[gnso-rds-pdp-wg] Fwd: @EXT: RE: Use cases: Fundamental, Incidental, and Theoretical

[Ayden Férdeline]

Thanks for your message, Terri. Please see comments below inline in bold. (If the formatting looks strange, I would appreciate it if someone would let me know. I have migrated this morning to a new encrypted email service so am still configuring it.)


Ayden Férdeline
[linkedin.com/in/ferdeline](http://www.linkedin.com/in/ferdeline)


-------- Original Message --------


From: Terri Stumme <terri.stumme at legitscript.com>
Date: 14 August 2016 at 20:26
Subject: Re: [gnso-rds-pdp-wg] @EXT: RE: Use cases: Fundamental, Incidental, and Theoretical
To: Ayden Férdeline <icann at ferdeline.com>
Cc: RDS PDP WG <gnso-rds-pdp-wg at icann.org>



Ayden,


You are correct. NSA collects data without warrants and without probable cause. However, the purpose for the collection of the data is in the interest of national security.

I would have thought that unaccountable government agencies which are [unwilling to follow the law](https://www.washingtonpost.com/news/the-switch/wp/2013/09/10/we-now-know-exactly-what-made-the-fisa-court-so-upset-with-the-nsa/) would be greater threats to national security, but what would I know? ;-) Anything, it would seem, can be justified in the pursuit of "national security". I would suggest, however, that when a government agency speaks of 'security', they are speaking of their own, because all citizens are a threat to "national security" by virtue of the fact that they hold the keys to overthrowing the Establishment, if only they were to organise.

The data collected by the NSA is not shared with any other three-letter agency in the US without that agency providing probable cause, presented in the form of a signed court order. If an individual is not involved in criminal activity, then their data sitting in a government data center should not be of concern.
This argument implies that privacy is something only criminals desire. I can only speak about myself here, but there are things that I choose to do in private that are neither wrong nor illegal, yet which I would not want public. The songs I have stored in my Spotify playlists, for instance. Privacy is not an indication of criminal behaviour but a fundamental part of life. In addition, justice is about persons being treated as innocent until proven guilty. I am not a criminal and I have 'nothing to hide' but I don't want the government reading my private messages. It is up to the state to bear the burden of showing there is a good reason for suspicion about me, not the other way around. Finally, you said you were recently the victim of a US government data breach. Yet another reason why I don't want information about me "sitting in a government data centre".

Of more concern should be what private companies do with the data they collect, sell it for a profit.
I have concerns here as well. However, sharing personal data with governments is of higher risk, because governments have the power to arrest, imprison, and in some cases even kill their citizens or enemies. Sharing personal data with companies is typically of lower risk. Businesses can freely use personal data to manipulate and perhaps exploit consumers, but within the confines of the law cannot use it for coercive purposes.

Regarding your statement: "The only 'check' that there is on the NSA's surveillance techniques is that of the Foreign Intelligence Surveillance Court, a secret body of judges that hears arguments from only one side: the NSA." I can tell you (although you probably won't believe it anyway) that there are very stringent internal regulations and oversight of the NSA program.
Very astute ;-) I don't believe they are at all accountable. Even sitting US senators are not able to obtain information from the NSA about why their constituents are being monitored.

And, I would bet that the US is not the only government that has a program like NSA's. You just haven't heard about those ...
I am aware that other governments have mass surveillance programmes and I do not support them. I do not believe they are effective. And the fact you acknowledge they operate so secretly that I may not have heard of them fills me with no comfort. If a government agency is keeping secret what it is collecting about me or the reasons for doing so, I cannot correct potential errors. And from my experience with governments, I understand that errors are common. Transparency, here, is not only about making sure a government's actions can be evaluated, but ensuring its outputs are equally accurate.

The private sector owns and operates a vast majority of the entire Internet infrastructure, and that includes critical components of the infrastructure. The point is that the same joint effort of the private sector and government towards enhancing the security and resilience of the nation's critical infrastructure, can and should be applied to protecting the public against cybercriminals involved in identity theft, human trafficking, drug trafficking, child abuse, etc.
Yes, I agree there is a role for public and private sector cooperation, but this does not mean I support what I would term 'bottom feeders' in the private sector being able to scrape up whatever data they can for whatever purposes they claim they want to use it. I think we're conflating a few things in this discussion by referring to the 'private sector' as a single entity. It isn't so homogenous. I use Facebook, for instance, and have consented to its terms of service. This does not mean, however, I approve of websites unaffiliated with Facebook harvesting my public profile and reposting my data on their websites hosted in Belarus (which is something that has happened to me). Both entities claim to be private sector actors, but that does not mean they should have equal access to or permission to use my personally-identifiable information.





