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Monday Morning: Let’s Mambo

When your Monday begins to drag — and you know it will at some point — put on a little mambo.

Especially Perez Prado‘s Mambo Number 5 and Mambo Number 8. They’ll spice up your day, get it back on track. There are some more recent covers and mashups of Prado’s mambos, but they just aren’t the same as the originals.

Be careful where you play this stuff; it’ll make your mother or grandmother move in ways you may not want to watch.

Let’s cha-cha-cha…

“Damn it Jim, what the hell is the matter with you?”*
FBI-Comey_TakeADeepBreath_21FEB2016
FBI was still trying to dig itself out of a hole on Saturday evening, resorting to damage control mode yesterday. Note, though, Director James Comey’s statement at Lawfare and subsequent coverage at the Los Angeles Times don’t mention at all the screwed up handling of San Bernardino shooter Syed Farook’s iPhone. Take that deep breath, then save it to cool your soup, eh?

So I’m following the map that leads to you
Nope, not Maroon 5, but Facebook’s Connectivity Lab, building a map of the network it claims will help it understand how best to reach populations with poor to no internet. A map, to people not on the map? Creepy, like a stalker ex-boyfriend with global reach. Can’t wait for the conditions by which the U.S. government claims it needs access to that.

Radioactive materials gone walkabout in Iraq now found
This is a strange story. Not the part about a testing device containing radioactive Ir-192 used by a Turkish oil pipeline inspection services company that went missing in November but not reported by media until last week, or the part where the device turned up this weekend, dumped by a gas station. Nor even the odd description of the discovery:

“A passer-by found the radioactive device dumped in Zubair and immediately informed security forces,” the chief of security panel in Basra provincial council, Jabbar al-Saidi, said.
“After initial checking I can confirm the device is intact 100 per cent and there is absolutely no concern of radiation.”

What’s strange is the coverage of this story: picked up by mostly conservative outlets, not widely covered in large news outlets. Huh. Weird. Pick out some key words from the story and do a search yourself, compare to coverage on other stories. Heck, it doesn’t even show up on Reuter’s Middle East and Africa site this morning, though they first broke the story.

Not-so-happy anniversary, Q-1 Predator drone
15 years now this death-from-the-sky has been in use. Sadly, it’s become embedded in our culture now.

All right, time to set this aside and put on my dancing shoes. ¡Vamonos! ¡Baile!

* gratuitous Star Trek quote, Dr. Leonard “Bones” McCoy to Captain James T. Kirk.

Tuesday Morning: The Fat One You’ve Awaited

Mardi Gras. The day before Ash Wednesday. Fat Tuesday. In Brazil, it’s Carnival — plenty of parades with costumed dancers and samba. In New Orleans, it means king cake, beads, and more parades, but here in Michigan, it means pączki. No parades in the snow, just an icy trek to the Polish bakery for some decadent sweets we get but once a year.

I’m still drafting this, too much stuff to weed through this morning. I’ll update as I write. Snag a cup of joe and a pączki while you wait. Make mine raspberry filled, please!

Economic indicators say “Maybe, Try Again”
Asian and European stock markets were a mess this morning. There’s no sign of an agreement between OPEC nations on production and pricing, which may lead to yet more floundering in the stock market. Yet one indicator — truck tonnage on the roads — doesn’t show signs of a recession in the U.S.

UK court cases topsy-turvy: LIBOR Six and a secret trial

  • UK can’t hold the LIBOR Six bankers accountable for their part in the 2008 economic crisis because the prosecution was sloppy. It’s pretty bad when a defense attorney asks if the prosecution was “making this up as they go along.”
  • The article’s first graf is a warning:

    Warning: this article omits information that the Guardian and other news organisations are currently prohibited from publishing.

    The case, R v Incedal and Rarmoul-Bouhadjar, continues to look like a star chamber, with very little information available to the public about the case. The accused have been charged and served time, but the media has been unable to freely access information about the case, and their appeal has now been denied. A very ugly precedent for a so-called free country.

