Thursday, February 18, 2016

Right. Wrong.

I'm a bit of an Anglophile: I love the United Kingdom. I spent my junior year living and studying in London. It was one of the most transformative experiences of my life. I’ve returned several times and have just made plans to do so again. The abundance of art, music and theatre combined with an incredibly rich and diversity of people make London one of the most vibrant cities in the world. It’s also wildly expensive, busier than ever and crowded unlike it was when I lived there in the 1980’s. There has been a '"special’relationship" ever since Winston Churchill declared it in 1946. That special bond has gotten so close that its nearly indistinguishable to tell one from the other now.

The Washington Post reported that the US and the UK are in active negotiations to allow “an agreement that would enable the British government to serve wiretap orders directly on US communication firms for live intercepts in criminal and national security investigations involving its own citizens. Britain would also be able to serve orders to obtain stored data, such as e-mails.”

There’s a whole lot that’s wrong with this idea. The British would follow their internal rules – getting the Home Secretary to sign off on a warrant. Then that warrant carries the same weight as if a U.S. judge issued it. But instead a foreign entity will be directing private U.S. companies on what actions to take. That in and of itself is disturbing and worrying.

Law Enforcement has a difficult time getting access to the data it needs. An example: “London police are investigating a murder-for-hire plot, and the suspects are using Hotmail to communicate, and there’s no connection to the United States other than the fact that the suspects’ e-mails are on a Microsoft server in Redmond, Wash. Today, the police would have to use the mutual legal assistance treaty process and wait months.” Innocent until proven guilty. That sometimes means waiting to get it right.

New York City police are like the population it serves: impatient. It has been reported that “The New York Police Department has used cell-site simulators more than 1,000 times between 2008 and May of 2015.” What that means is that police have used “cell-site simulators. [They] work by masquerading as 2G cell towers, pulling information from all nearby phones but disrupting cell service throughout the area.” In other words you could be walking down the street and the NYCPD will capture your call information without a warrant because they're grabbing everybody's info in a broad sweep. A court order is needed which doesn’t have the same threshold of evidence as a warrant. The NYCPD is literally on street corners capturing everybody's private information without a warrant.

Just yesterday (2/17/16) Apple was ordered to build a back-door to break the encryption on the iPhone because law enforcement can't. Apple is fighting the order but it's another example of the governments appetite for accessing personal information from private technology companies. 

Does all of this sound familiar? As I detailed in a blog last year - the U.S. has for years tried and failed to get legal precedent to violate American's privacy. “A Federal appeals court found ruled that the National Security Agency program that systematically collects American’s phone records is illegal. The USA Patriot Act is the basis that the NSA used to justify the program.” The Act was set to expire but didn’t. It was renewed. The program was meant to be stopped and it kept operating. The only difference in Feb. 2016 is that originally the Government was to capture and hold the meta-data of people’s cell phone calls, texts, emails – but now the underlying phone companies are supposed to.

To summarize: the U.S. Government captured American’s private information for a decade and a half under a program that was deemed illegal repeatedly by U.S. courts. Rather than shut the program down it kept running until the law could be changed where U.S. private companies are required to hold the data and give it out when a warrant has been issued. U.S. and U.K. officials are negotiating a mechanism where a non-court, non-judicial office in Whitehall will issue a request for information for these records and the private companies that are now required to hold the data will be forced to comply.

Well you’ve got to give the Obama administration points for creativity at circumventing the law. Instead I’ll go with the British expression “right.” Americans think of it as a substitute for “okay.” But the slang dictionary tells us that right is an “Adjective. Used as an intensive. e.g."I made a right mess of that." At least the NYCPD doesn't pretend - it just grabs the info it wants. It's all just wrong.

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