IV. CANADIAN LAW Canada has taken direct steps to limit eavesdropping on computers. The Canadian Criminal Amendment Act of 1985 _____________________ 22. Interception of Communications Act 1985 1, Prohibition on Interception: (1) Subject to the following provisions of this section, a person who intentionally intercepts a communication in the course of its transmission by post or by means of a public telecommunications system shall be guilty of an offence and liable-- (a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both. *** 23. Tapping (aka trespassatory eavesdropping) is patently in violation of the statute. "The offense created by section 1 of the Interception of Communications Act 1985 covers those forms of eavesdropping on computer communications which involve "tapping" the wires along which messages are being passed. One problem which may arise, however, is the question of whether the communication in question was intercepted in the course of its transmission by means of a public telecommunications system. It is technically possible to intercept a communication at several stages in its transmission, and it may be a question of fact to decide the stage at which it enters the "public" realm. THE LAW COMMISSION,WORKING PAPER NO. 110: COMPUTER MISUSE, 3.30 (1988). 24. "There are also forms of eavesdropping which the Act does not cover. For example. eavesdropping on a V.D.U. [referred to in this text as a CRT] screen by monitoring the radiation field which surrounds it in order to display whatever appears on the legitimate user's screen on the eavesdropper's screen. This activity would not seem to constitute any criminal offence..." THE LAW COMMISSION, WORKING PAPER NO. 110: COMPUTER MISUSE, 3.31 (1988). <New Page> criminalized indirect access to a computer service.[25] The specific reference to an "electromagnetic device" clearly shows the intent of the legislature to include the use of TEMPEST ELINT equipment within the ambit of the legislation. The limitation of obtaining "any computer service" does lead to some confusion. The Canadian legislature has not made it clear whether "computer service" refers to a computer service bureau or merely the services of a computer. If the Canadians had meant access to any computer, why did they refer to any "computer service". This is especially confusing considering the al- encompassing language of (b) 'any function of a computer system'. Even if the Canadian legislation criminalizes eavesdropping on all computers, it does not solve the problem of protecting the privacy of information. The purpose of criminal law is to control crime.[26] Merely making TEMPEST ELINT illegal will not control its use. First, because it is an inherently passive crime it is impossible to detect and hence punish. Second, making this form of eavesdropping illegal without taking a proactive stance in controlling compromising emanations gives the public a false sense of security. Third, criminalizing the possession of a TEMPEST ELINT device prevents public sector research into countermeasures. Finally, the law will not prevent eavesdropping on private information held in company computers unless disincentives are given for companies that do not take sufficient precautions against eavesdropping and simple, more common, information crimes.[27] _____________________ 25. 301.2(1) of the Canadian criminal code states that anyone who: ... without color of right, (a) obtains, directly or indirectly, any computer service, (b) by means of an electromagnetic ... or other device, intercepts or causes to be intercepted, either directly or indirectly, any function of a computer system ... [is guilty of an indictable offence]. 26. UNITED STATES SENTENCING COMM'N, FEDERAL SENTENCING GUIDELINES MANUAL (1988) (Principles Governing the Redrafting of the Preliminary Guidelines "g." (at an unknown page)) 27. There has been great debate over what exactly is a computer crime. There are several schools of thought. The more articulate school, and the one to which the author adheres holds that the category computer crime should be limited to crimes directed against computers; for example, a terrorist destroying a computer with explosives would fall into this category. Crimes such as putting ghost employees on a payroll computer and <New Page> V. SOLUTIONS TEMPEST ELINT is passive. The computer or terminal emanates compromising radiation which is intercepted by the TEMPEST device and reconstructed into useful information. Unlike conventional ELINT there is no need to physically trespass or even come near the target. Eavesdropping can be performed from a nearby office or even a van parked within a reasonable distance. This means that there is no classic scene of the crime; and little or no chance of the criminal being discovered in the act.