Facebook: French trouble, and no free internet in India

  • Shocked, SHOCKED, I am: French regulators told Facebook its handling of users data didn’t sufficiently protect their privacy. The Commission nationale de l’informatique et des libertés (CNIL) told the social media platform it has three months to stop sharing users’ data with U.S. facilities for processing. CNIL also told Facebook to stop tracking non-Facebook users without warning them.
  • The Indian government told Facebook thanks, but no thanks to its Free Basics offering, a so-called free internet service. The service ran afoul of net neutrality in that country as it implicitly discouraged users from setting up sites outside Facebook’s platform. Many users did not understand there was a difference between Facebook and the internet as a whole. Mr. Zuckerberg really needs to study the meaning of colonialism, and how it might pertain to the internet in emerging markets.

Boy kicked out of school because of his DNA
This is a really sad story not resolved by the Genetic Information Nondiscrimination Act (GINA). The boy has cystic fibrosis; his parents informed the school on his paperwork, as they should in such cases. But because of the risks to the boy or his siblings with similar genes, the boy was asked to leave. GINA, unfortunately, does not protect against discrimination in education, only in healthcare and employment. This is a problem Congress should take up with an amendment to GINA. No child should be discriminated against in education because of their genes over which they have no control, any more than a child should be discriminated against because of their race, gender identity, or sexuality.

All right, get your party on, scarf down the last of your excess sweets, for tomorrow is sackcloth and ashes. I can hardly wait for the sugar hangover to come.

Wednesday Morning: Whac-A-Mole

Can’t bop them on the head fast enough. There are just too many issues popping up. See which ones you can nail.

And GO!

Video popularity in Facebook’s ‘walled garden’ means change for news outlets
This is not good. This is AOL’s model come full circle. Increasingly Facebook is shutting down access from outside, forcing news outlets to move inside, and to produce video instead of text content in order to fight for attention. Numerous outlets are affected by this trend, including the former AOL (now Huffington Post). The capper is Facebook’s persistent tracking of any users, including those who click on Facebook links. What will this do to general election coverage? Facebook really needs effective competition — stat.

Weather and bad flu season raised French deaths above WWII’s rate
Wow. I knew the flu was bad last year, but this bad? Ditto for Europe’s weather, though the heat wave last summer was really ugly. Combined, both killed more French in one year than any year since the end of World War II, while reducing overall life expectancy.

FDA issues guidelines on ‘Postmarket Management of Cybersecurity in Medical Devices’ for comment
Sure hope infosec professionals jump all over this opportunity to shape policy and regulation. Imagine pacemakers being hacked like a Chrysler 300, or reprogrammed without customer knowledge like a VW diesel, or surveilling user like a Samsung smart TV…

UK’s Cameron says one thing, UK’s arms dealers another with sales of £1Bn arms to Saudi Arabia
Can’t. Even. *mumbles something about pig porker*

“The day after the prime minister [David Cameron] claimed to be ‘trying to encourage a political process in Yemen’ and declared ‘there is no military solution in Yemen’, official figures reveal that in just the three months July to September, the government approved the sale of over £1bn worth of bombs for the use of the Royal Saudi Air Force. …

[Source: The Guardian]

Lack of transparency problematic in fatal French drug trial
Like talking to a brick wall to get answers about the drug involved in one death and five hospitalizations after 94 subjects were given an experimental drug. On the face of it, simultaneous rather than staggered administration may have led to multiple simultaneous reactions.

Canadian immigrant helped two Chinese soldiers attempt theft of U.S. military aircraft plans
You want to know how ‘chaining’ works? Here’s a simple real world example allegedly used to spy on U.S. military aircraft: Identify a key node in a network; identify the node’s key relationships; sniff those connections for content and more key nodes. A Chinese immigrant in aircraft biz, located in Vancouver, shares email addresses of key individuals in the industry with Chinese officers. They, in turn, attempt to hack accounts to mine for plans, which their contact in Vancouver vets.

Now ask yourself whether these key individuals are in or related to anyone in the Office of Personnel Management database.

Ugh. Keep whacking those moles.

Thursday Morning: Fast and Furious Edition

[image (modified): Adam Wilson via Flickr]

[image (modified): Adam Wilson via Flickr]

Insane amount of overseas news overnight. Clearly did not include me winning $1.5B Powerball lottery. Attacks in Jakarta and Turkey are no joke.

