Tag: fourth amendment

Hacking Apple


Apple said on Wednesday that it would oppose and challenge a federal court order to help the F.B.I. unlock an iPhone used by one of the two attackers who killed 14 people in San Bernardino, Calif., in December.

On Tuesday, in a significant victory for the government, Magistrate Judge Sheri Pym of the Federal District Court for the District of Central California ordered Apple to bypass security functions on an iPhone 5c used by Syed Rizwan Farook, who was killed by the police along with his wife, Tashfeen Malik, after they attacked Mr. Farook’s co-workers at a holiday gathering.

But hours later, in a statement by its chief executive, Timothy D. Cook, Apple announced its refusal to comply. The move sets up a legal showdown between the company, which says it is eager to protect the privacy of its customers, and the law enforcement authorities, who say that new encryption technologies hamper their ability to prevent and solve crime.

Apple’s point is that the government is essentially trying to bypass the ongoing political and legal debate over encryption. We’ve mentioned this debate before: companies like Apple and Google are giving their phones encryption capabilities that are supposedly unbreakable. The federal government is trying to force them to provide backdoors into those encryption methods. But Apple notes, correctly, that there’s no such animal as a “backdoor” that would be exclusive to the government. It would compromise all the security on their phones, creating a capacity that any hacker could use.

(I would also note that, even if this were not true, creating a backdoor for the government is a huge problem. We have seen, with the Patriot Act and mass surveillance, that the federal government can not be trusted to use these power for “only” terrorism. Inevitably, these capabilities will be used to pursue the War on Drugs, the War on Sex Work, the War on You.)

Forcing Apple to develop new software to access Farook’s phone is an attempt to bypass this debate and create backdoors without a national debate, without an act of Congress and without input from civli libertarians. It may also be on very shaky legal ground:

Second, as the Post article notes the use of the All Writs Act in this manner appears to be unprecedented and, if upheld, would essentially allow the government to do almost anything in the name of law enforcement and intelligence gathering. Finally, and perhaps most strongly, it’s important to note that law enforcement isn’t asking Apple to provide information that it already has, which is what an ordinary search warrant does. It is essentially asking a Federal Court to compel Apple to do something, in this case create a backdoor that does not exist. This arguably falls well outside the scope of the Fourth Amendment and, if upheld, would give law enforcement authority to compel technology companies to do almost anything conceivable in the name of a purported investigation or surveillance of a target. That seems to go well beyond what the Constitution and existing law permits law enforcement to do.

But not beyond what they want to do. This is not just about Farook’s phone; they are demanding that Apple provide a capacity that can be used with any phone. I suspect that the feds know that their case is weak — they invoked Farook’s victims immediately as if a massive tragedy abrogates the Constitution.

It’s not like the FBI has nothing to go on here. They have access to the meta-data. They have the phone itself. They have any computers. They can get warrants for e-mail servers.

Apple should stand their ground here. They should fight this all the way to the Supreme Court if necessary (and this makes me miss Scalia, who could sometimes be good on Fourth Amendment issues). If the Federal government establishes a precedent that they can force tech companies to hack into our electronic devices, the Fourth Amendment will be hanging by a thread.

SCOTUS Protects Our Phones

A lot of breaking news today, so short posts while I prepare two big ones. The Court will be issuing its biggest decisions over the next week. Today they ruled against Aero (and much as I like the idea of Aero, I kind of see their point). But the most important decision they handed down was in Riley v. California. The Court decided — unanimously — that cops need a warrant to search your cell phone. The decision is here and it’s beautiful. They systematically destroy the government’s argument that cell phones must be searched immediately for police safety. They point out that taking a phone off the network can easily protect it from being “wiped”. And they close with this:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.

They only way it could have been better if they’d said “get a fucking warrant”, words that should be inscribed on the doors of every police station, NSA office, CIA dungeon and FBI building in the country.

