Ask EFF: The Year in Digital Civil Liberties

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Ask EFF: The Year in Digital Civil Liberties
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Get the latest information about how the law is racing to catch up with technological change from staffers at the Electronic Frontier Foundation, the nation's premiere digital civil liberties group fighting for freedom and privacy in the computer age. This session will include updates on current EFF issues such as surveillance online and fighting efforts to use intellectual property claims to shut down free speech and halt innovation, discussion of our technology project to protect privacy and speech online, updates on cases and legislation affecting security research, and much more. Half the session will be given over to question-and-answer, so it's your chance to ask EFF questions about the law and technology issues that are important to you.
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and thank you all for coming to what has become an annual tradition here at Def Con which is the ass the eff panel we are a selection of eff employees from all aspects of our organization and we're here to answer your questions so first of all I guess I should say a little bit about the eff and let me just quickly find that how many of you are eff members alright well thank you thank you each one of you we rely on our membership to do what we do and we really appreciate it for those who are not or might not be familiar with the eff we are a nonprofit organization that is dedicated to defending your civil liberties online so we fight for free speech we fight for your right to privacy we fight for innovation right so you can make fair uses so you can if you own a device you can do with it as you will and don't have to shouldn't have to worry as much about things being locked down so you have your freedom to tinker with with toys and have yourself a good time when you're hacking with them so briefly before we get to this what we're going to do is we're gonna have each of the people here give a little introduction so my name is Kurt Opsahl a senior staff attorney at eff been there
about eight years I've been coming to DEFCON for most of that time I specialize in civil liberties and focus a lot on free speech issues whether that comes up in the form of your rights of freedom of expression or of privacy when you're trying to make an honest speech and keep your anonymity online or comes up in the context of say copyright where somebody's trying to stop you from speaking by putting forth a bogus copyright claim and then one couple of things before we head down the panel here first a brief announcement about eff see voting process so we have a a queue vote tsx-v voting machine here and we were going to have professor Alex Halderman come by who some of the seminal work in hacking evo ting machines and work with that to to produce a hackable election unfortunately he was not able to make it today there has been some complications so we're going to do a little bit of a revision to that where it's what is the coolest thing you can do with access to an e voting machine and we've got one it's over by the hackers with guns booth in the in the contest area and so if you're interested in trying to play around with a knack you vote a voting machine see what can be done with an LCD screen and have have yourself a good time with it come by that booth talk to us and let's try and make something really fun out of it brief word about the format here so this is going to be a Q&A session after we give brief introductions just line up in front of the microphone as soon as we're done introducing ourselves we'll get to each person in order please keep it to one question a piece and then just go back to the line if you have another question when you are asking your questions please don't tell us about your particular legal situation confidentiality is something we consider to be very important trying to keep communications privilege and this is not a confidential or privileged forum so this is not the place to talk about something you wondering if it was legal or not if you do have a specific question and we'll need our help with it Rebecca Regan who is records she is our intake coordinator sort of like a traffic cop to make sure that things go to the right place she is the right person to talk to to and and she will help you put you in touch with the right people and she'll say a little bit more about that in a second when we give our answers please understand that we are not giving you legal advice this is this is again not the forum for doing that but we'll give some legal information and just talk about more more generalities information about the law as opposed to things which are specific to your situation and one other last note sometimes we may not be able to comment on something for example if it was something that we are involved in working on or we have a duty of confidentiality so the time something may come up if you have a question about a specific legal situation where we're just not in a position to comment and we will say so we apologize if that hopefully that won't come up too much but just to prepare you for it so without further ado let me pass down the motion so we're all just going to very briefly introduce ourselves and give you a sense of the things that we tend to work on so that you know what types of issues might be up for discussion so I'm Marsha Hoffman I'm a senior staff attorney at eff i am part of eff scoters rights project which is a project we introduced here at Def Con a few years ago that works to help researchers and developers navigate the sometimes confusing legal waters that apply to their to their work I also work on privacy freedom of expression issues computer crime and security traditionally I've also done quite a bit of Freedom of Information Act work and so if you have open government questions I'm happy to take those to everybody at my name is handy for Corey I am a staff attorney with the FF on the newest staff attorney this is my first time at Def Con I'm very happy to be here I also work with Marcia in the coders Rights Project and my focus is on criminal law before coming to eff I was a