Successful inquiry into #OpWardrive

The Joy of Tech #354 - They always dreamed of having a home in the range
The Joy of Tech #354 - They always dreamed of having a home in the range

On Wednesday September 21st, EFF Austin [ @EFFaustin ] was notified about the Austin Police Department’s (APD) Digital Analysis Response Team’s [ DART, @APDDART ] “Operation Wardrive” [ #OpWardrive ] via the KVUE [ @KVUE ] news article that originally appeared at the following URI (it’s relatively common for journalism operations to reuse the same URI to track stories as they develop, sometimes redirecting to new articles):
http://www.kvue.com/news/local/APD-conductiong-Operation-Warfare-to-keep-internet-users-safe-130218768.html

For reference, the text of the original KVUE article is cited in EFF Austin’s response.

Beginning with KVUE’s article, which appears to have been the only source of information and perspective on APD’s intent, a largely uncoordinated but similarly informed collective action took place across multiple points of interface and communication with APD and the Austin City Council [ @AustinTexasGov, #ATXCouncil ]. This seems to have ensured that officials and decision makers in a position to intervene were made aware of public sentiment in a timely manner. Sufficient public concern was observed to motivate officials towards action.

There is uncertainty about whether “Operation Wardrive” has been canceled or postponed, as reflected in this sequence of tweets from KVUE’s account on Thursday morning.

@KVUE (Thu Sep 22 10:23am, 10:20am, 9:30am CST)
@KVUE (Thu Sep 22 10:23am, 10:20am, 9:30am CST)

APD Chief of Police Art Acevedo is more clear in his email response (Thu Sep 22 10:13:55am CST) to Austinite Mark Boyden‘s thoughtful email addressed to all Austin City Council members, several local activists, Acevedo, and APD Public Information Office Manager Anna Sabana.

Thank you for sharing your concerns with me. This WarDrive idea was not approved by APD Executive Staff and in fact has been disapproved. We will be releasing a statement later today. Although the involved unit’s intent was noble (educating the public about the risks to your personal information), a PSA or other educational effort would be much more effective. To place you further at ease, the idea was killed before actual implementation.

The APD Public Information Office did not publish a formal statement on Thursday via APD News Releases nor the City of Austin Communications and Public Information Office.

KVUE’s Shelton Green [ @SheltonG_KVUE, bio, email ] reached out to EFF Austin seeking our perspective for a follow-up story. EFF Austin President Jon Lebkowsky [ @jonl, wikipedia, homepage ] sat for that interview, which was crafted into the following story, which led the news on KVUE last night (Thu Sep 22 10:00pm).

What’s Next?

As Shelton Green mentions at the end of the story, EFF Austin would like to work with the Austin Police Department Digital Analysis Response Team to craft a winning public education campaign on the risks as well as the virtues of operating an open, publicly-accessible wireless access point. We’ve begun to compile information and gather existing recommendations in this space (if you have sources, please add as a comment or mention to @EFFaustin with hashtag #OpWardrive).

EFF Austin has also decided to continue with our Texas Public Information Act Open Records request. We expect to receive an assessment of the viability of each of our 10 specific inquiries along with an estimate of fees we must pay to have the records processed.

Yesterday, some members of the EFF Austin Board of Directors were frankly shocked by the arrival of an unsolicited $10 donation. I had forgotten we even have a Paypal account. But it made us feel good, and reminded us that we are embarking on a path which will have attendant fees and expenses. We would like to help serve the public interest by walking that path, and would therefore like to ask if you can help support our efforts. If you like what we’re doing, please consider donating (we’re a nonprofit) to help us defray approaching expenses. There’s a Paypal donate button at the upper right of this page.

We believe in transparency and sunlight’s powers of disinfection. EFF Austin will provide transparency into our expenses and you can be sure we will sing praises to our supporters for their role in helping us act. Thank you.

If you’d like to get more involved, consider following us on Twitter, liking us on Facebook, joining our interesting email discussion list, or coming to our next meetup.

