While I’m hardly the technological Luddite many think I am, there is no question that I’m far away from the cutting edge. By my calculations, that still puts me in the top 10% of lawyers, and maybe the top 1% of judges. This is a problem.
In a comment to a post at Popehat, there was a link to a story in the Sydney Morning Herald that took my breath away about a 14-year-old boy who, having had $700 in virtual currency on Runescape stolen from him, set about to RAT (Remote Administration Tool), a virus that allows a hacker to seize control of another’s computer. Among the things he could do:
Within a few clicks, the teenager had access to a stranger’s entire computer, without their knowledge. “I was the happiest kid in the whole entire world,” he says. “I could see their desktop, what they typed, the history of what they’d typed, stored passwords, files – everything.”
A 14-year-old boy motivated by revenge is probably one of the last people you’d want to have unmitigated access to your computer. Especially if you’re female, given that one of the most commonly exploited features of RAT software is the ability to spy on a user’s webcam. Many modern laptops will display a green light when the webcam is in use; however, RAT developers have long since worked out how to disable that tell-tale sign on some computers.
The post at Popehat was about a Gizmodo story that “FBI can secretly turn on laptop cameras without the indicator light,” meaning that the government can now perform stupid computer tricks as well as a 14-year-old.
For the past 30 years, people suffering from paranoid delusions have explained bad things the government has been doing to them, largely shooting gamma rays at their heads and spying on them through various electronic devices. These are the tin foil hat crowd. And because I was so worldly and knowledgeable, I explained to them that “no, neither the government nor aliens are after you, and they don’t shoot gamma rays at your head. Nice hat.” Wasn’t I so very smart?
But the more I learn, the less comfortable I am with imposing my “diagnosis” of paranoid delusion. The government has capabilities to do a lot of the crazy stuff that people fear, and they didn’t develop these capabilities to keep them locked up in a trunk in the attic.
My friend, Rob Graham, who I occasionally kid about his understanding of the law, knows a whole lot about computers. So much so that when I try to read what he writes, my fingers get tired from googling every other word to find out what he’s talking about. He’s tried to explain to me things that computers can do, what’s hard, what’s easy, what’s possible. He’s kind to me that way, since for him it’s like chatting up the village idiot.
Just how sophisticated has technology gotten? Rob views lulsec as a bunch of wayward third graders drawing on the walls with crayons.
The problem that presents itself is that while the crazies may be dead wrong that they’re the targets of governmental invasiveness, it is undeniable that the government possesses means to invade our lives. While they may not be using these means against the crazies, the government is using them against somebody.
And if I’m so far out of the loop, behind the curve, tech-ignorant, then what of judges?
One of the huge fears in the Andrew “Weev” Auernheimer appeal was that a tech understanding of the conduct he was engaged in would be way over the head of the Third Circuit judges who would decide his case. The concern was that the judges wouldn’t have a clue, and would turn to their kid law clerks, because old folks think all kids know everything there is to know about computers, and ask them what’s up.
The government’s response in the Weev appeal sought to exploit this ignorance, with a flagrant rhetorical appeal to the court’s lack of technological savvy. Much like my constant complaints about applying century old 4th Amendment law to computers by analogy, the ability to spin a yarn that appeals to an unsophisticated grasp of what can and is being done is much more easily digested by the courts than accepting the idea that a 14-year-old can own them with a few clicks in ways they never dreamed possible.
It’s past the days of Donald Rumsfeld’s “known unknowns,” and well into the days of “unknown unknowns,” and there is a very serious and disturbing concern that the people making the decisions about our privacy have no realization of what the government is capable of doing.
Most telling is the response when someone calls out the government’s capabilities, now reaching the stage of a smart 14-year-old:
Marcus Thomas, the former assistant director of the FBI’s Operational Technology Division, told the Post that that sort of creepy spy laptop recording is “mainly” used in terrorism cases or the “most serious” of criminal investigations.
Clark, at Popehat, notes that the Electronic Frontier Foundation offers cool stickers to put over the camera lens on computers. They make a great stocking stuffer. And since they come in packs of five, you may have extras to give to your favorite judge. It just might give you an opportunity to chat over eggnog about the really cool computer tricks the government is into.
The first thing I do when I get a new computer is tape thick paper over the camera. A couple of lawyers, who knew I had just bought a new camera, and apparently not understanding their vulnerability, laughed when they saw that it was already taped over.
Still haven’t figured what to do about the mic. And as the tech to tap becomes more readily available to local law enforcement, you have to wonder if they’re listening into our offices.
Where I practice, DAs frequently give us discovery of audio and video on CDs that will only play with their software programs, whch are included on every CD. I dig through the CDs to find the “raw” audio, or video, file, extract it, and transfer that to another medium on which to safely play it. If I can’t do that (it’s happened once or twice, which makes me even more suspicious), I contact the DA and ask for files in a standard format that will play without their software. Sometimes, I have to take it to a judge.
But if you don’t do this, you don’t know for sure that their software isn’t watching you watch, or listen. And you don’t know what else it might be doing.
When I was Director of IT before becoming a lawyer, a manager once complained to our CEO that I was paranoid. His response? “He’s paid to be paranoid.”
That judges are so ignorant of tech just makes things all that much scarier.
“Here, install this software from the DA’s office on your computer.”
Yeah, right there with you. It’s probably okay, but…
Rick,
I certainly can’t speak for every DA, but I know that the courts and Defense are generally pretty strict that disclosure of digital evidence must be in the original format, and transcoded versions are not generally sufficient. To my eternal frustration, many voice recorders and nearly all video surveillance systems use some kind of god-awful semi-proprietary codec, and make it as difficult as possible to extract the data into a real format.
Now, if the DA is going to transcode it anyways for their own purposes, they could easily provide that as well, but if they’re content to use the software that came with the data, they probably don’t see any reason why you shouldn’t be either.
My wife has been in the habit, for years now, of covering her laptop’s webcam with a piece of duct tape. I used to give her a hard time about that. Now I’m asking her where the tape is.
Duct tape? That’s serious.
If you’re concerned about eavesdropping, you’d best ditch your cellphone.
It’s been known for more than a decade that cellphones, even turned off, can be turned into transmitting microphones. This is why cellphones are not permitted into secure government offices; they all have pigeonholes outside the door to store your phone when you’re in a classified meeting. You could take out the battery, but ditching the phone for an hour or two is easier.
This is also why it’s so giggle-worthy to see films where the intel and security types are discussing operational details on their handy phones.
Sure, it’s (usually) against the law to do this kind of interception without a warrant. But oh, those nosy third-parties can be useful!
The inventor of the cellphone ought to win the Presidential Medal of Freedom, as it surely freed the feds from a ton of effort.