federal public defender for three and a half years and have quite a bit of criminal litigation experience and I hope to use that to help all you find people on this room Thanks hi everyone I'm Kevin Bankston I'm a senior staff attorney dff celebrating my eighth year at eff in my seventh year at Def Con I focus on the government surveillance beat so in the past year I focused on convincing the Third Circuit that courts can require the government to get a warrant before they can seize a cell site data about where your phone's been convince the Sixth Circuit that your email stored at Google or Yahoo or wherever else is protected by the Fourth Amendment such the government has to get a warrant if it wants to seize it and hopefully thank you thank you very much and hopefully on august 31st in seattle in front of the ninth circuit will be convincing them that our lawsuit against the NF say for its warrantless wiretapping should proceed so if you could send positive vibes the seattle on august 31st i'd appreciate it my name is Abigail phillips i'm a senior staff attorney at the eff i focus on copyright
and other online content issues do some net neutrality work too that means a lot of intermediary issues dmca circumvention type questions legislation and congress so forth Thanks hi I'm Rebecca Regan I'm the legal intake coordinator at eff which means if you want something and you're not a journalist who have to talk to me first I love to help people find the right information I do a lot of traffic directing not only to our various attorneys but also referring people to attorneys who cooperate with the FF we have a large list of attorney to come to us because they work in the same area they love the work we do i actually just talked to a new one today who's really into what we do and wanted to help out so people whom we can't assist directly we like to try to refer them and we also have as you probably know an amazingly vast and thorough website and i often help people find what they're looking for there i'm michael e i'm a web developer at eff and i also work on several of our many tech projects and so a couple of those are HTTPS Everywhere it's a firefox extension that uh uses a large list of rules to enforce https on websites you visit and version 1 point 0 was just released yesterday with over a thousand rules you should get it it's pretty awesome there's also the ssl observatory which is a project that we did by scanning every ipv4 address on the internet for the HTTPS port and gathered a ton of information about it and it's a giant database that people could do research with and soon HTTPS Everywhere will include a decentralized Observatory component so that if you opt in you can choose to send certificates that you see to us and let's see there's the open wireless movement where we are trying to convince people to keep wireless networks open and we're trying to help the community come up with guidelines for new standards that let you have wireless networks that are encrypted and open at the same time and other such things like that and soon we will be releasing a piece of software called crypto log which is um a filter that you can use with Apache or other software that basically lets you log IP addresses in an encrypted fashion that you can't decrypt so that you could tell so you can tell the difference between unique views and pages yes and we have other projects as well hi my name is Eva galperin I'm an activist with the Electronic Frontier Foundation I focus primarily in intellectual property privacy and freedom of expression I am also i think the only person here who does are who does international work so if you have questions about digital civil liberties issues that are focused outside of the United States you can aim them at me okay thank you very much then so that's our panel and now let's turn it over to you with the question so please line up here if I the microphone if you have a question and we would love to hear from you and let's all right little bill from Los Angeles there's a bill working its way through Congress now it's nicknamed the internet kill a kill switch or could you just fill us in on the progress of that bill sure there are a number of different cyber security initiatives being pushed in Congress right now in fact so many that there's kind of a traffic mess the administration put out a proposal there are several bills there was a Lieberman Collins bill in the Senate that they'd have a component that have given the president an emergency authority to pardon me trying to remember the exact language but it would have given the president emergency authority to basically cut off systems from the internet when there was a threat posed to critical infrastructure in response to a lot of public blowback and pressure and the frightening example of what mr. Mubarak bit in Egypt Lieberman and Collins did remove that language from their bill and actually put in an explicit thing that said nothing in this bill shall be construed to allow the President to shut down the internet which was kind of funny so I the White House's proposal itself does not include any new emergency authority for the president which I think was the right political choice for them but uh but right now the the cyber security situation and on the hill is very confused and I I'd be surprised if anything passed this year even though a lot of people would like to see something passed this year hey guys uh thanks for being here I've heard a claimed that having an are being responsible for an open wireless makes you go gives you plausible deniability as to the usage if you have no logs what's the reality of this so if you have an open wireless so this is something that I've heard a fair amount