On Wed, Aug 10, 2016 at 6:01 PM, Ayden Férdeline <icann at ferdeline.com> wrote:


Hi Terri,

Please see my responses in-line.

Thanks,


Ayden



On 9 August 2016 at 17:51, Terri Stumme <terri.stumme at legitscript.com> wrote:



Ayden,

These were recommendations; nothing more, nothing less. Although included in the 2013 RAA

An agreement containing, I have been told, a litany of unintended consequences.






Multiple stakeholders around the world have compelling reasons and competing interests when it comes to accessing electronic data. As does LE



Absolutely. I do not mean to suggest otherwise.






I understand that law enforcement and intelligence agencies need the ability to fulfil their mission to prevent serious crime (or, failing that, to bring the perpetrators to justice).

At the same time, the protection and promotion of civil liberties, human rights, and the right to privacy are not equally as strong in every territory around the world. Some countries are more authoritarian than others. I support a balance here; my personal information, as well as the personal information of my family members, as well as thousands of US federal employees, was compromised in the hack of the Office of Personnel Management federal employee records.

I am sorry to hear you were the victim of cybercrime.

And a balance is precisely what I am advocating for, so it seems like we are on the same page. This shouldn't be a zero-sum game. Privacy and security should be mutually reinforcing.

In addition, strengthened data and security practices also decrease the risks associated with personal data collection and processing for both end-users and businesses. A [study from IBM in 2015](https://securityintelligence.com/cost-of-a-data-breach-2015/) found that the average data breach cost each impacted company USD $3.79 million, without factoring in for the consumer confidence lost as a result of their personally-identifiable data being stolen or misused.





Attaching themselves to the unquestionably valid objectives that law enforcement and intelligence agencies have are private entities who do not have the same legal mandates or privileged access to information. There is no privileged access to information afforded to LE, and appropriate legal processes are abided by throughout investigations.

Yes, there is privileged access to information afforded to intelligence agencies. It is common knowledge that the NSA has a 1-million-square-foot data centre in Utah sucking up the data of people without warrants, and without probable cause. The only 'check' that there is on the NSA's surveillance techniques is that of the Foreign Intelligence Surveillance Court, a secret body of judges that hears arguments from only one side: the NSA. I would suggest that it is not a beacon of accountability.

As for law enforcement, this varies by country and perhaps in the US law enforcement does not have such a right (I don't know, but I'd be willing to bet that "officer discretion", "exigent circumstances", etc. would be enough to justify a lot of actions.) Their authority, combined with a badge, a "trusted third party" data sharing agreement, or a simple request, is likely to be more fruitful than if I was to request the same information as a private citizen.





Private entities have become attached to the unquestionably valid objectives of law enforcement due to the inherent nature of the beast.


I take a rather bleak view of companies which gather data on individuals without their knowledge or consent.







"Because the private sector owns and operates a vast majority of the nation's critical infrastructure, partnerships between the public and private sectors are essential to maintaining critical infrastructure security and resilience. These partnerships create an environment to share critical threat information, risk mitigation, and other vital information and resources." Source:  https://www.dhs.gov/critical-infrastructure-sector-partnerships.


I would agree that we get better answers to complex questions when a range of experts and interests can meaningfully take part in the discussions.

However, this quote is referring to the investment made by private sector actors who invest in, construct, and/or own pieces of critical infrastructure (things like dams, nuclear reactors, water systems, satellites). I agree that the public and private sectors, here, need to work together to identify threats and vulnerabilities in a collaborative and creative manner.

This quote is not suggesting that all private sector actors should have the same scope to collect data as intelligence agencies or law enforcement might be able to. And, I will insist here, they should not. Some private investigators may like to attach themselves to the "cloak of legitimacy" which is afforded public actors, but in some instances I find these perceived associations to be highly problematic. I suppose this is a conversation for another time.







I think it is important that we make this distinction.






On Mon, Aug 8, 2016 at 8:12 AM, Ayden Férdeline <icann at ferdeline.com> wrote:




Terri,



Absolutely, Greg. The 2009 law enforcement recommendations regarding amendments to the RAA addressed Whois data, specifically the need for validating registrant information. The reason this recommendation was included in the recommendations is because LE utilizes the data in cyber investigations. There are many transcripts related to this issue, and LE has conveyed to the ICANN community on several occasions the importance of Whois data, and how LE utilizes the data in cyber investigations.

