Bob Sullivan

What do the presidential candidates think of domestic intelligence collection — or spying on Americans, depending on your point of view?  What do they think of Ed Snowden?

We haven’t heard a lot about the NSA or Snowden during the noisy campaigns so far, and that’s a shame. That’s because all the air is being sucked out of the conversation by more trivial concerns, such as Donald Trump’s debate schedule.  But all the candidates have spoken about domestic spying and about Snowden.

As we welcome election season proper, here’s a primer on the candidates’ views.

But first, a few notes: The most remarkable item of note is that Sen. Bernie Sanders voted against the original Patriot Act back in 2001 as a member of the House. He’s part of a very select group who did so.

Second, while some candidates have expressed a bit more sympathy for Snowden’s role as whistleblower, they’ve all called for him to face prosecution for treason. Even Sanders.

REPUBLICANS

Marco Rubio

On Snowden: He “sparked conspiracy theories”

From the Atlantic: “We must also distinguish these reasonable concerns from conspiracy theories sparked by Edward Snowden. This man is a traitor who has sought assistance and refuge from some of the world’s most notorious violators of liberty and human rights.”

On domestic surveillance: (The Washington Post) Those who voted for the Freedom Act, like Ted Cruz, put America at risk by making it harder to gather intelligence.

Ted Cruz

On Snowden: His opinion seems to have grown harsher over time

In 2013, he said (TheHill.com): “If it is the case that the federal government is seizing millions of personal records about law-abiding citizens, and if it is the case that there are minimal restrictions on accessing or reviewing those records, then I think Mr. Snowden has done a considerable public service by bringing it to light.”

More recently, he said: “Today, we know that Snowden violated federal law, that his actions materially aided terrorists and enemies of the United States, and that he subsequently fled to China and Russia,” he continued. “Under the Constitution, giving aid to our enemies is treason.”

On surveillance: (The Guardian) Cruz has defended his Senate for the USA Freedom Act, which clarified the NSA’s metadata telephone records collection pogram

Donald Trump

On Snowden: He’s hinted that he’d lead a charge to return and execute Snowden.

“I think he’s a terrible traitor, and you know what we used to do in the good old days when we were a strong country? You know what we used to do to traitors, right?” Trump said on Fox. 

On surveillance: “I tend to err on the side of security, I must tell you,” he has said (TheHill.com).  “I assume when I pick up my telephone people are listening to my conversations anyway, if you want to know the truth… It’s a pretty sad commentary.”

He also said he would be “fine” with restoring provisions of the Patriot Act (TheHill.com) to allow for the bulk data collection.

DEMOCRATS

Hillary Clinton

On Snowden: He should ‘face the music’

(The Atlantic) “He broke the laws of the United States… He could have been a whistleblower, he could have gotten all the protections of a whistleblower. He chose not to do that. He stole very important information that has fallen into the wrong hands so I think he should not be brought home without facing the music.”

On surveillance:

Clinton voted for both the 2001 Patriot Act and the 2008 FISA Amendments that extended NSA data collection capabilities.  More on her views at The Atlantic.

Bernie Sanders

On Snowden: “I think Snowden played a very important role in educating the American public … he did break the law, and I think there should be a penalty to that,” Sanders said (HuffingtonPost.com). He went on to say that the role Snowden played in educating the public about violations of their civil liberties should be considered before he is sentenced. On the other hand, this mildly Snowden sympathetic story is posted on Sanders’ senate webpage.

On surveillance:

Sanders voted against Patriot Act in 2001 as a member of the House of Representatives.  Later in the Senate, he voted against the 2008 FISA Amendments.

Larry Ponemon

Our second annual study on Exchanging Cyber Threat Intelligence: There Has to Be a Better Way reveals interesting trends in how organizations are participating in initiatives or programs for exchanging threat intelligence with peers, industry groups, IT vendors and government.

According to the 692 IT and IT security practitioners surveyed, there is more recognition that the exchange of threat intelligence can improve an organization’s security posture and situational awareness. However, concerns about trust in the sources of intelligence and timeliness of the information continue to be a deterrent to participation in such initiatives.

