Showing posts with label Judge. Show all posts
Showing posts with label Judge. Show all posts

Thursday, March 3, 2016

Poisoned Apples & Privacy: Apple vs. the FBI

By B. Lana Guggenheim, Staff Writer

Update: On Monday, March 28, 2016, the US Department of Justice asked the federal judge overseeing the suit to drop the case, as the FBI had found another way to access the iPhone's information without assistance from Apple. Read more updates on the case here.

On December 2, 2015, in San Bernardino, CA, Syed Rizwan Farook and his wife, Tashfeen Malik, committed mass murder inspired by Islamic extremist terrorist organizations, having evidently become self-radicalised via the Internet. Neither had a criminal record, nor were they on Terrorist Screening Database lists. But on that day, the two nonetheless killed 14 and injured 22 in a mass shooting and attempted bombing. Since then, there has been a massive investigation underway, which naturally includes the couple’s technology.


The couple had already destroyed their personal phones, but Syed’s employer-provided phone was recovered intact. Apple was handed a warrant for the information the couple stored in their clouds, and the company cooperated. A great deal of information is already in the hands of the FBI; however, not all the data was uploaded to the cloud, particularly the shooter’s online activity in the months immediately leading up to the attack, as well as where they traveled and who they might have contacted just minutes after the attack. The FBI has thus far been unable to unlock the phone, in part due to Apple’s encryption of user data, which itself was a development to foil government surveillance of civilian personal data, a fact that garnered a lot of attention due to Edward Snowden’s whistle-blowing in 2013.



However, the FBI is partially in a mess of its own making; they lost the chance to capture much of that encrypted data when they ordered the password to Farook’s storage in the iCloud be reset shortly after his criminal rampage. They had believed that resetting the password would enable them to access the information stored on the iPhone. Instead, it locked them out and eliminated any other means of getting in. Apple had wanted them to try to connect the phone to a “known” Wi-Fi connection - in other words, one that Farook had used and stored in his phone, as doing so might have recovered some of the information saved to the phone since October, after which it had not been connected to the iCloud. Once connected, the phone would have automatically backed up the data to the Cloud, and Apple would have been able to access it and hand it to the FBI. However, the automatic update would likely not have backed up all relevant data, and thus the FBI asserts they would have been forced to seek Apple’s assistance anyway.


In order to access this information, the FBI has requested that Apple write a program - essentially a crippled version of their iOS software - that would act as a back-door to their own technology, disabling the feature that wipes all data on the phone after 10 incorrect password attempts. This would allow the FBI to use a computer to cycle through any number of PIN combinations, eventually hitting the correct one to unlock the phone, a process that would take less than half an hour were Apple to provide the back-door as requested. Though the FBI told Apple that the key they demand from them would be for this one application only, James B. Comey Jr., the director of the FBI, admitted that “of course” they would seek to unlock other encrypted phones were they to prevail in the San Bernardino case.
Apple has refused to cooperate, with its CEO Timothy D. Cook arguing that this would set a dangerous legal precedent for all user privacy, as such a program could be used against any and all Apple users, both in the hands of the US government, foreign governments, and bad actors alike. Apple attorney Marc Zwillinger states that “This case is about the Department of Justice and the FBI seeking through the courts a dangerous power that Congress and the American people have withheld: the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe.”