of and say is the notion that you know if I have an open wireless well then it's not provable whether it was me or not who did a particular thing and the reality of the situation is oftentimes there are a lot of other factors other than the the open wireless such as things that are on your computer itself are other other indicia that will be used in combination with it on the whole it is actually a fairly rare circumstance in which somebody has been able to get out of an accusation because they said that their neighbor did it or you know somebody got on to my Wi-Fi and it wasn't me and off more often than not under the circumstances further investigation forensics on their computer and other indicia have shown that it really wasn't the neighbor there have been a couple scary entrances and there was one that happened in the last couple of months where it really was a neighbor who got onto somebody's Wi-Fi and did some evil things and in that case you know the investigation of looking at the situation showed that it was unlikely than it was that person's computer further investigation led it to the to the neighbor so there's a lot of things that are going to go into an investigation and if you're going to be relying upon the notion that i have an open Wi-Fi so it wasn't me you know make sure that that's true and that because that they'll be looking at things other than just the question of whether or not you have an outdoor Wi-Fi it's a quick follow-up so you guys overall would say that having an open Wi-Fi is not a danger to being falsely accused of something I didn't hear you say that well so having an open Wi-Fi there there are a lot of things that could happen how how frequent they are is a question that you have to consider and if a lot of people have open wifis then the that will make it available to a lot of people and it will make it so that the the incidence of people who are using them for four ill won't be concentrated so one of the advantages of having a lot of people having open Wi-Fi and making it available is to you know spread around the risk and make greater availability for for all there are some things that you might do if you want to have a you know make free Wi-Fi available to the people as a Good Samaritan but still have your own system you could also have a open Wi-Fi and plus you have your own system which is separate from that and so you're helping the world out by allowing for connectivity and then you have your own
traffic go through a separate system hi my question actually has slight connection to that if someone has a criminal backgrounds let's say hacking or fraud or something along those lines they've completed their sentencing but they want to get involved in the community are there specific things they should avoid such as may be running a tor exit node or having open Wi-Fi because if somebody were to do something illegal over that they may be instantly suspected as the person committing that crime should they avoid things like that and get involved in other ways so if you have a prior criminal conviction for some sort of hacking activity I think common sense would say be very careful what you do in the future because as you said the way you know a person's background does matter to the government when they're trying to determine who is and who is not responsible for a crime so if they have between two people who are doing the same exact action if one person's got a prior record for the same exact thing and one person doesn't obviously they're going to focus their attention on to that person I wouldn't say that means you should never do anything and you should you know live in a bunker and never you know touch a computer it just think that you need to be very very careful with what you do and take whatever necessary precautions that exist to avoid getting yourself you know to be the subject of scrutiny I will also say that if you do end up finding yourself you know convicted again you know the penalties are going to be increased because of your prior record in a number of ways it could be in the maximum penalties can be increased under the statute and then under the kind of complicated sentencing scheme that is kind of parallel to the maximum penalties your criminal record is taken into account so you will find yourself in more trouble and so you know the penalties do increase so I mean to the extent of your thinking about opening you know an open Wi-Fi or running into eggs and node your background should be something you should absolutely keep in mind before you do something that could be potentially risky i'd like to follow up just quickly also on particularly on the tour exit node point and there are a
number of things that that you can do if you run a tor exit node to you know decrease the amount of risk that you face you know from being mistakenly identified as the source of traffic that comes from that node and the Tor project actually has a really excellent blog post on its website that talks about some of the things that you can do to be and to be a little more careful and if you take a look at our legal faq you know we link to that post but we have some thoughts about it too so you know there are certainly things that you can do to you know do something like support the Tor network by you know running an exit node or something all right you know another type of relay or you know help the community at large and take certain actions yourself that make your your your behavior a little less risky than it might otherwise be and you know that's certainly a good idea if you have a prior criminal record and last of all I would add that if you're not comfortable running a tor exit node especially after reading our legal FAQ and the blog post on the tour website that you should consider running one of the middle relays instead hello first I'd like to thank you for helping cendant security researchers like myself tackle a lot of the legal issues your work helps a lot of us sleep at all at night thank you second of all I'd like to ask a little bit of information I know that there's a case in Colorado regarding an encrypted laptop and the government seizing that laptop and trying to get the user to disclose that password and forcing them to to basically unencrypted their data to for the purposes of furthering their criminal investigation could you tell us a little bit about that case and the work that you're doing with that case absolutely and actually I'm curious how many people in the room are interested in in that case that's what I so if it's okay with you guys I would just like to take a few minutes to chat a little bit about this and you know kind of lay out the background and all this and this may answer some other questions that that some of you may be in line to ask so I'm