Surveilling Drivers For Safety, For The Environment, and For Profit

Deeplink by Peter Eckersley

There is a growing movement to surveil the drivers of cars — for insurance purposes.

One idea is that vehicle insurance premiums should depend on verifiable, periodic measurements of how far a car has been driven. The case for such premiums is strong: driving further clearly increases the risk of an accident, and "Pay As You Drive" premiums would allow (some) drivers to pay less for insurance; would allow insurance companies to make higher profits; and would reduce the congestion, greenhouse emission and traffic accident costs that each mile driven causes for society.

Another idea is that vehicles should collect data on the way that they are being driven (location, speed, acceleration and braking patterns, type of roads, time of day, smoothness of steering, etc). These measurements can be used to identify good drivers, and offer them insurance discounts — or to spot dangerous drivers, charge them higher premiums and encourage them to take driving skills courses. The policy case for this kind of measurement may turn out to be strong too, though it is less well-established.

The problem with these proposals is that they are often accompanied by a technical proposal for a tracking device that sits in your car and transmits voluminous data over wireless or satellite links, so that insurance companies can decide how much to charge you. Many modern vehicles are already collecting this information, and the insurance industry just needs to get a copy of it.

One state currently considering these schemes is California. The State's Department of Insurance held a workshop last week on how best to modify existing regulations to implement Pay As You Drive insurance. EFF participated in the process; you can read our letter to the Department (written with Andrew Blumberg at Stanford) here.

Briefly, EFF's view is that there is a perfectly good, ubiquitous and tamper-resistant device avaialable for measuring vehicle mileage: the odometer. It may be good policy to require fine-grained dependence of insurance premiums upon mileage — but if so, the data should be collected by examining odometers rather than 24/7 wireless or satellite surveillance. We think the public agrees: a similar tracking scheme by UK insurer Norwich Union was abandoned this week.

The best way to protect drivers' privacy, of course, is to not record any facts about where and when and how they are driving at all. But in the long run, there may be sound policy cases for devices that spot dangerous drivers, or charge road tolls based on congestion, etc. If policy-makers are persuaded that there is a strong need for such systems, they need to be built in a way that has the minimal possible privacy consequences. Cryptography offers many ways to implement these kinds of schemes without compromising locational privacy (one technical example is described in this paper). The general principle is that only the minimal amount of information should leave the vehicle: the total billable amount, for instance. If verification is an issue, cryptography and some extra hardware can provide it.

If governments are persuaded that they should allow insurers or anybody else to use detailed information on location or other vehicle observations, they should mandate that these schemes not upload any information from vehicles except for the premium itself, and they should require that the privacy properties of any technology being proposed for vehicles be audited by the computer security community before it is deployed.

If we let insurance companies, car manufacturers or tech companies build a gigantic driver surveillance system, it will be exceedingly difficult to go back to the days where you could drive to a church, or a gay bar, or a political meeting, or a cheap motel at lunchtime, without some company (or hacker) permanently recording that fact.

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Global minilinks for 2008-06-30

Deeplink by Danny O'Brien

• Tor Project Blocked in China -- Finally
  After years of aiding those seeking anonymity and bypassing censorship, Tor is finally blocked by the Great Firewall of China.
• China's Overeager American Censors
  "Practically every U.S.-owned search engine has caved to the Chinese government's demands that they censor political Web sites in China. But none of them seem to agree on just what sites need censoring."
• Pirate Bay to Fight Swedish Wiretapping Act
  To offer VPN facilities to Swedish nationals and others.
• Dubbing 10: Right Holders Compromise at Last Moment
  DRM proposal for digital TV recording in Japan forced through just prior to Olympics.
• Pressure on Spain to Join France's Three Strikes
  John Kennedy of IFPI, Denis Olivennes push for three strikes in Spain.
• Internet Society France Calls for Withdrawal of Three Strikes
  Calls it "the Middle Ages of the Internet".
• Italian Institute for Privacy Formed
  In the wake of a recent scandal, when the Italian government deliberately placed the tax records of every Italian on a public website, a new pressure group is launched.
• EU Worries about Regulating Blogger Speech
  Bloggers "in a position to considerably pollute cyberspace", says one MEP.
• UK Hacker's Case Before Law Lords
  Alleged hacker takes his threatened extradition to the UK's highest court.