SCOTUS in the News

Going to be an interesting week for the Court. They are having hearings now on both DOMA and California’s same sex marriage ban. We won’t know their decision for a while. My guess is that they will strike down parts of DOMA and possibly California’s amendment but on very narrow grounds that fall short of declaring a “right” to marriage. That would be my preferred outcome at this stage. I would prefer that this issue not be resolved by the Court. And given the dramatic shifts in opinion — Mark Warner and Claire McCaskill just changed their positions and a new poll shows majority support in Ohio — I suspect the gay marriage proponents will get what they want through the democratic process very soon. By the time the 2020’s roll around, I expect gay marriage to be legal in a majority of states no matter what the Supreme Court says.

The more interesting ruling came today in Florida v. Jardines. This is case where a “drug-sniffing dog” was brought onto someone’s porch without a warrant and his subsequent alert used as probable cause. There wasn’t much hope for this since the Court decided earlier this year, unanimously, that drug-sniffing dogs constitute an infallible drug detection mechanism and therefore their use does not constitute a search. This, despite overwhelming evidence that drug-sniffing dogs are anything but infallible and often simply reinforce the predisposition of their handlers.

But the Court ruled in favor of Jardines on privacy and trespass grounds. This will prevent blind searches of people’s homes using the dogs so it’s at least something. Interesting, supposed fascists Thomas and Scalia decided with the majority while supposed liberals Kennedy and Breyer were with the minority.

The Court has been chipping away at our Fourth Amendment rights for some time. It’s nice to see the brakes applied or once.

Security Letters In The Lurch

So this happened:

They’re called national security letters and the FBI issues thousands of them a year to banks, phone companies and other businesses demanding customer information. They’re sent without judicial review and recipients are barred from disclosing them.

On Friday, a federal judge in San Francisco declared the letters unconstitutional, saying the secretive demands for customer data violate the First Amendment.

The government has failed to show that the letters and the blanket non-disclosure policy “serve the compelling need of national security,” and the gag order creates “too large a danger that speech is being unnecessarily restricted,” U.S. District Judge Susan Illston wrote.

She ordered the FBI to stop issuing the letters, but put that order on hold for 90 days so the U.S. Department of Justice can pursue an appeal to the 9th U.S. Circuit Court of Appeals.

The NSL’s do not allow agents to examine the content of communications, but look for patterns. But there is zero judicial oversight and, as mentioned, the gag order prevents recipients of NSL’s from even telling people what they’re doing, placing them under enormous stress.

I suspect — or maybe hope is the right word — that the Ninth Circus will also have issues with the security letters on both First and Fourth Amendment grounds (they recently put limits on the governments ability to search your computer at the airport). The FBI issues tens of thousands of these a year and a 2007 investigation found that they were very lax in following the few rules that applied to them (Surprise! A federal agency was abusing the rules in the absence of oversight!). The Second Circuit demanded the FBI notify recipients that they can challenge the gag order in Court but EFF is of the opinion that it’s not enough and it’s not being done consistently.

The secretive NSL’s create another issue beyond First and Fourth Amendment concerns. One of the problems with challenging the Surveillance State is that people being surveilled often don’t know it. This makes it very difficult to challenge surveillance powers in Court because, in the Clapper decision last week, SCOTUS ruled that challengers lack standing unless they personally have been subject to a problematic search. This puts civil libertarians in a catch-22. You can’t know if you’re being surveilled but you can’t challenge the law unless you know you’re being surveilled.

In the end, a lot of this is going to end up in the lap of the Supreme Court. I have little faith that they will rein in the government now that Stephens is gone. But it’s possible, given Scalia’s occasional sympathies toward civil liberties, that the facade of unilateral unlimited government surveillance power could be cracked.