[28] If the crime is discovered it will be ancillary to some other investigation. For example, if an individual is investigated for insider trading a search of his residence may yield a TEMPEST ELINT device. The device would explain how the defendant was obtaining insider information; but it was the insider trading, not the device, that gave away the crime. This is especially true for illegal TEMPEST ELINT performed by the state. Unless the perpetrators are caught in the act there is little evidence of their spying. A trespassatory bug can be detected and located; further, once found it provides tangible evidence that a crime took place. A TEMPEST ELINT device by its inherent passive nature leaves nothing to detect. Since the government is less likely to commit an ancillary crime which might be detected there is a very small chance that the spying will ever be discovered. The only way to prevent eavesdropping is to encourage the use of countermeasures: TEMPEST Certified[29] computers and _____________________ collecting their pay are merely age-old accounting frauds; today the fraud involves a computer because the records are kept on a computer. The computer is merely ancillary to the crime. This has been mislabeled computer crime and should merely be referred to as a fraud perpetrated with the aid of a computer. Finally, there are information crimes. These are crimes related to the purloining or alteration of information. These crimes are more common and more profitable due to the computer's ability to hold and access great amounts of information. TEMPEST ELINT can best be categorized as a information crime. 28. Compare, for example, the Watergate breakin in which the burglars were discovered when they returned to move a poorly placed spread spectrum bug. 29. TEMPEST Certified refers to the equipment having passed a testing and emanations regime specified in NACSIM 5100A. This classified document sets forth the emanations levels that the NSA believes digital equipment can give off without compromising the information it is processing. TEMPEST Certified equipment is theoretically secure against TEMPEST eavesdropping. <New Page> terminals. In merely making TEMPEST ELINT illegal the public is given the false impression of security; they lulled into believing the problem has been solved. Making certain actions illegal does not prevent them from occurring. This is especially true for a TEMPEST ELINT because it is undetectable. Punishment is an empty threat if there is no chance of being detected; without detection there can be no apprehension and conviction. The only way to prevent some entity from eavesdropping on one's computer or computer terminal is for the equipment not to give off compromising emanation; it must be TEMPEST Certified. The United States can solve this problem by taking a proactive stance on compromising emanations. The National Institute of Standards and Technology (NIST[30]) is in charge of setting forth standards of computer security for the private sector. NIST is also charged with doing basic research to advance the art of computer security. Currently NIST does not discuss TEMPEST with the private sector. For privacy's sake, this policy must be changed to a proactive one. The NIST should publicize the TEMPEST ELINT threat to computer security and should set up a rating system for level of emanations produced by computer equipment.[31] Further, legislation should be enacted to require the labeling of all computer equipment with its level of emanations and whether it is TEMPEST Certified. Only if the public knows of the problem can it begin to take steps to solve it. Title III makes possession of a surveillance device a crime, unless it is produced under contract to the government. This means that research into surveillance and counter-surveillance equipment is monopolized by the government and a few companies working under contract with _____________________ NACSIM 5100A is classified, as are all details of TEMPEST. To obtain access to it, contractor must prove that there is demand within the government for the specific type of equipment that intend to certify. Since the standard is classified, the contractors can not sell the equipment to non-secure governmental agencies or the public. This prevents reverse engineering of the standard for its physical embodiment, the Certified equipment. By preventing the private sector from owning this anti- eavesdropping equipment, the NSA has effectively prevented the them from protecting the information in their computers. 30. Previously the Bureau of Standards. The NIST is a division of the Commerce Department. 31. In this case computer equipment would include all peripheral computer equipment. There is no use is using a TEMPEST Certified computer if the printer or the modem are not Certified. <New Page> the government. If TEMPEST eavesdropping is criminalized, then possession of TEMPEST ELINT equipment will be criminal. Unfortunately,this does not solve the problem. Simple TEMPEST ELINT equipment is easy to make. For just a few dollars many older television sets can be modified to receive and reconstruct EMR. For less than a hundred dollars a more sophisticated TEMPEST ELINT receiver can be produced[32]. The problem with criminalizing the possession of TEMPEST ELINT equipment is not just that the law will have little effect on the use of such equipment, but that it will have a negative effect on counter-measures research. To successfully design counter-measures to a particular surveillance technique it is vital to have a complete empirical understanding of how that technique