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A Brief Reprieve on FISA: What Now?

Deeplink by Tim Jones

Thursday evening, Senator Reid officially delayed a final vote on the FISA Amendments Act until July 8. That gave us just twelve days — now, eleven — to change the political calculus and avoid a Congressional seal of approval on illegal wiretapping.

With the clock counting down, here are three tactics that could help change the game:

1. July Fourth Activism

It's especially ironic that Congress has picked Independence Day Recess to mark its decision to shred the Constitution. A Fourth Of July Parade could be an excellent leverage point to pressure politicians to stand tall for civil liberties.

Peterr at Firedoglake has suggestions:

Chris Dodd and Russ Feingold succeeded in giving us a gift: no FISA votes in the Senate until July 8th -- after the Fourth of July recess. That means that when all the Senators go home for the holidays, to ride in those parades, you have a chance to be seen and heard. Not by the intern who downloads and counts the emails, not by the staffer who answers the phones and logs the calls, but by the Honorable Senator.

In person, face to face.

In public, where they can't turn away.

In front of the cameras, everywhere they look.

...If you have a place reserved for a float in your town's parade, maybe you need an idea for your decorations. If you have a place reserved for your lawn chair or the curb, maybe you need an idea for the sign you'll hold up when the Senator or Representative comes by.

"Hey Senator, can I have some immunity, too? -- Vote NO on FISA!"

"I like the WHOLE Bill of Rights -- Vote NO on FISA!"

Watch Deeplinks and Firedoglake for more on this soon.

2. The Bingaman Amendment

If Congress is determined to grant the telcos immunity — something we're fighting against tooth and nail — then it ought to at least know what behavior it's protecting. That's where Senator Bingaman's amendment comes in.

This amendment, which should garner support from moderate and conservative Democrats and even some fair-minded Republicans, would give Congress the opportunity to reconsider telco immunity before it goes into effect, after Congress has received the Inspectors General report on the president’s surveillance program. EFF calls on every Senator that cares about civil liberties and the rule of law to support the Bingaman amendment if the amendment to strip immunity fails.

3. Barack Obama

Last month, the potential nomination of Barack Obama and John McCain as their parties' Presidential candidates seemed an excellent development for this fight; both of them opposed the President's warrantless wiretapping program at the time, and both of them rode this reputation for defying so-called conventional wisdom to the nomination.

Now that they've secured their nominations, their tunes have changed. When Senator McCain reversed his position earlier this month, we (and others) hoped Senator Obama would take leadership.

Our hopes were disappointed. Obama reneged on his previous commitment to filibuster, saying "the issue of the phone companies per se is not one that overrides the security interests of the American people." Now, Obama is being attacked from the right for being a flip-flopper, and from the left for sacrificing civil liberties to political expediency.

Obama supporters have not given up hope of changing his mind. They intend to use the reprieve to pressure their candidate to stand tall. Activists have created a "Please Vote Against FISA" group on Obama's social-networking website. Mike Stark, one of the groups founders, wrote "We've got a little over 1 week to change his mind - the vote on FISA will happen July 8th. But we can't wait until that day; our goal is to see the Senator (and next President!) come out in opposition a few days earlier so that he can drag the rest of the Senate behind him." If you're an Obama supporter, consider joining the group and making your voice heard.

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EFF Supports Senator Bingaman's Immunity Amendment: Congress Should Know What It is Immunizing

Deeplink by Kevin Bankston

The schedule for the Senate's return on July 8 allows for three amendments to be introduced to the FISA Amendments Act, which in its current form would grant immunity from the law to phone companies who engaged in illegal spying. One amendment, from Senators Dodd and Leahy, would strip immunity from the bill altogether. A second, from Senator Specter [PDF], would would allow the court to deny immunity if it found that the government's surveillance activities were unconstitutional.

EFF is particularly optimistic about the third, an amendment introduced by Senator Jeff Bingaman [PDF] of New Mexico and co-sponsored by Senators Specter and Casey, a sensible and bi-partisan proposal that could be a game-changer.