going to start with a little bit of legal background okay and there is a Fifth Amendment right US Constitution to not be forced to be a witness against yourself and basically what that means is that the government cannot compel you to to testify in a manner that would incriminate you so you know we're talking about three factors here compel testimony that's incriminating and you know shorthand sometimes we call this the right against self-incrimination okay now one important question here is you know what is testimony and basically what this is what this means is that you can't be forced to communicate something in your mind you know knowledge that you have in your mind and so if it's something that already exists like if it's something that you you know a document that you wrote that's sitting on your laptop that in and of itself does not implicate the privilege all right this is a privilege that only comes into play when you're being forced to communicate knowledge that you have in your mind and you know another interesting question is what does it mean to incriminate okay so incriminating information is information that would provide a link in a chain of evidence that the government the government might use to charge you with a crime in the future so it's not even necessarily something that that you know it indicates that you committed a crime I mean it's something that might lead the government to charge you all right so so that's kind of like like that that's the basic concept that we're talking about and in the past few years there have been very very few handful of cases that have come up and looked mean relatively low level courts dealing with the question of how this privilege applies to in and passwords so basically can you be forced to turn over your password can you be forced to speak it can you be forced to type it into your computer can you be forced to unencrypt your data and hand it over to the government or does the Fifth Amendment protect you against that and you know the courts have you know kind of been struggling to figure out how this how this works there was a case in Vermont that was the first you know we've talked about this at prior def cons you know the first to talk about this issue and it involved a man who was coming over the Canadian border and his car was searched by a border agent and he had a laptop in there that was on and the border agent wanted to look at the laptop and the guy said that he could and so the you know agent you know with the man's consent you know took a look around and some of that some of his files and he found some stuff that he thought looked like child porn so he sees the computer shut it down later when he you know the government tried to boot the computer backup it turned out that the the drive that contained those files was encrypted and so they asked a court to force this man to type his password into the laptop to unencrypt the data and you know a magistrate judge a magistrate judge is kind of you know fairly low-level judge actually about his low level as they get said you know what I think that violates this guy's right against self-incrimination because you know the password exists in his mind and
basically you're forcing him to perform an act that communicates that knowledge and when he types that lap that password into the laptop it's going to show that he has control over those files which is an incriminating fact and so no so then the government comes back and says okay okay okay but what if the court were just to compel him to decrypt his laptop and just to provide a decrypted version of the information how about that and the judge looked at that a district court judge little higher level looked at that and said well okay it's not quite the same situation and in in in a in a situation like this actually like the government's already seen these files anyway and they know exactly where they exist they exist in a certain drive and if he provides that unencrypted data then the government isn't going to learn any more than they already know and so basically the gap between this man's knowledge and the government's knowledge is not really there's nothing there's no gap there so you know basically he's not really being forced to be a witness against himself so um in that case he had to turn over the data all right and then you know there's been a couple of other cases you know where judges have looked at this and they haven't analyzed it all that carefully there was one in Michigan where you know the government wanted an individual to be forced to turn over his password and the court said no so that takes us to this most recent case
there's this case in Colorado it's called United States versus for kozue and it involves a situation where two people they used to be married to each other so they're now ex-husband and ex-wife they've been indicted on charges involving mortgage fraud before the indictment came down the police served a search warrant to search the home where they used to live together and where you know the woman now lives with her family and they seized several computers including an encrypted laptop from her bedroom and after that stuff was seized this woman had a conversation over the phone with her ex-husband who at the time was in prison and you know when you're in prison they record your phone conversations and so the government has a record of this conversation and in this conversation you know she discussed the computers that had been seized and mentioned that there was an encrypted laptop and that you know there might be some stuff on there that the government might be stood in so the government went to the judge and said we would like you to order her to enter her password into the laptop or provide an unencrypted version of the data and this is a situation like you know the one in Vermont basically because we have this telephone conversation where she talked about the fact that um you know there's stuff on there that that is probably of interest to us and incriminating and so we know that it's there and it's just a matter of her turning it over at this point and you know when we saw this case we thought wow you know that's potentially a really interesting case and you know it looks it looks better than that Vermont one so we've gotten involved as an amicus what that means is that we don't represent her directly we don't