Forty-seven percent of respondents say their organization had a material security breach that involved an attack that compromised the networks or enterprise systems. This attack could have been external (i.e. hacker), internal (i.e. malicious insider) or both. Most respondents (65 percent) say threat intelligence could have prevented or minimized the consequences of the attack.

Following are key research takeaways:

Threat intelligence is essential for a strong security posture. Seventy-five percent of respondents, who are familiar and involved in their company’s cyber threat intelligence activities or process, believe gathering and using threat intelligence is essential to a strong security posture.

Potential liability and lack of trust in sources of intelligence, keep some organizations from participating. Organizations that only partially participate cite potential liability of sharing (62 percent of respondents) and lack of trust in the sources of intelligence (60 percent of respondents). However, more respondents believe there is a benefit to exchanging threat intelligence.

Organizations rely upon peers and security vendors for threat intelligence. Sixty-five percent of respondents say they engage in informal peer-to-peer exchange of information or through a vendor threat exchange service (45 percent of respondents). IT vendors and peers are also considered to provide the most actionable information. Law enforcement or government officials are not often used as a source for threat intelligence.

Threat intelligence needs to be timely and easy to prioritize. Sixty-six percent of respondents who are only somewhat or not satisfied with current approaches say it is because the information is not timely and 46 percent complain the information is not categorized according to threat type or attacker.

Organizations are moving to a centralized program controlled by a dedicated team.  A huge barrier to effective collaboration in the exchange of threat intelligence is the existence of silos. Centralizing control over the exchange of threat intelligence is becoming more prevalent and might address the silo problem.

I hope you will download the full report.

Bob Sullivan

Verizon managed to ground an airline for several hours on Jan. 14. But it’s important to ask: Who’s really to blame?

Discount airliner JetBlue appears to have cut some corners with its disaster recovery planning. The airline suffered nationwide delays on Thursday when many of its computer systems went down, preventing fliers from checking in. The problems lasted at least three hours, and probably longer, halting flights at many airports.

JetBlue blamed the outage on Verizon.

“We’re currently experiencing network issues due to a Verizon data center power outage. We’re working to resolve the issue as soon as possible,” JetBlue said on its blog. “The power was disrupted during a maintenance operation at the Verizon data center.  Verizon can provide more details into the cause.”

At 2:30 p.m. ET, JetBlue posted an update saying it was still experiencing system issues.

Verizon told me the problem began three hours earlier.

“On Thursday morning at 11:37 am ET, a Verizon data center experienced a power outage that impacted JetBlue’s operations,” the firm said in a statement. “JetBlue’s systems are now being restored.  Our engineering team has been working to restore service quickly, and power has been restored to the data center.”

The impact of the outage was dramatic: “Customer support systems, including jetblue.com, mobile apps, 1-800-JETBLUE, check-in and airport counter/gate systems, are impacted,” JetBlue said.

Consumers spent the early afternoon Tweeting their displeasure and the uncertainty the outage created.

“At least make some estimates on flight delays so people can make informed decisions,” said Jared Levy on Twitter.

It’s worth noting that JetBlue said on its blog at 1:50 p.m. that power had been restored to to Verizon’s data center, “and we are working to fully restore our systems as soon as possible.”

That sure sounds like JetBlue is completely dependent on Verizon. Maybe the firm had some rollover plan that it never implemented, and got the idea that doing so would take longer than waiting for Verizon to fix its electricity problem. Either option doesn’t sound great. A misbehaving backhoe can take down a major airline’s operation? In the middle of the day?  And it stays down until Verizon can implement a power fix? Sounds like someone’s plan B wasn’t grade A.

That’s not uncommon, however. One of my favorite stories, now nearly five years old, was titled “Why plan B’s often work out badly. ” Inspired by the Japanese nuclear power plant disaster, I examined why backup plans often fail when reality strikes.  The short answer: It’s very hard to create an entirely duplicate universe where you can test plan B.  And it’s even hard to keep on testing it regularly and make sure it actually works. To wit: Your snow plow often doesn’t start after the first snow because it’s been sitting idle all summer.

Of course, big airlines should do better. But reality is, they often don’t. Hopefully more details will emerge soon so we can all learn from this.