The current version of the Senate bill calls for an investigation into the President's warrantless wiretapping program by the Inspectors General of the Department of Justice and other US government intelligence agencies. The IG investigation, while no substitute for an independent court ruling, is likely to uncover some of the details of the program that the White House has been trying to suppress.

Unfortunately, the current bill puts the cart before the horse, by granting immunity from the law to phone companies before the investigation has even begun. If the Senate is resolved to pass legislation granting immunity, it it ought to at least know what conduct it's immunizing — It should give itself an opportunity to revisit the issue after it has the IG Report in hand.

That's where the Bingaman amendment comes in.

The Bingaman amendment would prevent Congress from granting immunity in the dark, as described in the press yesterday, by "stay[ing] pending cases against the telecoms and delay[ing] the effective date of any immunity provisions until 90 days after Congress received a report from the inspectors general of the intelligence agencies on the warrantless surveillance program". By placing a temporary hold on immunity and on the litigation until 90 days after the IG Report is submitted to Congress, the simple amendment would give Congress and the American people an opportunity to revisit the issue of telco immunity next year, in light of the audit's findings.

EFF has signed an open letter in support of the Bingaman Amendment [PDF] along with the ACLU and eleven other civil liberties organizations, and urges all members of the Senate who care about civil liberties and the rule of law to champion it. The amendment wouldn't cure all of the problems with the bill, and is no replacement for a strong no vote on final passage, but at this moment it looks to be the last best shot at saving the litigation against the telcos from an early death.

We especially hope that Senator Obama recognizes how important his leadership could be on this amendment.

It is an immeasurable tragedy that as July 4th approaches, Congress appears poised to pass a bill that would betray the spirit of 1776 by radically expanding the president's spying powers and granting immunity to the companies that colluded in his illegal surveillance program.

We hope that all Americans who care about this issue will celebrate the Fourth of July this year by demanding that their Senators uphold the rule of law by supporting the immunity amendments and, most importantly, voting NO on final passage of the FISA Amendments Act of 2008.

Updated June 30 2:40pm PT: An earlier version of this post mistakenly identified the amendment's cosponsor as Senator Carter. The actual cosponsor is Senator Casey.

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minilinks for 2008-06-26

miniLinks by Hugh D'Andrade

• Schwarzenegger Asks ISPs to Block Newsgroups
  The California Governor and Attorney General have asked ISPs to jump on the newsgroup-blocking bandwagon -- an attempt to stop child porn that will likely block legitimate speech as well.
• Prince v. Tribute to Prince
  A Norwegian tribute album featuring covers of Prince songs by various artists is the latest object of the musician's wrath.
  
• The Nation's First Tech Czar?
  If Obama is elected President and follows through on a promise to appoint a Cabinet-level "tech czar", who would he choose?
• Orgies & Apple Pie: Googling for Community Standards
  In a novel approach, lawyers in Florida are seeking to subpoena Google's search data to establish community standards of obscenity.
• Surprise! Study Finds Teens Have Plenty of Illegal Music on Their iPods
  A study of teens in the UK finds that almost half the music on their iPods are infringing copies.
• George Carlin: Dead But Still Kicking the FCC
  Comedian George Carlin has passed on, but the legal battle over the FCC's power to regulate speech triggered by Carlin's famous "7 words" monologue carries on.
• LonelyCylon15 Says: "Just Say No to DRM"
  A lecture on the evils of DRM from the perspective of an intelligent machine.

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Senate Delays Vote on Immunity

Deeplink by Tim Jones

It's official: Thanks to overwhelming grassroots action, and the heroic efforts of Senators Dodd and Feingold, the Senate's vote on whether to grant phone companies immunity from the law for assisting in the President's illegal wiretapping program has been delayed until after July 4th Recess!

This is an unexpected reprieve for civil liberties and the rule of law. As recently as last night, the mainstream press was reporting that the immunity bill would see swift and uncontested approval. Senate Leaders emphasized that passing an immunity bill this week was one of their highest priorities. And yet, in the end, the bill simply wasn't as uncontested and noncontroversial as the pundits and politicans thought it was.