Let’s move on.

Some U.S. utilities’ still wide open to hacking
Dudes, how many times do you need to be told your cheese is still hanging out in the wind? Some heads should roll at this point. US government’s Industrial Control Systems Cyber Emergency Response Team’s Marty Edwards sounded pretty torqued about this situation at the S4 ICS Security Conference this week. I don’t blame him; if a utility gets hacked, it’s not like your grandmother’s PC getting held ransom. It means the public’s health and safety are at risk. Get on it.

Your cellphone is listening to your TV — and you
Bruce Schneier wrote about the Internet of Things’ expansive monitoring of consumers, citing the example of SilverPush — an application which listens to your television to determine your consumption habits. Bet some folks thought this was an app still in the offing. Nope. In use now, to determine current TV program listings and ratings. Listening-to-your-consumption apps have now been around for years.

Wonder if our pets can hear all this racket inaudible to humans? Will pet food companies embed ads shouting out to our pets?

But you may be able to hide from devices
…depending on whether you are using location-based services, and if you can use the app developed by Binghamton University. A paper on this technology was presented last month at the Institute of Electrical and Electronics Engineers (IEEE) GLOBECOM Conference, Symposium on Communication & Information System Security. The lead researcher explained the purpose of the app:

“With Facebook, Twitter, LinkedIn and others we provide a huge amount of data to the service providers everyday. In particular, we upload personal photos, location information, daily updates, to the Internet without any protection,” Guo said. “There is such a chance for tragedy if that information is used to in a bad way.”

The app isn’t yet available, but when it is, it should prevent personally identifying location-based data from being used by the wrong folks.

VW emissions scandal: Well, this is blunt
I think you can kiss the idea of nuance goodbye, gang.

“Volkswagen made a decision to cheat on emissions tests and then tried to cover it up,” said CARB chair Mary Nichols in a statement.
“They continued and compounded the lie, and when they were caught they tried to deny it. The result is thousands of tons of nitrogen oxide that have harmed the health of Californians.”

Yeah. That.

The last bits
Nest thermostats froze out consumers after a botched update. (Do you really need internet-mediated temperature controls?)
Phone numbers may become a thing of the past if Facebook has its way. (Um, hell no to the Facebook. Just no.)
Senator Al Franken quizzes Google about data collection and usage on K-12 students. (Hope he checks toy manufacturers like Mattel and VTech, too.)

That’s a wrap, hope your day passes at a comfortable speed.

How the Government Uses Location Data from Mobile Apps

Screen shot 2015-11-19 at 9.24.26 AMThe other day I looked at an exchange between Ron Wyden and Jim Comey that took place in January 2014, as well as the response FBI gave Wyden afterwards. I want to return to the reason I was originally interested in the exchange: because it reveals that FBI, in addition to obtaining cell location data directly from a phone company or a Stingray, will sometimes get location data from a mobile app provider.

I asked Magistrate Judge Stephen Smith from Houston whether he had seen any such requests — he’s one of a group of magistrates who have pushed for more transparency on these issues. He explained he had had several hybrid pen/trap/2703(d) requests for location and other data targeting WhatsApp accounts. And he had one fugitive probation violation case where the government asked for the location data of those in contact with the fugitive’s Snapchat account, based on the logic that he might be hiding out with one of the people who had interacted with him on Snapchat. The providers would basically be asked to to turn over the cell site location information they had obtained from the users’ phone along with other metadata about those interactions. To be clear, this is not location data the app provider generates, it would be the location data the phone company generates, which the app accesses in the normal course of operation.

The point of getting location data like this is not to evade standards for a particular jurisdiction on CSLI. Smith explained, “The FBI apparently considers CSLI from smart phone apps the same as CSLI from the phone companies, so the same legal authorities apply to both, the only difference being that the ‘target device’ identifier is a WhatsApp/Snapchat account number instead of a phone number.” So in jurisdictions where you can get location data with an order, that’s what it takes, in jurisdictions where you need a probable cause warrant, that’s what it will take. The map above, which ACLU makes a great effort to keep up to date here, shows how jurisdictions differ on the standards for retrospective and prospective location information, which is what (as far as we know) will dictate what it would take to get, say, CSLI data tied to WhatsApp interactions.