Several other tech companies have also voiced their concerns about creating such encryption-breaking back-doors for the government. Speaking at a congressional hearing last week, Microsoft’s president and chief legal officer Brad Smith said “We at Microsoft support Apple and will be filing an amicus brief next week.” An amicus brief, or amicus curiae, literally “friend of the court,” allows someone not party to a case to offer information that bears on said case, even if it has not been solicited by any of the parties involved. “My experience in security technology tells me that the creation of the firmware….would give enough blueprint for the government (and the hackers who have demonstrated proficiency at hacking government) to exploit millions of other iPhones,” wrote Pravin Kothari, CEO of cloud security specialist CipherCloud in a statement emailed to Fox News. Some legal analysts say this is a “Pandora’s box” of unknowns. “If a court has the power to order a third party like Apple to devise software that it does not already possess [to aid in surveillance], what can’t a court order a company to do?” asks Stephen Vladeck, a law professor at American University. “There’s a real search for a limiting principle here that we haven’t identified.”
The FBI says they are requesting custom software that would apply to only that device, and offered to let Apple install the program itself to ensure it doesn’t leave Apple’s campus. But while that proposal seems to ensure the containment of the code, in practice, once the code is created, it is only a matter of time until it leaks - whether through incompetence by the ones holding it, or from being targeted by hackers. Andy Sellars, a lawyer specializing in technology issues at the Cyberlaw Clinic at Harvard Law School says that “the privacy benefit right now comes from the fact that nobody knows how to do this. Not Apple, not the FBI, and we think not the NSA...As soon as Apple does this, there’s no way this wouldn’t get out, be stolen, be leaked. There is no way that would stay a secret.” Apple’s lawyers write that “given the millions of iPhones in use and the value of the data on them, criminals, terrorists, and hackers will no doubt view the code as a major prize and can be expected to go to considerable lengths to steal it, risking the security, safety, and privacy of customers whose lives are chronicled on their phones.” Nor would the security breaches be limited to Apple technology. “In the meantime...criminals will continue to use other encryption technologies, while the law-abiding public endures these threats to their security and personal liberties,” adding that this is an “especially perverse form of unilateral disarmament in the war on terror and crime.” Apple contests that heeding the FBI’s request will result in less security, not more, and very quickly at that.

But the government counters that the public safety is at stake. This case of domestic terrorism resulted in more deaths than any other case since 9/11. New York City Police Commissioner William J. Bratton said the government’s requests are reasonable, especially in a case that has ties to the so-called Islamic State, or ISIL, as this case seems to. “No device, no car, and no apartment should be beyond the reach of a court-ordered search warrant. As the threats from ISIL become more divergent and complex, we cannot give those seeking to harm us additional tools to keep their activity secret,” he said. The NYPD’s Counterterrorism Bureau says that phones that can’t be cracked leave the city and country at large vulnerable to terrorists and criminals. “Do we want to create an army of devices where they are impenetrable to a search warrant signed by a court?” said NYPD Deputy Commissioner for Counterterrorism and Intelligence John Miller. “It should probably be decided by someone other than just Apple.”
In order to force compliance from Apple, the FBI invoked the All Writs Act of 1789. This Act allows the courts to compel people to perform actions within the limit of the law, so long as it is not unduly burdensome. It is a vaguely worded piece of legal literature, and as such is open to constant re-interpretation. The government has used this Act before to gather information from phone companies. In 1977, they forced New York Telephone Co. to give them technical assistance in accessing phone calling records. The phone company cited undue burden in order to deny the government this assistance, but the Supreme Court ultimately ruled that the phone company could be compelled to assist as it was already collecting this information itself for business purposes, such as billing customers, detecting fraud, and troubleshooting. The government used the All Writs Act again more recently when they linked the All Writs Act to the Wireless Communications and Public Safety Act in 1999 when the government required all cellphone providers to be able to geo-locate their customers’ phones. However, the Act has its limits. For example, a federal judge ruled in 2005 that the Act could not be used to force a phone company to allow real-time tracking of a phone without a warrant.


Nor is this the first time Apple has refused to comply with a request for information either. In a currently active criminal investigation in Brooklyn, New York, Apple has refused to comply with the FBI and the All Writs Act in unlocking an iPhone 5s that the DEA (Drug Enforcement Agency) had seized in a drug investigation, belonging to one Jun Feng, who was suspected of drug trafficking. In fact, Apple has been involved in nine cases since October, including two in Manhattan and the aforementioned one in Brooklyn, the latter involving two phones. But on February 29th, New York federal magistrate Judge Orenstein ruled that Apple did not have to comply with the FBI’s request. Though this ruling isn’t legally binding in regards to the San Bernardino case, it may wield some influence. But Attorney General Loretta Lynch has agreed with California federal magistrate Sheri Pym in defending the government’s demands that Apple assist the FBI (though she did not name the company by name), saying this legal battle shows how encryption is a real threat to law enforcement and that judges do indeed have the authority to direct third parties to assist the government in gathering evidence.


