Intellect or Insanity

0.
Around two days ago, Israeli ISPs began to block access to certain websites from Israel. The list of the websites is considered confidential, and included, by media reports two websites related to gambling. The issue in matter began around two months ago, when the Israeli police, alongside the tax authorities arrested 28 suspects who were suspected in collaborating with two websites: Stan James and Victor Chandler. Following a brief period of time, the police approached the Israeli ISPs in request to block access to those sites claiming it has the authority to do so by clause 229 to the Israeli Penal Code. Though they had not had a court order, the commander of the police district interpreted his authority enacted in the act, which is defined as “The Chief of a police district may order the closing down of a place where prohibited gaming, raffles or gambling is taking place” as such which governs also the realm of IP addresses and Internet Service Providers. However, up to this moment no ISP has challenged this authority in court.

1.
First, to the question of whether the police actually has jurisdiction according to clause 229 (and see Adv Ori Goldman‘s opinion on the matter); In two cases the courts heard cases which are similar, though none had to face clause 229. The first was the Carlton Case (CR 90861/07 Michael Gary Carlton v. Israeli Police, Dr. Omer Tene‘s explanation on Carlton) where the Israeli police requested to detain a foreign national who was involved in the operation of the Victor Chandler website (blocked now). Carlton stated that as the website does not operate from Israel, the Israeli law does not apply to acts performed outside of Israel by non-Israelites. The court denied the claim, and asserted that Carlton’s acts were illegal as “In light of the fact, that the appellant has the ability to identify the place of the end-user, prior to registering to the website, the appellant and his company’s blind-sight is material. It is expressed by the fact that while they are aware that gambling is prohibited in Israel, and by greed, knowing that the Israeli public is profitable to the company, they do not act in order to block access to Israel“. The other case is related to blocking a file sharing website by request of the record companies (OCR 3485/08 NMC v. Eli Amar. However, the Amar decision was not a reasoned one, but a brief consensual decision.

2.
As a general rule, the Israeli courts ruled that actions which are available to Israelites are under their jurisdiction and the Israeli criminal law may be applied on any activities. However, where the authority under clause 229 applies remain unanswered by Israeli courts, as the supreme court has yet to rule on the interpretation of the matter, without relation to the Internet, and lower courts ruled regarding the clause without actual discussion on the cases, and approved warrants as a matter of habit without discussing constitutional right. In one rare case, the court observed the infringement of constitutional rights (AA (Jer)1666/09 Salima Kazam v. Israeli Police) and explained that the court is too extensive: The police chief has a rare authority to issue, based on administrative ex-parte evidence, a closing warrant which is permanent and constitutional human rights, both a person’s right for freedom of employment according to Basic Law of Freedom of Employment and his right for property according to clause 2 to the Basic Law of Human Dignity and Freedom. This is performed in the same place where the court, even after convicting a person in possession or managing a place of unlawful gaming according to clause 228 to the penal act, may only fine or incarcerate the person“. The court emphasized the personal manner of the warrant, and human rights, even after rejecting the request to quash it. However, in another case, the court ruled that “the warrant is to close a place, it goes with the place and is applied on the place without regards to who operates his business in such place. changes in the identity of the person who operates the place do not affect it … a warrant could be issued even without personal names, where you do not know who operates the place. The warrant has in rem applicability” (AA (Haifa) 538/02 Romach Trade Co. v. Zevulun Police).

3.
However, in one case the district court interpreted the rationale behind 229, where it ruled, interpreting the Supereme Court’s ruling in RCA9140/99 Romano v. State that “The rationale behind the law’s foundations … is not detached from the law’s purpose, which is to rule out social plagues who endanger a person and society” (OCR (Tel-Aviv) 32354/03 Gilian Trade and Marketing v. Israeli Police). The purpose in issuing a 229 warrant was made to assist in preventing the negative impacts of gambling on society, such as criminal activities; the rule is, that the police may act only to enforce the law and not deter or punish (ACD 2316/95 Ganimat v. State, C (Krayot) 15336-01-10 State v. Amiaz); you cannot punish the proprietors of the place, its users and others from legitimate uses in the same way you cannot arrest a person as a penalty.

4.
Therefore, the requested conclusion is that when both gambling and non-gambling occur in a segregated manner, the legal activity cannot be closed down (AA 236/04 The 7th Heaven v. Israeli Police, where other courts ruled, strangely, that 229 is punitive or deterring, AA 1709/09 Amar Razam v. Jerusalem Chief of Police) and the gambling itself the police has to stop, where the collaborators have to be arrested. This conclusion arises from the same constitutional rights, including freedom of employment and right for property and dignity. The police’s authority could not be used to deter and cannot be directed towards activity which is not gambling. The police has to perform its acts in a responsible manner for the public. From here, we address the issue.

5.
First, the police did not act in accordance to its authority under 229: the warrant was not personal and was not addressed to the proprietor of the place, but solely to who provided access to it; a warrant to block websites served to an ISP is like providing the bus company a warrant to remove a bus station next to a gambling house. The ISP is not the proprietor, not the operator and is not the required party. As far as the police has claims against a website, it should address its operators even if they are outside of Israel and initiate criminal proceedings. If the police still believes that the Carlton decision is in force, then they are are free to act with accordance to it.