Bob Sullivan

It’s natural to look for a scapegoat after something terrible happens, like this: If only we could read encrypted communications, perhaps the Paris terrorist attacks could have been stopped.  It’s natural, but it’s wrong.  Read every story you see about Paris carefully and look for evidence that encryption played a role.

There’s a reason The Patriot Act was passed only a few weeks after 9-11, and it wasn’t because Congress was finally able to act quickly and efficiently on something.  The speed came because many elements of the Patriot Act had already been written, and forces with an agenda were sitting in wait for a disaster so they could push that agenda.  That is wrong.

So here we are now, once again faced with political opportunism after an unthinkable human tragedy, and we must remain strong in the face of it.  There is no simple answer to terrorism, and we should all know this by now.  And so there must be no simple discussion about the use of encryption in the Western world.  The debate requires a bit of thoughtful analysis, and we owe it to everyone who ever died for a free society to have this debate thoughtfully.

The basics are this: Only recently, computing power has become inexpensive enough that ordinary citizens can scramble messages so effectively that even governments with near-infinite resources cannot crack them. Such secret-keeping powers scare government officials, and for good reason.  They can, theoretically, allow criminals and terrorists to communicate with a cloak of invisibility.  Not surprisingly, several government officials have called for a method that would allow law enforcement to crack these codes.  There are many schemes for this, but they all boil down to something akin to creating a master key that would be generated by encryption-making firms and given to government officials, who would use the key only after a judge granted permission.  This is sometimes referred to as creating “backdoors” for law enforcement.

Governments can already listen in on telephone conversations after obtaining the proper court order.  What’s the difference with a master encryption key?

Sadly, it’s not so simple.

For starters, U.S. firms that sell products using encryption would create backdoors, if forced by law.  But products created outside the U.S.?  They’d create backdoors only if their governments required it.  You see where I’m going. There will be no global master key law that all corporations adhere to.  By now I’m sure you’ve realized that such laws would only work to the extent that they are obeyed.  Plenty of companies would create rogue encryption products, now that the market for them would explode.  And of course, terrorists are hard at work creating their own encryption schemes.

There’s also the problem of existing products, created before such a law. These have no backdoors and could still be used. You might think of this as the genie out of the bottle problem, which is real. It’s very,  very hard to undo a technological advance.

Meanwhile, creation of backdoors would make us all less safe.  Would you trust governments to store and protect such a master key?  Managing defense of such a universal secret-killer is the stuff of movie plots.  No, the master key would most likely get out, or the backdoor would be hacked.  That would mean illegal actors would still have encryption that worked, but the rest of us would not. We would be fighting with one hand behind out backs.

In the end, it’s a familiar argument: disabling encryption would only stop people from using it legally. Criminals and terrorists would still use it illegally.

Is there some creative technological solution that might help law enforcement find terrorists without destroying the entire concept of encryption? Perhaps, and I’d be all ears. I haven’t heard it yet.

Only a few weeks after 9-11, a software engineer who told me he was working for the FBI contacted me and told me he was helping create a piece of software called Magic Lantern.  It was a type of computer virus, a Trojan horse keylogger, that could be remotely installed on a target’s computer and steal passphrases used to open up encrypted documents.  The programmer was uncomfortable with the work and wanted to expose it. I wrote the story for msnbc.com, and after denying the existence of Magic Lantern for a while, the FBI ultimately conceded using this strategy.  While we could debate the merits of Magic Lantern, at least it constituted a targeted investigation — something far, far removed from rendering all encryption ineffective.

For a far more detailed examination of these issues, you should read Kim Zetter at Wired, as I always do. Then make up your own mind.

Don’t let a politician or a law enforcement official with an agenda make it for you. Most of all, don’t allow someone who capitalizes on tragedy a mere hours after the first blood is spilled — an act so crass it disqualifies any argument such a person makes — to influence your thinking.

Bob Sullivan

It’s natural to look for a scapegoat after something terrible happens, like this: If only we could read encrypted communications, perhaps the Paris terrorist attacks could have been stopped.  It’s natural, but it’s wrong.  Read every story you see about Paris carefully and look for evidence that encryption played a role.