Apple argues in both cases that rendering this assistance and delivering such a back-door code would be unduly burdensome for them, as it would severely harm their reputation, and thus cause them significant economic harm, thereby putting the FBI’s request outside the jurisdiction covered by the All Writs Act. The FBI counters that writing code is part of Apple’s normal set of activities, and therefore is not burdensome. But Apple is also citing their First Amendment rights, as code is legally recognized as a form of speech, and therefore is protected as such. Apple asserts that being forced to write new software would be an act of “compelled speech and viewpoint discrimination,” which is indeed outlawed by the First Amendment. And, were they to do this, the government could demand Apple do it again, including writing code to turn on the microphone, activate the video camera, record conversations, and turn on location services to track a phone user - and that last one is already illegal without a warrant.
Apple is also citing their Fifth Amendment rights to due process. In Apple’s own words, the FBI, by “conscripting a private party with an extraordinarily attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party’s core principles, violates Apple’s substantive due process right to be free from ‘arbitrary deprivation of its liberty by the government.’” While Constitutional arguments are not likely to be relied upon this early in the case, given the large likelihood this will move to an appeals court and further, “Apple needs to include all of its arguments in the lower court if it wants to raise them again in a higher court,” said Larry Downes,  project director at the Georgetown Center for Business and Public Policy.
To complicate matters further, both Apple and the FBI have asked Congress to step in and settle the question of when and how law enforcement can get access to citizens’ private data. Professor Joel Reidenberg from Fordham University’s Center on Law and Information Policy agrees. “Congress really ought to be doing [this] rather than a magistrate judge in Brooklyn, a magistrate judge in California, [and] a couple judges here or there. It is really a national policy choice,” he said.
Policymakers say they want a compromise between the two, but that isn’t exactly possible. House Homeland Security Committee Chairman Michael McCaul (R-TX) and Senator Mark Warner (D-VA), a member of the Senate Intelligence Committee, have proposed a national commission on security and technology challenges, modeled on the panel Congress formed to investigate the security and intelligence failures before 9/11, which would bring together experts such as law enforcement officials, cryptographers, and technology company representatives, to develop viable recommendations on how to balance both security and privacy concerns, which are now so at odds.


But it is hard to envision a way to selectively undo encryption protections without doing away with the concept of having encryption entirely. “Either Apple weakens security or they do not,” says Bruce Schneier, a cryptography and security expert. That Apple even can work around their own encryption, even if it is with difficulty, intimates that their iOS software is more vulnerable than any of us might wish to admit. However, as technology continues to evolve, future versions might be more secure and prevent the work-around that the FBI is demanding Apple provide.
The court has set a deadline of March 10 for the government to respond to Apple, and a hearing is scheduled for March 22 in the US District Court of Central California.  Whenever Magistrate Sheri Pym delivers her decision, the case will be appealed no matter the ruling. If the magistrate rules in the government’s favor, as she did in February, and Apple refuses to comply, the government can ask the court to fine Apple. This was a strong-arming tactic used in 2008 against Yahoo after they fought a court order to hand over data under NSA’s PRISM program, and the government threatened Yahoo with a $250,000 daily fine if they refused to comply. But Apple CEO Tim Cook said he is willing to take this fight right to the top - the Supreme Court. Apple has already hired the renowned Washington attorney Ted Olsen, a man who earned his fame when he successfully represented former President George W. Bush in his Supreme Court battle of Bush vs. Gore, in which he won Bush the 2000 presidential election.
Ultimately, this case will not be settled soon, and we can look forward to a period of bitter litigation. Privacy and civil liberties have tangled with national security needs before, though the tension between the two has escalated since 9/11. But as society continues to become ever more dominated by rapidly evolving and invasive technology, both our security and privacy needs will change - likely faster than the law can keep up. The results of this case will set the tone for much future litigation on the issue, as well as our control over our own private, for now, data.  





 Images courtesy of Shutterstock.