6.
Second, the warrant’s breath. The warrant, granted against the websites and IP addresses [See Hebrew Warrant] requested to block the website in full, even the parts not related to gambling. For example, if a person plays without waging a bet, solely in thePlay for Fun part of the website, then he is affected by the warrant without need. In such case, the warrant is not narrowly tailored in the means needed and affects constitutional rights. Moreover, providing a warrant against an IP address and a domain is considered equal to closing a shopping mall because one kiosk sells raffle tickets. In contrast to the Amar Razam decision, these are two distinct different groups of users, different communities and uses, and no need to block the play for fun.

7.
This means that we already began the slippery slope (which our ministry of communication rejected): some of the websites blocked are not gambling sites, but only facilitate funds; one case. of KeshCard.com, at least until proven otherwise, is a website for financial services and not gambling. The websites allows payment, amongst other things, for gambling, but is a financial service similar to others and is not different from credit cards; therefore, there is no reason to block it.

8.
Finally, it is quite difficult not to discuss the websites blocked. Though the police know about hundreds of sites, the two families blocked relate to a regulated market in Israel: sports booking. The Israeli Council for Sports Betting regulates and operates the market heavily, and the proximity to the World-Cup, where the Council’s earning skyrocketed, is strange. Moreover, the proximity to the Israeli Anti-Trust Authority’s decision to consider pressing charges against The Pais, Israel’s second licensed gambling operation, after suspicion arose that it entered into a restraining agreement where the Israeli Association for the Soldier which is licensed to act as well, where ISA shall not engage in raffles, against a material donation from The Pais. Moreover, The Pais offered more money to be provided to the country for more gambling rights, and even to pay salaries in local municipalities, and has previously offered to assist the police financially in the struggle against unlawful gambling.

9.
In conclusion, it is quite obvious the censorship could not stand; in order to drop it, a person using KeshCard or plays VC with “Play for fun” (meaning a person who was hurt by the warrant) shall appeal against the censorship to a court. The ISPs forgot what is the public interest they are meant to protect, and the ministry of communication, who’s authority was run over in one police warrant, does nothing.

[Material Comment: I am writing this without the consent or knowledge of any of my clients, and it does not reflect my opinion or any legal review I provided them]

[Originally in Hebrew]

The US Courts of Appeals’ ruling in Maynard v United States amends and reinstates to certainty the right for privacy in public places. Around two years ago I said that “the problem with ongoing photographing in the public domain is a different problem than the random photography that Google performs when it maps our state, it is the moment where photography becomes surveillance, an harassing act. Photography becomes surveillance when it is ongoing, when the use of the photo is for purposes other than displaying it and where the quality of the photo is too good to be only used for demonstration“. My opinion was rejected by the state and step through step it began installing surveillance cameras in municipalities, and even insisted that businesses convey information to the authorities, including their video feed, even from businesses who didn’t want to, like information about crowds in bars and pubs. Today, following the court’s decision in Maynard, it seems that all this intrusive apparatus may be quashed, or at least repeal any evidence gained by it.

Material which was obtained through invasion of privacy will be disqualified from being submitted as evidence in court, without the consent of the person harmed, apart from where the court allowed, for special reasons which will be listed to use the material; or if the infringer, which was a part of the process, had a defense or exemption under this act (clause 32 of the Israeli Privacy Protection Act)

In the case of Maynard, we are inspecting the appeal of his co-conspirator, Jone. (EFF has a brief on the ruling). Jones’ case was quite simple: the police suspected that Jones and Maynard were involved in drug dealing and installed a GPS Tracker without a warrant. The police used the information to follow Jones’ steps during a month and learn his routes. In the court, Jones raised the constitutional claim that this was an invasion of his privacy and therefore the charges against him should be rejected; the court rejected Jones’ claim and said that when a person is in public places, traveling where any person can see him, a GPS tracker does not infringe on his right for privacy, as he does not have a reasonable expectation of privacy.

The court’s claim explains how the right for privacy is a delicate one when it comes to digital privacy where the quantity becomes quality. The court of Appeals explained that in Jones’ case: “A reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain ―disconnected and anonymous

Indeed, a reasonable person does not believe that when he is out in the public he will be followed on all times, the reasonable person believes that he will be exposed to photography in random acts (C 6023/07 Afriat v. Yedioth) but not constant ones, or to photographs where he is in the background, or smiling to the cameraCA 1055/09 Shertzer v. Samira), the reasonable person believes that he can tell a photographer he does not wish for him to publish his picture, and may be entitled to so do (RCA 6902/02 Tzadik v. Libak) but may not always be allowed to revoke his consent to use his photos. The reasonable person does not believe that an elaborate web of cameras will track him at any moment and prevent him from even breaching the most minor acts, or being subject to constant surveillance. Therefore, the Maynard decision explains how a single act, which is not infringing by itself, may be come one when repeated.

From the same reasons exactly, the CCTVs in municipalities are infringing on everyone’s privacy. When the discourse began, I was too formalistic and claimed that the rationale to oppose them is the lack of authority of municipalities to enforce the law; I was wrong. Even if they had the authority, they would still violate my privacy.