There’s a reason The Patriot Act was passed only a few weeks after 9-11, and it wasn’t because Congress was finally able to act quickly and efficiently on something.  The speed came because many elements of the Patriot Act had already been written, and forces with an agenda were sitting in wait for a disaster so they could push that agenda.  That is wrong.

So here we are now, once again faced with political opportunism after an unthinkable human tragedy, and we must remain strong in the face of it.  There is no simple answer to terrorism, and we should all know this by now.  And so there must be no simple discussion about the use of encryption in the Western world.  The debate requires a bit of thoughtful analysis, and we owe it to everyone who ever died for a free society to have this debate thoughtfully.

The basics are this: Only recently, computing power has become inexpensive enough that ordinary citizens can scramble messages so effectively that even governments with near-infinite resources cannot crack them. Such secret-keeping powers scare government officials, and for good reason.  They can, theoretically, allow criminals and terrorists to communicate with a cloak of invisibility.  Not surprisingly, several government officials have called for a method that would allow law enforcement to crack these codes.  There are many schemes for this, but they all boil down to something akin to creating a master key that would be generated by encryption-making firms and given to government officials, who would use the key only after a judge granted permission.  This is sometimes referred to as creating “backdoors” for law enforcement.

Governments can already listen in on telephone conversations after obtaining the proper court order.  What’s the difference with a master encryption key?

Sadly, it’s not so simple.

For starters, U.S. firms that sell products using encryption would create backdoors, if forced by law.  But products created outside the U.S.?  They’d create backdoors only if their governments required it.  You see where I’m going. There will be no global master key law that all corporations adhere to.  By now I’m sure you’ve realized that such laws would only work to the extent that they are obeyed.  Plenty of companies would create rogue encryption products, now that the market for them would explode.  And of course, terrorists are hard at work creating their own encryption schemes.

There’s also the problem of existing products, created before such a law. These have no backdoors and could still be used. You might think of this as the genie out of the bottle problem, which is real. It’s very,  very hard to undo a technological advance.

Meanwhile, creation of backdoors would make us all less safe.  Would you trust governments to store and protect such a master key?  Managing defense of such a universal secret-killer is the stuff of movie plots.  No, the master key would most likely get out, or the backdoor would be hacked.  That would mean illegal actors would still have encryption that worked, but the rest of us would not. We would be fighting with one hand behind out backs.

In the end, it’s a familiar argument: disabling encryption would only stop people from using it legally. Criminals and terrorists would still use it illegally.

Is there some creative technological solution that might help law enforcement find terrorists without destroying the entire concept of encryption? Perhaps, and I’d be all ears. I haven’t heard it yet.

Only a few weeks after 9-11, a software engineer who told me he was working for the FBI contacted me and told me he was helping create a piece of software called Magic Lantern.  It was a type of computer virus, a Trojan horse keylogger, that could be remotely installed on a target’s computer and steal passphrases used to open up encrypted documents.  The programmer was uncomfortable with the work and wanted to expose it. I wrote the story for msnbc.com, and after denying the existence of Magic Lantern for a while, the FBI ultimately conceded using this strategy.  While we could debate the merits of Magic Lantern, at least it constituted a targeted investigation — something far, far removed from rendering all encryption ineffective.

For a far more detailed examination of these issues, you should read Kim Zetter at Wired, as I always do. Then make up your own mind.

Don’t let a politician or a law enforcement official with an agenda make it for you. Most of all, don’t allow someone who capitalizes on tragedy a mere hours after the first blood is spilled — an act so crass it disqualifies any argument such a person makes — to influence your thinking.

Larry Ponemon

User growth has become a key indicator of a company’s financial growth and sustainability. Even a company’s revenues can take a back seat to its user base as a metric that predicts future success. While it may have taken the telephone 70 years to reach 50 million users, in today’s fast-paced world companies can reach that same number in a matter of months.

As the user-base becomes a new form of currency, driving valuations of companies around the world higher and faster than ever before, it is becoming increasingly important to protect the integrity of these users. Information about who users are, what they do and how they do it is incredibly valuable. If not adequately protected this information can be (and is being) exploited.