Friday, February 19, 2016

Filling the Hot Seat: The Candidates for the Supreme Court

By B. Lana Guggenheim, Staff Writer

With the sudden demise of Justice Scalia, a new vacancy has opened up on the Supreme Court. With Obama’s term ending soon and election season in full swing, the question of who will fill the seat and when, already a tense and competitive political game, takes on greater significance than ever before. The stakes could not be higher, as this appointment could set the tone of the Judicial branch of the government for many decades to come, in addition to making an enduring statement on Obama’s legacy as President. Right now, the Court is split 4-4 between Conservatives and Liberals, as Justice Scalia’s passing broke the Conservative majority on the Court. This appointment could change everything. Because Republicans argue that the election is too close to confirm a nominee, there is pressure on the President to move quickly.

Traditionally, the President nominates the candidate, who then must face a series of hearings in front of the Senate Judiciary Committee, at which both the nominee and other witnesses make statements and answer questions. The Senate Judiciary Committee then votes to send the nomination to the Senate. Confirmation by the Senate allows the President to formally appoint the candidate to the Supreme Court, where they hold the position until resignation or death.
Usually, Presidents nominate candidates that align with their own political positions, but there is never any guarantee that a Justice will vote along any particular political line, and Presidents and the public have been surprised by decisions from Justices before. And more than just party alignments affect the choice of nominee: today, issues of representation and diversity remain important, and Obama’s legacy, especially in regards to the African-American community in particular, in part reflects this and will likely impact his choice of nominee.

However, Republicans hold the Senate majority, and can refuse to hold confirmation hearings before the Judiciary Committee or the floor vote on the nominee, effectively killing any effort to replace Scalia until and unless the political dynamic in the country forces Republicans to change their stance and allow the nomination to proceed. A liberal appointee would threaten fundamental conservative legal victories from the past two decades; conversely, denying a liberal justice would allow them to nominate a Republican, and continue the Court’s steady move to the right.  Still, there is no precedent for refusing to act on a Supreme Court nomination because of an impending Presidential election, and the Obama administration nominee may well yet receive the vote.

Nomination hearing of Justice Clarence Thomas in 1991.
Therefore, the Administration needs to pick a nominee who fulfills its political and jurisprudential goals whilst denying Republicans a tool with which to court undecided voters. Many a candidate is sufficiently ideologically progressive enough to meet the Democratic party’s goals, but few also thwart Republican obstructionism and exact political costs on the GOP in the next election. In this, representation politics also play a role, as the Democratic party needs to motivate not only their own voters, but independents; and traditionally, African-American and Hispanic voters trail white voter turn-out. Therefore, the Administration is likely to seek a candidate of a minority background in order to cultivate party loyalty among non-white voters, as well as providing a liberal counterpoint to arch-Conservative, and also Black, Justice Clarence Thomas.

The Constitution does not set any qualifications to serve as a Justice, and so the President can nominate any individual to serve on the Court; but because the individual must receive confirmation of the Senate, the surprises on this front are limited. With special interest groups lobbying senators to confirm or reject a nominee growing ever louder, this decision is consuming as much national attention as the election itself.

So who will fill the seat on the Supreme Court? Here are our top five contenders.

1. 9th Circuit Judge, Paul Watford

Paul Watford is a previous Obama appointee to the Ninth Circuit, and he is well respected and fairly well known in Democratic legal circles. He was confirmed by the Senate in 2012 by a vote of 61-34, which is a filibuster-proof majority, and includes nine Republicans who voted in his favor. This gives the Administration considerable leverage to argue against Republican intransigence in refusing to process the nomination. In addition, the fact that he was vetted so recently makes him a practical pick for the President, especially considering the end of his term looming close. And as a Black man, this would help the President leave a lasting mark in pushing for inclusion for minorities, particularly African-Americans, in the political process, an especially relevant issue in national discourse today.