represent any party really we represent eff and we're basically saying hey you know we think that there are certain issues that the judge should be careful of here because they're going to have big implications for a lot of people and so this was our take on it we said you know we think that providing the password either typing it in or providing an unencrypted version of the data is protected by the Fifth Amendment because it is an act with testimonial aspects basically it would tend to show that she has control over those files and it you know would also tend to authenticate that data now the government has said that they want to give her immunity for the act of typing her password into the computer and what the effect of that would be is you know they can't use it against her and often that will actually nullify the Fifth Amendment privilege against self-incrimination because if they're not going to use it against you it's not incriminating okay we think that the immunity that the government has offered her which is to you know immunity for the act of typing it in isn't enough you know we think that the immunity in order to actually you know be the same in scope as her privilege would have to also extend to you know any derivative use of the information so you know we think that the immunity covers not only the entering of the password as an act but would also you know protect the data that is stored on the computer so you know that's kind of where the case stands at the moment there was a hearing on the issue a couple of weeks ago and a few days later the judge said that he is pretty skeptical of the government's argument and in fact his big skepticism at this point is that the government has really shown that the computer that they want that they expect her to unencrypt is the computer that was discussed in that conversation you know the judge says that he wants to hear more evidence about that and so that's going to happen in October and we'll see if the government you know has any more to say on that point aside from what they heard her say in this conversation with her ex-husband so yeah so that's the deal and if you all have follow-up questions you know feel free to feel free to bring them up and we'll talk about it more thank you next we also thank you for the work that you do it's very much appreciated and couple years ago there was a lot of focus on frivolous software patents and the abuse of those patents to suppress open-source software and things like that I believe you guys were involved a little bit in that trying to open it up a little bit but I haven't heard anything since then and I was just wonder if you might be able to comment on where that stands if you've been able to gain any ground in suppressing those kinds of frivolous patents so software patents and business method patents and there are some of the great concerns that have come out of the patent system the patent system has a lot of problems because it locks up an idea and a lot of times people are getting these patents by bringing them to the Patent Office who doesn't have the time or the resources to really look at what the prior art is and allowing people to get legal rights into an idea that actually had been known within the industry previously to that or is is sort of not an advanced on the art is an obvious thing to do and some of these patents then can be used to stop innovation and say that you know you you have you can't have it be an open source software because it has to be licensed from the patent holder or that implements this method so we don't have on the panel today Julie Samuels who is our patent lead but I can tell you just a little bit about it you can go to our website for more information so we have a patent busting project and that is going through the process of looking at what we consider to be some of the worst patents out there and go through the Patent and Trademark Office to explain to them why those patents were improperly issued and this is called a reexamination now the reexamination process is actually not a particularly speedy process it requires a lot of work a lot of gathering information and then you have to present that to the Patent Office and wait for them to deal with it so we started this project number of years ago with ten patents in mind we are working our way through them we're not through that that set left there's a number of a month I'm not sure exactly how many but if you go to our website the patent buzzing project will give a nice graphic of where these various things are and we're also have been interested in patent reform ideas that there's a lot of notion out there that maybe putting some reforms on the Patent Office to make them less likely to grant bad patents and also through the case law system by trying to explain to courts that some of these principles and how they're applying the patent law to make it a little bit better for innovation so to answer the question a little more directly yes we're working on a lot of stuff but specifically what we are working on over the summer and which we're hoping to launch early in the fall is an entire campaign revolving around education about software patents where we hope to give people tools to understand the software patent system give them some idea of what the problem is with patents and what they can do if they're in in various places in the innovation stack for example if you are an engineer and you're working for a start-up and your boss comes to you and asks you you know hey what are you working on because we need to patent as much of this stuff as possible so that we can show it to our VCS we give you a whole little worksheet that will help you understand what your options are and what kind of suggestions you can you can make to the people running your company so that you don't wind up having to patent all of your work especially with you know sort of meaningless gobbledygook patents that are essentially just being used to impress VCS and get money we also are working on a little FAQ for for students who are doing academic research and we're working on an FAQ for VCS who we think really need to be