Mobile Carriers Claim Consumer Consent to Carrier IQ Spying

Americans consented to secretly installed software on 150 million mobile phones that logs what apps they use and what websites they visit and who they communicate with, according to mobile-phone makers and carriers.

Sprint, AT&T, HTC and Samsung told Sen. Al Franken (D-Minnesota) Thursday that their end-user licensing agreements — those pages of fine print you sign when you get a new cell phone — authorize them to use Carrier IQ software to monitor app deployment, battery life, phone CPU output and data and cell-site connectivity. The companies’ statements, released by Franken, are a good roadmap to how the companies will fight federal privacy lawsuits already brought by consumers over the secret software.

The companies have deployed the software on handsets for years now. But it had only received mainstream attention last month when a Connecticut researcher publicized its presence on YouTube. The ensuing furor over the video prompted Franken to demand answers.

Franken was none too happy with the ones he got.

“People have a fundamental right to control their private information. After reading the companies’ responses, I’m still concerned that this right is not being respected,” Franken said in a statement. “The average user of any device equipped with Carrier IQ software has no way of knowing that this software is running, what information it is getting, and who it is giving it to — and that’s a problem.”

T-Mobile, which has acknowledged using the software, and Motorola are expected to respond to Franken’s inquiry by Dec. 20. Carrier IQ, founded in Mountain View, California, six years ago, has also spoken to government officials, including the Federal Trade Commission, but maintains no official investigation has commenced.

AT&T, for example, cited its terms-of-service agreement with consumers to Franken. Among other things, the agreement says consumers consent to monitoring to “improve your network and the quality of your wireless experience.”

Samsung, which installs the software at the carriers’ request, told Franken that the carriers are responsible for notifying consumers about it. The phone maker said it does not sell phones installed with Carrier IQ “directly to consumers.”

The software runs hidden from users, who generally can’t find it or uninstall it without very sophisticated knowledge or by switching out the operating system by “rooting” their phone and flashing an alternative operating system. While legal, rooting almost always voids a phone’s warranty.

What data is sent to Carrier IQ and the carriers depends on how much data the telcos want. Some carriers might want the text-message data, for example, only when certain conditions are met, such as when a text doesn’t go through to the intended recipient.

“Sprint does not always know why a call drops or a website will not load, for example. Sprint may not always know why a get message is not delivered timely, or why service is unavailable in a particular area,” Sprint wrote. “To help it better understand these issues, Sprint uses troubleshooting software installed on customers’ devices to report diagnostic and analytics data so it can solve particular problems,” Sprint told Franken.

Sprint, which said Friday it was disabling Carrier IQ from 26 million active devices that carry it, added that its “privacy policy explains that it may use tools and analytics to collect such information.”

Verizon does not employ Carrier IQ.

Some carriers collect the the data on an anonymized basis. That provides them a roadmap to where and when calls are dropped without knowing whose phone was being used. When too many calls are dropped in a certain location, for example, that could mean extra cell towers are needed in that area. The same could be true for when the software detects similar areas of low data connectivity.

But other carriers collect data that lets them drill down to the individual phone, providing customer-service representatives with vast tools to assist complaining customers. For example, a carrier could tell a customer that battery life is poor because a certain app is hogging electricity in the background. The software can be programmed to know when a consumer changed the battery, or how many times a battery charger was used. AT&T’s and Sprint’s letters spell out what data Carrier IQ collects on their behalf.

Here’s a synopsis of what the respondents told Franken:

  • AT&T collects information about the proximate location of your Device in relations to our cell towers and the Global Positioning System (GPS). We use that information, as well as other usage and performance information also obtained from our network and your Device, to provide you with wireless voice and data services, and to maintain and improve your network and the quality of your wireless experience,” AT&T said, (.pdf) citing its terms of service.
  • “Information we collect when we provide you with Services includes when your wireless device is turned on, how your device is functioning, device signal strength, where it is located, what device you are using, what you have purchased with your device, how you are using it, and what sites you visit. And, Sprint’s privacy policy explains that it may use tools and analytics to collect such information,” Sprint wrote (.pdf) Franken, also citing its user agreement.
  • “To the best of HTC’s knowledge the wireless service providers have made their collection activities known via their privacy policies and terms of use. The Federal Trade Commission staff also recognize that consumers ‘reasonably anticipate, and are likely to accept, that an [electronic communication service provider] will monitor the transmission of data for reasons related to providing the [related service], such as to ensure that their service is not interrupted or to detect and block the transmission of computer viruses or malware.’ Accordingly, the FTC calls this type of activity a ‘commonly accepted practice,’” HTC responded. (.pdf)
  • “Because Samsung does not sell any relevant devices directly to consumers, Samsung is not in a position to determine the extent of consumer awareness regarding the nature of the relationship between the carrier and the consumer, including the carriers’ inclusion of Carrier IQ on devices operating on their networks. Samsung understands that the carriers have Terms of Service and/or Privacy Policy agreements that discuss the collection and usage of consumer data, and that those agreements may govern the carriers’ relationships,” Samsung said.