Watford has some impressive chops; he was a law clerk to both Judge Alex Kozinski of the 9th Circuit, and for Ruth Bader Ginsburg. In the late 90s, he became an Assistant United States Attorney in the Major Frauds Section of the Criminal Division of the Central District of California, just one year after joining the law firm Munger, Tolles & Olsen. In this position, he prosecuted a wide range of federal criminal cases, including white-collar criminal cases. He worked in Munger as a partner until his confirmation in his current position as a 9th Circuit Judge, where he focused on appellate litigation, appearing often in state and federal courts to argue his cases. He has also authored or edited twenty briefs prepared for the Supreme Court. He wrote the decision of the 9th Circuit’s en banc decision, a term that denotes that the case was heard by the full bench, rather than a panel selected from them, and used for cases of unusual complexity or great importance, in City of Los Angeles v. Patel (2014),  in which the court struck down, 7-4, a city ordinance that authorized police to conduct surprise inspections of hotel and motel guest registries without obtaining the owners’ consent or a search warrant. Watford, in writing for the court, held that the ordinance therefore violated the Fourth Amendment because it didn’t allow for a pre-compliance review. This decision was upheld by the U.S. Supreme Court a year later, 5-4.

Watford has intimate knowledge of the judicial process, including the Supreme Court, making him a strong contender indeed, all the more so because of his support enjoyed across the political spectrum, including some prominent conservative legal figures such as Orin Kerr and Eugene Volokh. This has the added benefit of making any Republican obstructionism against his nomination appear churlish and ill-founded.


2. Attorney General Loretta Lynch

Loretta Lynch is known and admired with the administration, and her history as a career prosecutor makes it difficult to paint her as excessively liberal, an essential sticking point in winning over any Republican support in the Senate. She too has been vetted recently for her position as Attorney General, and as with Paul Watford, this would allow the President to nominate her in short order. However, eight Republicans on the Senate Judiciary Committee, including Chairman Chuck Grassley, opposed her confirmation after a record-long delay. Her nomination process was one of the longest in U.S. history, taking 166 days from when she was first nominated. She simply does not command the bi-partisan support that Watford does, and this could delay her appointment were the President to nominate her. Yet, as a Black woman, she would motivate both Black and female voters in favor of the Democratic party with the election right around the corner, and this gives her an edge over Paul Watford.

Lynch is an impressive candidate. Before her current appointment as Attorney General of the United States, she served as US Attorney for the Eastern District of New York, where she oversaw federal prosecutions in Brooklyn, Queens, Staten Island, and Long Island. She has worked both for the US government as well as private practice, first working as a federal prosecutor in 1990, and has worked on several political corruption cases. As US Attorney, Lynch oversaw prosecution of the New York City police officers in the Abner Louima case (1997), where they had sexually violated and abused Abner, a Black Haitian man they falsely accused of harassing a police officer. Following the July 2014 death of Eric Garner, an unarmed Black man who died after being held in a department-prohibited chokehold by a New York City police officer, Lynch agreed to meet with his family to discuss possible federal prosecution of the officer involved.

Lynch’s office also investigated Citigroup over mortgage securities sold by the bank, resulting in a $7 billion settlement, and was involved in the $1.2 billion settlement with HSBC over violations of the Bank Secrecy Act. She supervised the investigation into FIFA executives, which culminated in the indictment of 14 senior FIFA officials for corruption soon after she was confirmed as Attorney General in 2015.

While clearly a striking candidate with strong progressive appeal, her noted and recent lack of bipartisan appeal might hinder her confirmation as a Justice.


3.  Judge Sri Srinivasan

Sri Srinivasan was confirmed unanimously in his appointment in the U.S. Court of Appeals for the D.C. Circuit. He has formerly worked in BigLaw and in the U.S. Solicitor General’s office in both Republican and Democratic administrations, making him a candidate with bipartisan appeal, though perhaps not as much as he needs to land the nomination. If he got it, he would be the first Asian-American on the Court, as he is from India.

He has written numerous court papers, including Pom Wonderful v. FTC (2015), which upheld FTC regulations that require health-related advertising claims to be supported by clinical studies while simultaneously trimming the number of studies required on First Amendment grounds, the D.C. Circuit’s decision reinstating regulations that guarantee overtime and minimum wage protection to home health care workers in Home Care Association of America v. Weil (2015), and the D.C. Court’s decision in Simon v. Republic Hungary (2016), holding that Article 27 of the Foreign Sovereign Immunities Act merely creates a floor on compensation for Holocaust survivors, with no cap, because the text of the 1947 Peace Treaty between Hungary and the Allies does not bar claims outside the treaty, and the Allies lack the power to eliminate claims of Hungary’s own citizens against their government.