[Originally in Hebrew]

The District Court’s decision in CA 1055/09 Liat Shertzer-Bar v. Rebecca Samira (see also Haim Ravia‘s summary) is a substantial decision not only under privacy protection laws, but in lex informatica altogether, amongst other things, as it discussed for the first time what is use of a person’s name, nickname, image or voice for profit. The Israeli Privacy Protection Act, prohibits such use in clause 2(6), and the use was materially discussed by the Israeli Supreme Court (for example, see CA 8483/02 Aloniel v. McDonalds), but the question what is considered for profit remained open.

By oversimplification, the facts of the matter are: Liat Shertzer was a guest in a wedding around 2002. Around 2007, she discovered that a photograph from the wedding, where she appeared in the background, appears in a website of a bridal salon. By the magistrate court’s findings (C 47047/07 Shertzer v. Samira), Shertzer appeared in the background, where the bride, wearing the dress designed by the defendant, was in the center. Shertzer petitioned the court for invasion of privacy (Israeli Privacy Laws cover Publicity Rights, unlike other jurisdictions), where the magistrate courts denied her suit, ruling that the plaintiff provided consent by conduct and the lawsuit was to be rejected by the deminimis clause. Upon these findings, Shertzer appealed.

The District court discussed, in brief, two material questions: the first is what is for profit, and the second is the deminimis defense in invasion of privacy. While the second claim was detailed and with detailed court precedents and literature, where the court ruled that not any invasion constitutes compensation and that there are, in cases which the matter is immaterial, to deny a claim under the privacy protection act (and see, in comparison, C (Tel-Aviv) 37759/07 Shochat v. Maarivמ). The idea was to deter false plaintiffs and people who want to gain compensation just because their photograph was in the background of a photo in a newspaper or where a name similar to them was used (and see, for example, C (Jerusalem) 6157/04 Daivd “The Best” Devash v. Adler Homsky).

In contrast, the second question is material, and did not gain the proper discussion in the decision, amongst other things, because it is the first time where this question was raised. The question of when was a profit made by using a person’s name was yet to be answered (and compare C (Haifa) 534-08 Hava Koren Israeli v. Shai Cohen, where the district court accepted that celebrities do not have a right for privacy when using their names under the privacy protection act). The court asserts, clearly, that “in order to assert such damage, the defendant has to show causation between the image where his image appears, and the profit purpose in the use”. Such assertion allows interpretation, for the first time, for a long discussion which was in the copyright field.

On of the most popular licenses in open content is the Creative Commons Attribution Share-Alike Non-Commercial. The license, generally, allows use of other’s works, as longs as three terms are met: (1) proper credit is granted; (2) any work based on the original work must be released under the same terms; and (3) the use of the work would be for non-commercial purposes. The uncertainty of what is “non-commercial” caused a long study about what non-commercial is, which resulted in inconclusive findings. As a result, the question of whether using released under this license in websites, that for example, show advertisements, were unmet. The Shertzer ruling may, at first, provide us with a prism to understand through what does “non-commercial” mean (though there is a difference between non-commercial and for-profit).

The causation requirement is a material and coherent test. Meaning that if I use images for illustration in a website, one cannot prove, distinctly, that there is a statistical and direct connection between such display and my profit from advertisements (even in cases where I use the image in websites that are behind a paywall). Direct profit comes when there is trade in the work, meaning, by trading or by building a business model which results income as a result of using the content.

Therefore, the question of what is non-commercial is a factual and hard one, but does not come from the nature of the user, but from the nature of the use.

[Originally Published in Hebrew]

0.
Erez Wolf reports about a serious security problem which resulted from hacking an Israeli website and stealing the usernames, emails and passwords of 32,561 accounts. The database of that commercial website contained user login details: usernames, emails and passwords, where using the presumption that most people use the same login details for most websites, allowed Turkish hackers to hack and deface many user accounts in Facebook, as well as other sites, who depended on the login details in the database. In the Turkish website containing the list, there are more indications of websites hacked, including account details of 70,000 other accounts.

1.
We can point out two problems: the first, which we all know we do, is using the same password in more than one website. Even security experts do it (we call it bitch password) in unimportant websites. The problem is that most people cannot remember more than a few passwords so they use the same password over and over. More than 20% of the passwords people use are in a short 5,000 password list; moreover, people use their birthdate, phone number or SSN as their passwords.

2.
The first problem, however, is the layperson’s problem. The second problem is the law authorities problem. The hacked website kept the passwords in retrievable format in case the user forgets it. Meaning: the password was saved in plain text in the database, and accessible to more than just the website’s administrator. The common method to retain passwords is Password Hashing, which means that the passwords are unilaterally encrypted and the password could only be authenticated, but never restored. By using this method, you could never send the user his own password but only reset it when the user forgets it. Therefore, you need to authenticate the user’s identity in a different form, like email; this ties the user identity and allows more credibility in e-commerce, but has other implications as well.

By using this method, if the database is hacked, there is no way to use the passwords (with one exemption, if the password is a dictionary word and by using Cain & Able). Therefore, you can be certain that if your database is stolen, no one could use it.

3.
The problem becomes a tad more legal when you understand the Israeli Privacy Protection Act which defines Information Security in clause 7 as “protection of the Data’s integrity, or protecting the data from disclosure, use or copying, and all without legal authority”. Clause 17 states that an owner of a database, its manager or the holder of it are all liable for the database security and integrity; meaning, that the owner of this website, and whoever provided him with the information security services, are liable for the data protection here and may face criminal sanctions. However, up to today, no criminal charges were brought against people who violated the data protection clauses, but it seems that this time, the the Israeli Law, Technology and Infromation Authority should apply its legal power and apply sanctions.