The purpose of this report is to understand the scope of registration fraud, and how this epidemic is impacting companies and their users. It offers a glimpse into how companies verify and protect their users, and the damage that can be done when fraudulent users and fake accounts are allowed to exist within a user base.

Thanks to a sponsorship from Telesign, We surveyed 584 U.S. and 414 UK individuals who are involved in the registration, use or management of user accounts and hold such positions as product manager, IT security practitioner and app developer. Eighty-nine percent of these respondents say their organization considers its user base a critical asset with an average value of $117 million.

However, account fraud is becoming more prevalent because most organizations have a difficult time ensuring bona fide users and not bad actors are authenticated during the registration process. Only 36 percent believe they are able to avoid fraudulent registrations. Moreover, once fake users are registered, they spam legitimate users and often create more fraudulent accounts. Fake users also steal confidential information as well as engage in phishing, social engineering and account takeover.

The findings reveal why companies are vulnerable to the threats of fake users:

• The authentication process is difficult to manage, according to 69 percent of respondents, allowing fake users to infiltrate the user base.

• Fifty-eight percent of respondents say user convenience is most important to their fraud prevention strategy and 42 percent of respondents say ease of use is critical. Only 21 percent say security is important.

• The majority of respondents (54 percent) say a phone number is enough to stop fraudulent registrations and protect account access.

• Companies seem to be unwilling to crack down on fraudulent registrations. Forty-three percent of respondents say their company doesn’t worry about the registration of fake accounts to avoid friction in the registration process. Most companies do not have a formal method for determining whether a potential user is real.

• Only 39 percent of respondents say their company is vigilant in determining that each user account belongs to a real person.

• Only 25 percent of respondents believe the traditional username and password(s) is a reasonably secure authentication method for their users. However, 94 percent of respondents say they use passwords or PINs and 79 percent use email addresses to create an account(s).

To read the rest of the report findings, please download the PDF from Telesign.com

Larry Ponemon

User growth has become a key indicator of a company’s financial growth and sustainability. Even a company’s revenues can take a back seat to its user base as a metric that predicts future success. While it may have taken the telephone 70 years to reach 50 million users, in today’s fast-paced world companies can reach that same number in a matter of months.

As the user-base becomes a new form of currency, driving valuations of companies around the world higher and faster than ever before, it is becoming increasingly important to protect the integrity of these users. Information about who users are, what they do and how they do it is incredibly valuable. If not adequately protected this information can be (and is being) exploited.

The purpose of this report is to understand the scope of registration fraud, and how this epidemic is impacting companies and their users. It offers a glimpse into how companies verify and protect their users, and the damage that can be done when fraudulent users and fake accounts are allowed to exist within a user base.

Thanks to a sponsorship from Telesign, We surveyed 584 U.S. and 414 UK individuals who are involved in the registration, use or management of user accounts and hold such positions as product manager, IT security practitioner and app developer. Eighty-nine percent of these respondents say their organization considers its user base a critical asset with an average value of $117 million.

However, account fraud is becoming more prevalent because most organizations have a difficult time ensuring bona fide users and not bad actors are authenticated during the registration process. Only 36 percent believe they are able to avoid fraudulent registrations. Moreover, once fake users are registered, they spam legitimate users and often create more fraudulent accounts. Fake users also steal confidential information as well as engage in phishing, social engineering and account takeover.

The findings reveal why companies are vulnerable to the threats of fake users:

• The authentication process is difficult to manage, according to 69 percent of respondents, allowing fake users to infiltrate the user base.

• Fifty-eight percent of respondents say user convenience is most important to their fraud prevention strategy and 42 percent of respondents say ease of use is critical. Only 21 percent say security is important.

• The majority of respondents (54 percent) say a phone number is enough to stop fraudulent registrations and protect account access.

• Companies seem to be unwilling to crack down on fraudulent registrations. Forty-three percent of respondents say their company doesn’t worry about the registration of fake accounts to avoid friction in the registration process. Most companies do not have a formal method for determining whether a potential user is real.

• Only 39 percent of respondents say their company is vigilant in determining that each user account belongs to a real person.

• Only 25 percent of respondents believe the traditional username and password(s) is a reasonably secure authentication method for their users. However, 94 percent of respondents say they use passwords or PINs and 79 percent use email addresses to create an account(s).

