We already covered Apple’s reply brief in the fight over getting into Syed Farook’s encrypted work iPhone, highlighting a number of lies by the DOJ’s filing. But I wanted to focus on a few more highlighted in the additional declarations filed by Apple as well. The DOJ kept insisting that Apple built this feature specifically to keep law enforcement out, which is ridiculous. Apple notes repeatedly that it built the feature to keep its customers safer from malicious attacks, most of which are not from law enforcement. But the DOJ keeps pretending that it was a deliberate attempt to mock law enforcement. In the DOJ’s filing:
Here, Apple has deliberately used its control over its software to block law-enforcement requests for access to the contents of its devices, and it has advertised that feature to sell its products.
Since the introduction of iOS 8 in October 2014, Apple has placed
approximately 1,793 advertisements worldwide?627 in the United States alone?of
different types, including, print ads, television ads, online ads, cinema ads, radio ads
and billboards. Those advertisements have generated an estimated 253 billion
impressions worldwide and 99 billion impressions in the United States alone (an
impression is an estimate of the number of times an ad is viewed or displayed online).
Of those advertisements, not a single one has ever advertised or promoted
the ability of Apple?s software to block law enforcement requests for access to the
contents of Apple devices.
Indeed, only three of those advertisements reference security at all, and all three related to the Apple Pay service, and then only to say that Apple Pay is “safer than a credit card, and keeps your info yours.”
I’m assuming the DOJ, if it decides to push this point, will argue that it wasn’t talking about those kinds of advertisements, but Apple’s statements to the press, but still, there’s a strong point here. Contrary to what the DOJ is saying, no, the company does not proactively advertise the encryption as a way to keep law enforcement out. Or, in short, no, FBI, strong encryption on the iPhone just isn’t about you.
While other states seem distressingly focused on exempting law enforcement from greater transparency — whether by crafting new loopholes in FOI laws or deciding body camera footage should remain in the control of police — California is going the other way.
State Sen. Mark Leno, seeking to tighten accountability amid a national conversation over police shootings and a push for law enforcement reform in San Francisco, introduced a bill that would roll back a 1978 law and subsequent Supreme Court rulings that prompted cities to close police disciplinary cases to the media and the public.
This is Leno’s second attempt to rewrite the law that created an accountability shelter for police officers. It must be said this is a much better idea than the San Francisco PD’s response to a recent high-profile shooting: limiting officers to firing two bullets each during interactions with citizens. Despite more public support for greater law enforcement transparency, Leno still faces a tough battle to push this legislation through. As in any other push for police accountability, those pushing back are the usual, powerful suspects.
Harry Stern, an attorney who represents officers around the Bay Area, slammed the proposal, linking it to the San Francisco Board of Supervisors’ recent approval of a day of remembrance for Mario Woods, the stabbing suspect whose video-recorded killing by police sparked protests and a federal review of the city force.
Harry Stern works for the deputies’ union and, like many other union reps, feels the real problem with today’s policing is everyone else.
“No one is against accountability,” Stern said. “But when politicos press an agenda that includes declaring a day in honor of a violent felon, one must consider their motives with a jaundiced eye. … In today’s criminal-friendly, antipolice climate, we need fewer baseless public floggings of cops, not more.”
Actually, it seems pretty clear that some people are against accountability, with a large majority of them acting as police union reps. No one likes “baseless public floggings,” but union leaders have made it abundantly clear they’re not too fond of justified floggings either, whether performed in public or not.
Another law enforcement union is also looking to block the bill.
San Francisco Police Officers Association officials will be among those fighting the legislation. Nathan Ballard, an adviser for the union, said that while officers support efforts to bring transparency — including having officers wear body cameras — the union will oppose legislation seeking “to undo the California Supreme Court’s ruling that protects police officers’ privacy interests.”
