Wiretapping a hidden network

We consider the problem of maximizing the probability of hitting a strategically chosen hidden virtual network by placing a wiretap on a single link of a communication network. This can be seen as a two-player win-lose (zero-sum) game that we call the wiretap game. The value of this game is the greatest probability that the wiretapper can secure for hitting the virtual network. The value is shown to equal the reciprocal of the strength of the underlying graph. We efficiently compute a unique partition of the edges of the graph, called the prime-partition, and find the set of pure strategies of the hider that are best responses against every maxmin strategy of the wiretapper. Using these special pure strategies of the hider, which we call omni-connected-spanning-subgraphs, we define a partial order on the elements of the prime-partition. From the partial order, we obtain a linear number of simple two-variable inequalities that define the maxmin-polytope, and a characterization of its extreme points. Our definition of the partial order allows us to find all equilibrium strategies of the wiretapper that minimize the number of pure best responses of the hider. Among these strategies, we efficiently compute the unique strategy that maximizes the least punishment that the hider incurs for playing a pure strategy that is not a best response. Finally, we show that this unique strategy is the nucleolus of the recently studied simple cooperative spanning connectivity game

The Rhetorical Algorithm: WikiLeaks and the Elliptical Secrets of Donald J. Trump

Algorithms were a generative force behind many of the leaks and secrets that dominated the 2016 election season. Taking the form of the identity-anonymizing Tor software that protected the identity of leakers, mathematical protocols occupied a prominent place in the secrets generated during the presidential campaign. This essay suggests that the rhetorical trope of ellipsis offers an equally crucial, algorithmic formula for explaining the public production of these secrets and leaks. It then describes the 2016 DNC leak and Donald Trump’s “I love Wikileaks” moment using the trope of ellipsis, which marks a discursive omission or gap in official executive discourse

The New Writs of Assistance

The providers of network services (and the makers of network devices) know an enormous amount about our lives. Because they do, these network intermediaries are being asked with increasing frequency to assist the government in solving crimes or gathering intelligence. Given how much they know about us, if the government can secure the assistance of these intermediaries, it will enjoy a huge increase in its theoretical capacity for surveillance—the ability to learn almost anything about anyone. This has the potential to create serious social harm, even assuming that the government continues to adhere to ordinary democratic norms and the rule of law. One possible solution to this problem is for network intermediaries to refuse government requests for aid and attempt to sustain those refusals in court. Although this proposal has received an enormous amount of attention, there is substantial cause for skepticism about how well it can work. Congress has given the government wide authority to demand information and assistance through tools like subpoenas, the Stored Communications Act, and Title III. Even when the government does not have specific statutory authorization, courts have interpreted the All Writs Act to authorize a great deal of open-ended aid, consistent with the well-settled Anglo-American history of third-party assistance in law enforcement. It is also far from unheard of for the executive to read restrictions on its surveillance authority narrowly, and its own inherent powers broadly, to engage in surveillance that is quasi- or extra-legal. A superior (or at least complementary) response to the problem is to restrict network intermediaries themselves by limiting how much they can learn about us and how long they can retain it. This approach treats enhanced state surveillance as a problem created by the intermediaries’ stockpiling of data, and proposes to solve it at the root—which would, as a useful side effect, solve a number of other problems created by that stockpiling, too

Fourth Amendment Codification and Professor Kerr\u27s Misguided Call for Judicial Deference

This essay critiques Professor Orin Kerr\u27s provocative article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004). Increasingly, Fourth Amendment protection is receding from a litany of law enforcement activities, and it is being replaced by federal statutes. Kerr notes these developments and argues that courts should place a thumb on the scale in favor of judicial caution when technology is in flux, and should consider allowing legislatures to provide the primary rules governing law enforcement investigations involving new technologies. Kerr\u27s key contentions are that (1) legislatures create rules that are more comprehensive, balanced, clear, and flexible; (2) legislatures are better able to keep up with technological change; and (3) legislatures are more adept at understanding complex new technologies. I take issue with each of these arguments. Regarding Kerr\u27s first contention, I argue that Congress has created an uneven fabric of protections that is riddled with holes and weak safeguards. Kerr\u27s second contention - that legislatures are better able to update rules quickly as technology shifts - is belied by the historical record, which suggests Congress is actually far worse than the courts in reacting to new technologies. As for Kerr\u27s third contention, shifting to a statutory regime will not eliminate Kerr\u27s concern with judges misunderstanding technology. In fact, many judicial misunderstandings stem from courts trying to fit new technologies into an old statutory regime that is built around old technologies. Therefore, while Kerr is right that our attention must focus more on the statutes, he is wrong in urging for a deferential judicial approach to the Fourth Amendment