works. Without the right to legally manufacture a surveillance device there is no possible way for a researcher to have the knowledge to produce an effective counter-measures device. It is axiomatic: without a surveillance device, it is impossible to test a counter-measures device. A number of companies produce devices to measure the emanations from electrical equipment. Some of these devices are specifically designed for bench marking TEMPEST Certified equipment. This does not solve the problem. The question arises: how much radiation at a particular frequency is compromising? The current answer is to refer _____________________ 32. The NSA has tried to limit the availability of TEMPEST information to prevent the spread of the devices. For a discussion of the First Amendment and prior restraint See, e.g. The United States of America v. Progressive, Inc. 467 F.Supp 990 (1979, WD Wis.)(magazine intended to publish plans for nuclear weapon; prior restraint injunction issued), reh. den. United States v. Progressive Inc. 486 F.Supp 5 (1979, WD Wis.), motion den Morland v. Sprecher 443 US 709 (1979)(mandamus), motion denied United States v. Progressive, Inc. 5 Media L R (1979, 7th Cir.), dismd. without op. U.S. v. Progressive, Inc 610 F.2d 819 (1979, 7th Cir.); New York Times, Co. v. United States, 403 U.S. 713 (1971)(per curium)(Pentagon Papers case: setting forth prior restraint standard which government was unable to meet); T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION (1970); Balance Between Scientific Freedom and NAtional Security, 23 JURIMETRICS J. 1 (1982)(current laws and regulations limiting scientific and technical expression exceed the legitimate needs of national security); Hon. M. Feldman, Why the First Amendment is not Incompatible with National Security, HERITAGE FOUNDATION REPORTS (Jan. 14, 1987). Compare Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L. J. 1 (First Amendment applies only to political speech); G. Lewy, Can Democracy Keep Secrets, 26 POLICY REVIEW 17 (1983)(endorsing draconian secrecy laws mirroring the English system). <New Page> to NACSIM 5100A. This document specifies the emanations levels suitable for Certification. The document is only available to United States contractors having sufficient security clearance and an ongoing contract to produce TEMPEST Certified computers for the government. Further, the correct levels are specified by the NSA and there is no assurance that, while these levels are sufficient to prevent eavesdropping by unfriendly operatives, equipment certified under NACSIM 5100A will have levels low enough to prevent eavesdropping by the NSA itself. The accessibility of supposedly correct emanations levels does not solve the problem of preventing TEMPEST eavesdropping. Access to NACSIM 5100A limits the manufacturer to selling the equipment only to United States governmental agencies with the need to process secret information.[33] Without the right to possess TEMPEST ELINT equipment manufacturers who wish to sell to the public sector cannot determine what a safe level of emanations is. Further those manufacturers with access to NACSIM 5100A should want to verify that the levels set out in the document are, in fact, low enough to prevent interception. Without an actual eavesdropping device with which to test, no manufacturer will be able to produce genuinely uncompromising equipment. Even if the laws allow ownership of TEMPEST Certified equipment by the public, and even if the public is informed of TEMPEST's threat to privacy, individuals' private information will not necessarily by protected. Individuals may choose to protect their own information on their own computers. Companies may choose whether to protect their own private information. But companies that hold the private information of individuals must be forced to take steps to protect that information. In England the Data Protection Act 1984[34] imposes sanctions against anyone who stores the personal information[35] on a computer and fails to take reasonable _____________________ 33. For example, the NSA has just recently allowed the Drug Enforcement Agency (DEA) to purchase TEMPEST Certified computer equipment. The DEA wanted secure computer equipment because wealthy drug lords had were using TEMPEST eavesdropping equipment. 34. An Act to regulate the use of automatically processed information relating to individuals and the provision of services in respect of such information. -Data Protection Act 1984, Long Title. 35. "Personal data" means data consisting of information which relates to a living individual who can be identified from that <New Page> measures to prevent disclosure of that information. The act mandates that personal data may not be stored in any computer unless the computer bureau or data user[36] has registered under the act.[37] This provides for a central registry and the tracking of which companies or persons maintain databases of personal information. Data users and bureaux must demonstrate a need and purpose behind their possession of personal data. The act provides tort remedies to any person who is damaged by disclosure of the personal data.[38] Reasonable care to prevent the disclosure is a defense.