Sunday, September 14, 2014

See why you should secure your WiFi?
Mark Wilson reports:
Evansville police officers investigating Internet posts threatening law enforcement officials did not look into all of the user names associated with an IP address to see who may have made the threats before launching a SWAT raid at the house in June 2012.
That was revealed in documents filed Thursday in U.S. District Court at Evansville in a lawsuit filed by the woman whose home was targeted.
Read more on TheIndyChannel.

So it would have been okay if the NCIS agent just happened upon the evidence and passed it along, but because he did it “repeatedly” that's not okay? How often is “repeatedly?” After “X” times, the bad guys get a free pass?
From the 9th Circuit Court of Appeals, this summary from Justia:
United States v. Dreyer
Docket: 13-30077
Opinion Date: September 12, 2014
Judge: Berzon
Defendant appealed his conviction of one count of distributing child pornography and one count of possessing child pornography. An NCIS agent investigating online criminal activity of persons in Washington state found evidence of criminal conduct by defendant, a civilian, and gave the information to civilian law enforcement officials.
On appeal, defendant argued that the fruits of the NCIS investigation into his online file sharing should have been suppressed because military enforcement of civilian laws is prohibited. In United States v. Chon, the court held that the Posse Comitatus Act (PCA), 18 U.S.C. 1385, prohibits Army and Air Force military personnel from participating in civilian law enforcement. The court reaffirmed Chon’s holding that NCIS agents are bound by PCA-like restrictions on direct assistance to civilian law enforcement. In this case, the NCIS agent’s actions amounted to direct assistance to civilian law enforcement and violated the regulations and policies proscribing direct military enforcement of civilian laws. The court found that the district court erred in denying defendant’s motion to suppress where there was abundant evidence that the violation at issue has occurred repeatedly and frequently, and that the government believes that its conduct is permissible. The court remanded for further proceedings.

Some light reading...
Some recently added articles on privacy that may interest you:
Thierer, Adam D. The Internet of Things & Wearable Technology: Addressing Privacy & Security Concerns Without Derailing Innovation (September 10, 2014). Available at SSRN: (65 pp.)
This paper highlights some of the opportunities presented by the rise of the so-called “Internet of Things” and wearable technology in particular, and encourages policymakers to allow these technologies to develop in a relatively unabated fashion. As with other new and highly disruptive digital technologies, however, the Internet of Things and wearable tech will challenge existing social, economic, and legal norms. In particular, these technologies raise a variety of privacy and safety concerns. Other technical barriers exist that could hold back IoT and wearable tech — including disputes over technical standards, system interoperability, and access to adequate spectrum to facilitate wireless networking — but those issues are not dealt with here.
The better alternative to top-down regulation is to deal with these concerns creatively as they develop using a combination of educational efforts, technological empowerment tools, social norms, public and watchdog pressure, industry best practices and self-regulation, transparency, and targeted enforcement of existing legal standards (especially torts) as needed. This “bottom-up” and “layered” approach to dealing with problems will not preemptively suffocate experimentation and innovation in this space. This paper concludes by outlining these solutions.
Finally, and perhaps most importantly, we should not overlook the role societal and individual adaptation will play here, just as it has with so many other turbulent technological transformations.
Miller, Akiva A. What Do We Worry About When We Worry About Price Discrimination? The Law and Ethics of Using Personal Information for Pricing (2014). Journal of Technology Law & Policy, Vol. 19, p. 41, 2014. Available at SSRN: (64 pp.)
New information technologies have dramatically increased sellers’ ability to engage in price discrimination in retail consumer markets. Debates over using personal information for price discrimination frequently treat it as a single concern, and are not sufficiently sensitive to the variety of price discrimination practices, the different kinds of information they require in order to succeed, and the different concerns they raise. This paper explores the ethical aspects of the debate over regulating price discrimination facilitated by personal information. By drawing distinctions between various pricing practices and the motivations behind them, this paper seeks to clarify the ethical principles that should guide legal and regulatory efforts to control the use of personal information for pricing.
Deeks, Ashley. An International Legal Framework for Surveillance (September 1, 2014). Virginia Journal of International Law, Vol. 55, 2015 Forthcoming. Available at SSRN: (72 pp.)
Edward Snowden’s leaks laid bare the scope and breadth of the electronic surveillance that the U.S. National Security Agency and its foreign counterparts conduct. Suddenly, foreign surveillance is understood as personal and pervasive, capturing the communications not only of foreign leaders but also of private citizens. Yet to the chagrin of many state leaders, academics, and foreign citizens, international law has had little to say about foreign surveillance. Until recently, no court, treaty body, or government had suggested that international law, including basic privacy protections in human rights treaties, applied to purely foreign intelligence collection. This is now changing: several U.N. bodies, judicial tribunals, U.S. corporations, and victims of foreign surveillance are pressuring states to bring that surveillance under tighter legal control.
This article tackles three key, interrelated puzzles associated with this sudden transformation. First, it explores why international law has had so little to say about how, when, and where governments may spy on other states’ nationals. Second, it draws on international relations theory to argue that the development of new international norms regarding surveillance is both likely and essential. Third, it identifies six process-driven norms that states can and should adopt to ensure meaningful privacy restrictions on international surveillance without unduly harming their legitimate national security interests. These norms, which include limits on the use of collected data, periodic reviews of surveillance authorizations, and active oversight by neutral bodies, will increase the transparency, accountability, and legitimacy of foreign surveillance.
This procedural approach challenges the limited emerging scholarship on surveillance, which urges states to apply existing — but vague and contested — substantive human rights norms to complicated, clandestine practices. In identifying and valuing new, objectively verifiable, neutral norms, the article offers a more viable and timely solution to the perils of foreign surveillance.
Smith, Michael L. Regulating Law Enforcement’s Use of Drones: The Need for State Legislation (September 5, 2014). Available at SSRN: or
The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on the drones tends to focus on how courts, rather than legislative bodies, can restrict the government’s use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state drone regulations has fallen by the wayside.
In this article, I take up the task of analyzing and comparing state laws regulating the government’s use of drones. While the oldest of these laws was enacted in 2013, the thirteen laws passed so far exhibit wide variations and noteworthy trends. I survey this quickly-expanding list of laws, note which regulations are likely to constrain government drone use, and identify laws that provide only the illusion of regulation.
I advance the thesis that the judiciary is ill-suited to address the rapidly-developing area of drone technology. Long-established Supreme Court precedent leaves the judiciary with very little power to curtail government drone use. And were the judiciary to attempt the task of restricting law enforcement’s use of drones, the solutions proposed would likely be imprecise, unpredictable, and difficult to reverse. In light of these concerns, privacy advocates and law enforcement agencies alike should support the regulation of government drone use by state legislatures, and should look to existing laws in determining what regulations are ideal.