He earned his progressive credentials when he did pro-bono work for Presidential candidate Al Gore during the aftermath of the 2000 election, and in 2013, he was part of the legal team that presented arguments before the Supreme Court against the Defense of Marriage Act in the case of United States v. Windsor. However, in 2010 when his name came up as one of the possible candidates for one of two vacancies on the U.S. Court of Appeals for the D.C. Circuit, there was some opposition among Democrats due to his work in the US Solicitor General’s office during the Bush administration, and because of union animosity to his corporate clients from his private practice. Furthermore, when he worked as a law clerk for the U.S. Court of Appeals for the Fourth Circuit, he did so under Judge J. Harvie Wilkinson III and for Supreme Court Justice Sandra Day O’Connor, both well-known conservatives. Still, in 2012 Obama nominated him to the seat, to which he was eventually confirmed, 97-0.

Srinivasan is an impressive and thorough legalist who is widely respected and admired, and he is moderate enough to potentially sway moderate Republicans, but he lacks the unblemished progressive record of Lynch.  But as a non-Black male, he generates relatively little political advantage in the upcoming election among interest groups in comparison to a female, Black candidate.


4. Chief Judge Merrick Garland

Merrick Garland would be one of two  “safety” nominees. Currently the chief judge on the D.C. Circuit, he was a former high-ranking Justice Department official whose name had previously been considered for a Supreme Court seat back when Justice Paul Stevens retired in 2010. Picking Merrick Garland would be an appeal to moderate Senate Republicans, rather than a keynote of Obama’s progressive legacy.

Garland himself has an impressive track-record. He was Special Assistant to the Attorney General of the United States from 1979-1981, then joined the law firm of Arnold & Porter where he was a partner from 1985-1989, and 1992-1993, in between which he served as an Assistant U.S. Attorney for D.C. from 1989-1992. He was also Deputy Assistant Attorney General in the Criminal Division of the U.S. Department of Justice from 1993-1994, after which he served as Principal Associate Deputy Attorney General until his appointment as a U.S. Circuit Judge. During this time he supervised the Oklahoma City bombing and UNABOM prosecutions.

He was nominated by then President Bill Clinton to the D.C. Circuit, but his nomination was slowed by the Republican-controlled Senate until after the 1996 election due to questions over whether to fill the vacant seat at all - a fate which might repeat itself, though under a different set of objections.

However, Garland is a judicial moderate, and while he may not be the most progressive of candidates, his moderation might make him the most likely to secure the nomination in the face of Republican obstruction.


5. Judge Jane Kelly

Jane Kelly, who serves as judge on the 8th Circuit, would also be a fairly safe candidate. She is a moderate public defender from Iowa who graduated from Harvard Law in Obama’s class, and is well-admired by Sen. Chuck Grassley (R-Iowa), who chairs the Senate Judiciary Committee. Choosing Jane Kelly would not alienate Republicans, and would be a clear signal that Obama more prioritizes preventing an arch-Conservative from getting the seat and securing it quickly than about his legacy as President.

She began her legal career as a clerk to Donald Porter, and then David R. Hansen, before teaching at the University of Illinois College of Law as a visiting instructor. From 1994-2013, she served both as Assistant Federal Public Defender, and from 1999, as Supervising Attorney as well in the Federal Public Defender’s Office in the Northern District of Iowa.

In June 2014, the 8th Circuit ruled that Minneapolis police officers were entitled to qualified immunity after a suspect’s death in a taser incident during an arrest. She was one of the three judges on the panel of the court, and the decision noted that police force used was reasonable under the circumstances. Considering the current discourse among Democrats about the use of police force, this decision might make her a less favored candidate in comparison to some other more progressive candidates on this list.

However, in 2013, President Obama nominated Kelly to a post on the U.S. Court of Appeals for the 8th Circuit upon the vacancy of the seat when Michael Melloy retired. She was rated as Unanimously Qualified by the American Bar Association, and was confirmed by the Senate with a vote of 96-0. Clearly, she has strong bipartisan appeal, and is a serious contender because of it.

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