4.
When the authority wants more and more power, where amongst other powers is the power to search databases, it shows it has the intent to enforce the law. On the other hand, the leak of 30,000 records of usernames and passwords show how the lives of people may be hurt solely because of faulty data protection procedures. In any other case where thirty thousand people would suffer damages, the case would seem different. When Heftziba, a big contractor, became insolvent, it left 4,300 people homeless or with half-built apartments. People became angry, sued and criminal charges were brought.

5.
The information in the database is highly personal, it is dangerous and there are people who are liable for its leak, will they go to prison? I doubt it. However, they did not apply means to protect the data and no reasonable security person would allow what they did. Someone has to pay.

[Originally Published in Hebrew]

0. Abstract
Could a state with no secrets function better when protecting national security than a state that keeps information away from the general public? In this brief article, we will inspect the reasons for keeping classified information, what they are meant to protect and how they protect national security. We will present the method used by Israel, which is similar to most states. Israel’s approach, which is to keep all the information from the public, failed in general and caused nothing but costs on privacy, freedom of expression and national budgets.

Following our review, we will compare the classified information model to a model in information security, called Security through Obscurity and present how this model was perceived as flawed. Against it, we will present the Open Source Model, which creates transparency towards the general public, allowing it to inspect the security flaws, and therefore creates stronger protection.

Our conclusion would be that better national security could be reached by removing all classified information and disclosing all information to the general public. We believe that by making the information public, the cost of the censorship apparatus will be eliminated. We also believe that by adopting a ‘no classified information’ approach, governments may improve physical security when they rely on the foundations of open source security as detailed herein.

In my brief argumentation I will use the Israeli law, but provide some examples from other cases.

1. Classified Information and what it Protects.
Every state has its secrets. States choose, in certain cases to classify information from the general public. Classifying information goes back as far as Greek times, and goes under the standard four categories: Top Secret, Secret, Confidential and Restricted. Israel has four apparatuses which are in charge of Confidential information: The Information Security Department, whose goal is to prevent classified information from leaking from the army, The Military Censorship, which operates under the Defense Ordinance (Time of Emergency), 1945, that controls media publication and telecommunication, and has authority to refuse the publication of any information that has any relation to national security, the General Security Service (Shin Bet) that acts according to the General Security Service Act of 2002, where clause 7(2) allows the service to classify documents and determine how to handle such documents and the Director of Security of the Defense Establishment, which is in charge of security in military industries, research facilities and other national security industries.

Some authorities in classifying information do not appear to exist in laws, and some operate under the vague and broad exemption added in the Freedom of Information Act, 1998. Clause 9 to the Israeli FOIA exempts disclosure of any information which may harm national security, foreign relations, public safety or a person’s well-being. Even in cases where classified information was disclosed, the courts still allowed the security agencies broad discretion as to what to blur out (HCJ 258/07 Zehava Galon v. The Governmental Committee for Inspecting the Battles in Lebanon 2006)

But what constitutes as confidential information? There are no actual guidelines for applying what is confidential and how confidential specific documents are, and every document that contains ‘information’ as defined in the Israeli Penal Code, in part II, chapter 7, the Penal code provides a broad definition, inflicting legal sanctions on disclosing any information to an enemy where it might be useful to him (clause 111). Confidential Information is defined as any information where national security requires keeping it secret, or information relating to any matter that the government, with the consent of the parliament committee for foreign relations and security, declared as confidential. Critics to this arrangement offered an amendment, but following the Parliament’s research center’s comments, these amendments were not implemented.

The burden of proving what constitutes non-confidential information lays on the defendants in cases (see, for example, CC 1055/01 State v. Yacov), in Yacov, the court explained that while “the military censor is qualified to strike out information which is most-likely about to severely damage national security”; the penal code is wider, and applies to cases where national security requires keeping it secret.

In another interesting case, the widow of a person who worked in the nuclear research facility requested to receive the results of an epidemiological survey between the facility’s workers which the facility took. The State declined to provide the information by explaining that it relates to national security. However, when the court rejected the state claims, it expressed criticism over the state’s conduct: “the state wiggles in its arguments and cannot point to a normative authority where it draws the classification of the information. It is, according to the state, basic foundations, but these basic foundations have to be applied by the General Security Service Act, 2002, and the rules according to it (which are classified, so the state cannot disclose them to the court, but as a graceful act the state is willing to summarize them)” (CA (Tel-Aviv) 2571/01 Hanna Hizi v. State ); the court itself explained that it cannot understand classification, and the state has to acknowledge the differences between confidentiality and classification. Classification does not create basis for exclusion of evidence, and unless the state decides to exclude an evidence by means of national security according to the Evidence Act, 1971. However, in cases where the court finds the evidence may have had something to assist the party who wishes to submit the evidence, then the state shall default (OCR 2489/09 Zeev Braude v. State).