Rather than serving as a way to get around legal standards, the reason to get CSLI from the app provider rather than the phone company that originally produces it is to get location data from both sides of a conversation, rather than just the target phone. That is, the app provides valuable context to the location data that you wouldn’t get just from the target’s cell location data.

The fact that the government is getting location data from mobile app providers — and the fact that they comply with the same standard for CSLI obtained from phones in any given jurisdiction — may help to explain a puzzle some have been pondering for the last week or so: why Facebook’s transparency report shows a big spike in wiretap warrants last year.

[T]he latest government requests report from Facebook revealed an unexpected and dramatic rise in real-time interceptions, or wiretaps. In the first six months of 2015, US law enforcement agencies sent Facebook 201 wiretap requests (referred to as “Title III” in the report) for 279 users or accounts. In all of 2014, on the other hand, Facebook only received 9 requests for 16 users or accounts.

Based on my understanding of what is required, this access of location data via WhatsApp should appear in several different categories of Facebook’s transparency report, including 2703(d), trap and trace, emergency request, and search warrant. That may include wiretap warrants, because this is, after all, prospective interception, and not just of the target, but also of the people with whom the target communicates. That may be why Facebook told Motherboard “we are not able to speculate about the types of legal process law enforcement chooses to serve,” because it really would vary from jurisdiction to jurisdiction and possibly even judge to judge.

In any case, we can be sure such requests are happening both on the criminal and the intelligence side, and perhaps most productively under PRISM (which could capture foreign to domestic communications at a much lower standard of review). Which, again, is why any legislation covering location data should cover the act of obtaining location data, whether via the phone company, a Stingray, or a mobile app provider.

A Radical Proposal of Following the Law

Mieke Eoyang, the Director of Third Way’s National Security Program, has what Ben Wittes bills as a “disruptive” idea: to make US law the exclusive means to conduct all surveillance involving US companies.

But reforming these programs doesn’t address another range of problems—those that relate to allegations of overseas collection from US companies without their cooperation.

Beyond 215 and FAA, media reports have suggested that there have been collection programs that occur outside of the companies’ knowledge. American technology companies have been outraged about media stories of US government intrusions onto their networks overseas, and the spoofing of their web pages or products, all unbeknownst to the companies. These stories suggest that the government is creating and sneaking through a back door to take the data. As one tech employee said to me, “the back door makes a mockery of the front door.”

As a result of these allegations, companies are moving to encrypt their data against their own government; they are limiting their cooperation with NSA; and they are pushing for reform.  Negative international reactions to media reports of certain kinds of intelligence collection abroad have resulted in a backlash against American technology companies, spurring data localization requirements, rejection or cancellation of American contracts, and raising the specter of major losses in the cloud computing industry. These allegations could dim one of the few bright spots in the American economic recovery: tech.

[snip]

How about making the FAA the exclusive means for conducting electronic surveillance when the information being collected is in the custody of an American company? This could clarify that the executive branch could not play authority shell-games and claim that Executive Order 12333 allows it to obtain information on overseas non-US person targets that is in the custody of American companies, unbeknownst to those companies.

As a policy matter, it seems to me that if the information to be acquired is in the custody of an American company, the intelligence community should ask for it, rather than take it without asking. American companies should be entitled to a higher degree of forthrightness from their government than foreign companies, even when they are acting overseas.

Now, I have nothing against this proposal. It seems necessary but wholly inadequate to restoring trust between the government and (some) Internet companies. Indeed, it represents what should have been the practice in any case.

Let me first take a detour and mention a few difficulties with this. First, while I suspect this might be workable for content collection, remember that the government was not just collecting content from Google and Yahoo overseas — they were also using their software to hack people. NSA is going to still want the authority to hack people using weaknesses in such software, such as it exists (and other software companies probably still are amenable to sharing those weaknesses).  That points to the necessity to start talking about a legal regime for hacking as much as anything else — one that parallels what is going on with the FBI domestically.

