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Monthly Archives: June 2017
NSA links Wannacry worm to North Korea – BBC News
Posted: June 15, 2017 at 8:57 pm
BBC News | NSA links Wannacry worm to North Korea BBC News The Wannacry worm that infected organisations in 150 countries in May has been blamed on North Korea by the US's National Security Agency (NSA). The Washington Post said there was "moderate confidence" in the report's findings, while the spy agency ... The NSA reportedly believes North Korea was responsible for WannaCry ransomware attacks Overnight Cybersecurity: NSA links Wanna Cry ransomware to North Korea | Dem proposes center to counter Russian ... NSA uncovers ties between North Korea and WannaCry attacks |
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Trump Tried to Convince NSA Chief to Absolve Him of Any Russian Collusion: Report – Newsweek
Posted: at 8:57 pm
A recent National Security Agency memo documents a phone call in whichU.S. President Donald Trump pressures agency chief Admiral Mike Rogers to state publicly that there is no evidence of collusion between his campaign and Russia, say reports.
The memo was written by Rick Ledgett, the former deputy director of the NSA, sources familiar with the memo told The Wall Street Journal. Ledgett stepped down from his job this spring.
The memo said Trump questioned the American intelligence community findings that Russia interfered in the 2016 election. American intelligence agencies issued a report early this year that found Russian intelligence agencies hacked the countrys political parties and worked to sway the election to Trump.
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The Russia investigations special counsel Robert Mueller plans to interview Ledgett as part of his investigation into Russias efforts to manipulate the 2016 vote, a source toldWSJ. Mueller is also probing whether Trump himself obstructed justice when he fired former FBI Director James Comey on May 9, according to TheWashington Post.
A memo drawn up by a National Security Agency deputy reportedly records Trump pressuring NSA Director Mike Rogers to influence Russia investigation. Joshua Roberts/Reuters
They made up a phony collusion with the Russians story, found zero proof, so now they go for obstruction of justice on the phony story. Nice, Trump tweeted Thursday. You are witnessing the single greatest WITCH HUNT in American political historyled by some very bad and conflicted people! he wrote.
Read more: Trump asked intelligence chiefs to intervene in Comeys Russia investigation: report
Comey testified a week ago that Trump had pressured him to let go an investigation into fired National Security Adviser Michael Flynn after Flynn misled Vice President Mike Pence about contacthe had had with Russian officials.
Comey also testified that Trump asked him to deny publicly that the president was being investigated by the FBI. Comey said that at the time Trump was not being investigated, but he demurred from Trumps request because he would have to correct his statement publiclyif the facts changed.
On March 20, Comey testified that his investigation into Russian interference was looking at whether Trumps campaign colluded with the foreign power. British intelligence agencies first picked up contactbetween Trumps campaign members and associates in 2015.
Two current and two former officials told The Washington Post that in March Trump asked Rogers and Director of National Intelligence Daniel Coats to publicly deny the existence of any evidence of collusion between his campaign and Russia during the 2016 election.
During testimony to the Senate intelligence committee on June 7, neither Coats nor Rogers would answer many specific questions, but both said they did not feel pressure. Coats testified that he never felt pressure to intervene in the Russia investigation.
In the three-plus years that I have been the director of the National Security Agency, to the best of my recollection, I have never been directed to do anything I believed to be illegal, immoral, unethical or inappropriate, Rogers said. And to the best of my recollection...I do not recall ever feeling pressured to do so.
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Mystery internet company challenges NSA’s mass surveillance order – Engadget
Posted: at 8:57 pm
The document, a Foreign Intelligence Surveillance Court ruling, was wrested from the government thanks to an ACLU FOIA request. But it's so heavily redacted that we cannot identify the tech company who stood up to the NSA.
Specifically, the mysterious company didn't comply with an NSA order under Section 702. That's the legal structure supporting the PRISM domestic spying program, which forces companies to give the NSA access to Americans' international communications.
The company refused because cooperating to grant said access would implicate its First and Fourth Amendment rights. In short, it took the NSA to Constitutional school over the legality of Section 702 itself (to be precise, the company took issue with an "expansion" of Section 702 surveillance, the details of which were redacted), since opening up its users' international communications would eventually and inevitably expose those of domestic citizens. Ergo, if the NSA wanted access, it needed to get a warrant, the company stated.