For public figures who act under the color of law and wield an immense amount of power, police officers (or at least their union reps) seem awfully sensitive about their (mostly-imagined) privacy. The public should have access to police misconduct records, including the names of officers involved. The unions pretend this will lead to “public floggings” by those with ulterior motives, like politicians and the media. But the simple fact is that law enforcement remains a revolving door for bad cops, allowing them to move from one agency to the next with minimal effort. Access to police misconduct records will allow outside parties to keep tabs on job-surfing habitual offenders — an essential aspect of accountability very few law enforcement agencies seem willing to perform themselves.
Teens sexting can’t be addressed by existing laws. Law enforcement — which far too often chooses to involve itself in matters best left to parents — bends child pornography laws to “fit” the crime. They often state they’re only doing this to save kids from the harm that might result by further distribution of explicit photos. How exactly turning a teen into a child pornographer who must add his or herself to the sex offender registries is less harmful than the imagined outcomes cited by law enforcement is never explained.
Over in New Mexico, legislators are making an honest attempt to keep sexting teens from being treated like sex offenders. And it’s law enforcement that’s leading the opposition to the proposed changes. The bill would continue to uphold harsh penalties for actual child pornographers while decriminalizing sexting between teens.
“I cannot support an amendment that weakens protections for teenagers from predatory activity, creates a dangerous new child exploitation loophole, and places New Mexico’s federal Internet Crimes Against Children Task Force funding in jeopardy,” said Attorney General Hector Balderas in a statement, according to the Alamogordo Daily News.
This statement is not only ridiculous, but it shows the AG is more interested in budget lines than the future of teens who do the sort of things teens are inevitably going to do. Balderas is explicitly stating that he’s willing to sacrifice young lives in order to secure his task force’s funding. That’s just sickening. In Balderas’ world, sexting teens are nothing more than a revenue stream.
As Soave points out, the legislation still contains harsh punishments for child pornographers and does nothing to create a “loophole” for accused offenders. What it would do is keep teens from being charged for exchanging explicit photos with their peers by carving out an exception for photos exchanged by teens ages 14-17.
There’s nothing logical about applying sexual predator/child pornography laws in this way. But Balderas has helpfully explained why many law enforcement officials are more than happy to do exactly that. There’s good money in chasing down child pornographers — a criminal act reviled by a majority of their constituents. Anything that might jeopardize these funds — like treating sexting teens as a disciplinary/educational problem rather than a criminal one — is to be rejected out of hand.
Soave notes Balderas was so incensed by this threat to his funding that he and his staff walked out of the hearing in a show of outrageously stupid, callously self-centered solidarity. Balderas may want to play hardball with child pornographers, but he’s also shown he’s more than willing to fuck a few kids himself when there’s money on the line.
So, we already wrote about the nutty amicus filing in support of the FBI by San Bernardino’s District Attorney, as well as the tons of amicus briefs in support of Apple. However, there are two more amicus briefs that were filed in support of the Justice Department, and we didn’t want to leave those out of our coverage either. The main one is a brief from a ton of law enforcement agencies, namely the Federal Law Enforcement Officers Association, the Association of Prosecuting Attorneys, and the National Sheriff’s Association.
The argument is not a surprising one. It’s basically “but we really, really, really want to see what’s on these phones” combined with “this may inspire others not to obey us.”
Amici believe that the position Apple has taken is a dangerous one. First, Apple’s refusal to provide assistance has far-reaching public safety ramifications by making it difficult, and in some cases impossible, for law enforcement to fulfill its obligation to investigate crimes, protect the public by bringing criminals to justice, and enforce the law. Second, if Apple were to prevail, the public at large may itself think twice about cooperating with law enforcement when called upon to do so.
Of course both of these are hogwash. First of all, Apple has provided a ton of assistance. But providing some assistance doesn’t mean it should be compelled to provide all possible assistance. In fact, this claim ignores the very heart of this case, which is just how far must Apple go, and can a company be compelled to go way beyond what any company has been compelled to do in the past. But this filing misleads the court and pretends it’s simply about whether or not Apple should provide any assistance. Similarly, the argument that this kind of info is needed to “enforce the law” is similarly ridiculous. As we’ve noted, law enforcement never gets “all of the information.” It never knows what information has been destroyed, or is hidden and not found, or is just in people’s brains. The idea that they need every possible scrap of information has simply never been true, and in fact, our Constitution is designed on the principle that, no, law enforcement doesn’t always have the right to access any and all information it wants. That’s on purpose.