educated about how how these patents work and why a large portfolio of patents is actually not a good idea for for startups or large companies and winds up hurting innovation rather than helping to foster it just wanted to say thank you for your work I had an account on the Illuminati bulletin board back in the day when it was seized so I've been following you guys for a long time my question is on copyright law if you tilt the mic up I might catch a little bit more or my question is on copyright law I remember back when the last set of copyright extensions went through some of my friends were referring to them as the Steamboat Willie copyright extensions because every time Steamboat Willie was about to go out of copyright the law got extended it's not quite yet but we're coming up on that date do you have a sense as they're a set of lobbying coming up to try and extend copyright law some more or we've going to finally see some things slip into the public domain you know I'm not aware of anything at the moment I mean I expect they will will see it when the time comes like he said one thing we have seen is a study by Congress that's looking at sound recording specifically in copyright for sound recordings which are Capri pre-1972 aren't covered by federal copyright law and that actually means
that those don't fall into the public domain as a group until 2067 which is really a long time from now and one of the proposals on the table and again this is being studied and lots of folks have had input including eff one of the proposals would be to bring it out of state copyright law and under federal copyright law which would actually mean that those works would go into the public domain sooner which would be interesting so it's that's potentially a positive result on the horizon but as far as the general copyright term extensions sorry yeah not not aware of anything going on at the moment hi again thank you for your work much appreciated I had my question is about the police seizing your cell phone when you videotape something that happen in particular there was a shooting on Miami Beach a couple weeks ago where a bystander videotaped through the cops shooting some people in a car and then they seized his phone searched it gave him a receipt or whatever I'm seizing my question is if you're a bystander can the police seize your phone as evidence and also on the same lines I hope it's not too much but with the TSA starting to do searches at train stations Amtrak's and Metro can you walk away if the TSA wants to search you is there any remedy for any what I would consider a random search at that moment cuz these kind of same thing well I can speak to the video taping of the of the arrest and I'm not familiar with the incident you mentioned in Florida but generally speaking there have been attempts by the police to kind of forcefully sees cell phones that have been used to capture like arrests made on the streets and technically speaking that's improper there's really no prohibition necessarily on videotaping there are a separate set of you know laws and rules regarding the recording of audio transmissions which fall under the wiretap act and Kevin's the expert on that and I can defer to him on that issue but with respect to videotaping there isn't necessarily any you know at least there's no federal crime that I'm aware of and every state obviously has its own set of rules but there aren't as far as I know of an again it could be wrong but as far as I know there aren't any laws that specifically prohibit the video taping of what's essentially a public encounter now can the police seize that cell phone as evidence with a search warrant absolutely without a search warrant it's a little bit of a trickier question typically the police you know obviously under the Fourth Amendment they need a warrant in order to seize and search any sort of item including electronic devices including your cell phone there are always exceptions to that if you consent to the search they could search it if they have probable cause to believe that there's evidence of a crime that is under an imminent threat of destruction that may be an instance where they may be able to you know take that phone and and sees it now if they take it under that pretext they can't then decide well now that we found the video of the shooting let's also go rifle through all of his text messages and see what else he's got on there and you would have a remedy for that under you know if you ultimately get you know charged with a crime it would be through a suppression motion where you try to get the evidence thrown out if you're not charged with a crime you could have a remedy through a 1983 suit that's basically like a lawsuit where you claim that the government has somehow violated your civil rights so that would be your right to be free from an unreasonable search and seizure now the practical reality is oftentimes the police just take what they want to take and then you know in those instances and in the heat of the moment I think police 10 to make kind of snap decisions like that and so you know you'd still have those same remedies I discussed in terms of like a 1983 suit with respect to your question about tsa and walking away from a search you know again like if you know if you walk away you walk away you're not going to get searched but you're not going to board your train either in all likelihood do you have a remedy again you could potentially bring a civil rights suit if you feel like the search was intrusive but I think unfortunately they probably have a hard time making that argument because the courts have generally recognized that the government has a very strong compelling interest in requiring passengers on mass transit you know trains and airplanes and what not to be searched in order to protect the safety of everybody else I'll add to that I haven't looked at this issue in a few years I'll admit but i do remember there was at least one case and possibly more we're actually back up a little bit so there is this administrative search doctrine where the government can search you for purposes other than criminal law enforcement for example when they stop you you know when they do drunk checkpoints that's an administrative search because