To read the rest of the report findings, please download the PDF from Telesign.com

Larry Ponemon

With data breaches continuing to increase in frequency and severity, it comes as no surprise that businesses are acknowledging this risk as a top concern and priority. Nearly half of organizations surveyed report having a data breach involving the loss or theft of more than 1,000 records containing sensitive or confidential information in the past two years. And the frequency of data breaches is increasing. Sixty-three percent of these respondents report their company had two or more breaches in the past two years.

However, the enclosed findings from our Third Annual Study: Is Your Company Ready for a Big Data Breach sponsored by Experian® Data Breach Resolution, illustrate that many companies still lack confidence in their ability to manage these issues and execute their data breach response plan. We surveyed 604 executives and staff employees who work primarily in privacy and compliance in the United States.

Since 2013, we have tracked changes in how confident companies are in responding to a data breach. This year, we took our analysis a step further by digging into what companies are specifically including in their data breach response plans to get to the root cause of why their confidence is lacking and the areas where they struggle to follow best practices.

As shown in Figure 1, of the 81 percent of respondents who say their company has a plan, only 34 percent say these plans are very
effective or effective. This is a slight increase from 30 percent in 2014. Thus, major gaps remain in how they are comprehensively preparing for a data breach.

Specifically, organizations aren’t taking into account the full breadth of procedures that need to be incorporated in the response plan
and aren’t considering the wide variety of security incidents that can happen. The good news is some of the barriers to addressing
those issues can be easily solved.

Some of the key findings we uncovered from this year’s survey include:

Data breaches are more concerning than product recalls and lawsuits. A majority of business leaders acknowledge the potential damage data breaches can cause to corporate reputation is significant. They ranked a data breach second only to poor customer service and ahead of product recalls, environmental incidents and publicized lawsuits. The combination of the higher likelihood and significant impact has caused data breaches to be a major issue across all sectors.

Data breach preparedness sees increased awareness from senior leadership. Boards of directors, chairmen and CEOs have become more involved and informed in the past 12 months about their companies’ plans to deal with a possible data breach. In 2014, only 29 percent of
respondents said their senior leadership were involved in data breach preparedness. This year, perhaps due to recent mega breaches, 39 percent of respondents say their boards, chairmen and CEOs are involved at a high level. Most interesting is their participation in a high level review of
the data breach response plan in place increased from 45 percent to 54 percent of respondents.
Significant increase in response plans over three years. As discussed above, this year more companies have a baseline data breach response plan in place. Since first conducting this study in 2013, the percentage of organizations that reported having a data breach response plan
increased from 61 percent to 81 percent. However, it is surprising that still not all companies are taking the basic step of developing a data breach response plan.

Many are still struggling in terms of feeling confident in their ability to secure data and manage a breach. Figure 1 above shows only 34 percent of respondents say their organizations’ data breach response plan is very effective or effective. Despite increased security investments and incident response planning, when asked in detail about the preparedness of their
organization, many senior executives are not confident in how they would handle a real-life issue.

Following are reasons for rating these plans as not as effective as they should be:

• Forty-one percent of respondents say their organization is not effective or unsure about the effectiveness of their data breach response plan.
• Only 28 percent of respondents rate their organization’s response plan as effective in reducing the likelihood of lawsuits; and only 32 percent rate their response plan as effective for protecting customers.
  Executives are concerned about their ability to respond to a data breach involving confidential information and intellectual property.
• Only 39 percent report they are prepared to respond to this type of incident.
• Only 32 percent of organizations report they understand what needs to be done following a material data breach to prevent negative public opinion.
• Only 28 percent of organizations are confident in its ability to minimize the financial and reputational consequences of a material breach.

Snapchat.com

Hey parents! You won’t believe the contracts your kids have been roped into.

Like a fine print virus spreading quickly around the globe, under-aged teen-agers are suddenly being shrink-wrapped into contracts of dubious enforceability all around the web. The situation highlights a conundrum for companies targeting the 13-17 crowd: how to set rules with minors who generally can’t actually consent to contract terms, and almost certainly don’t get their parents’ permission to do so.