Ultimately, the court rejected the tech company's claim and ordered it to comply with the NSA request. Judge Rosemary Collyer, who presided over the case, said "the mere fact that there is some potential for error is not a sufficient reason to invalidate the surveillance" -- in other words, prove misconduct or sit down. The document, only now made available to the public, is from 2014, so whatever surveillance may have happened as a result might already have happened.
Section 702 is set to expire at the end of this year, and debate rages on about whether Congress should renew it. The NSA already claimed back in April that it would stop even incidentally collecting domestic American emails in its sweeps, which its analysts were still accidentally doing in 2016. Regardless, this case is a sadly rare illuminating window into an intentionally shadowy world: Back in 2016, for example, the FBI reassured the public that it would be reforming how it accessed data collected by the NSA...but didn't say how, because that's classified.
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Mystery internet company challenges NSA's mass surveillance order - Engadget
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The NSA has linked the WannaCry computer worm to North Korea … – Washington Post
Posted: at 8:57 pm
The National Security Agency has linked the North Korean government to the creation of the WannaCry computer worm that affected more than 300,000 people in some 150 countries last month, according to U.S. intelligence officials.
The assessment, which was issued internally last week and has not been made public, is based on an analysis of tactics, techniques and targets that point with moderate confidence to North Koreas spy agency, the Reconnaissance General Bureau, according to an individual familiar with the report.
The assessment states that cyber actors suspected to be sponsored by the RGB were behind two versions of WannaCry, a worm that was built around an NSA hacking tool that had been obtained and posted online last year by an anonymous group calling itself the Shadow Brokers.
[NSA officials worried about the day its potent hacking tool would get loose. Then it did.]
It was the first computer worm to be paired with ransomware, which encrypts data on victims computers and demands a ransom to restore access.
WannaCry was apparently an attempt to raise revenue for the regime, but analysts said the effort was flawed. Though the hackers raised $140,000 in bitcoin, a form of digital currency, so far they have not cashed it in, the analysts said. That is likely because an operational error has made the transactions easy to track, including by law enforcement.
As a result, no online currency exchange will touch it, said Jake Williams, founder of Rendition Infosec, a cybersecurity firm. This is like knowingly taking tainted bills from a bank robbery, he said.
[Clues point to possible North Korean involvement in massive ransomware attack]
Though the assessment is not conclusive, the preponderance of the evidence points to Pyongyang. It includes the range of computer Internet protocol addresses in China historically used by the RGB, and the assessment is consistent with intelligence gathered recently by other Western spy agencies. It states that the hackers behind WannaCry are also called the Lazarus Group, a name used by private-sector researchers.
One of the agencies reported that a prototype of WannaCry ransomware was found this spring in a non-Western bank. That data point was a building block for the North Korea assessment, the individual said.
The linkage shows that despite the Obama and Trump administrations efforts to deter North Korean aggression, the country does not appear to have been discouraged from launching one of the most wide-ranging cyberattacks the world has seen.
What it really confirms is that ... you dont have to be the best in the business to cause a lot of disruption, said Michael Sulmeyer, director of the cybersecurity project at Harvards Kennedy School. And thats what they showed they were willing and able to do.
The NSA declined to comment.
North Korea is one of the worlds most isolated countries, with very little computer infrastructure. Yet it has managed to deploy cyber capabilities to harass and annoy its rival, South Korea, and to generate revenue for the authoritarian regime.
Last year, security researchers identified North Korea as the culprit behind a series of cyber-enabled heists of banks in Asia, including one in Bangladesh that netted more than $81 million by manipulating the banks global payments messaging system.
The fact of a nation-state using cyber tools to rob banks, then-NSA Deputy Director Richard Ledgett said in March, represented a troubling new front in cyberwarfare. He did not name North Korea, but the allusion was clear. This is a big deal, he said.
North Korea in 2014 hacked Sony Pictures Entertainment and demanded that the movie studio pull a film that satirized the countrys leader, Kim Jong Un. The hackers disabled computers and released embarrassing company emails. But what tipped the scale for President Barack Obama was the threat to do more damage if the studio did not yank the movie a move that the administration viewed as an assault on free speech. The administration publicly blamed Pyongyang for the attack and imposed new economic sanctions on the regime.
The NSA cyber tool at the base of WannaCry was an exploit dubbed EternalBlue by the agency. It took advantage of a software flaw in some Microsoft Windows operating systems and enabled an attacker to gain access to those computers.