Austin Police Department announces “Operation Wardrive”

Open Wireless Access Points - security threat?
Open Wireless Access Points - security threat?

Update (Sep 22 @ 1:07pm) – The Austin Police Department has decided to cancel Operation Wardrive and focus on the public education facet of this work. See Mark Boyden’s comment, an email response from APD Chief Art Acevedo. Thanks go to Scott Henson at Grits For Breakfast for his attention to this matter.

Yesterday (September 20th @ 2:46pm CST), KVUE News published an article relaying the Austin Police Department‘s intention to identify open residential wireless access points (WAPs) throughout the city.

Police will soon conduct an operation to find open wireless Internet connections in the city.

The APD Digital Analysis Response Team, or DART, will hold “Operation Wardrive” Thursday, Sept. 22. DART unit members will make contact with residents who have open wireless connections and teach them the importance of securing them.

This raises a number of immediate questions, perhaps the most simplistic and potentially revealing being simply: “why?” The answer to that question appears to be the same answer provided for lots of questions lately: safety.

From the article:

Leaving your wireless network open invites a number of problems:

  • You may exceed the number of connections permitted by your Internet service provider.
  • Users piggy-backing on your internet connection might use up your bandwidth and slow your connection.
  • Users piggy-backing on your internet connection might engage in illegal activity that will be traced to you.
  • Malicious users may be able to monitor your Internet activity and steal passwords and other sensitive information.
  • Malicious users may be able to access files on your computer, install spyware and other malicious programs, or take control of your computer.

The EFF Austin Board of Directors finds nothing wrong with this analysis of the potential risks Internet users undertake when intentionally or unintentionally leaving their wireless access points open for shared use. In fact, we could cite a few more. However, these are much the same risks that Internet users undertake when using ANY shared wireless access point, such as those provided by cafés, public parks, or the Austin Public Library.

Missing from the cited analysis is any recognition of potential benefits to be gained from publicly sharing one’s wireless access point. Lately, the virtues of contributing to any shared commons tends to be overshadowed by fears of bad actors (both real and imagined). For some facts, it’s worth reviewing cryptographer and computer security specialist Bruce Schneier‘s discussion on the virtues and risks of running an open wireless network.

More importantly, missing from the cited analysis is any recognition of the unintended consequences of APD collecting this information. The Austin Police Department is a public agency and is thus subject to the Texas Public Information Act (TPIA), Chapter 552 of the Texas Government Code, which guarantees the public’s access to information in the custody of government agencies. As a result of undertaking “Operation Wardrive” the records generated by that operation are subject to open records requests. That information is potentially valuable to perpetrators interested in undertaking the kind of malfeasance outlined in the KVUE article.

The EFF Austin Board is not interested in this data beyond knowing what is collected and why. We are more interested in the provenance of this Austin Police Department operation, and doing what we can to help APD increase public education about the virtues and risks of running an open wireless access point. To that end, we have decided to file an Open Records request today seeking information on this operation.

“Operation Wardrive” Open Records Request (Sep 21, 2011)

BART’s Protest Position Does Not Withstand Legal Scrutiny

BART Protest (Civic Center Station, San Francisco, California: August 15, 2011)
BART Protest (Civic Center Station, San Francisco, California: August 15, 2011)
Image credit: The Examiner - Transit agency head defends cell service shutoff

Guest post by Jay Leiderman of Leiderman Devine LLP [ @LeidermanDevine ]. Also available on Paste2.

On Tuesday, 16 August 2011, BART [ @SFBART ] spokesperson Linton Johnson [ @BARTChiefSpokes ] held a press conference to address the need to disrupt communications in advance of a lawful, peaceable assembly. He spoke of a US Supreme Court case from 1969 that he said supported BART’s right to do so. Indeed, there could be no other case that Mr. Johnson was referring to besides Brandenburg v. Ohio (1969) 395 U.S. 444 [ Wikipedia ], the 1969 case that said that prior restraints upon seditious speech were valid in such narrow circumstances that the government must prove that the seditious speech was going to cause an “imminent lawless action” before a restraint on speech could stand. No case following Brandenburg has ever held speech to constitute an “imminent lawless action.” BART, as judge, jury and executioner of free speech, is the sole body to reach that conclusion. Note that Brandenburg involved a criminal statute, and BART simply was an administrative decision. However, as they rely solely upon Brandenburg, I must answer that alone.

