US Internet Snooping Post Snowden

The EARN IT Bill Is Seeking To Scan Our Messages and Photos.

In a free society, people should not have their private correspondence constantly examined. U.S. lawmakers, we would hope, understand that individuals have the right to a private conversation without the government looking over their shoulder.

So it's dismaying to see a group of U.S. Senators attempting for a third time to pass the EARN IT Act (S. 1207)--a law that could lead to suspicionless scans of every online message, photo, and hosted file. In the name of fighting crime, the EARN IT Act treats all internet users like we should be in a permanent criminal lineup, under suspicion for child abuse.

What The New "EARN IT" Does

The EARN IT Act creates an unelected government commission, stacks it with law enforcement personnel, and then tasks it with creating "best practices" for running an internet website or app. The act then removes nearly 30-year-old legal protections for users and website owners, allowing state legislatures to encourage civil lawsuits and prosecutions against those who don't follow the government's "best practices."

As long as they somehow tie changes in law to child sexual abuse, state lawmakers will be able to avoid longstanding legal protections, and pass new rules that allow for criminal prosecutions and civil lawsuits against websites that don't give police special access to user messages and photos. Websites and apps that use end-to-end encryption to protect user privacy will be pressured to remove or compromise the security of their services, or they'll face prosecutions and lawsuits.

If EARN IT passes, we're likely to see state lawmakers step in and mandate scanning of messages and other files similar to the plan that Apple wisely walked away from last year.

There's no doubt the sponsors intend this bill to scan user messages, photos, and files, and they wrote it with that goal in mind. They even suggested specific scanning software that could be used on users in a document published last year. The bill also makes specific allowances to allow the use of encryption to constitute evidence in court against service providers.

Bill Language Purporting To Protect Encryption Doesn't Do The Job

Under pressure, the bill sponsors did add language that purports to protect encryption. But once you take a closer look, it's a shell game. The bill clearly leaves room to impose forms of "client-side scanning," which is a method of violating user privacy by sending data to law enforcement straight from user devices, before a message is encrypted. EFF has long held that client-side scanning violates the privacy promise of end-to-end encryption , even though it allows the encryption process to proceed in a narrow, limited sense. A 2021 paper by 10 leading technologists held that client-side scanners are a danger to democracy, amounting to " bugs in our pockets ."

The Chat-Scanning Software Being Pushed By This Bill Doesn't Work

But the available evidence shows that scanning software that looks for Child Sexual Abuse Material, or CSAM, is far from perfect. Creators of scanning software say they can't be fully audited, for legal and ethical reasons. But here's the evidence so far:

• Last year, a New York Times story showed how Google's CSAM scanners falsely accused two fathers of sending child pornography . Even after the dads were explicitly cleared by police, Google kept their accounts shut down.

• Data being sent to cops by the U.S. National Center for Missing and Exploited Children (NCMEC)--the government agency that will be tasked with analyzing vastly more user data if EARN IT passes--is far from accurate. In 2020, the Irish police received 4,192 reports from NCMEC. Of those, only 852 (20.3%) were confirmed as actual CSAM . Only 9.7% of the reports were deemed to be "actionable."

• A Facebook study found that 75% of the messages flagged by its scanning system to detect child abuse material were not "malicious," and included messages like bad jokes and memes.

• LinkedIn reported 75 cases of suspected CSAM to EU authorities in 2021. After manual review, only 31 of those cases --about 41%--involved confirmed CSAM.

The idea of subjecting millions of people to false accusations of child abuse is horrific. NCMEC will export those false accusations to vulnerable communities around the world, where they can be wielded by police forces that have even less accountability than law enforcement in the United States. False accusations are a price that EARN IT supporters seem willing to pay.

We need your support to stop the EARN IT Act one more time. Digital rights supporters sent more than 200,000 messages to Congress to kill earlier versions of this bill. We've beaten it twice before, and we can do it again.

There are currently dangerous proposals that could mandate client-side scanning schemes in the U.K. and European Union , as well. But we don't need to resign ourselves to a world of constant surveillance. In democratic nations, supporters of a free, secure, and private internet can win--if we speak up now.

