Category Archives: Governance

Police not required to publicly disclose how they monitor social media accounts in investigations

In the same week that news has broken about how Amazon is assisting police departments with facial recognition technology, here is a decision from a Pennsylvania court that held police do not have to turn over details to the public about how they monitor social media accounts in investigations.

The ACLU sought a copy under Pennsylvania’s Right-to-Know Law of the policies and procedures of the Pennsylvania State Police (PSP) for personnel when using social media monitoring software. The PSP produced a redacted copy, and after the ACLU challenged the redaction, the state’s Office of Open Records ordered the full document be provided. The PSP sought review in state court, and that court reversed the Office of Open Records order. The court found that disclosure of the record would be reasonably likely to threaten public safety or a public protection activity.

The court found in particular that disclosure would: (i) allow individuals to know when the PSP can monitor their activities using “open sources” and allow them to conceal their activities; (ii) expose the specific investigative method used; (iii) provide criminals with tactics the PSP uses when conducting undercover investigations; (iv) reveal how the PSP conducts its investigations; and (v) provide insight into how the PSP conducts an investigation and what sources and methods it would use. Additionally, the court credited the PSP’s affidavit which explained that disclosure would jeopardize the PSP’s ability to hire suitable candidates – troopers in particular – because disclosure would reveal the specific information that may be reviewed as part of a background check to determine whether candidates are suitable for employment.

Pennsylvania State Police v. American Civil Liberties Union of Pennsylvania, 2018 WL 2272597 (Commonwealth Court of Pennsylvania, May 18, 2018)

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.

Are network neutrality and freedom from government surveillance incompatible?

The FBI would like to see Congress amend CALEA (the Communications Assistance for Law Enforcement Act). FBI director Mueller recently testified that his agency wants legislation that will assure internet service providers “have the capability and the capacity to respond” to court orders allowing the eavesdropping on a person’s internet communications.

CALEA currently requires that telecommunications companies expeditiously make their equipment, facilities, and services available to the government for wiretapping. Presumably, federal law enforcement would like to see this expanded to bind ISPs and other non-telecom entities.

We see a similar division of the world into telecom and non-telecom in the discussion of network neutrality. Many in favor of network neutrality laud the FCC’s efforts to bring ISPs into the agency’s scope of power to help ensure those providers of internet infrastructure do not discriminate on the basis of content source.

But do you see the potential problem here? If an individual is in favor of network neutrality and also wary of overzealous government wiretapping, he or she must be careful to not allow advocacy of federal power in one arena (enforcing network neutrality) to bleed over, even by analogy, to advocay of federal power in the other arena (surveillance). Participants in these discussions are advised to keep the ideological origins of the respective positions in mind.

Why be concerned with social media estate planning?

The headline of this recent blog post by the U.S. government promises to answer the question of why you should do some social media estate planning. But the post falls short of providing a compelling reason to plan for how your social media accounts and other digital assets should be handled in the event of your demise. So I’ve come up with my own list of reasons why this might be good both for the individual and for our culture:

Security. People commit identity theft on both the living and the dead. (See, for example, the story of the Tennessee woman who collected her dead aunt’s Social Security checks for 22 years.) While the living can run credit checks and otherwise monitor the use of their personal information, the deceased are not so diligent. Ensuring that the dataset comprising a person’s social media identity is accounted for and monitored should reduce the risk of that information being used nefariously.

Avoiding sad reminders. Spammers have no qualms with commandeering a dead person’s email account. As one Virginia family knows, putting a stop to that form of “harassment” can be painful and inconvenient.

Keeping social media uncluttered. This reason lies more in the public interest than in the interest of the deceased and his or her relatives. The advertising model for social media revenue generation relies on the accuracy and effectiveness of information about the user base. The presence of a bunch of dead peoples’ accounts, which are orphaned, so to speak, dilutes the effectiveness of the other data points in the social graph. So it is a good thing to prune the accounts of the deceased, or otherwise see that they are properly curated.

