Blanket discovery for stolen laptops
Of John Doe and IP addresses
Comment Bad things happen online. Trade secrets are lost or stolen. Personal information is compromised. Copyrights and trademarks are infringed. Bloggers post confidential information, defamatory information, or just annoying information. Websites host stolen credit cards, hacking tools and techniques, or other things that you might not want.
In the course of investigating these things, companies or law enforcement agencies frequently need to rely on information in the hands of third parties. An example of this is the various companies that offer data or computer locator services. A sort of "LoJack(tm) for stolen computers. If a corporate computer is reported lost or stolen, these services use various means to identify the computer, or the data on it. When the target computer is then used - generally to get online - the computer essentially "phones home" with its location.
Here's the problem with this approach. The computer doesn't really give its location. At best, it can reveal the Internet Protocol (IP) address of the network it is on. While this information is helpful to the true owner of the computer, it is not sufficient to locate and/or recover the stolen hardware.
Imagine that your "On-Star(tm)" equipped car is stolen. OnStar is one of the various services that provides motorist assistance, including Global Positioning Satellite location data. If you report the car stolen, they can remotely turn the GPS on, track the car, and even turn the telephone inside the car on and listen into the thieves' conversations. All of this occurs on the network the real owners own and it reveals information about your vehicle. So, no problem, right?
Finding subscriber information
When it comes to network based investigations however, we cannot easily track where the computer went. Once we have the IP address, we would look up the network that was assigned that block of IP addresses. It might be an Internet café in Riga, Latvia, or a giant Internet Service Provider in Dulles, Virginia.
What we really want is subscriber identification information. That is, what subscriber was assigned that particular IP address at that particular instant. Now of course, a lot of this information may be spoofed, and it is usually less than trivial to piggyback on a legitimate network (such as, a hacker using an open or insufficiently secured WiFi network.) Nonetheless, tracking down physical location data or subscriber data from a raw IP addresses is the ultimate goal of the investigator.
This is where technology and the law intersect - and not in a good way for either of them. While you can do a traceroute or a WHOIS search in a couple of seconds, in order to get subscriber data from an ISP requires some form of legal process (usually). ISP privacy policies legitimately protect this data, but they generally contain a provision (and one would be implied by law even if it wasn't in the policy) that the information may be disclosed if there is a "valid legal order."
In the case of law enforcement agencies, there are many legal avenues for obtaining this information from ISPs. First, they can just ask for it - obtain consent. In extreme situations (imminent threat to health and safety) the promise of a later subpoena may be sufficient. In the United States, for example, they can also use various legal processes - a grand jury subpoena, a formal investigative demand, an administrative subpoena, a discovery order, a search warrant, a Title III wiretap order, an order issued by the Foreign Intelligence Surveillance Court. Or, as recently revealed in The New York Times, various agencies including the Department of Defense and the Central Intelligence Agency (and of course the FBI) can issue what is called a National Security Letter (NSL) on their own authority to get this information.
Building a subpoena
There are various levels or proof required to obtain different demands for information. A subpoena generally requires very little level of proof that the information demanded is relevant to whatever you are looking for, or may lead to the discovery of relevant information. Most people think that subpoenas are issued by a court or a judge – that you apply for a subpoena to a court, show them that the information is relevant, and then get an order. Not true – well, at least not for the most part. In reality, law enforcement (either the cops or the prosecutor) has a desk drawer filled with subpoenas. They just whip ‘em out, type in the name and the information needed, and email or fax ‘em to the ISP. No big deal - takes a couple of seconds and the court is not even notified.
Now technically (at least in the US federal system) all of this is illegal. You see, to issue a subpoena there has to be an investigation authorized by a grand jury: a group of citizens authorized by the court to investigate crimes. The grand jury engages in this charade of authorizing the prosecutor to investigate and issue subpoenas on their behalf - but they usually don't know what is being investigated or how. Moreover, even this bare charade is not followed in most investigations. A prosecutor unknown to the grand jury may be investigating crimes unknown to the grand jury and issuing subpoenas on their behalf without even the pretext of delegated authority. But who can argue with success?
On the civil side, things are even more difficult. As a general rule, in order for you and I to compel some third party (like an ISP) to produce information, we have to also get either a subpoena or a court order. Ah, there's the rub. To get the subpoena or court order, we have to have a lawsuit pending. To have a lawsuit pending, we have to have a "case or controversy" involving some violation or law or tort, which is capable of being heard in the court in which we have filed suit, which also has jurisdiction over the matter and the people involved. OK. End of law school class.
The legal discovery process, particularly for civil discovery, is slow, unwieldy and ungainly. Imagine having to file separate individual lawsuits for each piece of SPAM you receive, each Phishing attempt, each domain name hijacking, each pump-and-dump stock scam, each defamatory blog posting, each - well, you get the idea. What is worse is that you don't even know who you are suing. Just some "John Doe" who did the bad act. How do you show jurisdiction of John Doe? How do you get service of process to John Doe? Other than what is called "pre-filing discovery," the lawsuit has to be "pending" before you can get discovery. The lawsuit isn't "pending" until you have served the person you are suing - John Doe. I mean, it isn't fair to sue somebody without telling them they are being sued. Laws written in the 18th century allow you to give notice by publication, the printing in the newspapers for three consecutive weeks. Hardly a model for Internet discovery.