The Israeli Supreme Court deal with the question of what constitutes classified information in Vanunu (CA 172/88 Mordechai Vanunu v. State); in Vanunu, a former worker of the nuclear research facility was charged for espionage when he disclosed information regarding Israel’s nuclear activity to press agents in the UK. The supreme court decided to convict Vanunu for collecting and disseminating information to the enemy. The court analyzed this clause and explained that “He who provides information to the enemy; meaning, any information, even if it is public information arising from the press, his activities fall into clause 111”. Therefore eliminating classification need at all.

What Does Classified Information Protect? The question of what classified information protects is a difficult one to answer. Some claim that the purpose of classifying information is withholding it from foreign agents, and explain that when many people have access to certain information, it harms national security. Classifying information makes it harder for counter intelligence and foreign military forces to obtain information regarding a state’s forces, and allows it to operate where the other party does not know its rules of engagement, its powers, officers, or even defense mechanisms.

But the real question is how much this information, used by foreign intelligence,  endangers national security , and does the burden of protecting this information overcome the value of keeping it secret or not.

When the classified information is the actual secret (e.g the actual location or time of a specific operation) then it is assumed (though not significant) that information about the operation that becomes available to hostile forces may lead to less successful results, at least. There are specific sets of information that are considered confidential and are not pieces of information that have (statistically insignificant) connection to current, ongoing operations or other information that if leaked may cause damage to national security.

For example, the actual existence of a specific weapon or the location where a missile fell after an air-strike cannot be considered a state secret for several reasons: the first is that it is not kept away from the public; as what the general public sees cannot be considered national secrets. For example, during the 2006 war, the military censorship requested Tapuz, Israel’s largest forum operator, to censor posts made by civilians about where Hizbullah missiles fell. Another case  where information that is in the public’s plain view was considered confidential was when Parliament Member Yossi Sarid threatened that he may disclose information about weapons used by the IAF after the IAF killed and wounded dozens of Palestinians, including civilians, in weapons that were allegedly in plain view.

Another case where public plain viewed information was considered confidential was when Israel denied using phosphorous during the Cast Lead Operation of 2009, where the evidence was left in the Gaza Strip, which allowed the Goldstone committee, which inspected Israel’s activity following the operation, to find that Israel’s denial was false. So, in this case, how could the use of phosphorous be considered confidential information where there is evidence in plain view regarding the use?

Therefore, confidential information could be considered confidential as long as no public information regarding it exists. For example, the location of specific military or nuclear facilities that are located close by to cities and have road signs directing to them, could not be considered confidential information. Israeli Blogger Ido Kenan points out that Israel has a policy of withholding this confidential information in road signs presented in Arabic, and leave the confidential information only in Hebrew and English.

In conclusion, classified information in Israel is defined in an overbroad manner, containing information that may be considered in plain view and known to the general public. By acknowledging this flaw, we may understand the basis of information security and examine the weak points of such method of information security.

We believe that there has to be a difference between the classification of security mechanisms by themselves and information (data) which relates to specific, mission critical, information that is classified. The difference is between information regarding the existence and functions of a specific unit, its weapons , its history, and current plans regarding  an operation.

2. Security By Obscurity, A Problem
2.1 Security By Obscurity
When trying to protect information in a digital environment, there are two popular methods used by Information Security experts. The first is Security through Obscurity: this method, which is quite similar to the Israeli Classified Information method or approach, hides all information related to security from plain view and classified it as confidential; by using this method, “a system relying on security through obscurity may have theoretical or actual security vulnerabilities, but its owners or designers believe that the flaws are not known, and that attackers are unlikely to find them”. The model bases itself on the fact that others are unaware of the activities taken and that most confidential activities could be disguised from plain view.

However, the flaws of this model are that the secrecy of the information is exactly what lets security flaws to remain secret as well. For example, GSM encryption was hacked during 2003, and again during 2009. These hacks were published to the public because they were a part of academic researches; however, in certain cases the hacker may not be so eager to publish its research. In some cases, employees or contractors may sell known exploits which were not taken care of and criminals may sell unknown exploits either to other criminals or to the company itself. Moreover, relying on a sole provider to fix the security breach could sometimes cause more problems.

The main disadvantages of Security through Obscurity may be summed up to: (1) few people inspect the system for flaws, and sometimes actually inspecting the system may be considered illegal; (2) hostile entities reviewing the security of the system do not disclose their results; (3) dependency on one vendor/provider to review and fix security breaches.

2.2 The Open Source Model.
In contrast to Security through Obscurity, Open Source advocates rely heavily on Security Through Transparency, using this method, the algorithms and software used to encrypt or protect information are known to the public, providing the public an efficient way to report security vulnerabilities, and even to propose bug-fixes. The more people have the chance to inspect the security mechanism, the safer they will be.

For example, Security firm Secunia found that more security flaws were found in the Open Sourced Firefox than in proprietary code browsers, but the number of Zero-Day unpatched flaws was significantly lower and so was the time that it took to fix any flaw. By making all of its information public, a software vendor may create better security and allow any researcher to discover flaws. Moreover, transparent security mechanisms may also deter hackers from looking how to circumvent zero day flaws in fear of being caught (See aso, David Wheeler, “Is Open Source Good for Security?”).

The Open Source Model does not ignore the basic concepts of information security, but it acknowledges their flaws and attempts to build better models.