Perspective. Starting off with access to 83% of the market? Could anyone but Apple do that?
iPhone Takes a Bite of the Mobile Card Payment Apple – Fitch
by Sabrina I. Pacifici on Sep 13, 2014
Fitch Ratings-New York-11 September 2014 [All opinions expressed are those of Fitch Ratings.]: Tuesday’s unveiling of Apple Pay is widely expected to further bolster growth of the evolving mobile payments landscape. Apple may be better positioned to succeed where other institutions have had limited success given the company’s financial resources and history of strong new product adoption, according to Fitch Ratings. We believe that the impact of any success on the payments industry remains uncertain and will depend on a number of factors including customer acceptance, merchant conversion and continued support from the payment networks (e.g. Visa, MasterCard, American Express) and banks. Thus far, 11 banks, representing 83% of the credit card purchase volume in the US, have or are expected to agree to support Apple Pay. Over the short term, card issuers could benefit from higher transaction volumes and enhanced security, but a key unknown lies within the undisclosed contracts and how much of the card economics and control of transaction data will be ceded to Apple. Fitch does not view the unveiling of Apple Pay as a watershed moment for the nascent mobile payments industry, but we recognize its potential to disrupt the payments landscape longer term. We see Apple’s present strategy with Apple Pay as enhancing the brand by contributing to the company’s services while boosting the attractiveness of its suite of products that consumers are increasingly integrating into their lives. As mobile payments continue to grow and Apple is able to drive substantial consumer adoption of Apple Pay, Fitch believes Apple could re-evaluate its strategy and attempt to renegotiate its contracts and erode the card companies’ incremental volume gains. Other technology firms behind mobile payment methods could ultimately do so as well. In the US, Apple’s timing appears ideal given that the payments industry is transitioning to Europay, MasterCard and Visa (EMV) technology in 2015. As part of this transition, merchants will be upgrading their point-of-sale terminals and, depending on the early results of Apply Pay, could decide to include the ability to accept near field communication (NFC) technology in their upgrades. Fitch believes this could significantly bolster consumer acceptance and growth in mobile payments, while serving to reduce data breaches and fraud more prevalent with the existing card payment framework. The NFC technology on the iPhone is not a new development and has been made available previously on other types of mobile phones and cards, yet has failed to become widely used by consumers. The security features of touch pay, including no visible card numbers, dynamic transaction identifiers and finger print identification at the point of sale are advances beyond traditional card payment means. Apple’s capacity to educate consumers on how security is improved could lead to greater acceptance and higher usage of mobile payment technology. Wider use of phone payments could trim back card fraud over the longer term, which alone may be a rationale for banks and card firms to be amenable to the Apple Pay service.”

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