Longtime followers of the immunity issue may be reminded of similar events last December. Then, as now, it was widely expected that the Senate would rubber-stamp an immunity bill with no meaningful debate. And then, as now, overwhelming grassroots pressure unexpectedly derailed the bill. That set the stage for a critical victory in March, when the house stood strong against immunity.

Similarly, today's unexpected delay gives us time to shift the political dynamic in a more reasonable direction. The best hope lies in the amendments that will be introduced before the final vote on the bill. One, championed by Senators Dodd and Feingold, would strip immunity provisions entirely. Another, from New Mexico Senator Bingaman, would delay implementation of the immunity provisions until after Congress had the benefit of the Inspectors General report on the President's surveillance program that is required by the bill.

EFF would like to extend its sincere thanks to everyone who's taken up this cause as their own. Whether you've contacted your Congressperson, blogged or written your thoughts on the issue, or just talked it over with friends, your action has made a difference today.

In the meantime, contact Senators Dodd, Feingold and Bingaman to send them your thanks and encouragement for their efforts. They have done all Americans proud this week, and their efforts and support will be critical in the coming weeks. Then, if you haven't already, contact your own Senators and tell them where you stand.

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DNI and AG Fear Court Ruling on Warrantless Wiretapping

Deeplink by Kurt Opsahl

EFF and others have long suspected that one reason the White House and its allies have fought for telecom immunity so fervently has been their fear that a judicial ruling on the legality of telecoms' participation would lead to a ruling rejecting the legality of the Administration's warrantless wiretapping program itself.

Today, the Director of National Intelligence McConnell and Attorney General Mukasey confirmed as much in a letter opposing amendments to the FISA bill. The DNI and AG wrote that allowing a court to rule on the constitutionality of the Administration's arguments for warrantless wiretapping "is unacceptable." They argue that "the aim of the amendment appears to be an adjudication of the Government's prior actions," and that "by requiring a merits adjudication of the plaintiffs' constitutional claims" the proposed amendment "would significantly negate a major purpose of the retroactive liability protections" (emphasis added).

So there you have it — the Administration admits that the reason for telecom immunity is to avoid judicial scrutiny of their extremist view of Executive power under the constitution.

Why might they be so concerned? Because the Administration would lose. As we've noted, numerous third party legal experts, including former government officials and respected law professors, have concluded that the Bush Administration's constitutional argument (which the DNI and AG are now trying to avoid litigating) "fails to offer a plausible legal defense of the NSA domestic spying program."

Faced with the prospect of having a judge actually evaluate whether the John Yoo and David Addington theories of unlimited presidential power hold water, the DNI and AG now beg the Senate to sweep it under the rug.

Call your Senator today, and you can help put a stop to this cover-up.

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Vote On Immunity Appears Imminent, But Anything Could Happen

Deeplink by Tim Jones

There have been rumors that the Senate's vote on final passage of the FISA Amendments Act might be delayed until after next week's Congressional recess. Anything could happen, as the Senate is simultaneously rushing to complete two other controversial bills — one to address the mortage crisis, and another to fund the Iraq war — as quickly as possible. At this moment, though, it still appears very likely that the Senate will vote on the bill sometime on Thursday. Many expect that the bill will pass if voted on this week, despite newspaper editorials from across the country condemning the so-called "compromise" bill.

Julian Sanchez (whose eye-opening history of US surveillance abuses is a must-read) described the situation in the American Prospect:

A "compromise" usually involves parties in conflict each giving something up to seek a middle ground. So it was strange to see the term bandied about on Friday, when the House of Representatives -- after holding strong for months against White House demands -- passed a surveillance reform bill that will grant legal amnesty to telecoms that participated in the National Security Agency's program of warrantless wiretapping, and give George Bush carte blanche to continue listening to our international calls with only the most anemic court oversight.

Patrick Radden Keefe, writing in Slate, rounds up and shoots down five of the most pernicious myths about the bill, elaborating on its specifics:

Perhaps most controversially, the bill effectively pardons the telecom giants that assisted the Bush administration in the warrantless wiretapping program. They will now be shielded from dozens of civil lawsuits brought against them after their involvement was exposed. House Democrats insist that the telecoms are not automatically getting off the hook. Instead, the companies must go before a federal judge. But here's the catch: For the suits against them to be "promptly dismissed," they must demonstrate to the judge not that what they did was legal but only that the White House told them to do it.