Although Microsoft, after being notified by the NSA, issued a patch for the software flaw in March, many companies around the world and some in the United States failed to update their machines and fell victim to the virus. Michael Daniel, president of the Cyber Threat Alliance, a nonprofit group devoted to improving cyberdefenses through data sharing, said there were a reasonable number of victims in the United States.
Microsoft declined to comment for this report.
Williams, who has closely studied the code, said he is convinced that the ransomware accidentally got loose in a testing phase. That would explain some of its shortcomings, such as an inability for the attacker to tell who has paid the ransom or not, he said.
Nonetheless, he said, this is a case where youve got a weaponized, government-sponsored exploit [or hacking tool] being used to deliver ransomware. If North Korea goes unchecked with this, I would expect other developing nations to follow suit. I think that would change the cyberthreat landscape quite a bit.
Daniel, who was Obamas cybersecurity coordinator, said there needs to be a broad-based approach to deterring North Korea across the board in the physical world and in cyberspace.
Federal prosecutors have been probing North Koreas role in the Bangladesh bank theft, and indictments could be issued. The Justice Department in recent years has used indictments as a tool to try to hold accountable hackers from other nation states, including China and Iran.
Rep. Adam B. Schiff (Calif.), the top Democrat on the House Intelligence Committee, which is investigating Russian interference in the 2016 election, has said that the Obama administrations response to North Korea after the Sony attack was not bold enough. I ... think the Russians were watching and decided that, well, we didnt respond to that. They could get away with a cyberattack, he said at a recent public discussion with Washington Post columnist David Ignatius.
When the South Koreans want to respond to North Korea, Schiff said, they use a form of information warfare. They do it with loudspeakers, he said. They do it by telling people in the North what a terrible regime they live under thats starving their own people.
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The NSA has linked the WannaCry computer worm to North Korea ... - Washington Post
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Senators seek answers on alleged NSA leaker’s security clearance – The Hill
Posted: at 8:57 pm
The leaders of a key Senate panel are pressing the federal government for information about the security clearance of a government contractor recently accused of passing classified material to a news outlet.
Reality Leigh Winner was arrested by the FBI in early June and charged in federal court with violating a section of the Espionage Act. Her arrest has been linked to The Intercepts publication of a purported classified National Security Agency document detailing Russian hacking efforts aimed at U.S. election and voting infrastructure.
Winner, an Air Force veteran, had worked as a contractor at Pluribus International Corporation, was assigned to a government facility in Georgia and held a top-secret clearance, according to the criminal complaint.
The leaking of classified information jeopardizes our national security, McCaskill said in a statement. We need to determine if Ms. Winners security clearance process was handled correctly or if we missed any red flags.
Together, Johnson and McCaskill lead theSenate Homeland Security and Governmental Affairs Committee.
The letter was sent to Kathleen McGettigan, acting director of OPM. The lawmakers also asked the agency to explain the process by which a member of the military has a security clearance reactivated or transferred in order to be employed by the intelligence community, given Winners previous service in the Air Force.
Additionally, the senators asked what OPM is doing to comply with with a provision included in an appropriations measure passed last year that mandated a review of the federal governments enhanced security clearance program.
Winner was arrested at her home in Georgia on June 3 and the Department of Justice announced the charges days later. Winner allegedly printed and improperly removed classified intelligence in early May and later sent it by mail to an online news outlet.
Winners arrest was the latest in a string of leak incidents, an issue that has attracted attention since ex-NSA contractor Edward Snowdens disclosures to news publications in 2013.
In February, former NSA contractor Harold Martin was indicted for stealing thousands of intelligence files, including classified documents from the NSA, CIA and U.S. Cyber Command.
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Rare XP Patches Fix Three Remaining Leaked NSA Exploits – Threatpost
Posted: at 8:57 pm
The unusual decision Microsoft made to release patches on Tuesday for unsupported versions of Windows was prompted by three NSA exploits that remained unaddressed from Aprils ShadowBrokers leak.
The worst of the bunch, an attack called ExplodingCan (CVE-2017-7269), targets older versions of Microsofts Internet Information Services (IIS) webserver, version 6.0 in particular, and enables an attacker to gain remote code execution on a Windows 2003 server.