Also, this idea would not cover the metadata collection from telecoms which are domestically covered by Section 215, which will surely increasingly involve cloud data that more closely parallels the data provided by FAA providers but that would be treated as EO 12333 overseas (because thus far metadata is still treated under the Third Party doctrine here). This extends to the Google and Yahoo metadata taken off switches overseas. So, such a solution would be either limited or (if and when courts domestically embrace a mosaic theory approach to data, including for national security applications) temporary, because some of the most revealing data is being handed over willingly by telecoms overseas.

Read more

Classified Briefings: For When Your Public Claims Don’t Hold Up to Scrutiny

As I laid out when he gave his speech at Brookings, Jim Comey’s public explanation for needing back doors to Apple and Android phones doesn’t hold up. He conflated stored communication with communication in transit, ignored the risk of a back door (which he called a front door), and the law enforcement successes he presented, across the board, do not support his claim to need a back door.

So yesterday Comey and others had a classified briefing, where no one would be able to shred his flawed case.

FBI and Justice Department officials met with House staffers this week for a classified briefing on how encryption is hurting police investigations, according to staffers familiar with the meeting.

The briefing included Democratic and Republican aides for the House Judiciary and Intelligence Committees, the staffers said. The meeting was held in a classified room, and aides are forbidden from revealing what was discussed.

[snip]

Comey called for Congress to revise the law to create a “level playing field” so that Google, Apple, and Facebook have the same obligation as AT&T and Verizon to help police.

National Journal listed out those companies, by the way — Facebook, for example, did not appear in Comey’s Brooking’s speech where he used the “level the playing field comment.”

I was puzzled by Comey’s inclusion of Facebook here until I saw this news.

To make their experience more consistent with our goals of accessibility and security, we have begun an experiment which makes Facebook available directly over Tor network at the following URL:

https://facebookcorewwwi.onion/

[ NOTE: link will only work in Tor-enabled browsers ]

Facebook Onion Address

Facebook’s onion address provides a way to access Facebook through Tor without losing the cryptographic protections provided by the Tor cloud.

The idea is that the Facebook onion address connects you to Facebook’s Core WWW Infrastructure – check the URL again, you’ll see what we did there – and it reflects one benefit of accessing Facebook this way: that it provides end-to-end communication, from your browser directly into a Facebook datacentre.

All that got me thinking about what Comey said in the classified briefing — in the real reason he wants to make us all less secure.

And I can’t help but wonder whether it’s metadata.

The government aspires to get universal potential coverage of telephony (at least) metadata under USA Freedom Act, with the ability to force cooperation. But I’m not sure that Apple, especially, would be able to provide iMessage metadata, meaning iPhone users can text without leaving metadata available to either AT&T (because it bypasses the telecom network) or Apple itself (because they no longer have guaranteed remote object).

And without metadata, FBI and NSA would be unable to demonstrate the need to do a wiretap of such content.

Ah well, once again I reflect on what a pity it is that FBI didn’t investigate the theft of data from these same companies, providing them a very good reason to lock it all up from sophisticated online criminals like GCHQ.

The Triage Document

Accompanying a new story on GCHQ/NSA cooperation yesterday, the Intercept released one of the most revealing documents about NSA spying yet. It describes efforts to use Identifier Scoreboard to triage leads such that analysts spend manual time only with the most promising leads. Basically, the NSA aims to use this process to differentiate the 75% of metadata they collect that is interesting but not of high interest into different categories for further analysis.

It does so by checking the leads — which are identifiers like email addresses and phone numbers — against collected data (and this extends beyond just stuff collected on the wires; it includes captured media) to see what kind of contacts with existing targets there have been. Not only does the system pull up what prior contacts of interest exist, but also what time frame those occurred and in what number. From there, the analyst can link directly to either the collected knowledge about a target or the content.

Before I get into the significance, a few details.

First, the system works with both phone and Internet metadata. That’s not surprising, and it does not yet prove they’re chaining across platforms. But it is another piece of evidence supporting that conclusion.