the main purpose is not to catch the it's not to give you a ticket for being drunk it's you keep the drunks off the road and keep everyone else safe it this has turned into a very broad exception for searches it's also used to justify searches at for example the airport because the purpose is not to catch criminals it is to stop bombs and and and other weapons from getting onto the plains and the case that I recall did involve someone who had entered the security area and then decided oh no wait I don't actually want to go through this search and was like no that's okay I'm not going to get on the plane and they insisted on searching him anyway and the Court did uphold that search you know once you had entered the area where the searches are occurring you've essentially consented they sort of mixed up the the doctrines of administer of search and consent to search but either way they did uphold that search in many ways you know as handy says sometimes the the authority figure will make a snap decision and ultimately you know unless you want to physically resist which is not a good idea you know it's not really going to matter what is what the law is is going to matter if and when you sue them or they prosecute you afterwards so and if you are going to be photographing or videotaping a police in a situation where they might seize your phone I think a technical solution is good and not just relying on cops not breaking laws or anything like that and there is a smartphone app right now called open watch which you can record audio or video and it uploads it to the internet immediately and i think that there's other apps and cop watch type apps getting developed for smartphones anything even the Google+ app lets you upload pictures immediately so that might be a good idea to enable so that if your device does got sees you have a copy of it so thank you right let me add one thing real fast and I'm sorry to interrupt but like I said you know there is no federal law that covers the crime of videotaping and officer now that doesn't mean that state laws will always have their own contours but there can be other instances where state law can be you know a different state law impeding an investigation or obstruction or you know any of those things can be used and try to stretch to fit into those facts a useful resource the reporters Committee for freedom of the press are CFP org they have some various faq s and 50 state surveys where they try and provide information to journalists about these sort of issues whether they can tape what what the law is in a particular state it's a valuable resource or check it out for your own state I second that it's great it's called can i record so just Google or Bing or Yahoo for can i record and you'll find it actually that was a good segue for my question is your foundation
doing anything to defend a journalist named Julian Assange and do you have any general observations about WikiLeaks we want to start with Twitter I mean so our most direct involvement yeah go ahead sir Oh Twitter our most direct involvement in in the controversy over WikiLeaks is the government issued a court order to Twitter to obtain logs regarding a number of people related to WikiLeaks including mr. Assange and we record represent one of those people and are working with the lawyers who represent several of the other targets of that order in resisting that order Twitter did a mitzvah did a wonderful thing in pushing the government to consent to the unsealing of that order such that we could come in and challenge it and that that case is ongoing in terms of general observations I think one of our main general observations which we posted on our blog is that ultimately WikiLeaks is a publisher the First Amendment protects publishers whether or not you agree with WikiLeaks tactics or politics is beside the point legally speaking the First Amendment protects the publication of true information and the Supreme Court in the Pentagon Papers case made clear that in terms of the government wanting to exert a prior restraint on that publication um the fate of the nation would have to turn on it basically they have yet to explicate in a particular standard yet the Pentagon Papers decision was was somewhat fractured but it was clear that it would the government have to meet a very very very high standard if they want to do it any try to legally compel the stoppage of publication of the WikiLeaks material and any other thoughts or comments I just want to note that this is a subject that we've been watching very very carefully and you know speaking from the perspective of the legal team and you know we're often looking for legal disputes to eyes and figure out the best way to get involved in them and you know at this point this is an ongoing criminal investigation and you know we will be very interested to see if any legal case actually ever comes of it but you know at this point we've been as involved in the criminal investigation as we've had an opportunity to be so it's something that we're continuing to keep an eye on and you know we expect to watch very closely for developments I was excited to hear that you're working on standards really into having Wi-Fi networks that are both open and encrypted because that's such a ridiculous hole in technology right now can you talk a little bit more about those efforts and most importantly what's the current prediction for how soon we might see that like wide scale and you know consumer equipment um so at the moment we are so what we're trying to do is convince other people to work on these standards and maybe work on them ourselves as possible but um I but some things that we want to come out of it is have open networks that you don't need a password to connect to but that has encrypted communications and we want to make it so that you can segment your network so that um people from the public can connect to your network but not actually have access to not be able to create routes to your hosts so that you don't have to worry about people hacking you because you're providing up a network um and bandwidth prioritization so that if people are like using a ton of bandwidth that your bandwidth gets priority and all these things and so we want to come up with new