These were recommendations; nothing more, nothing less.

Multiple stakeholders around the world have compelling reasons and competing interests when it comes to accessing electronic data.

I understand that law enforcement and intelligence agencies need the ability to fulfil their mission to prevent serious crime (or, failing that, to bring the perpetrators to justice).

At the same time, the protection and promotion of civil liberties, human rights, and the right to privacy are not equally as strong in every territory around the world. Some countries are more authoritarian than others.

Attaching themselves to the unquestionably valid objectives that law enforcement and intelligence agencies have are private entities who do not have the same legal mandates or privileged access to information.

I think it is important that we make this distinction.

- Ayden











On Thu, Aug 4, 2016 3:31 PM, Terri Stumme  terri.stumme at legitscript.com wrote:




Absolutely, Greg. The 2009 law enforcement recommendations regarding amendments to the RAA addressed Whois data, specifically the need for validating registrant information. The reason this recommendation was included in the recommendations is because LE utilizes the data in cyber investigations. There are many transcripts related to this issue, and LE has conveyed to the ICANN community on several occasions the importance of Whois data, and how LE utilizes the data in cyber investigations.







On Thu, Aug 4, 2016 at 8:59 AM, Mounier, Grégory <gregory.mounier at europol.europa.eu> wrote:

Dear Rob,

Thanks for sharing the outcome of your chat with ex-FBI and UK LEA agents. I feel that I need to step in to provide a different perspective than the one you just gave on the law enforcement use of the WHOIS. It might be a matter of interpretation but the views expressed by your interlocutors are not shared by my colleagues working throughout European police cyber divisions.

If European cyber investigators are obviously all aware of the fact that WHOIS registration data can sometime be inaccurate and not up-to-date (ICANN compliance reported that for the first quarter of 2015, WHOIS inaccuracy comprised 74.0 % of complaints), in 90% of cases they will start their investigations with a WHOIS lookup. This is really the first step.

Despite the lack of accuracy, WHOIS information is useful in so many different ways. One of the first them is to make correlations and link pieces of information obtained through other means than from the WHOIS. This was the point I tried to make on Tuesday during the conference call.

Accurate and reliable WHOIS data helps crime attribution and can save precious investigation time (you can rule out wrong investigative leads).
It raises the bar and makes it more difficult for criminals to abuse domain names. It pushes them to resort to more complex techniques such as ID theft to register domains for malicious purposes.

In short, for LEA WHOIS is certainly not the silver bullet to attribute crime on line but it is an essential tool in the tool box of law enforcement.

Best,

Greg


-----Original Message-----
From: gnso-rds-pdp-wg-bounces at icann.org [mailto:gnso-rds-pdp-wg-bounces at icann.org] On Behalf Of Rob Golding
Sent: 04 August 2016 01:46
To: RDS PDP WG
Subject: Re: [gnso-rds-pdp-wg] Use cases: Fundamental, Incidental, and Theoretical

>> Theoretical
>> ===========
>> We have seen a couple of proposed use cases that seem to be ideas
>> that people have for useful or harmful ways that RDS can be used, but
>> that do not exist today (at least not that anyone can fully
>> document).
>>
>> For example, there seems to be a desire to use the RDS as a way to
>> issue warrants for information about registrants. While this may be
>> useful, this is not possible today (even with RDAP, I note).

It not only is possible today, it's also "common" (although thankfully not frequent)

Registrars get served warrants for details about registrants, and the _only_ information from WHOIS that's "needed" or used for such cases is the name of the Registrar.

I had the pleasure of meeting Chris Tarbell, ex-FBI Cyber Crime, at HostingCon last week - asked about WHOIS/domain data he said "we dont use it"

Last year at the UKNOF event in Sheffield I spent quite some time talking with some amazing people from the UK CyberCrime departments - asked the same questions, they confirmed that although whois _might_ be looked at to see if it matches _data they already have_ for confirmation, it's not used or relied on.

Which beggars the question, should "LawEnforcement" use cases even be part of the discussions ?

Rob
--
Rob Golding rob.golding at astutium.com
Astutium Ltd, Number One Poultry, London. EC2R 8JR

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--






Terri Stumme
Investigative Analyst



Ayden Férdeline
[Statement of Interest](https://community.icann.org/display/gnsosoi/Ayden+Férdeline+SOI)



--






Terri Stumme
Investigative Analyst




--






Terri Stumme
Investigative Analyst
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