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Foreign what's up, everybody? Welcome to this week's episode of Hidden Forces with me, Dimitri Kofinas. In today's episode, I share part of my recent conversation with Bruce Schneier, a renowned American cryptographer, computer security professional and privacy specialist on the subject of CyberSecurity and the NSA. I also share with you part of my video interview with Leemon Baird, the inventor of hashgraph, which will be made available in full on the Hidden Forces YouTube channel, as well as through our website@hiddenforcespod.com later this week. But I want to start the show today talking about privacy, specifically about a landmark case before the Supreme Court that could have huge effects on our expectations of privacy for generations to come, and something that was mentioned in my recent interview with Jeffrey Rosen, president of the National Constitution center on the Future of Privacy, Personhood and Freedom in the Digital Age. The case under consideration is Carpenter versus The United States, and it involves Timothy Carpenter, an armed robber whose movements in public were tracked for127 days by permission of a subpoena issued by the government for the geolocational records from his cell phones that made it possible to see which cell towers he was near over that period and used this data to conclude that he had indeed committed a series of burglaries allowing them to indict and convict him of armed robbery. He and his lawyers objected that the search was invalid because a subpoena that was issued under a federal law called the Stored Communications act wasn't issued according to the standards required by a valid judicial warrant. And as a result, he claimed that the search violated his rights under the Fourth Amendment, which states that the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. End quote. What's most significant about this case, and why I bring it up today, is that it requires the Supreme Court to scrutinize one of the most basic tenets of surveillance law, what lawyers call the third party doctrine, which is a legal theory that holds that people who voluntarily give information to third parties, such as banks, phone companies, Internet service providers and email servers, have no reasonable expectation of privacy. Under this doctrine, when the government is investigating a criminal suspect, it can obtain information from the third party without a warrant. The doctrine has its origin in a series of court cases, most notably Smith v. Maryland, 1979, in which the court ruled that the police did not need a warrant to obtain a list of numbers that called a certain phone number using a pen register technology. That allowed the government to reconstruct the numbers dialed by suspect Michael Smith from his home because Smith had voluntarily given those numbers over to a third party, namely the telephone company. Since the information obtained also appeared on a monthly phone bill, the Court reasoned at the time that the government was simply requesting information that Smith and anyone else with a telephone line would have consented to hand over anyway. Carpenter is the Supreme Court's second exploration of the intersection of cell phone technology and and the Fourth Amendment. In a 2014 case called Reilly v. California, the Court unanimously ruled that police must obtain a warrant to search the information on the cell phone of a person who has been arrested. In an illustrative opinion, Chief Justice Roberts wrote that cell phones are such a pervasive and insistent part of daily life that the proverbial visitor from Mars might well conclude that they were an important feature of of human anatomy. Another way to think about this case is that it is about the application of the Fourth Amendment in ubiquitous surveillance in public places. The question before the Court and before you, the audience, is do you believe that reconstructing someone's movements in public for 127 days by subpoenaing his geolocational records from his cell phone violates his Fourth Amendment rights? This isn't a debate about whether or not there should be any limits on the government's access to our data, but rather which institutions of government should put limitations on that access. Is it the legislature or is it the courts? Should it be statutory law that puts limits, or should it be the Fourth Amendment? If you haven't heard episode 24 with Jeffrey Rosen, I encourage you to do so. He's a top authority on constitutional law, and the National Constitution center is a highly respected nonpartisan institution, something we desperately need in today's politically polarizing times. I also want to quote Jeffrey, who wrote an article for the Atlantic after attending Wednesday's Supreme Court hearing in which he stated, quote, it was encouraging to see two Justices with very different perspectives. Justices Sonia Sotomayor and Neil Gorsuch make passionate arguments for why allowing these kinds of mass searches of our digital effects would be as invasive and unreasonable as the hated general warrants that helped spark the American Revolution. It's possible, therefore, that Carpenter versus The United States may continue a welcome recent trend. Liberal and conservative justices on the Court, by broad bipartisan margins, are insisting on translating the Fourth Amendment to the Constitution into the digital age. Now, before we get to our next story and my interview with Bruce Schneier, I want to say something quickly about a related story dealing with the recent proposals to to roll back regulations on net neutrality put forward by FCC Chairman Ajit Pai. If you're concerned about free speech in the digital age, you should be concerned about net neutrality. It's something that affects all of us. And I think rolling back those regulations makes an already compromised, informationally poor landscape that much more imperfect. Moving on to our next story and my interview with Bruce. The number of cyber attacks that we've learned about in recent years, to say nothing about the number of attacks that have occurred, of which we know nothing, seem to grow noticeably by the day. The most recent talked about attack was the Equifax hack, which is estimated to have affected 143 million Americans. But it isn't the most significant by any stretch. Something that hasn't gotten anywhere near enough attention is the Shadow Brokers attack perpetrated against the NSA itself, an attack that the intelligence community has labeled as more damaging than the Snowden leaks. Because unlike with Snowden, this attack didn't only result in the theft of plans and information from the nsa, but actually involved the theft of malware and vulnerabilities that can and have been used in other attacks. This obviously raises a ton of issues, but one particular question relevant to this hack that I posed directly to Bruce deals with something called the Vulnerabilities Equity Policy Process, or vep, which was formalized under the Obama administration, a recognition by the government that, that we, and by we, I mean our intelligence and cyber warfare agencies and outfits that we don't own the vulnerabilities we discover and that they are not exclusively ours to exploit. That the same vulnerabilities that the NSA uncovers, zero day exploits, meaning that the software vendor is unaware of their existence, are just as useful to us as they are to our enemies because we all use the same software. NSA is a shorthand term for these types of vulnerabilities. They refer to them as nobus or Nobody but us. To quote former NSA chief Michael look at a vulnerability through a different lens. If even with the vulnerability, it requires a substantial computational power or substantial other attributes, and you have to make the judgment who else can do this? If there's a vulnerability here that weakens encryption, but you still need 4 acres of crate computers in the basement in order to work it, you kind of think no bus. And that's a vulnerability we're not ethically or legally compelled to try to patch. It's one that ethically and legally we can try to exploit in order to keep Americans safe. End quote. Now, the new cybersecurity coordinator, Rob Joyce, who took over for Michael Daniel under Obama, has put forward proposals for changes to vep. I asked Bruce for his thoughts, and if these changes are, on balance, good for transparency and public accountability. I'll come in with my thoughts after this clip from Bruce, but here's his answer.