Discovery and blanket orders in other situations
Where else have we heard about the problem of quickly obtaining relevant information using antiquated tools and techniques? Oh yeah - getting wiretap or other orders for discovery related to national security, foreign intelligence and foreign terrorism under the Foreign Intelligence Surveillance Act (FISA.) The Bush administration has long argued that they were lawfully entitled to bypass the super-secret court set up under this law and demand records under what they later dubbed the "Terrorist Surveillance Network" because the FISA law was slow and cumbersome.
You see, FISA, like the pesky Constitution of the United States, requires that you get a court order based on "probable cause," specifying the place to be searched and the thing to be seized - or in the case of a wiretapped conversation, who you are tapping and what conversations you are looking for. We have always read this to mean that you need a separate warrant for each search, although you could theoretically apply for a single warrant for, for example, a series of telephone numbers used by a particular person, or to search a number of apartments for particular things.
On the eve of hearings about the Terrorist Surveillance Network to be held by the new Democratic majority in the U.S. Senate, the administration after arguing that there was no alternative to bypassing the FISA Court, suddenly found religion and in a letter from the Attorney General notified the Senators that "a [single] Judge of the Foreign Intelligence Surveillance Court issued orders authorizing the government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member of al Qaeda or an associated terrorist organization." That's all we know, and we don't know any more, as the Attorney General was mum about any further details.
What it looks like is a blanket order. The Court (well, the judge) may have said, "Look, if you can meet certain thresholds of showing membership in some associated terrorist organizations, here's a general order mandating people to provide you the information you want." Perhaps the order requires the government to report back to the FISA court, perhaps not.
Now I am not going into a discussion of whether this constitutes an improper delegation of judicial power to the executive branch (well, yeah) or violates the particularity requirements of the Fourth Amendment (that too). However, this may provide a model for civil discovery.
A more "civil" discovery for IP addresses
The problem with the "John Doe" lawsuit model that we currently have is that it encourages the filing of lawsuits where the remedy sought by the court is mostly frivolous. In many of the cases where a lawsuit is filed against, for example a virus writer, a spammer, or a purveyer of malware, we don't really seek monetary damages, or redress of defamation. What we really want is just to find out where it is coming from and make it stop. Besides, the spammers and other miscreants likely have no money to satisfy a judgement, and may not even eventually be found to be subject to the courts in a particular jurisdiction. The remedy for the most part is the discovery itself.
Since Courts can only settle "cases and controversies" and can only award damages or other injunctive relief, how can we use them to get this massive discovery?
If we can establish that we only seek IP address information when it is reasonable and appropriate, and that there are adequate privacy safeguards concerning the collection and use of information, we might be able to streamline the discovery process.
Take, for example the electronic LoJack service. Imagine a standing court discovery order from an appropriate court that says the following: if a computer protected by this service is reported stolen, and it finds itself on a strange network, and "pings" home with its IP address, then and only then the owner or the provider of the LoJack services is entitled to an order of discovery from the ISP from which the IP address is associated, permitting discovery of the customer data associated with that IP address. If the target is piggybacking off several different IP addresses, the discovery order permits discovery of all of them, which is up to the ultimate user. The information may ONLY be used for the purposes of either filing a lawsuit against the perpetrator, or to turn over to law enforcement, or other reasonable purposes. The court might also appoint a "Special Master" responsible for overseeing the discovery process.
In practical terms, this is how it would work. The LoJack system would ping back the company with an IP address, date, time, etc. This information would be used to generate a discovery demand - automatically and digitally. The Special Master would be required to review each such demand for accuracy. The demand would then be automatically transmitted to the appropriate ISP that is associated with the IP address, which could (but would not be required to) automate the process of producing the requested records. The requested records would then be available to the Special Master in accord with the standing discovery order. In this way, discovery of the relevant information could occur in minutes, rather months.
Now there are, of course problems with such an approach. By making discovery so easy, it may encourage abuse. Clerical and other mistakes will not only be made, but will be automated. Judicial oversight will be reduced to a somewhat ministerial function, with most oversight assigned to the Special Master who is subject to not only boredom but corruption.
Since computer crime is instantaneous and international, the approach would have to be harmonized with international privacy laws, discovery laws, and jurisdictional laws. And there would have to be significant oversight with sanctions for abuse or misuse of the system. If we had all of these safeguards, we could streamline discovery of discrete classes of information (say IP log information) in discrete classes of cases. That might put a bunch of lawyers out of business. And what would be so bad about that?
SecurityFocus columnist Mark D. Rasch, J.D., is a former head of the Justice Department's computer crime unit, and specializes in computer crime, computer security, incident response, forensics and privacy matters as Managing Director of Technology for FTI Consulting, Inc.
This article originally appeared in Security Focus.
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