All three attacks allow an adversary to gain remote code execution; one is EsteemAudit, a vulnerability in the Windows Remote Desktop Protocol (RDP) (CVE-2017-0176), while the other is EnglishmanDentist (CVE-2017-8487), a bug in OLE (Object Linking and Embedding). Microsoft said the patches are available for manual download.
ExplodingCan merits a closer look because of the wide deployment of IIS 6.0.
Generally, when you put a Windows machine on the internet, its going to be a server and its going to run a webserver, so there are production machines on the internet running IIS 6.0 right now, said Sean Dillon, senior analyst at RiskSense and one of the first to analyze the NSAs EternalBlue exploit that spread WannaCry ransomware on May 12.
Its probably already been exploited for months now, Dillon said. At least now theres a fix thats publicly available.
Microsoft released a hefty load of patches for supported products and services on Tuesday as part of its normal Patch Tuesday update cycle. Normally, patches for unsupported versions of Windows are available only for Microsoft customers on an expensive extended support contract. The companys decision to make all of those fixes public on Tuesday, it said, was prompted by an elevated risk for destructive cyber attacks.
Due to the elevated risk for destructive cyber attacks at this time, we made the decision to take this action because applying these updates provides further protection against potential attacks with characteristics similar to WannaCrypt, said Adrienne Hall, general manager of Microsofts Cyber Defense Operations Center.
In reviewing the updates for this month, some vulnerabilities were identified that pose elevated risk of cyber attacks by government organizations, sometimes referred to as nation-state actors or other copycat organizations, Hall said. To address this risk, today we are providing additional security updates along with our regular Update Tuesday service. These security updates are being made available toallcustomers, including those using older versions of Windows.
The ShadowBrokers leak in April unleashed a number of powerful Windows attacks into the public, allegedly belonging to the Equation Group, which is widely believed to the U.S. National Security Agency. Criminals and other nation states have already been leveraging the attacks to spread not only WannaCry ransomware, but also crytpocurrency mining utilities and other types of malware.
Microsoft said customers should not expect this type of patch release for unsupported products to become the norm. Some experts have been critical of Microsot, which also made a similar update available for unsupported products hours after the WannaCry outbreak.
I wish MS would stop releasing patches for xp/2003 it really harms efforts to get rid of legacy in the corporates
Quentyn Taylor (@quentynblog) June 13, 2017
Oh no. Take Windows XP off life support. Though it cannot die with dignity, it must be allowed to die. It will be messy. But this is cruel. https://t.co/euZVdTLC0z
Katie Moussouris (@k8em0) June 13, 2017
It was the right move by Microsoft, Dillon said. We saw the damage it can cause with WannaCry. Some of the most-used infrastructure, like SCADA systems, still run on XP whether theyre getting patches or not. When you have critical things [running on XP], its a good thing they released, but it should only be looked at as a temporary solution and people should look to upgrade off of legacy versions.
Some third-party services such as 0patch have provided micro-patches for some of these vulnerabilities on legacy versions, even before the ShadowBrokers leak, Dillon said. Hopefully people who are running legacy systems have looked into other means of patching beside official fixes, he said. Although, this is great that theres an official fix.
The remaining two vulnerabilities are a lesser severity but should be patched nonetheless on legacy systems.
EsteemAudit affects RDP, but only on XP and did not require a patch for modern versions of Windows. According to Microsoft, the vulnerability exists if the RDP server has smart card authentication enabled.
EnglishmanDentist, meanwhile, is triggered because Windows OLE fails to properly validate user input, Microsoft said.
Theres a whole wide assortment of exploits that were leaked, and weve only seen a few of them actively used at a mass scale. This is just plugging a hole before it becomes a bigger problem, Dillon said.
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Rare XP Patches Fix Three Remaining Leaked NSA Exploits - Threatpost
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Educational Development Corporation Announces Record First Quarter Fiscal 2018 Revenues and Fifth Amendment … – EconoTimes
Posted: at 8:56 pm
Educational Development Corporation Announces Record First Quarter Fiscal 2018 Revenues and Fifth Amendment Loan Agreement
TULSA, Okla., June 15, 2017 -- Educational Development Corporation (EDC) (NASDAQ:EDUC) (http://www.edcpub.com) today reports record first quarter fiscal 2018 unaudited net revenues.