Gizmodo has a quick rundown of which phones run Carrier IQ.

Occupy Goes to Washington, Finding Politics is Complicated

Perched on a hard stone platform, Freedom Plaza is close to the monuments of power in DC.

WASHINGTON — Even by Occupy Wall Street standards, the Washington, D.C. situation is messy and uncertain.

With most of the largest protest encampments around the country dismantled by the authorities, D.C. has two Occupy encampments — largely left unbothered by federal authorities — which are now the liveliest venue for the movement’s experimentation with methods and message — and the best indicator of the turbulence that lies ahead.

occupy

“As far as I’m, concerned, Occupy Wall Street started in New York and ends in D.C.,” said Ricky, a member of the occupation in the capital. (Some occupiers prefer not to give last names.)

He told me that on Sunday, Nov. 27 in front of Philadelphia City Hall, having come as part of a contingent to support that camp on the day of its eviction deadline. (It was finally raided the morning of the 29th). As Philadelphia, New York, Boston and ever more encampments around the county are cleared out by local authorities, the movement is consolidating in what many occupiers consider to be the enemy’s lap.

It’s an odd, but also fitting epicenter for a movement defined by a loud, yelping, ‘No’ against a political and economic system that increasingly shifts wealth to the top 1 percent of society.

“To me this is the pulse of the nation,” said Dan Newell, who recently hitchhiked from Michigan to D.C. “If any changes are going to be made, they are going to be made here.”

In the nation’s capital, two camps are thriving and legally protected from the surprise raids that have ended most occupations. That ginger legal treatment comes even after one camp –- on McPherson Square — has picked some of Occupy’s biggest fights yet. First it put up a building the size of a small house in a park where even tents are not, strictly speaking, allowed. Then it shut down a critical and iconic city thoroughfare in protest of money’s influence on politics.

Hunger striker Kelly Mears, a 24-year-old software developer, keeps a steady Internet presence from his 3G-equipped iPad. On Wednesday he tweeted that he had already lost about 20 pounds.

The latest, most dramatic act from the camp is a hunger strike by three members demanding statehood and fiscal independence for Washington, D.C.

That same week, labor unions and other organized, liberal establishment groups led their own marches on Washington power centers. Their week of action, named Take Back The Capitol, sometimes adopted OWS rhetoric such as “we are the 99 percent,” sometimes distanced itself from it, and sometimes got into minor squabbles with the inchoate and evolving Occupy movement.

Socio-economics, generational values, activism styles, and even senses of humor separate the two D.C. camps from each other, as well as from players such as organized labor and established political action groups.

There may be no better place than D.C. to observe how the Occupy movement may branch and splinter — and perhaps even fall apart.

Occupiers at McPherson square have the relative luxury of soft ground and shade trees.

One of the (physical and ideological) camps, formally know as “Occupy DC,” is at McPherson Square, a green haven along the infamous K Street, heart of the DC lobbying industry. Basically, it’s the Kids’ Camp -– largely Gen Y protesters. Many, maybe most, feel no connection to old political allegiances like liberal versus conservative. They are unhappy about a lot of things, but generally dislike the entire system.

“I’m here because there’s no better time,” said Emily, a 20-some woman who left her full-time job in the New York City area (she didn’t name the profession) and joined the McPherson camp. She was one of the 62 people arrested last Wednesday when they ignored the frigid rain to employ tents, other debris and their own bodies to block four intersections along K Street.

Emily is passionate, but vague.

“This world is backwards, and we don’t live within our means,” she said. “There are enough resources in the world, but they are not allocated properly.”

Good points, but she didn’t offer anything concrete to address them, saying only that politics is “a bunch of people talking about what should happen instead of trying to get stuff done.”