Johnson assures us that a conservative lawyer, Sherwood Wakeman, pained over this decision and that it was for safety, yet he fails to identify any way in which the protest would make anyone unsafe. Moreover, he fails to establish that this would be an “imminent lawless action” – – or would break any law at all.

http://www.youtube.com/watch?v=EMgsLXSMYEg

Johnson incorrectly centers his analysis upon what he deems an “imminent lawless action.” “Imminent lawless action” is the successor to Justice Oliver Wendell Holmes “Clear and Present Danger Test.” Holmes famously drew the line at free speech by declaring that one could not shout “fire” in a crowded theater. Brandenburg replaced that test with that of an “imminent lawless action” test. I don’t think we even get that far in this analysis. The speech in and of itself has to be seditious in the first place. Standing on a train platform in a Guy Fawkes mask holding a placard cannot, by definition, be seditious.

18 USC section 2384 defines “Seditious conspiracy.”

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

Let’s contrast the BART protest to the protected speech in Brandenburg. Brandenburg, a leader in the Ohio KKK, was going to march on Washington, possibly with a well-armed militia, to advocate that blacks be returned to Africa and Jews to Israel, and suggested that if Congress, the President and the SCOTUS continued to suppress the white man, that “revengance” might be taken. Note that a unanimous SCOTUS found that exercise of first amendment privilege neither seditious nor an imminent lawless action.

“[W]e are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments.”

See also note 4 of Brandenburg:

“Statutes affecting the right of assembly, like those touching on freedom of speech, must observe the established distinctions between mere advocacy and incitement to imminent lawless action, for, as Chief Justice Hughes wrote in De Jonge v. Oregon, supra, at 364: “The right of peaceable assembly is a right cognate to those of free speech and free press, and is equally fundamental.”” (395 US 444 n4.)

By travelling down the Brandenburg path, BART, via Linton Johnson has accused the lawful protestors of actions that were imminently going to be lawless. Yet he fails to provide any support for this position. Most saliently, the facts of the BART protest do not come close to those raised in Brandenburg. Would he argue that the KKK, guns in hand, can advocate marching on Washington to take back their country for the white man is permissible, but standing on a platform in a Guy Fawkes mask with a protest sign is seditious and certain to create “imminent lawless action?” Such an argument is not well taken. Brandenburg did not keep the Nazi’s from marching in Skokie, Illinois. It clearly cannot be used to disrupt communications in advance of a peaceful protest.

Still, Johnson assures us that the BART protests fit within that narrow margin. Justice Douglas’s concurrence points out how rare and unworkable the exception to the Rule in Brandenburg is.

“When one reads the opinions closely and sees when and how the “clear and present danger” test has been applied, great misgivings are aroused. First, the threats were often loud, but always puny, and made serious only by judges so wedded to the status quo that critical analysis made them nervous. Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendment.”

“Action is often a method of expression, and within the protection of the First Amendment.” (395 US at 455)

BART’s legal analysis fails.

Perhaps most troubling in all of this is the now persistent KKK connection. We have now seen that PayPal will process donations for the KKK but not for Wikileaks. This has been eloquently pointed out by many in the Anonymous movement and I will not add to that here. I will simply state that once is an accident. But seeing the KKK with greater protections than those afforded to modern dissident speech twice? This cannot stand. Shame on you, BART, Linton Johnson and Sherwood Wakeman.

Next: #BART Special Board Meeting re: Cellphone Shutdown & Protests
Earlier: BART cellphone shutdown option introduced to board of directors in closed session; or, 3 Questions For #BART