Randall White, CEO of Educational Development Corporation, announced that the Company has had record first quarter revenues of fiscal 2018, totaling approximately $27.8 million. This revenue level represents an increase of $5.0 million, or 22% over the first quarter fiscal 2017 revenues of approximately $22.8 million.
Per Mr. White, Our first quarter double digit growth reflects continued strong demand for our products and the success of our sales teams. To ensure we are capable of handling our continued growth, our management team has recently approved a capital expansion project that will further automate to our Tulsa, OK distribution facility and expand our daily shipping capacity by as much as 100% over last years capacity levels.
We have also recently executed a new amendment with our existing lender which immediately expands our working capital facility from $7.0 million to $10.0M and allows us, upon lender approval, to grow this facility to $15M to support our continued growth in inventory and sales. This new amendment also includes a $3.0M Advancing Term Loan facility which will be used to finance our recent capital expansion project.
We continue to be grateful to all of our stakeholders that continue to support us during this very dynamic time in the Companys history.
About Educational Development Corporation
EDC is a publishing company specializing in books for children. EDC is the sole American distributor of the UK-based Usborne Books and owns Kane Miller Books, specializing in childrens literature from around the world. EDCs current catalog contains over 2,300 titles, with new additions semi-annually. Both Usborne and Kane Miller products are sold via retail outlets and by direct sales consultants nationally.
Cautionary Statement for the Purpose of the Safe Harbor Provision of the Private Securities Litigation Reform Act of 1995.
The information discussed in this Press Release includes forward-looking statements. These forward-looking statements are identified by their use of terms and phrases such as may, expect, estimate, project, plan, believe, intend, achievable, anticipate, continue, potential, should, could, and similar terms and phrases. Although we believe that the expectations reflected in these forward-looking statements are reasonable, they do involve certain assumptions, risks and uncertainties and we can give no assurance that such expectations or assumptions will be achieved. Known and unknown risks, uncertainties and other factors may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by forward-looking statements. Factors that could cause or contribute to such differences include, but are not limited to, our success in recruiting and retaining new consultants, our ability to locate and procure desired books, our ability to ship the volume of orders that are received without creating backlogs, our ability to obtain adequate financing for working capital and capital expenditures, economic and competitive conditions, regulatory changes and other uncertainties, as well as those factors discussed in our Annual Report on Form 10-K for the year ended February 29, 2016, all of which are difficult to predict. In light of these risks, uncertainties and assumptions, the forward-looking events discussed may not occur. All forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements in this paragraph and elsewhere in our Annual Report on Form 10-K for the year ended February 29, 2016 and speak only as of the date of this Press Release. Other than as required under the securities laws, we do not assume a duty to update these forward-looking statements, whether as a result of new information, subsequent events or circumstances, changes in expectations or otherwise.
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US magistrate OK’s video surveillance of Overtown store – Miami Herald
Posted: at 8:56 pm
Miami Herald | US magistrate OK's video surveillance of Overtown store Miami Herald Otazo-Reyes said the ordered surveillance does not violate Bradley's right to privacy, and that her claim under the Fifth Amendment's Takings Clause is not ripe for review by a court because she hasn't been denied all reasonable use of her property. |
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US magistrate OK's video surveillance of Overtown store - Miami Herald
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So now coordinated traffic stops are a Fourth Amendment violation? – Hot Air
Posted: at 8:55 pm
Orin Kerr at the Volokh Conspiracy has another twisted and complicated Fourth Amendment case for us to consider this week. It deals with United States v. Gorman and its yet another traffic stop challenge, but with several twists. This particular incident involved an officer stopping Straughn Gorman while he was driving his brothers motor home cross country to California. The officer believed that Gorman was carrying drugs and/or drug money in the RV but didnt have a drug sniffing dog with him and had no further grounds to search the vehicle so he let him go. The officer then called ahead to law enforcement in the next county and alerted them to Gormans approach and of his suspicions. A second officer (with a dog) intercepted Gorman and pulled him over on another very minor traffic violation. The dog detected drug residue and a warrant was issued, leading to a search which turned up $167,070 in cash, stuffed in white envelopes and sealed in plastic bags.
There were no criminal charges brought against Gorman, but the authorities did seize the money. The courts eventually found that the search was unsupportable and Gorman got his money back. This brings Kerr to ask the following question.
