorism or the identity of someone who holds a key leadership position in a terrorist organization in the State Department s rewards program. Authorizes federal officers who conduct electronic surveillance or physical searches to acquire foreign intelligence information, to consult with other Federal law enforcement officers to coordinate efforts to protect against terrorist attacks or clandestine intelligence activities by a foreign power or its agent. Allows law enforcement easier access to telephone toll and transactional records, financial records, and consumer reports. Title VI: Victims and families of victims of terrorism Title VII: Increased information sharing for critical infrastructure protection Greater cooperation between FBI, NSA, CIA, Immigration, State Law Enforcement, etc. Title VIII: Terrorism criminal law Title IX: Improved intelligence Again the emphasis was on coordination amongst agencies Title X: Miscellaneous Modified in 2015 to restrict bulk collection of phone records This could hurt data mining efficiency and ability to track terrorist activities proponents believe it is a necessary control on excessive government power 34

The Patriot Act and Data Mining (1) The whole debate on the Patriot Act centered around whether or not the government could continuously collect and store metadata from the ISPs and cell/land-line phone providers A political/privacy argument conflicted with a technical argument Remember the data mining section The Query Driven Approach When a query is issued to a client side, a metadata dictionary translates the query into one or more queries, appropriate for the individual heterogeneous site involved. Now these queries are mapped and sent to the local query processor. The results from heterogeneous sites are integrated into a global answer set. Advantages Government doesn t get to keep a large data base of information on permanent file Don t need to maintain a large IT infrastructure Disadvantages The Query Driven Approach needs complex integration and filtering processes. It is very inefficient and very expensive for frequent queries. This approach is expensive for queries that require aggregations (constant regrouping) of data 35

The Patriot Act and Data Mining (2) Remember the data mining section The Update-Driven Approach In the update-driven approach, the information from multiple heterogeneous sources is integrated in advance and stored in a warehouse. This includes data scrubbing the process of validating data for correctness in advance This information is available for direct querying and analysis. Advantages This approach provides high performance. The data can be copied, processed, integrated, annotated, summarized and restructured in the semantic data store in advance. In other words, we store data in the way(s) we want to look at it Query processing does not require an interface with the processing at the local original data sources. Much less intrusive and resource intensive to pull the data once, rather than whenever you want to query Disadvantages Must maintain a large infrastructure to import, store and maintain data Privacy concerns since the government now has access to so much data 36

The Patriot Act Evaluated The Patriot Act is constantly being evaluated in terms of its consequences versus its value Does it interfere with Natural Rights as Locke sees them It is a prime example of the evolving Social Contract, as Hobbes might say? Protections are put into the very first article to protect minority and in particular Muslim rights as part of the evaluated calculation. Certain rights to privacy are ceded to the state for a perceived greater good. War can often lead to curtailment of rights therefore it is a time to be especially careful about ceding rights The Patriot Act was modified in 2015 to reflect the concern (of a minority) about government intrusiveness via data mining A greater value was assigned to constraining the government, which modified the immediate post 9/11 valuations 37