More importantly, look at the authorities in question:

Screen shot 2014-05-01 at 10.46.51 AM

First, FAA. The CP and CT are almost certainly certificates, the authority to collect on counterproliferation and counterterrorism targets. But note what’s not there? Cybersecurity, the third known certificate (there was a third certificate reapproved in 2011, so it was active at this time). Which says they may be using that certificate differently (which might make sense, given that you’d be more interested in forensic flows, but this triage system is used with things like TAO which presumably include cyber targets).

There is, however, a second kind of FAA, “FG.” That may be upstream or it may be something else (FG could certainly stand for “Foreign Government, which would be consistent with a great deal of other data). If it’s something else, it supports the notion that there’s some quirk to how the government is using FAA that differs from what they’ve told PCLOB and the Presidential Review Group, which have both said there are just those 3 certificates.

Then there’s FAA 704/705B. This is collection on US person overseas. Note that FAA 703 (collection on US person who is located overseas but the collection on whom is in the US) is not included. Again, this shows something about how they use these authorities.

Finally, there are two EO12333s. In other slides, we’ve seen an EO12333 and an EO123333 SPCMA (which means you can collect and chain through Americans), and that may be what this is. Update: One other possibility is that this distinguishes between EO12333 data collected by the US and by second parties (the Five Eyes).

Now go to what happens when an identifier has had contact with a target — and remember, these identifiers are just random IDs at this point.

Screen shot 2014-05-01 at 10.49.50 AM

The triage program automatically pulls up prior contacts with targets. Realize what this is? It’s a backdoor search, conducted off an identifier about which the NSA has little knowledge.

And the triage provides a link directly from that the metadata describing when the contact occurred and who initiated it to the content.

When James Clapper and Theresa Shea describe the metadata serving as a kind of index that helps prioritize what content they read, this is part of what they’re referring to. That — for communications involving people who have already been targeted under whatever legal regime — the metadata leads directly to the content. (Note, this triage does not apparently include BR FISA or PRTT data — that is, metadata collected in the US — which says there are interim steps before such data will lead directly to content, though if that data can be replicated under EO 12333, as analysts are trained to do, it could more directly lead to this content.)

So they find the identifiers, search on prior contact with targets, then pull up that data, at least in the case of EO12333 data. (Another caution, these screens date from a period when NSA was just rolling out its back door search authorities for US persons, and there’s nothing here that indicates these were US persons, though it does make clear why — as last year’s audit shows — NSA has had numerous instances where they’ve done back door searches on US person identifiers they didn’t know were US person identifiers.)

Finally, look at the sources. The communications identified here all came off EO12333 communications (interestingly, this screen doesn’t ID whether we’re looking at EO12333_X or _S data). As was noted to me this morning, the SIGADS that are known here are offshore. But significantly, they include MUSCULAR, where NSA steals from Google overseas.

That is, this screen shows NSA matching metadata with metadata and content that they otherwise might get under FAA, legally, within the US. They’re identifying that as EO12333 data. EO12333 data, of course, gets little of the oversight that FAA does.

At the very least, this shows the NSA engaging in such tracking, including back door searches, off a bunch of US providers, yet identifying it as EO12333 collection.

Update: Two more things on this. Remember NSA has been trying, unsuccessfully, to replace its phone dragnet “alert” function since 2009 when the function was a big part of its violations (a process got approved in 2012, but the NSA has not been able to meet the terms of it technically, as of the last 215 order). This triage process is similar — a process to use with fairly nondescript identifiers to determine whether they’re worth more analysis. So we should assume that, while BR FISA (US collected phone dragnet) information is not yet involved in this, the NSA aspires to do so. There are a number of reasons to believe that moving to having the providers do the initial sort (as both the RuppRoge plan offered by the House Intelligence Committee and Obama’s plan do) would bring us closer to that point.

Finally, consider what this says about probable cause (especially if I’m correct that EO12333_S is the SPMCA that includes US persons). Underlying all this triage is a theory of what constitutes risk. It measures risk in terms of conversations –how often, how long, how many times — with “dangerous” people. While that may well be a fair measure in some cases, it may not be (I’ve suggested, for example, that people who don’t know they may be at risk are more likely to speak openly and at length, and those conversations then serve as a kind of camouflage for the truly interesting, rare by operational security conversations). But this theory (though not this particular tool) likely lies behind a lot of the young men who’ve been targeted by FBI.