If an officer pulls over a car for a traffic violation and suspects the car has drugs, but he cant get the drug-sniffing dog to come in time to sniff it, can the officer end the traffic stop and call ahead to another police officer to get a dog and watch for the car to pull it over for a second violation? Specifically, if the second officer gets a dog and spots a second traffic violation, can the second officer pull over the car and use the drug-sniffing dog to get probable cause to search the car?
The bottom line to this lengthy discussion is that there are two conflicting elements to the decision, at least for my interest in the subject. One of them is the forfeiture of all that money and the efforts by the cops to keep it. From the sound of the police reports theres pretty much zero doubt that this guy was hauling drug money, but thats not the point here. The cops have to be able to prove their case before they should even be allowed to consider confiscating someones property. Since Gorman guilty or not in reality was never even charged its preposterous that they should keep his cash. That aspect of the challenge is easy enough for me.
But the stickier subject is the fact that the courts are once again summoning up the misbegotten fruit of the poisonous tree doctrine here. If you read the entire account of both officers in the full decision, even Ill admit that these traffic stops were dodgy at best. I have no clue what tipped off the first officer that there was money (as opposed to drugs) in the vehicle. But the fact is that something tipped him off. And it was later discovered that there absolutely was a large quantity of cash with drug residue on it. So why should the second officer be forbidden to act on that tip and have a dog sniff the vehicle? What if they had received an anonymous tip from somebody telling them the driver was trafficking drugs? Wouldnt that be suitable justification?
This fruit of the poisonous tree nonsense is completely out of hand. Theres a line to be drawn somewhere between ensuring the rights of citizens against unreasonable search or seizure and simply tying the hands of law enforcement to the point where they cant do their jobs when theres obviously a crime taking place. And cases such as this one cross that line by a fair margin.
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So now coordinated traffic stops are a Fourth Amendment violation? - Hot Air
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Third party rights and the Carpenter cell-site case – Washington Post
Posted: at 8:55 pm
In Carpenter v. United States, the Supreme Court will decide whether a warrant is required for the government to obtain historical cell-site records from a customers account. This post asks a question for those who think the answer should be yes: How do you deal with the Fourth Amendment rights of the cellphone providers? Im not sure what the answer should be, but I think its an important question to help understand the issues and stakes in Carpenter.
This is a complex issue, so Im going to break it down into three steps. Ill start with an overview of the third-party doctrine. Ill then turn to third-party rights under current law. Ill next consider different ways the third-party rights might work if the Supreme Court holds that a warrant is required.
I. Overview of the Third-Party Doctrine
Lower courts have held, consistently with U.S. Supreme Court precedent, that historical cell-site records are not protected under the Fourth Amendment. They have mostly based this holding on the third-party doctrine, the rule that you dont maintain Fourth Amendment rights in information that you voluntarily disclose to a third party.
As I explained in this article, the third-party doctrine was originally intended to be the subjective expectation of privacy test in Justice Harlans Katz concurrence. The idea was that you can only have privacy in what you try to hide from others: You need to manifest your subjective expectation of privacy to have Fourth Amendment rights, shielding it from observation, so that you cant have such rights in what you knowingly disclose to others. As my article explains, this rule has been around for a very long time, but it accidentally moved over time from the subjective expectation test into the objective expectation of privacy test in the 1970s and 1980s.
The third-party doctrine has had very wide application. If a criminal confesses to his friend about his crimes, the government can get the information from the friend without implicating the criminals Fourth Amendment rights. If a person commits an offense in front of an eyewitness, the government can get the information from the eyewitness without implicating the criminals Fourth Amendment rights. If a person goes to the bank and deposits a check, the government can get the information from the bank without implicating his Fourth Amendment rights. And if a person dials a number to place a phone call, the government can get the numbers dialed from the phone company without implicating his Fourth Amendment rights.
II. What About the Constitutional Rights of the Third Party?
A key implication of the third-party doctrine is that the government only has to deal with the constitutional rights of the person or business that received and now possesses the information. Upon the informations receipt, the thinking goes, the sender of the information no longer has Fourth Amendment rights in it. Only the rights of the recipient/holder of the information matter.
That raises the question of to what extent the constitutional rights of the holder of the information can limit law enforcement. The answer is: some, although not much. First, the Supreme Court has held that there are no Fourth Amendment limits to the government compelling a person to testify about what they know and what they saw. That raises Fifth Amendment issues if the person who would testify may be thought to be involved in criminal activity, but the compelled testimony is not a search or seizure under the Fourth Amendment. See United States v. Dionisio, 410 U.S. 1 (1973).