standards and hopefully sometime get them built in two routers and network cards uh not yet it's we haven't done all that much so far but yeah cool I just want to say props eff and my girl Jennifer back in the day what question is based on sort of some recent current events where a Middle Eastern country took it database of people of interest and ran this against a social networking site based on this information they identified potential sympathizers of a controversial flotilla I was wondering that if there was any protection under US law that may allow or prevent activity like this and I'd cite examples such as world trade meetings and things like that where people are being denied entrance based on their associations rather than proven information well one of the things I actually was kind of an interesting talk that occurred earlier this week was a study showing about facial recognition and using that by comparing it with social networking and people were able to use facial recognition and look at the database of faces that were up on facebook and other sites to find out a lot about people and this is one of the things that happens when a lot of information is is made public yeah we're going to eat the sort of general legal information as opposed to sort of specifically about a particular flotilla or not but the issue that arises here is like in the United States law which is a lot of where where we're focused you have some privacy rights and they're about public disclosure of private facts but it's not a very good argument that a picture of yourself that you post on a social network is a particularly private fact the private facts that is generally considered you know sort of the intimate details of your relationships with your your significant other you know whether whether or not you're gay these sort of private facts that you're somebody might know about you and then they publicize that that could be the public disclosure of private facts when it is something that is available to the public vary widely you're not going to get a lot of traction on saying that that is a private piece of information that can't be used and this this creates a lot of issues I mean not not just in in this sort of the sphere where people are using the information to ban somebody from a particular thing it can also be used by government one of the things there's the test for whether your Fourth Amendment rights and how they interplay is the reasonable expectation of privacy as more things become public then there's a different set of arguments about the reasonable expectation of privacy one the things that we push for with social networks is to make sure that people are doing good practices by making sure the customers the users of the service know what they're doing know what information is going to be public and which information is knocking folks they're making informed decisions we don't like it when something is required to be public so that you can't put a setting as more restrictive than then then public on it but this is an ongoing an ongoing medal sir good afternoon my question is someone in alignment with the gentleman i think for ahead of me talking about random searches at public transportation areas but mine is about an american citizen a US citizen coming into the country from overseas or from canada mexico and being required to provide a laptop and then provide a decryption key if the laptop is encrypted what about the constitutionally you know Fourth Amendment unreasonable search and seizure protections and things like that thank you so the Fourth Amendment generally protects against unreasonable government searches and seizures and what that means is that you know if searches I mean as a general matter the government has to get a warrant in order to do a search this is not the case at the border at the border the courts have decided that a search is reasonable because it's at the border and so no
warrant is needed and in fact for the most part they can search your your stuff and you know you know most of your you know person without even you know a modicum of suspicion you know they need reasonable suspicion when it's an ex you know an unusually intrusive search and when I mean unusually intrusive I mean like like the interior of your body now there have been several court cases that have examined how this applies to laptops and you know their lawyers who've made very valiant attempts to argue that a laptop is not like a suitcase it's not like a briefcase it contains a whole lot more information and it is a very intimate portrait of a person's life and it is a very intrusive search and unfortunately the courts have not agreed and the state of the law as as sad as it is is that the government doesn't need any suspicion of wrongdoing whatsoever to search your laptop at the border and in fact they could just do it randomly in fact if they wanted to they could probably search everyone's if they had the capability of might and so you know I think at this point in time the best solutions are probably technical ones and not legal ones or legal remedies that is and in fact one of my colleagues that's shown one of our senior staff technologists and I were working on a white paper that we're going to introduce in the next few weeks that is a comprehensive examination of the technical solutions that are available for people who want to protect their data at the border he's going to be discussing that at ccc in berlin later this month and if any of you are going to be there you should go check it out and for those of you who won't be there keep an eye for our keep an eye out for our white paper which we plan to post on our website soon but technology is technology solutions aside what I'm hearing is that an American citizen has no rights at the border unfortunately I you have very few rights of the border even american citizens-- so we are out of time thank you for all the great questions we're now going to move on to the QA room also just one last plug of those of you who might be interested in playing around with an e voting machine we have one set up over at the hack the gun hackers with guns booth in the contest area so check that out we will see you soon in the QA and see you around the house so the Q&A