[39] English _____________________ information (or from that and other information in the possession of the data user), including any expression of opinion about the individual but not any indication of the intentions of the data user in respect of that individual. -Data Protection Act 1984 1(3) 36. "Data user" means a person who holds data, and a persons "Holds" data if -- (a) the data form part of a collection of data processed or intended to be processed by or on behalf of that person as mentioned in subsection (2) above; [subsection (2) defines "data"] and (b) that person (either alone or jointly or in common with other persons) controls the contents and use of the data comprised in the collection; and (c) the data are in the form in which they have been or are intended to be processed as mentioned in paragraph (a) above or (though not for the time being in that form) in a form into which they have been converted after being so processed and with a view to being further so processed on a subsequent occasion. - Data Protection Act 1(5). 37. Data Protection Act 1984, 4,5. 38. An individual who is the subject of personal data held by a data user... and who suffers damage by reason of (1)(c) ... the disclosure of the data, or access having been obtained to the data without such authority as aforesaid shall be entitled to compensation from the data user... for any distress which the individual has suffered by reason of the ... disclosure or access. - Data Protection Act 1984 23. 39. ... it shall be a defense to prove that ... the data user ... had taken such care as in all the circumstances was reasonably required to prevent the... disclosure or access in question. Data Protection Act 1984 23(3) <New Page> courts have not yet ruled what level of computer security measures constitute reasonable care. Considering the magnitude of invasion possible with TEMPEST ELINT it should be clear by now that failure to use TEMPEST Certified equipment is prima facie unreasonable care. The Remedies section of the act provides incentive for these entities to provide successful protection of person data from disclosure or illicit access. Failure to protect the data will result in monetary loss. This may be looked at from the economic efficiency viewpoint as allocating the cost of disclosure the persons most able to bear those costs, and also most able to prevent disclosure. Data users that store personal data would use TEMPEST Certified equipment as part of their computer security plan, thwarting would-be eavesdroppers. The Data Protection Act 1984 allocates risk to those who can bear it best and provides an incentive for them to keep other individuals' data private. This act should be adopted by the United States as part of a full-spectrum plan to combat TEMPEST eavesdropping. Data users are in the best position to prevent disclosure through proper computer security. Only by making them liable for failures in security can we begin to rein in TEMPEST ELINT. VII Recommendations Do not criminalize TEMPEST ELINT. Most crimes that TEMPEST ELINT would aid, such a insider trading, are already illegal; the current laws are adequate. The National Institute of Standards and Technology should immediately begin a program to educate the private sector about TEMPEST. Only if individuals are aware of the threat can they take appropriate precautions or decide whether any precautions are necessary. Legislation should be enacted to require all electronic equipment to prominently display its level of emanations and whether it is TEMPEST Certified. If individuals are to choose to protect themselves they must be able to make a informed decision regarding how much protection is enough. TEMPEST Certified equipment should be available to the private sector. The current ban on selling to non- governmental agencies prevents individuals who need to protect information from having the technology to do so. Possession of TEMPEST ELINT equipment should not be made illegal. The inherently passive nature and simple design of TEMPEST ELINT equipment means that making its possession illegal will not deter crime; the units can be easily manufactured and are impossible to detect. Limiting their availability serves only to monopolize the countermeasures research, information, and equipment for the government; this prevents the testing, design and <New Page> manufacture of counter-measures by the private sector. Legislation mirroring England's Data Protection Act 1984 should be enacted. Preventing disclosure of personal data can only be accomplished by giving those companies holding the data a reason to protect it. If data users are held liable for their failure to take reasonable security precautions they will begin to take reasonable security precautions, including the use of TEMPEST Certified equipment. ------------------------------------------------------------------------- To find out more about the anon service, send mail to help@anon.penet.fi. Due to the double-blind, any mail replies to this message will be anonymized, and an anonymous id will be allocated automatically. You have been warned. Please report any problems, inappropriate use etc. to admin@anon.penet.fi.