Snapchat changed its terms of service recently, attracting a lot of attention. While most of it was focused on the company giving itself virtual ownership over content posted on the service, something else in the terms caught my eye.

“By using the Services, you state that: You can form a binding contract with Snapchat—meaning that if you’re between 13 and 17, your parent or legal guardian has reviewed and agreed to these Terms.”

Well, really it caught privacy lawyer Joel Winston’s eye. He called it to my attention.

Let me take a guess and estimate that of Snapchat’s roughly 100 million users, most of them minors, perhaps 43 or so have shown those terms to their agreeable parents.  In other words, if your kid uses Snapchat, he or she has almost certainly lied about you to the company, all in the name of forming a contract – of sorts.

Winston had a different problem with the language.

“A minor cannot declare herself competent to sign a binding contract that would otherwise require consent from an adult,” he said.  There are some exceptions to that, which we’ll get to.  But the headline point remains.  Generally speaking, contracts with minors aren’t really contracts.

So what’s this language doing in Snapchat’s terms of service?  It’s not just Snapchat. That very language appears in lots of kid-focused services, like Skout (a flirting tool), THQ (a game site), and even  PETAkids.com (an animal rights site.)  Similar terms appears across the Web.

Snapchat certainly is a leader in the 13-17 space, however.  I asked the firm to comment about its terms.  It declined.

When I ran Snapchat’s terms by Ira Reinhgold, executive director at the National Association of Consumer Advocates, he was aghast.

“Why did they do this, to frighten people into not suing them?” he said, rhetorically.  “I cannot imagine any court would find this binding.  No lawyer worth his salt would think this would think this is going to stick…a youngster cannot consent.”

Maybe…and maybe not. Last year, a California court actually did rule that, in some circumstances, terms of service are enforceable against minors. That case involved Facebook’s use of member photos in “Sponsored Stories.” Facebook’s terms at the time provided for what amounted to a publicity rights release, and the plaintiffs in the case argued that release was unenforceable. A judge sided with Facebook.

To put a fine point on it, minors can agree to certain kind of contract terms (that allow them to work, for example), but such contracts have a unique status and can be voided at any time by the minor.  Because the plaintiffs in the case continued to use Facebook, they had not voided their contract, and therefore Facebook was protected by the agreement.

“This is a big win for all online services, not only Facebook,” wrote Eric Goldman in a blog post about the case.

The situation highlights the unique problem of dealing with children over 13 but under 18 Goldman, said to me.

“Snapchat may have legally enforceable contracts with minors. Contracts with minors are usually ‘voidable,’ meaning that the minor can tear up the contract whenever he/she wants. However, until the minor disaffirms, the contract is valid. And in the case of social networking services, the courts have indicated that minors can disaffirm the contract only by terminating their accounts, meaning that the contract remains legally binding for the entire period of time the minor has the account,” he said. “As a contracts scholar, I can understand the formalist logic behind this conclusion, but it conflicts with the conceptual principle that minors aren’t well-positioned to protect their own interests in contract negotiations.”

On the other hand, the solution might be worse than the problem itself.

“The counter-story is that most online services don’t have any reliable way to determine the age of their users, and an adhesion contract that works unpredictably on only some classes of users isn’t really useful. And I don’t think anyone would favor web-wide ‘age-gating’ as the solution to that problem,” he said.

Of course, the problem isn’t just the existence of a contract, but what the terms of that contract might be, and whether a minor is capable of understanding and consenting to its terms.  Winston is concerned with what comes after the “parental promise” section in Snapchat’s contract: a binding arbitration agreement and class action waiver. (That’s the kind of waiver the Consumer Financial Protection Bureau is about to ban.)

“All claims and disputes arising out of, relating to, or in connection with the Terms or the use the Services that cannot be resolved informally or in small claims court will be resolved by binding arbitration,” the terms say. “ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS.” (Snapchat’s CAPS, not mine)

As Winston sees it, not only is Snapchat requiring a minors to agree to a contract, it’s requiring them to surrender their rights to have their day in court.