This is another bit of face-saving window dressing, and its essence is best captured in a breathtaking remark from Sen. Bond: "I'm not here to say that the government is always right. But when the government tells you to do something, I'm sure you would all agree … that is something you need to do." That more or less sums it up—one part Nuremberg defense, the other part Nixon.

This could end tomorrow. If you haven't already, make sure your Senators know where you stand.

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Congress Must Investigate Privacy Violations at U.S. Borders

Deeplink by Rebecca Jeschke

This morning, EFF Senior Staff Attorney Lee Tien testified in a Senate hearing on laptop searches and other privacy violations faced by Americans at the U.S. border. Lee's testimony [PDF] outlined the dangers of random and invasive searches of travelers' digital devices, and urged more congressional investigation and oversight.

Today's hearing comes as Americans are increasingly complaining about how the Department of Homeland Security searches laptops, cell phones, and other digital devices as they come home from overseas travel. Agents often confiscate the devices, copy the contents, and sometimes even provide a copy of the data to the Department of Justice -- even when the traveler is not suspected of criminal activity.

EFF is deeply concerned about this blanket search and seizure power. We've participated as amicus in US v. Arnold, an important case concerning suspicionless searches at the border. We've also teamed up with other privacy and professional associations to ask lawmakers for answers, and we've sued DHS for refusing to make their policies public.

If you are concerned about your privacy at the border, you can read up on our tips to protect yourself. But without better polices at the border, there are no guarantees. The unique nature of electronic information stored on computers and other portable devices requires search standards that protect the privacy of Americans in the Information Age, and we hope that Congress soon starts work on this important issue.

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Senators Dodd and Feingold Stand Strong Against Immunity

Deeplink by Tim Jones

The Senate is once again arguing whether to pass The FISA Amendments Act, a deeply flawed and unconstitutional surveillance bill.

Tuesday evening, Senator Dodd of Connecticut clarified what's at stake:

This legislation includes provisions which would grant retroactive immunity to telecommunications companies that apparently have violated the privacy and the trust of millions of Americans by participating in the president’s warrantless wiretapping program. If we pass this legislation, the Senate will ratify a domestic spying regime that has already concentrated far too much unaccountable power in the president’s hands and will place the telecommunications companies above the law. ...

Let me make clear, at the outset of this debate, that this is not about domestic surveillance itself. We all recognize the importance of domestic surveillance – in an age of unprecedented threats. This is about illegal, unwarranted, unchecked domestic surveillance. ...

I am here today to say that I will not and cannot support this legislation. It goes against everything I have stood for – everything this body ought to stand for... This is about far more than a few telecoms – it is about contempt for the law, large and small.

This morning, Senator Feingold of Wisconsin elaborated:

Granting retroactive immunity under these circumstances will undermine any new laws that we pass regarding government surveillance. If we want companies to follow the law in the future, it sends a terrible message, and sets a terrible precedent, to give them a "get out of jail free" card for allegedly ignoring the law in the past.

I find it particularly troubling when some of my colleagues argue that we should grant immunity in order to encourage the telephone companies to cooperate with the government in the future. They want Americans to think that not granting immunity will damage our national security. But if you take a close look at the argument, it doesn’t hold up. The telephone companies are already legally obligated to cooperate with a court order, and as I’ve mentioned, they already have absolute immunity for cooperating with requests that are properly certified. So the only thing we’d be encouraging by granting immunity here is cooperation with requests that violate the law.

...This immunity provision doesn’t just allow telephone companies off the hook for breaking the law. It also will make it that much harder to get to the core issue that I’ve been raising since December 2005, which is that the President ran an illegal program and should be held accountable. When these lawsuits are dismissed, we will be that much further away from an independent judicial review of this program.

That about sums it up. The bill seeks to place a Congressional seal of approval on illegal surveillance, undermining the rule of law, preventing those who authorized it from being held accountable, and encouraging similar lawbreaking in the future. A vote is imminent — contact your Senators now and tell them to stand strong.

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