3. Could Building a Transparent State Solve National Security?
Could we imagine a state where all public information could be deemed as non-confidential, security mechanisms would be public and open for scrutiny and confidential information would be reduced to a minimum? We believe so.

Currently, a state like Israel has to operate counter intelligence just to solve the problem of collection of plain-view information and to protect from hostile action. When operating an open source model, counter-intelligence could be abandoned and replaced with crowd sourced models, which will help to build stronger mechanisms of protection.

Moreover, removing the ambiguity relating at-least to nuclear weapons in Israel would assist deterrence and strengthen national security. Weak points  in Israeli theoretical protection would be visible to the public and could be fixed quickly; moreover, the actual items that require protection could receive the needed funds and resources to protect them.

3.1 What is there to lose from revealing all classified information?
While we do not necessarily wish to reveal all information, certain information relating to means of operation and security regulations have to be declassified. For example, both the General Security Services Act and the recent Inclusion of Biometric Information and Data in Identification Documents and Database Act of 2009 state that all regulation and orders will be classified, as well as any information regarding security breaches. Moreover, when discussing the act in Parliament, security experts raised concerns over the database possible flaws, and the Minister of Interior, Eli Yishai, ordered to open the security protocols for discussion, but such discussion was never made. Keeping the database, as well as security guidelines and notifications of security breaches secret seems good in the eye of a person who thinks that an enemy may abuse such faults; however in the eyes of a security researcher, these allow zero day flaws and known vulnerabilities to be used against the database  (see, for example) and allows a false feeling of security.

The only thing that may be lost when protocols, orders or regulations that remain secret are disclosed is the misconduct of an authority or its acts against the law; for example, as a result of Israel’s Freedom of Information Movement’s appeal, it was revealed that the cellular companies were required to adhere to secret regulation regarding cooperation with intelligence agencies and disclose subscriber information.

Therefore, when the governmental default approach is that there is no need for privacy unless a person has something to hide from the government (which seems to be the default approach when discussing the Israeli government, as the Biometric Database Act, the Criminal Order (Submission of Metadata) Act of 2007, and other statutes turning Israel into a surveillance state) then the default approach towards the government should be that all its secrets are meant to cover up unlawful activities.

3.2 What is there to gain from revealing all classified information?
First and foremost, the Israeli Government may regain public trust by disclosing all activities. The Israeli public, for example, strongly believes that the Biometric Database will leak, mostly due to the fact that quite a lot of sensitive data has  already leaked from Government databases and that 70% of the general public does not trust database protection in Israel. A different survey by Symantec found that 60% of the people do not trust the government with their private or personal information.

The feeling of misused trust may be healed and cured when disclosing information regarding data breaches and information security to the public. But more than that, apart from public trust, the government may gain better protection of its classified information. The Israeli government may adopt what computer giants like Google and 3Com already did, and that is to pay for every security breach found.

Currently Israel has many unknown security flaws, which remain confidential until a hacker gets caught. For example, Israeli white-hat hacker Moshe Halevi (Halemo) was charged for hacking when he used a pre-paid credit card to show that the Israeli Fines and Fees Center had a bug in the URL handler that allowed resetting a person’s fines. In a detailed case (C 9497/08 State v. Moshe Halevi) Judge Avraham Tenenbaum explains why Halemo’s activity was not hacking, but was solely security checking (a similar case, CA 8333/03 State v. Mizrachi, explains that port-scanning cannot be criminal if done for a cause of security inspection). Therefore, we can argue that the state has a compelling interest to discover flaws.

3.3 The state’s approach to security flaws.
However, we see that in most cases the state prefers to withhold information from the public regarding security flaws and to litigate against persons discovering such flaws. Moreover, when flaws are found, usually adopting the Security through Obscurity approach shows that the way the state fixes the vulnerability is not only insufficient, but negligent.

In one case, white-hat hacker Halemo discovered that the Israeli Court System’s website discloses Judge’s ID Numbers (equivalent to Social Security numbers). The way it disclosed them was that the URL Source of the Judge’s page in the website was his ID number. After the flaw was exposed, the state went to fix the flaw, and replaced the ID with a Base-64 representation of the number.

However, if we require the state to disclose its means of security it would have to disclose how the judges ID numbers were encrypted or protected, and therefore every person would have understood that neither plain-text nor base-64 are good enough mechanisms to protect sensitive information.

4. Applying Software Solutions to State Secrets: A Conclusion.
We believe that not all information has to be public. There are things that are better off secret. However, if we learn from information security methods, we must acknowledge that better security could be achieved when disclosing more information to the public. Applying the open source model of information security allows transparency in decision-making, better algorithms, less resources on counter-intelligence and more resources to allocate to what is mission critical information.

Moreover, better trust could be gained between governments and citizens, reinforcing the social contract and allowing better results in political participation.

Currently, governments over trust security through obscurity when operating mission critical processes, and therefore, when flawed, the flaws and results are enormous. Utilizing open source models could prevent mishaps such as Israel’s phosphorous use, George Bush’s Weapons of Mass Destruction lie and Israel’s racial profiling in Airports as a mean of security.