That’s what critics say about the Occupy movement, and Emily agreed that her description could apply to its general assembly meetings. But she hopes the GAs will develop into something more effective.

When McPherson does get stuff done, it’s usually attention-getting rather than problem-solving. Blocking K Street was a major publicity coup. So was assembling, in the middle of the night, a wooden barn-like structure and digging in, Alamo-style, until cops pulled the last holdouts from the roof, but only after one of them peed off of said roof.

McPherson protestors arrested Dec. 4, after defying orders to leave a barn erected in the middle of the night.

“The problem is, these young kids, they’re so obstinate. They don’t have a clear goal,” said attorney Ann C. Wilcox, with the National Lawyers Guild. That’s the group of lime-green-capped volunteers who observe protests for signs of police abuse, help arrestees through the legal process, and file legal claims, such as temporary restraining orders against evictions.

At the time, she was watching cops in a cherry picker plucking protestors off the roof of the barn. A while earlier, she’d been inside, trying, without a smidgen of success, to broker a deal between the police and protestors.

I’d met Wilcox the day before in the other DC camp at Freedom Plaza, a desolate but very visible slab of marble and granite along Pennsylvania Avenue. We were sitting in a classroom-like row of chairs arrayed on the stones and facing a whiteboard. Just a few minutes earlier, Margret Flowers, a pediatrician who is now a full-time advocate for single-payer healthcare, had given a workshop on the spot. Over a PA system (no people’s microphone here), she outlined the concept how “pillars of support” in society give a political regime its power. The class took notes and brainstormed strategies for reforming these pillars.

Anything like that exercise would be unthinkable at McPherson Square.

Flowers works closely with Kevin Zeese, an attorney and activist since the 1970s on everything from supporting marijuana legalization to opposing the war in Afghanistan. He has co-founded several non-profit political organizations, including It’s Our Economy, which he and Flowers created. Zeese was press secretary and spokesperson for Ralph Nader during the 2004 presidential campaign, and the two men remain close friends.

An activist since the 1970s, attorney Kevin Zeese is an intellectual leader of the Freedom Plaza camp.

Flowers, Zeese and the other founders of the Freedom Plaza camp have radical views and have been arrested for civil disobedience. They are also highly organized in a way that the McPherson crew finds creepy. One McPherson member called the Freedom Plaza occupiers “professional activists.”

Even their occupation was well planned, going back to April -– long before “Occupy Wall Street” had entered the popular lexicon. (Their first public call to occupy came in June.) Originally called “October 2011,” and beginning on the 6th of that month, it was an anti-war and “economic justice” occupation swept into the Occupy wave.

It even had a permit to settle in Freedom Plaza –- though just for four days. After squatting past that point, the organizers have negotiated with the National Park Service a four-month extension that runs to the end of February.

Despite their differences, the two D.C. occupations are united against common rivals that they believe would co-opt them –- like Democratic-leaning political groups MoveOn and Rebuild the Dream, a new organization led by Obama Administration veteran Van Jones. An editorial in Freedom Plaza’s newspaper, the Occupied Washington Post, read: “Rebuild the Dream is more of the same that has been seen over and over from groups like MoveOn and Campaign for America’s Future, elect Democrats is their mantra. It is their only program. And, it is bankrupt.”

The two camps are also wary of labor unions, especially the massive Service Employees International Union, or SEIU. While not the only group behind Take Back The Capitol, SEIU was the most visible. With strict hierarchies, unions like the SEIU represent the unequal “system” that Occupy opposes. Some have even called the union’s powerful leaders part of “the 1 percent” that rules the country. The ties between organized labor and the Democrats are also odious to the Occupy activists in both camps, who are disgusted with all political parties in the U.S.

But at least some occupiers don’t want to alienate potential allies, either.

Not all the Freedom Plaza occupiers are middle-aged. Brendan Mannion enjoys some sun after a cold, wet night last week.

So the Freedom Plaza general assembly faced a difficult debate on Dec. 3 when Kevin Zeese announced that the SEIU had offered to make a donation to the group. Facing a difficult winter and in desperate need of supplies, some people advocated taking the money, as long as they made clear that there were “no strings attached.”

Others, including Zeese, felt that it was impossible to take money and remain independent.

“You look at Obama taking money from Goldman Sachs,” he said. “Does that taint him? I think it does.”

On Wednesday, the SEIU said that it would be sending a check, but the Freedom Plaza group had already decided to reject it. “We are happy to work with them on common areas of interest, but financial independence will make us more credible advocates,” said Zeese in an e-mail to Wired.