Preserving our heritage for posterity. Think of the ways you know about your family members that came before you. Stories and oral tradition are generally annotated by photo albums, personal correspondence and other snippets of everyday life. Social media is becoming a preferred substrate for the collection of those snippets. To have that information wander off into the digital ether unaccounted for is to forsake a means of knowing about the past.

How big a deal is this, anyway? This Mashable article commenting on the U.S. government post says that last year about 500,000 Facebook users died. That’s about 0.0006% of the user base. (Incidentally, Facebook users seem much less likely to die than the general population, as 0.007% of the world’s entire population died last year. Go here if you want to do the math yourself.)

I say it’s kind of a big deal, but a deal that’s almost certain to get bigger.

ISP’s alleged throttling of BitTorrent and Skype violates Computer Fraud and Abuse Act

Fink v. Time Warner Cable, 2011 WL 3962607 (S.D.N.Y. September 7, 2011)

Plaintiffs sued Time Warner (the provider of Road Runner High Speed Online internet access), alleging, among other things, that Time Warner’s alleged “throttling” of plaintiffs’ internet communications violated the Computer Fraud and Abuse Act, 18 USC 1030 (“CFAA”). Specifically, plaintiffs alleged that without their authorization, Time Warner sent forged reset packets which frustrated plaintiffs’ peer-to-peer communications (e.g., BitTorrent and other P2P mechanisms) as well as their use of Skype.

Time Warner moved to dismiss the CFAA claims. The court granted the motion as to claims that required plaintiffs to  plead “loss” as defined by the statute. As for those claims that required only allegations of “access” and “damage,” the court denied the motion to dismiss and let the case move forward.

Plaintiffs brought three claims under the CFAA, one under each of subparts (A), (B) and (C) of 18 USC 1030(a)(5). This part of the statute provides liability for anyone who:

(A) knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer;

(B) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or

(C) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss.

No CFAA loss

The CFAA defines “loss” as “any reasonable cost to any victim, including the
cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.”

In this case, plaintiffs alleged that the loss they suffered arose from their payments for high-speed internet services allegedly not received, costs to prevent Time Warner’s throttling practice and the costs of obtaining information elsewhere when they were unable to use their computers for file transfers and VoIP communications. Plaintiffs also pled losses relating to time and effort in assessing “damage” to each computer for which transmissions were interrupted. 

The court found these alleged losses to be outside the scope of those contemplated by the CFAA. Plaintiffs did not allege that they needed to restore data,a program, a system, or information to its condition prior to Time Warner’s conduct. The court held that Plaintiffs had failed to adequately plead this element of a CFAA claim. So it dismissed the claim plaintiffs had brought under 18 USC 1030(a)(5)(C).

“Damage” and “access” adequately pled

Plaintiffs’ failure to adequately plead loss was not the end of the case. Since subparts (A) and (B) of  18 USC 1030(a)(5) do not require one to plead “loss,” but do require pleading “damage” and “access,” the court turned its attention to see if those elements were adequately pled. It found that they were.

The CFAA defines “damage” as “any impairment to the integrity or availability of data, a system, or information.” Plaintiffs alleged that Time Warner impaired their ability to obtain data and utilize their computer systems by knowingly transmitting “reset packets to [their] computers with the intention of impeding or preventing [their] peer-to-peer transmissions” and that damage was caused because the reset packets “compromis[ed] the internal software of [their]computers and impair[ed] their ability to receive and transmit data.” The plaintiffs also alleged that the throttling process prevented data exchange and inhibited certain use of their computers. In addition, plaintiffs identified the specific types of information that had its availability “impeded” and identified a particular program, Skype, that was rendered unusable by the alleged throttling. 

As for “access,” the court looked to the plain meaning, dictionary definition of the word for guidance (since the term is not defined in the CFAA). Plaintiffs had alleged that Time Warner accessed their computers in violation of the statute by knowingly transmitting reset packets to plaintiff’s computers and otherwise accessed their computers to impede data receipt and transmission.” Giving the term “access” a broad meaning, the court found these allegations to satisfy the CFAA requirement.