Second, if the government compels a person or company to hand over stored records as opposed to live testimony, the Fourth Amendment applies to the records but the constitutional limit is only unreasonable burdensomeness. There is no warrant or probable cause requirement. See, e.g., Hale v. Henkel, 201 U.S. 43 (1906); In re Horowitz, 482 F.2d 72 (2d Cir. 1973) (Friendly, J.). To be sure, the Fourth Amendment still applies fully to direct entry. The government ordinarily needs a warrant to break into a business and seize records just like it needs a warrant to break into a home. But its a different situation when the government is compelling assistance rather than searching directly.
These same Fourth Amendment rules apply when the government is seeking information that a business happens to hold about its customers. Whether the target of the investigation is the business or its customers doesnt matter under the Fourth Amendment. This means that if the government is seeking a companys assistance to disclose records about the businesss customers, the information is protected under the Fourth Amendment in the abstract because the business has its own Fourth Amendment rights. At the same time, the third-party business generally can be required to keep and disclose the records under a fairly low burden. See, e.g., California Bankers Association v. Shultz, 416 U.S. 21 (1974); Couch v. United States, 409 U.S. 322 (1973); Donaldson v. United States, 400 U. S. 517 (1971). And because the information or records ordinarily could not incriminate the third party in criminal activity, the third party business cannot assert a Fifth Amendment privilege against production. See Fisher v. United States, 425 U.S. 391 (1976).
The idea that a business has only modest Fourth Amendment rights to fight compelled disclosure of customer records isnt new. It has been around a long time. For example, in First National Bank v. United States, 267 U.S. 576 (1925), the IRS wanted to see if a couple had underreported their income on their federal income tax forms. The IRS issued a summons to the couples bank requiring the bank to produce their books showing the couples banking account records. The idea was that the bank statements would reveal whether the couple had falsely reported their income. The bank refused to comply under the Fourth Amendment on the ground that producing the records was an unreasonable search or seizure and that the bank wanted to keep its customers account records private.
The district court rejected the banks claim. This is not a question of a search and seizure of a partys books and papers, the court wrote, but of whether a witness who has information as to a partys dealings may be required to testify to those facts, and produce book entries as to such entries in connection with and supporting such testimony. It would be monstrous, the court rather dramatically added, for the government not to be able to determine the proper taxes that a person owed simply because the bank desires to protect the dealings of its customers from unauthorized investigation. The Supreme Court then affirmed the district court in a one-sentence per curiam opinion upon the authority of the courts precedents about subpoenas for business records (including Hale v. Henkel, cited above).
III. Applying the Traditional Approach to Historical Cell-Site Records
Applying this traditional body of law to historical cell-site records is pretty straightforward, I think. The cellphone company generates and stores business records of what cell towers were used to connect a customers calls. Those records are like the banks records in First National Bank. The cellphone provider is ordered to be a witness who has information as to a partys dealings [and] may be required to testify to those facts, and produce book entries as to such entries in connection with and supporting such testimony.
Granted, Congress requires an intermediate facts court order under the Stored Communications Act for the government to compel those records. A mere subpoena, which would be sufficient under the Fourth Amendment, isnt enough under the statute. But if the lesser process of a subpoena is sufficient to satisfy the rights of the company, presumably the greater process of an intermediate facts court order is as well (although that hasnt been challenged), And under the third-party doctrine, access to the account records wouldnt implicate any Fourth Amendment rights of the user.
If youll pardon a brief digression, its not even clear you need the third-party doctrine to say that the records dont implicate the users Fourth Amendment rights. The third-party doctrine is traditionally about the disclosure of private information that a suspect has revealed. The idea is that the suspect has private information, chose to reveal that information (often in confidence) to someone, and then the government sought that private information from that person. The cell-site business records in Carpenter are arguably one step removed from that. They are business records of how a private company decided to direct calls to and from the user. The records are about what a private company did for a user, not necessarily what a user chose to disclose in confidence to the company.
But at the very least, the third-party doctrine seems to fit the Carpenter case under traditional caselaw principles. So the old answer would be no Fourth Amendment rights for the customer, although statutory rights provided by Congress, and only modest Fourth Amendment rights for the cellphone provider.