Israeli racial profiling is such a great example, as it is highly efficient nowadays and even better than the US TSA guidelines but bases itself mostly on the assumption that Jewish nationals may not be considered a threat to national security but Arabs may (HCJ 4797/07 The Israeli Association of Civil Rights v. The Terminal Security Authority, Pending decision). As long as the security guidelines were secret, it seemed amazing that no security flaw occurred. However, now, that the guidelines are known and understood, it is easier to design a mechanism to circumvent them. Therefore, even adopting new guidelines will be useless, as they are inefficient (unless based, again, on racial profiling).

Therefore, in order to regain national security, Israel will have to change its approach to the Open Source Model before a major security event occurs that will make it understand that this is the only option. Staying in a Security through Obscurity approach could protect confidential information, but it cannot protect national security.

0.
It is only a matter of time until both the Facebook Application Developers and Facebook Users join together and tell Facebook “there is no taxation without representation” while requesting Facebook both to amend its terms of service for enhanced privacy and allow application developers to rely on business models that are not subject to Facebook’s whims. The sanction, if not understood, is not mass removal of accounts, but blocking Facebook’s 3rd party services when not browsing in Facebook, therefore harming Facebook’s new found business model.

1.
The reason? Facebook has been vigorously expanding its control over both user information and application developers. It began today when Facebook coerced Zynga into an agreement to use Facebook Credits as its currency after a long dispute, and will continue when Facebook will do so to other application developers.

2.
Facebook forgot that it is solely a conduit, the incumbent who provides connection between users, other users and applications. It is not a core application and its business model is not based on being such. Two years ago, I wrote that “In a year or two Facebook’s shareholders will come to their senses and start asking money from the leading hundred applications, as they are allowed to do” … “when you develop a Facebook application or any other social network based application, you’re writing your source code on ice; it’s more than reasonable to assume that Facebook won’t charge you anything and will never shut you down. The problem starts when you want to establish a business model on something that’s more than “more than reasonable” (like investing your pension funds). That’s why, like you wouldn’t deploy a real product without contracting your deployment contractor, you really should consider doing the same with Facebook”.

3.
The time has come when Facebook wants to have its day. Facebook Application Developers raise capital from investors, some VCs target only Facebook apps, other VCs invest in another icy road, iPhone Apps raise capital as well, and quite a lot of it. The iPhone app store is also known to block applications, especially when those applications compete with Apple’s business models. Some day, Venture Capitalists will say to application developers that they will not invest in applications where the conduit may revoke them at any time and for no reason. Therefore, application developers will have to look for stable business models, such as using OpenID as a social network or allowing data portability, applications may prefer to use old social models or rely on Twitter as a social network instead of Facebook, just so they will not be coerced into using a currency of choice. No one will develop for a platform that has no stability (this is why, by the way, net neutrality is so important)

4.
Users, from the other end of the scope, will negotiate with Facebook. Explaining that it may not be as simple as Facebook reckons, and that without users, it is a mere conduit, connecting sockets and bits. “If you want us to stay here“, they will say, “you have to grant us our rights. We want to have the privacy of our choice, we want to have the ability to control, and if you grant us those rights, we will grant you the information you need to sell to ³rd parties“.

5.
Without such negotiations, Facebook is doomed. Funds will not invest in companies who develop Facebook Applications, as these applications have no solid business model, and Users will leave (or block) Facebook. It will remain with a magnificent apparatus that is left unused. And when unused, it will be sold, like scrapmetal.

The Israeli Supreme Court ruled on February that the clause in the Israeli Criminal Procedure Act which allows ex-parte court hearings for suspects in terror or national security crimes was unconstitutional and void (OCR 8823/07 Doe v. State). In the same case, the supreme court balanced between the burden of a democratic state has to face when facing terror within and due process and ruled that a suspect’s right for due process prevails as it is what makes Israel a democratic state:

Harming those who can’t defend from their arrest either by personal appearance or by ‘representative educated appearance’ is a material violation of human rights. it may annul the process and make the legal process void. … When an attorney did not meet the suspect, and the court is prevented as well from asking the suspect and inquiring about matters that need clearing, there is an actual burden on the possibility of exercising efficient and fair legal review. The court, in fact, relies on the statements of one party only. This result is grave in regards to the character of the legal due process and the matter is discussion – limiting a person’s freedom”.

In a same manner, clause 34 to the criminal procedure act states that the right to consult an attorney is one of the basics of due process; without decent representation a person will not have actual knowledge of his rights, will not have his day in court and therefore, any violation of this right, even if indirect, may cause damages to the legal process itself (and see, for this matter, HCJ 1548/07 Israel Bar v. Minister of Homeland Security which discusses the right to consult an attorney via video conference). However, foreign sources report that Israel has, again, not only violated the law, but kept covering it up. According to foreign sources, The Israeli-Arab author Ameer Makhoul was arrested in suspicion of committing crimes against national security and was prevented from meeting his attorney (and thanks to Yossi Gurvitz from Friends of George who referred me to this story). According to the reports, Makoul was prohibited from leaving Israel a month ago by the Minister of Interior Affairs, Eli Yishai, and that was against specific stipulations in Israel’s Basic Statute of Freedom and Dignity which states that “every person is free to exist Israel”.