Others word their views more strongly.

“All this is a Democratic campaign. It’s all union,” said James DeVoe, who handles new-occupier intake at Freedom Plaza. “We’re trying to fix government, not vote for the same thing.”

An SEIU member who asked that his name not be used had a different perspective, noting that his organization has been working for years for political reform, and it hasn’t co-opted Occupy. Take Back The Capitol had been planned since August, he said, when Occupy Wall Street was just a concept. Instead, Occupy is taking over, with the public considering any political action to be part of “Occupy.”

In contrast to the Occupation shantytowns, the SEIU erected nearly circus-size, heated tents on the National Mall. And it paid to fly and bus in supporters, including members from other occupations. It even put some up in hotels.

But several drifted away from the union. Devoe said that about 40 occupiers ditched the SEIU and joined the Freedom Plaza camp for the week. And I met at least a dozen people, most from Kansas City, at McPherson Square. To some, there was a huge disconnect between the SEIU and OWS, especially at K Street. “I think it’s funny that SEIU bussed us in here … and they didn’t expect arrests,” said Melissa Stiehler, one of the KC occupiers.

The K Street action may also mark a major shift in the movement -– winning over police officers. According to Stiehler, two of the arresting cops who took her in confided that they would like to come back when they are off duty to take part in the protests. (Of course, that could also be an undercover strategy.) Her boyfriend Jeremy Al-Haj says that other cops told him “We’ll see you soon, and keep up the good work.” And according to one of their friends, who goes by Marci, a female cop said, “What you did today has really made a difference. You got a lot of people’s attention.”

The SEIU erected huge tents on the National Mall for Take Back The Capitol campaign.

Discounting the possibility of a Kansas City cabal, I later heard roughly the same thing from someone entirely different. I met Carlos Villalobos of Occupy Houston in an SEIU-dominated march on the Capitol. He says that four cops told him “We support what you’d doing. Keep doing it. Keep it up.”

The DC police have been working without a contract for four years. They might well have “99 percent” gripes, too. But actually admitting them would be a turning point in the occupy movement. For what it’s worth, nearly all the protestors who were arrested report virtually no violence from the DC and National Park Service police, other than the inevitable from getting grabbed and cuffed.

The National Park Service police, responsible for the locations of both camps, have been especially tolerant, even supportive. Their policy allows tents on parkland, for example, but only for 24-hour vigils. Clearly, each of the hundreds of people in D.C. hasn’t been awake for over nine weeks straight. And one day, learning that press would be visiting Freedom Plaza at 5 a.m., NPS officers woke protestors a half hour earlier so no one would see them sleeping.

The improving relationship between occupiers and cops is an odd contrast to the strained ties between the McPherson and Freedom Plaza camps. Meanwhile, tensions between Occupiers and labor unions like SEIU, as well as with established political groups like MoveOn, may preview the tumult of the coming elections.

If D.C. is an indicator, instead of sweeping in an new activist tide, Occupy may find itself caught in turbulent, but politically insignificant eddies.

Photos: Sean Captain/Wired.com

Manning Hearing Moves Forward Under a Cloud of Questions

Bradley Manning (left, in profile) at the first day of his Article 32 hearing. (Courtroom sketch: U.S. Army)

FORT MEADE, MARYLAND. — The first day of Bradley Manning’s hearing ended Friday with no witnesses called and no final determination about the fitness of the officer presiding over the case.

The proceedings broke early at about 4 p.m. after investigating officer Lt. Col. Paul Almanza, an Army reservist, refused to grant a defense motion calling for his recusal. Manning’s attorney, David E. Coombs, had requested that Almanza step aside on the grounds that he is biased against Manning and has a conflict of interest in the case — until four days ago, Almanza worked for the Department of Justice. He’s currently on reservist military leave from the Justice Department in order to preside over the Manning hearing.

Attorneys assisting Coombs responded to Almanza’s refusal by filing a so-called “extraordinary writ” with the Army Court of Criminal Appeals asking for an order halting the proceedings while Almanza’s recusal decision can be examined by a higher authority.

There was no ruling on the emergency motion as of the end of the day, and the case is set to continue at 10 a.m. Saturday — Manning’s 24th birthday — with the government calling its first witness.

The first day of the so-called Article 32 hearing proceeded in stops and starts as the court broke for several recesses, first to allow the government to develop a response to Coomb’s motion to recuse, and then to allow Almanza time to consider the arguments for and against his recusal.