IV. If the Third-Party Doctrine is Rejected, How Should Courts Deal With Third-Party Rights?
Thats the old law, at least. Now lets consider how the Fourth Amendment would work if the Supreme Court rejects that traditional approach. Lets assume the Supreme Court agrees with the defendant on both issues in Carpenter: First it holds that users have Fourth Amendment rights in cell-site records, and second it holds that the records are protected by a warrant protection.
Now we get to my question: Assuming the Supreme Court makes these two holdings, how would this work with respect to the providers rights? The government does not seek cell-site records by breaking into the providers business and rummaging around its offices and computers. That would ordinarily require a warrant even under the traditional law of the third-party doctrine. The records are already protected under the Fourth Amendment as held by the company, after all, and ordinarily the government would need a warrant to break into the company headquarters and seize them because of the companys Fourth Amendment rights.
The tricky problem, I think, is what to do with the providers rights once the user also has rights in the records. Assume, for now, that the company does not want to comply with the governments legal process. If the records were about the provider, a subpoena would be enough for the government to force the company to disclose them.
Heres what Im stuck on: How do you reconcile the conflict between that rule and a warrant requirement if the Fourth Amendment rights belong to the user? Is the idea that a company served with a subpoena for business records has to figure out if the subpoena implicates only its own Fourth Amendment rights (in which case the subpoena complies with the Fourth Amendment so long as it is not overbroad) or if it also implicates a users Fourth Amendment rights (in which case the subpoena is insufficient and a warrant is required?). If the government issues a subpoena for business records and it turns out that a customer also had rights in the data, would we say that compelled compliance with the subpoena violated the rights of the user but not the company?
Alternatively, if it doesnt make sense for every subpoena and sub-warrant court order to require a standing analysis before knowing if compliance is legal, which rule do you apply to both situations if a single rule has to be chosen? Do you say that both situations require a warrant, such that all subpoenas issued to businesses now require probable cause and warrant particularity (effectively eliminating the use of business record subpoenas for investigations)? Or do you say that neither situation requires a warrant, such that the user has Fourth Amendment rights in cell-site records but that a valid subpoena is enough to overcome the Fourth Amendment rights just as it it would for ordinary business records?
Next assume that the cellphone company wants to cooperate. If both the user and the company have Fourth Amendment rights in the records, then I imagine the common authority doctrine would apply. Under the common authority doctrine, if there is mutual use of the property by persons generally having joint access or control for most purposes, they both can consent to a search. See United States v. Matlock, 415 U.S. 164 (1974). Cellphone customers may not have joint access and control over cell site records: They dont know what the records say and have no ordinary means of accessing them. But if they nonetheless have Fourth Amendment rights in the records, I would think that at least the company has common authority over the records allowing them to legally consent to law enforcement access to the records.
If thats right, though, how does it work if the phone company is willing to help the government? Imagine Carpenter holds that users have Fourth Amendment rights in cell-site records, and that a warrant is ordinarily required. Can a provider tell the government that as long as the government has a 2703(d) court order, as required by the statute, that it will voluntarily consent to hand over the records under the common authority doctrine? If so, whether there is really a warrant requirement would depend on what the company wants to do: Because both the user and the company have common authority over the companys business record, the company could consent and eliminate the right.
You could try to avoid this by saying that the cellphone providers lack common authority over their own business records. But that seems like a hard result to justify. The companies created and used the records and keep them. It seems hard to say that they lack access to or control over the records that they created and keep for their own use.
Granted, caselaw would suggest that companies lack common authority to consent to a government search of the contents of communications, such as emails. In physical space, the landlord of an apartment or the hotel employee at the hotel lacks common authority to consent. See Chapman v. United States, 365 U.S. 610 (1961) (landlord); Stoner v. California, 376 U.S. 483 (1964) (hotel employee). By analogy, I would think that an email provider couldnt ordinarily consent to a search of the contents of a users emails, at least barring some unusual terms of service. But with cell-site records, I would think that the phone companies have at least common authority (if not exclusive authority) over the records of how their network connected calls.
V. Let Me Know Your Thoughts
For the seven readers that have made it this far, let me know your thoughts! There may be good answers to these questions. But it seems like largely uncharted territory, and Im not sure yet what those good answers are.
See the original post:
Third party rights and the Carpenter cell-site case - Washington Post
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