The Window To Your Life

I’ve somewhat praised Governor Moonbeam for vetoing a lot of stupid Democratic ideas. But in the rush to pass several hundred new laws at the end of session, I think he erred badly by (a) signing a bill banning open carry; and (b) vetoing this one:

This week California Gov. Jerry Brown vetoed a bill that would have required police to obtain a warrant before searching an arrestee’s mobile phone. The bill, which was unanimously approved by the state Assembly and passed the state Senate by a vote of 32 to 4, was introduced in response to People v. Diaz, a January decision in which the California Supreme Court said examining a drug suspect’s text messages 90 minutes after taking him into custody is a valid “search incident to arrest.”

This may no sound like much, but keep in mind what a modern cell phone contains: GPS information on places you’ve been, text messages, e-mail, call records, pictures, video and Angry Birds. In fact, it’s possible, through the wonder of cloud computing, that a cop could use a cell phone to access your tablet, laptop and home computer. I don’t see how anyone could reach any conclusion other than that free access to a cellphone is free access to your “persons, houses, papers, and effects”.

Considering the huge amount of laws out there, the complete lack of care with which our politicians pass those laws — especially laws regarding technology, I can guarantee that your computers contain evidence of some law you have deliberately or inadvertently broken. Are you sure all those girls in /home/games/checkers/saved_games/march/2009/stalemate are of legal age? Nothing illegally downloaded, is there? Videotape a cop, have him arrest you on a bogus obstruction charge and suddenly you might be facing a felony count for having a ripped copy of Weekend at Bernie’s 2.

We are getting more and more of this from state and federal government. Crimes rates are the lowest they have been in half a century, but our politicians continue to eat away at our civil liberties to make sure we’re not doing something wrong.

Marine Down

It’s crazy week for me, but I thought I’d throw this out there. A two-time veteran of Iraq gets home from working the graveyard shift at a mine. His wife tells him people are outside and a man is at the window. He gets his AR-15. The SWAT teams pumped 60 bullets into him. For paramedics to wait an hour until they can tend him.

Claims that he shot at them first have now been disproven (his safety was still on). Needles to say there were no drugs in the house or anything like that. Right now, the sheriff’s office isn’t talking about what they were doing.

This has to stop. The tendency to bring SWAT teams on each and every raid has got to stop. I know the Indiana Supreme Court says that he doesn’t have the right to defend his property. But this wasn’t even that kind of incident. It’s not even clear that he knew these were cops.

If you call out the SWAT team every time you want to search a property, you’re going to end up within innocent people on the ground. This has to stop.

His name was Jose Guerena.

The Vibrancy Of Our Fourth Amendment Protections

A few days ago our new and improved Right Thinking site saw a most raucous and  spirited debate involving the safety of some of our most basic freedoms, and whether a individual state court can in effect abrogate constitutionally protected freedoms. I have maintained through out that the Fourth Amendment is still inviolate, unreasonable search and search is still unlawful and the hurdle of probable cause has not been removed in procuring search warrants.

Today, while perusing my local paper, I found a story on the front page that speaks directly to this and provided a timely reminder that bad things happen to cops that violate people’s rights:

Peter Knowles says he still doesn’t know why he was targeted by Benicia police, and he still worries there’s no independent agency to call if a resident believes he or she is being harassed by authorities.

Last week, Knowles and the city of Benicia settled a federal lawsuit in which he contended he was harassed repeatedly by members of the city’s police force between December 2007 and May 2008. He said he was targeted in an attempt to force him to move from Benicia.

In the agreement announced May 13, Knowles, now 26, and his attorneys will receive $620,000 and a promise that the city will help him clear his name.

He had sought $1.7 million.

A little background is in order. I have lived in Benicia for about 25 years, it is a sleepy little residential community on the water. It has the lowest crime rate, highest home values, highest per capita income, best school scores in the county, and is continually voted high on the lists of best town for family life in California. The police dept. is small with few ever staying because there is very little to do crime wise. Now the problem with Mayberry RFD communities like this is that when cops get bored, they tend to go looking for stuff beyond what is healthy, there is the set up.

Back to the story:

Knowles said the problems began Dec. 23, 2007, when he was arrested at his home. According to U.S. District Court transcripts from March of this year, Benicia police Sgt. Frank
Hartig spotted a red Jeep spinning its tires and speeding off from Solano Square. Hartig had stopped another motorist, and as soon as he finished with that stop, he began searching for the Jeep.