A legal expert provided to reporters by the Army on condition he not be named remarked on the unusual day, saying that a writ to recuse filed in connection to an Article 32 hearing is “something that happens on occasion, but is not something that you see often.”

Adrian Lamo, the ex-hacker who turned in Manning in May of last year, took to Twitter to offer his own opinion on the day’s events. “To ask a judicial official to step down because his day job is to prosecute is not a display of confidence for the defense,” he wrote. Lamo is expected to be a government witness in the hearing in the days ahead, where he’ll face cross-examination by Coombs.

Coombs’ challenging actions on Friday, which turned contentious at a couple of points during the proceeding, were likely meant to put the investigating officer on notice that he will be closely watched for impartiality should he remain in place, as well as establish some possible grounds for later appeal if Almanza remains on the case.

Manning sat calmly throughout the proceedings, conferring occasionally with his counsel. He appeared to be healthy, as well as confident in the legal representation he was receiving.

A small group of supporters gathered outside the courtroom to bolster Manning’s spirits, but were prevented from getting near the entrance to see him entering and exiting the building. An even smaller group of supporters took up seats in the gallery of the courtroom, which holds about 50 spectators. As Manning was escorted out of the courtroom at the end of the day, one supporter was heard to shout, “Bradley Manning, you’re a hero!”

Coombs’ attack on the military equivalent of a sitting judge clearly took prosecutors by surprise, and gave the defense attorney the initiative in the first day of the high-stakes hearing. But Manning’s road ahead is still long and arduous.

If the case is cleared for court martial, Manning can propose a plea agreement anytime before the actual court martial, according to the legal expert, who said that such a plea must be initiated by the defense, not the government.

If Manning does not plead guilty and a determination of guilt is ultimately made by the court, he still has the ability to appeal, first to the Army Court of Criminal Appeals, then to the Court of Appeals for the Armed Forces and finally to the Supreme Court.

Manning’s hearing is expected to continue throughout the weekend and into next week, unless the Appeals court orders a stay. Wired.com will be providing gavel to gavel coverage.

YouTube Says Universal Had No ‘Right’ to Take Down Megaupload Video

          

YouTube said Friday that Universal Music abused the video-sharing site’s piracy filters when it employed them to take down a controversial video of celebrities and pop superstars singing and praising the notorious file-sharing service Megaupload.

YouTube’s copyright filters removed the all-star video, which features Kanye West, Mary J. Blige, will.i.am and others, on Dec. 9. Google reinstated the four-minute spot Wednesday.

“Our partners do not have the right to take down videos from YT unless they own the rights to them or they are live performances controlled through exclusive agreements with their artists, which is why we reinstated it,” Google-owned YouTube said.

Megaupload produced the video for $3 million, and says it has waivers from all the celebrities. The Hong Kong-based service claims in a federal lawsuit filed Monday that the takedown was a “sham” designed to chill free speech. The suit seeks unspecified damages, alleging the label had violated a provision in copyright law that forbids bogus copyright claims.

Megaupload has some 50 million daily users, and the recording industry says it is a haven for music pirates.

YouTube’s statement came a day after Universal Music told a federal judge hearing the case that it had used YouTube’s content filters, known as the Content Management System, to have the video removed shortly after Megaupload had uploaded it. Universal never disclosed to U.S. District Judge Claudia Wilken why it had the video removed.

But Universal told Wilken, an Oakland federal judge, that Megaupload is not entitled to monetary damages, (.pdf) even if Universal Music gamed YouTube’s filters.

Universal said Google’s private system doesn’t count as an official takedown notice under the Digital Millennium Copyright Act, and thus it was immune from legal liability. It’s a position that Ira Rothken, Megaupload’s attorney, said was preposterous.

YouTube has engineered a filtering system enabling rights holders to upload music and videos they own to a “fingerprinting” database. When YouTube users upload videos, the system scans the upload against the copyright database for matches. If a full or partial match is found, the alleged rights holder can have the video automatically removed, or it can place advertising on the video and make money every time somebody clicks on the video.

Under the DMCA, online service providers like YouTube lose legal immunity for their users’ actions if they don’t remove allegedly infringing content if asked to by rights holders. If the content is not removed, internet service providers could be held liable for damages under the Copyright Act, which carries penalties of up to $150,000 per violation.

Megaupload’s lawsuit is pending.