Magistrate Judge Targets DOJ’s Search ≠ Seizure Theory

The second-and-third-to-last line of Magistrate Judge John Facciola’s opinion responding to a warrant application for information from Apple reads,

To be clear: the government must stop blindly relying on the language provided by the Department of Justice’s Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations manual. By doing so, it is only submitting unconstitutional warrant applications. [link added, h/t Mike Scarcella]

Over the course of the opinion — which denies a warrant for three entire months of emails, plus account information and correspondence with Apple for a criminal investigation into Defense Contractor kickbacks — Facciola lays out what, over the last 6 months he has found to be a problem with DOJ’s search and seizure guidelines.

  • In the Matter of the Search of Information Associated with [redacted] Stored at Premises Controlled by Yahoo! (13-MJ-728; September 25, 2013) in which Facciola ordered the government to return data not within the scope of the request to Yahoo
  • In the Matter of an Order Authorizing Disclosure of Historical Cell Cite Location (13-MC-199, 13-MC-1005, and 13-MC-1006; October 31, 2013) in which Facciola warned the government he would reject future warrant applications because of “generic and inaccurate boilerplate language”
  • In the Matter of the Search of Information Associated with the Facebook Account Identified by the Username Aaron Alexis (13-MJ-742; November 26, 2013) in which Facciola objected to government’s two-step procedure to search the Navy Yard shooter’s to get all of Alexis’ email
  • In [redacted}@Mac.com (14-MC-228; this case) in which the government listed a bunch of email data to be “disclosed by Apple” but then laid out the authority to “seize” (implicitly all) the underlying emails

Here’s how Facciola describes what is common to all these warrant applications.

In essence, the applications ask for the entire universe of information tied to a particular account, even if it has established probable cause only for certain information.

He goes on to describe that the government uses essentially the same argument it uses in its NSA dragnets to claim that seizing all the phone records from a company don’t count as seizing them.

Any search of an electronic source has the potential to unearth tens or hundreds of thousands of individual documents, pictures, movies, or other constitutionally protected content. It is thus imperative that the government “describe the items to be seized with as much specificity as the government’s knowledge and circumstances allow.” United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988).

Here, the government has adequately described the “items to be seized”—but it has done so in the wrong part of the warrant and in a manner that will cause an unconstitutional seizure. By abusing the two-step procedure under Rule 41, the government is asking Apple to disclose the entirety of three months’ worth of e-mails and other e-mail account information. See Application at 14-15. Yet, on the very next page, it explains that it will only “seize” specific items related to its criminal investigation; it goes so far as to name specific individuals and companies that, if mentioned in an e-mail, would make that e-mail eligible to be seized. Id. at 15. Thus, the government has shown that it can “describe the items to be seized with [] much specificity”; it has simply chosen not to by pretending that it is not actually “seizing” the information when Apple discloses it. See Facebook Opinion [#5] at 9-10 (“By distinguishing between the two categories, the government is admitting that it does not have probable cause for all of the data that Facebook would disclose; otherwise, it would be able to ‘seize’ everything that is given to it.”).

As this Court has previously noted, any material that is turned over to the government is unquestionably “seized” within the meaning of the Fourth Amendment. See Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989) (noting that a “seizure” occurs when an object is intentionally detained or taken). The two-step procedure of Rule 41 cannot be used in situations like the current matter to bypass this constitutional reality because the data is seized by the government as soon as it is turned over by Apple.

[snip]

What the government proposes is that this Court issue a general warrant that would allow a “general, exploratory rummaging in a person’s belongings”—in this case an individual’s e-mail account. Coolidge, 403 U.S. at 467. This Court declines to do so.

This opinion will likely result only in DOJ submitting a new application. It’ll clean up its ways or submit applications in other districts to avoid Facciola. This opinion, by a Magistrate, certainly won’t establish the principle that as soon as DOJ obtains data, it has seized it under the Fourth Amendment.

Still, given how centrally this claim that seizures don’t equal seizures, perhaps the obvious logic of Facciola’s stance will encourage other judges to stop twisting the normal meaning of seize to be solicitous to government demands.