Law professor Dan Solove has a new article on privacy regulation. In his email to me, he writes: “I’ve been pondering privacy consent for more than a decade, and I think I finally made a breakthrough with this article.” His mini-abstract:

In this Article I argue that most of the time, privacy consent is fictitious. Instead of futile efforts to try to turn privacy consent from fiction to fact, the better approach is to lean into the fictions. The law can’t stop privacy consent from being a fairy tale, but the law can ensure that the story ends well. I argue that privacy consent should confer less legitimacy and power and that it be backstopped by a set of duties on organizations that process personal data based on consent.

Full abstract:

Consent plays a profound role in nearly all privacy laws. As Professor Heidi Hurd aptly said, consent works “moral magic”—it transforms things that would be illegal and immoral into lawful and legitimate activities. As to privacy, consent authorizes and legitimizes a wide range of data collection and processing.

There are generally two approaches to consent in privacy law. In the United States, the notice-and-choice approach predominates; organizations post a notice of their privacy practices and people are deemed to consent if they continue to do business with the organization or fail to opt out. In the European Union, the General Data Protection Regulation (GDPR) uses the express consent approach, where people must voluntarily and affirmatively consent.

Both approaches fail. The evidence of actual consent is non-existent under the notice-and-choice approach. Individuals are often pressured or manipulated, undermining the validity of their consent. The express consent approach also suffers from these problems ­ people are ill-equipped to decide about their privacy, and even experts cannot fully understand what algorithms will do with personal data. Express consent also is highly impractical; it inundates individuals with consent requests from thousands of organizations. Express consent cannot scale.

In this Article, I contend that most of the time, privacy consent is fictitious. Privacy law should take a new approach to consent that I call “murky consent.” Traditionally, consent has been binary—an on/off switch—but murky consent exists in the shadowy middle ground between full consent and no consent. Murky consent embraces the fact that consent in privacy is largely a set of fictions and is at best highly dubious.

Because it conceptualizes consent as mostly fictional, murky consent recognizes its lack of legitimacy. To return to Hurd’s analogy, murky consent is consent without magic. Rather than provide extensive legitimacy and power, murky consent should authorize only a very restricted and weak license to use data. Murky consent should be subject to extensive regulatory oversight with an ever-present risk that it could be deemed invalid. Murky consent should rest on shaky ground. Because the law pretends people are consenting, the law’s goal should be to ensure that what people are consenting to is good. Doing so promotes the integrity of the fictions of consent. I propose four duties to achieve this end: (1) duty to obtain consent appropriately; (2) duty to avoid thwarting reasonable expectations; (3) duty of loyalty; and (4) duty to avoid unreasonable risk. The law can’t make the tale of privacy consent less fictional, but with these duties, the law can ensure the story ends well.

Former senior White House cyber policy director A. J. Grotto talks about the economic incentives for companies to improve their security—in particular, Microsoft:

Grotto told us Microsoft had to be “dragged kicking and screaming” to provide logging capabilities to the government by default, and given the fact the mega-corp banked around $20 billion in revenue from security services last year, the concession was minimal at best.

[…]

“The government needs to focus on encouraging and catalyzing competition,” Grotto said. He believes it also needs to publicly scrutinize Microsoft and make sure everyone knows when it messes up.

“At the end of the day, Microsoft, any company, is going to respond most directly to market incentives,” Grotto told us. “Unless this scrutiny generates changed behavior among its customers who might want to look elsewhere, then the incentives for Microsoft to change are not going to be as strong as they should be.”

Breaking up the tech monopolies is one of the best things we can do for cybersecurity.

Interesting social-engineering attack vector :

McAfee released a report on a new LUA malware loader distributed through what appeared to be a legitimate Microsoft GitHub repository for the “C++ Library Manager for Windows, Linux, and MacOS,” known as vcpkg .

The attacker is exploiting a property of GitHub: comments to a particular repo can contain files, and those files will be associated with the project in the URL.

What this means is that someone can upload malware and “attach” it to a legitimate and trusted project.

As the file’s URL contains the name of the repository the comment was created in, and as almost every software company uses GitHub, this flaw can allow threat actors to develop extraordinarily crafty and trustworthy lures.

For example, a threat actor could upload a malware executable in NVIDIA’s driver installer repo that pretends to be a new driver fixing issues in a popular game. Or a threat actor could upload a file in a comment to the Google Chromium source code and pretend it’s a new test version of the web browser.

These URLs would also appear to belong to the company’s repositories, making them far more trustworthy.

After the XZ Utils discovery, people have been examining other open-source projects. Surprising no one, the incident is not unique:

The OpenJS Foundation Cross Project Council received a suspicious series of emails with similar messages, bearing different names and overlapping GitHub-associated emails. These emails implored OpenJS to take action to update one of its popular JavaScript projects to “address any critical vulnerabilities,” yet cited no specifics. The email author(s) wanted OpenJS to designate them as a new maintainer of the project despite having little prior involvement. This approach bears strong resemblance to the manner in which “Jia Tan” positioned themselves in the XZ/liblzma backdoor.

[…]

The OpenJS team also recognized a similar suspicious pattern in two other popular JavaScript projects not hosted by its Foundation, and immediately flagged the potential security concerns to respective OpenJS leaders, and the Cybersecurity and Infrastructure Security Agency (CISA) within the United States Department of Homeland Security (DHS).

The article includes a list of suspicious patterns, and another list of security best practices.

A new paper presents a polynomial-time quantum algorithm for solving certain hard lattice problems. This could be a big deal for post-quantum cryptographic algorithms, since many of them base their security on hard lattice problems.

A few things to note. One, this paper has not yet been peer reviewed. As this comment points out: “We had already some cases where efficient quantum algorithms for lattice problems were discovered, but they turned out not being correct or only worked for simple special cases .”

Two, this is a quantum algorithm, which means that it has not been tested. There is a wide gulf between quantum algorithms in theory and in practice. And until we can actually code and test these algorithms, we should be suspicious of their speed and complexity claims.

And three, I am not surprised at all. We don’t have nearly enough analysis of lattice-based cryptosystems to be confident in their security.

This is a current list of where and when I am scheduled to speak:

• I’m speaking twice at RSA Conference 2024 in San Francisco. I’ll be on a panel on software liability on May 6, 2024 at 8:30 AM, and I’m giving a keynote on AI and democracy on May 7, 2024 at 2:25 PM.

The list is maintained on this page .

Someone got caught trying to smuggle 322 pounds of gold (that’s about 1/4 of a cubic foot) out of Hong Kong. It was disguised as machine parts:

On March 27, customs officials x-rayed two air compressors and discovered that they contained gold that had been “concealed in the integral parts” of the compressors. Those gold parts had also been painted silver to match the other components in an attempt to throw customs off the trail.

Last week I posted a short memorial of Ross Anderson. The Communications of the ACM asked me to expand it. Here’s the longer version .

EDITED TO ADD (4/11): Two weeks before he passed away, Ross gave an 80-minute interview where he told his life story.

Listen to the Audio on SoundCloud.com

Bruce Schneier was at the first ever RSA Conference in 1991, and he was the first ‘exhibitor’ in 1994 when he asked Jim Bidzos, Creator of the RSA Conference, if he could sell copies of his book “Applied Cryptography.” Bidzos set Schneier up in the hotel lobby where the conference was being held—and the rest is history. Listen to some great RSA Conference memories on this episode of the History of RSA Conference.