Two problems come to mind when thinking about this, if it were actually true; the first is that now no one knows what Makhoul is a suspect of. his disappearance by the security services was not reported in the press, and we were not given any information, as a public, as to what he is suspected of. What actually happened is that the public trust that if it were taken by the dead of night for now reason, his friends, acquaintances, family and attorneys would know about it was lost due to the serial disappearance drawn by the government for dissidents. The graver danger in these cases, and cases such as deprevation of Jack Titel‘s right to consult an attorney, is that the damages to the due process would be irreversible. Not only that the public trust would be gone, but a person would not be able to evaluate in an educated manner what to do and sometimes is willing to do anything just to make the torture go away (and see RT 3032/99 Baranes v. State and HCJ 5100/94 Public Committee Against Torture v. Government).

The seconds problem is the gag orders; if in the Anat Kamm affair there were confused bloggers who couldn’t understand how to deal with unknown gag orders, when they understood that the Israeli Police does not want to enforce the gag order on Facebook since its servers are outside of Israel (and that’s in spite of the decision in OR 90861//7 Carlton v. State which ruled that “hiding under the veil that the company operates and runs outside of Israel, its servers are not in the state, does not exempt the appellant and the company he heads from the Israeli criminal law”). But it seems that the police and secret services do not wish for gag orders to become a dead letter and will just ignore the bloggers, and let the farce play in the national media.

No matter how you look at it, the arrest of dissidents and their disappearance does not fit Israel’s character as a Jewish-Democratic state.

A recent report by the IT Industry about the breadth of fair use (via boingboing) states that industries that are built upon fair use constitute around one sixth of the US gross domestic product, and a total of 4.7 trillion US$. While this number contains industries like consumer electronics (which rely on the Sony v. Universal fair use decision) and photocopiers, it is quite clear that stronger copyright laws may kill these industries. In contrast, the copyright industry generates only 4.6% of the US GDP, and that’s according to the RIAA, which usually tends to have some statistical problems.

So it could be that stronger copyright actually means less creativity.

The US Supreme court decision in 08-769 United States v. Stevens 559 U.S. ___ (2010) (via Balkinization) may shed light on additional issues regarding free speech. Stevens, was more than any other thing, a decision which ruled that 18 USC 48, a clause that ordered that anyone who knowingly creates, sells, or possesses a depiction of animal cruelty, if done for commercial gain, may face five years imprisonment if the work does not have “serious religious, political, scientific, educational, journalistic, historical, or artistic value”. Stevens was an owner of a website that published and sold movies of dog fights, which were filmed where and when dog fights were legal (f.e japan) and sold them throughout the United States. When indicted, Stevens claimed that 18 USC 48 was not narrowly tailored and should be void.

The Supreme court accepted Stevens’ request, and explained, in part, that where animal cruelty may be defined differently in different jurisdictions, it causes the law to prohibit publishing or displaying legal activity, such as hunting, and “A depiction of entirely lawful conduct runs afoul of the ban if that depiction later finds its way into another State where the same conduct is unlawful” and “Those seeking to comply with the law thus face a bewildering maze of regulations from at least 56 separate jurisdictions“.

Moreover, the court addresses the issue of the exemption, which allows the publication for serious religious, political, scientific, educational, journalistic, historical, or artistic value, and explained that “Most of what we say to one another lacks “religious, political, scientific, educational, journalistic, historical, or artistic value” (let alone serious value), but it is still sheltered from government regulation” and that “The Government’s attempt to narrow the statutory ban, however, requires an unrealistically broad reading of the exceptions clause“.

Calling such clause invalid by the court, more than any other thing, may shed light on Israel’s attempted Censorship Bill, drafted by Parliament Member Amnon Cohen during the 2006 term. Cohen offered that all ISPs shall be mandated to block all websites that may be inappropriate to minors, including “displaying sexual relations with violence, torture, degrading nature, humiliation or abuse”, “displaying sex with a minor or a person pretending to be a minor”, or “displaying a man, or any of his organs, as a sexual object”, all when “the content in the said sites lack, distinctly, artistic, scientific, journalistic, educational or instructional value“.

The similarity between the clauses is not coincidental, The Ministry of Communication’s attempt was to legislate the act in accordance with the Israel’s supreme court decision in re Playboy (HCJ 5432/03 Shin v. The Council for Cable and Satellite Broadcast). However, the Court’s ruling that such clause, even when exempting publications with social values, is not tailored to fit the constitutional funnel, may allow us some more hope when others try to engage in censoring the Israeli web.

Whilst I, as an Israeli citizen and national, cannot discuss what is known throughout the globe as the Israel’s censorship scandal, I can at least say that we can learn that Israel is not alone. Israeli courts, apparently, issued a gag order against reporting on a case relating to security measures, but that’s all I might have been allowed to state had the gag order was available to my hand.

However, Israel learned from it’s greatest friend: The United States was quite militant in fighting Wikileaks, a website dedicated to unveil corruption and unjustice, which was already involved in discovering money laundering schemes and (was taken off the web in a court order on Julius Bael v. Wilileaks). There was a reason why the US wanted Wikileaks off the web, as it is now known that Wikileaks published a video showing the US military forces in Iraq killing journalists (Available here).

But there are a few more similarities between the US and Israel. Israel also, as detailed in Uri Blau’s report from November 2008, was killing wanted Hamas militants instead of arresting them, against the supreme court’s decision and in contradiction to the law. However, the Israeli generals who disobeyed the Israeli law will never be brought to justice.