“I would certainly be very interested to read any legal ruling that enables a 13 year old to agree that she will ‘waive any constitutional and statutory rights to go to court and have a trial in front of a judge or jury,’ “ he said, echoing the terms.  “I am not currently aware of any case law that enforces a mandatory binding arbitration clause against an adult parent based on the purported ‘consent’ of her minor child.”

Were those terms to survive a court challenge, and if Snapchat tried something like Sponsored Stories, Snapchat’s minor users would have waived their rights to join a class action against the firm.

In the end, you might be wondering why parents – or kids – might want to argue with Snapchat anyway? Winston leaps at a chance to answer that.

“The Snapchat TOS contract is relevant because the company is actively collecting personal data from millions of children. That includes device phonebook, camera and photos, user location information (from) GPS, wireless networks, cell towers, Wi-Fi access points, and other sensors, such as gyroscopes, accelerometers, and compasses,” he said. “It’s also relevant because Snapchat is sharing user data from millions of children with third-parties and business partners for the purpose of advertising and monetization.”

I’m not one to give parents more homework, and I hesitate to advise you to try to read all the terms of service agreements to every app on your child’s phone.  But it might be a good learning moment to ask your kids what they’ve told tech companies about you — and find out what you’ve agreed to.

Bob Sullivan

Bad guys are so much more nimble than good guys that they have a two-month head start in most hacking situations, a new report has found.  Meanwhile, software flaws that are even a decade old continue to be used to hack hundreds of thousands of computers, according to Kenna Security.

In the hacking world, a secret software flaw that can be exploited is known as a “zero-day” vulnerability.  Known only to a select few, zero-day exploits give hackers the ability to break into machines at will, and much has been made of this alarming problem.

But even known vulnerabilities might as well be “zero day” flaws, suggests findings in a report issued Tuesday by Kenna on what it calls the “Remediation Gap.”  Kenna says it examined one billion breach events and came to this disturbing conclusion:

Most organizations require 100-120 days before fixing vulnerabilities; meanwhile, hackers exploit them within 40-60 days.  That’s two months of free shots.

“The public has grown plenty familiar with hacker seeking out a specialized target, such as Ashley Madison. But automated, non-targeted attacks still remain the most significant threat to businesses of all sizes,” said Karim Toubba, CEO of Kenna. “Every company has data that hackers want to get their hands on, but security teams remain one step behind their adversaries. Security teams need to move quickly to remediate critical vulnerabilities, but they don’t have the tools needed to keep pace with hackers.”

The report suggests that too much attention has been placed recently on targeted attacks, while old-fashioned “spray and pray” attacks remain many firms’ greatest threat.

“Of the organizations that Kenna has evaluated, 100 percent are susceptible to vulnerabilities – which correlate to at least one stable publicly available exploit,” the report says.

Kenna said it pulled its sample from a database of 10 million successful attacks per week, collected through AlienVault’s Open Threat Exchange, as well as threat intelligence data as well as data from various partners, including Dell SecureWorks, Verisign, SANS ISC and US-CERT.

“By executing this approach, we were able to estimate the probability that a vulnerability might be exploited, as well as the sheer volume of attacks, based on the volume of attacks displayed by the aggregated data,” the report says.

Security professionals do a poor job of prioritizing which threats they remediate, and often fail to patch old flaws that are known to be popular among hackers in favor of top-of-mind flaws that have been recently announced, the firm argues.

“One of the points we need to make is that the vulnerabilities in question are often very old, well-known weaknesses that simply haven’t been fixed yet. We’ve seen this over and over again as we evaluate the data,” the report says. “In many cases these vulnerabilities are not sexy, and they don’t hog the spotlight – but in many environments they actually represent major weaknesses.”

For example, Kenna spotted 156,000 exploitations of the Slammer worm executed during 2014. Slammer hit so many servers that it dramatically slowed down general Internet traffic – in 2003.

The report also finds that automated attacks are on the rise: Kenna says there have been over 1.2 billion successful exploits witnessed in 2015 to date, compared to 220 million successful exploits witnessed in 2013 and 2014 combined – an increase of 445 percent.

“Companies will continue to face the cold reality that throwing people at the problem is no longer sufficient for remediating vulnerabilities and combating the sheer volume of automated attacks,” Toubba said.”