The Biden administration is considering using outside firms to track social media chatter by Americans online, an effort that would expand the government's ability to gather intelligence but could draw criticism over surveillance of US citizens.

The Department of Homeland Security (DHS) is legally limited in how it can monitor citizens online without justification and is banned from activities like assuming false identities to gain access to private messaging apps used by extremist groups. Instead, federal authorities can only browse through unprotected information on social media sites like Twitter and Facebook and other open online platforms. A source familiar with the effort said it is not about decrypting data but rather using outside entities who can legally access these private groups to gather large amounts of information that could help DHS identify key narratives as they emerge.

The plan being discussed inside DHS, according to multiple sources, would, in effect, allow the department to circumvent those limits. The DHS has denied the claim saying it is not partnering with private firms to surveil suspected domestic terrorists online and it is blatantly false to suggest that the department is using outside firms to circumvent its legal limits.

However the DHS statement said that the department has considered partnering with research firms who have more visibility in this space, though it has not done so to this point. If that ultimately happens, DHS could produce information that would likely be beneficial to both it and the FBI, which can't monitor US citizens in this way without first getting a warrant or having the pretext of an ongoing investigation.

The US government continues to have the right to snoop on internet users' browsing histories, as well and also internet search histories. A bill that would have stripped the government of its right to conduct the searches with no warrant failed in the Senate.

The bipartisan bill, an amendment to a surveillance authority first established under the 2001 Patriot Act, was sponsored by Oregon Democrat Ron Wyden, and Montana Republican Steve Daines. But the amendment required 60 votes to move forward, and the final Senate vote was 59-37 in favor.

The latest surveillance battle gripping the technology industry is focused on a rewrite of US surveillance law that would mean the justice department would be able to access a citizen's web browsing history, location data and some email records without approval from a judge using a so-called national security letters (NSLs).

The FBI contends that such data is covered implicitly under current statute, which was written years ago and only explicitly covers data normally associated with telephone records.

Director James Comey now is lobbying Congress to extend the current definition to include internet data.

Technology companies including Google, Facebook and Yahoo have sent a letter warning Congress that they would oppose any efforts to rewrite law in the FBI's favor.

This expansion of the NSL statute has been characterized by some government officials as merely fixing a 'typo' in the law, the companies wrote:

In reality, however, it would dramatically expand the ability of the FBI to get sensitive information about users' online activities without court oversight.

Update: Censored whilst claiming to be uncensored

11th June 2016. See article from theregister.co.uk

A sly attempt to grant the FBI warrantless access to people's browser histories in the US has been shot down by politicians.

Unfortunately, the Electronic Communications Privacy Act (ECPA) Amendments Act of 2015, which would have brought in some privacy safeguards for Americans, was cut down in the crossfire.

The bill was halted because of an amendment tacked on by Senator John Cornyn on Tuesday that would allow the FBI to obtain someone's internet browsing history and the metadata of all their internet use without a warrant. If Cornyn's amendment was passed, the Feds would simply have to issue a National Security Letter (NSL) to get the information.

The bill's sponsors, Senators Patrick Leahy and Mike Lee, told a session of the Senate Committee on the Judiciary that Cornyn's amendment had wrecked years of careful bipartisan negotiations and would seriously harm US citizens' privacy. As such, they weren't prepared to let the bill go forward.

Update: And again

23rd June 2016. See article from theregister.co.uk

The US Senate has struck down an amendment that would have allowed the FBI to track internet histories and communications without judicial oversight, but a re-vote could be called under Senate rules.

The amendment to the Commerce, Justice, Science, and Related Agencies Appropriations Act would have given the FBI the right to use National Security Letters (NSLs), which compel communications companies to hand over a customer's transactional records, including their browsing history, time spent online, and email metadata, but not the content of messages.

In addition, it would have made permanent a provision in the Patriot Act that would allow the same powers for those deemed to be individual terrorists to be treated as agents of foreign powers, a measure aimed at tracking so-called lone wolf operators.

It was introduced on Monday by Senators John McCain and Richard Burr. Senator John Cornyn has named the issue the FBI's top legislative priority and has tabled a further amendment to allow similar powers to law enforcement.