When he saw one going the opposite way, he turned around to pursue, but lost sight of the vehicle.

When he found one in a garage on Stuart Court, Hartig parked his patrol car, entered the garage and arrested the driver, identified as Knowles. A test indicated his blood-alcohol level was above the legal driving limit of .08 percent, and Knowles was charged with drunken driving and his license was suspended.

That case later was dismissed when Solano County Superior Court Judge Raymond Weiser said Hartig didn’t have enough probable cause to enter Knowles’s home.

Last week, U.S. District Court Judge William Shubb issued a summary adjudication order, finding that Hartig had violated Knowles’s Fourth Amendment rights during the incident.

Did you get that last part? Constitution-still in effect, Fourth Amendment protections is still the order of the day. Now when arrested, in his place of residence (garages have been determined in prior court rulings to be considered part of a dwelling) he did not physically resist as some would say he had a perfect right to do, and he is now the richer for it.

One of the things that I hate about how stories like this are reported is that I really don’t know exactly what happened, how the events unfolded and what the verbal exchange was between the two. But this does nothing to negate the simple fact that a U.S. District Court judge found that constitutionally protected freedoms were in fact violated, and a reckoning must be brought.

Now I do not agree with Knowles’ initial assertion that he had no place to turn. No where in the article does it mention that he called an on duty supervisor to complain, no alerting the chief of police or the city manager,no mention of him going to the county District Attorney’s office, the state AG office, even the FBI or the press.

The article does paint a sinister example of what appears to be a concerted effort to target this guy by the police. Whether it is all true or even partially true, no matter, $620,000 is a lot of money for a small town to pay out, and a valuable lesson reenforced that we are still a nation of laws, and nobody is above them.

The Right to Resist


Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer’s entry.

“We believe … a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,” David said. “We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”

David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.

The case sprang from a domestic incident. A husband and wife were arguing and the cops were called. The couple refused to let them in the house and the cops came in anyway. When the husband resisted, they tasered him.

Not surprisingly, the media are able to find some soft-headed academics to praise the decision for “reducing violence”. The problem with their justification is that our Constitution is not set up to prevent violence; it’s set up to guarantee our liberty. And if there comes a time when we have to protect our liberty with violence, such action is utterly consistent with our Founding, with 200 years of American history and 900 years of Western European history. And it’s not like this guy initiated an armed standoff. He shoved a cop who was violating his home.

There’s an arrogance to this decision — a belief that citizens are incapable of deciding the extent and nature of their liberty; only the courts can decide that. You are incapable of deciding, in the moment, whether someone is violating your Fourth Amendment rights; only someone who’s gone to law school can make that decision in the oasis of calm that is the court room. But we don’t defend our liberty with ex-post facto court decisions, especially given the tendency of the Courts — like this one — to default to siding with the state.

Of course, it bears pointing out the obvious: the Courts have had no problem with violent confrontation when that violence is initiated by the state. The Courts have routinely deferred to the needs of justice when judging the legitimacy of violent no-knock raids to arrest people growing pot or playing poker or even just selling raw milk (I shit you not). Throwing battering rams into doors, smashing windows, tossing in flash-bangs and shooting dogs in the process of delivering a warrant is OK. We sure as hell don’t want to prevent that violence. But don’ you dare stand in the way of an officer when he wants to come in without a warrant or even probable cause. Best to sort that out in the court system afterward.

The state does not have an intrinsic monopoly on violence. We voluntarily give that monopoly to them in order to maintain a civilized society. But when the state violates the terms of that agreement — terms spelled out in a legal contract called the Constitution — either through action or inaction, we have a right to resist. Usually peacefully. But sometimes with an appropriate amount of physical force.

Hopefully, SCOTUS will take this on. I have no idea how they’ll rule on it. But I know perfectly well how they should.