Separately, this amicus brief — despite officially being in support of the Justice Department and the FBI may serve to undermine their case. After all, a key part of the DOJ’s argument is that this case is just about this one phone. However, as we’ve discussed, tons of law enforcement folks are salivating over using this ruling as a precedent elsewhere. And this brief makes that quite clear, which might help the judge realize that the Justice Department is being misleading in arguing otherwise.
The other amicus brief in support of the DOJ is one filed on behalf of six individuals who are mostly family members of people who were killed in the San Bernardino attack (five of them, with the other person being the husband of a woman who witnessed the attack, but was not shot). This filing was also not unexpected given that, as we reported earlier, the DOJ reached out to a lawyer to file this amicus brief before even asking the judge for the order. For whatever reason, the actual brief does not appear on PACER, just the application for the amicus brief (it says the brief is attached, but as of my writing this, the full brief does not appear in PACER). I can certainly understand why these individuals would want to support the DOJ here (though, as noted in our earlier posts, at least three other family members have supported Apple’s position). But I’m not convinced that their views have any legal impact on the case, just an emotional one.
In Jim Comey’s defensive blog post over the weekend, he insisted that the FBI was absolutely not doing this to set a precedent or to do anything other than get into a single phone:
The San Bernardino litigation isn’t about trying to set a precedent or send any kind of message….
The particular legal issue is actually quite narrow. The relief we seek is limited and its value increasingly obsolete because the technology continues to evolve. We simply want the chance, with a search warrant, to try to guess the terrorist’s passcode without the phone essentially self-destructing and without it taking a decade to guess correctly. That’s it. We don’t want to break anyone’s encryption or set a master key loose on the land.
Yeah, except that’s clearly bullshit. They absolutely want the precedent, and if the FBI’s PR strategy is to now insist this precedent won’t be useful beyond this case, perhaps it should have coordinated those talking points with others in law enforcement. Because if you talk to them, they’re happy to tell everyone just how badly they want this precedent so they, too, can demand Apple build hacking tools into iPhones. Jenna McLaughlin at The Intercept has put together examples of law enforcement people practically drooling over the possibilities that will be opened up should the FBI win.
In Suffolk County, Massachusetts, district attorney?s office spokesperson Jake Wark said prosecutors ?can?t rule out? bringing their own case of a locked cellphone before a judge, too. ?It may be a question of finding the right case,? he told the Wall Street Journal.
?It?s going to have significant ramifications on us locally,? Matt Rokus, deputy chief of Wisconsin?s Eau Claire Police Department, told the city?s Leader-Telegram newspaper on Monday.
In South Dakota, Minnehaha County State?s Attorney Aaron McGowan told the Sioux Falls Argus Leader that ?the court?s ruling could have a significant impact on conducting sensitive criminal investigations.?
And then of course, there’s Cyrus Vance, the Manhattan DA who also has been quite vocal in asking for backdoors into encryption, who has admitted that he basically wants the same power the FBI is now trying to exert. And, meanwhile, Senator Richard Burr used the Apple case as a keying off point to try to push for legislation he’s been working on for a while that would effectively mandate such backdoors.
So it’s fairly difficult to believe the FBI and Director Comey when not only does everyone know he’s lying, but his friends and colleagues in law enforcement can’t even be bothered to play along with the script.
Update: Oh, and even the DOJ is off-script as well. It’s now being reported that the DOJ is currently seeking similar orders on 12 more iPhones. So, yeah, Comey’s flat out lying.
Manhattan DA Cyrus Vance can’t stop griping about phone encryption. He’s basically a one-issue politician at this point. His creaky platform is the coming criminal apocalypse, currently being ushered in by smartphone manufacturers. The only person complaining more about phone encryption is FBI Director James Comey, but in Comey’s defense, his jurisdiction is the whole of the United States. Vance has only his district, but it encompasses the NYPD — a police force that often seems to view itself as the pinnacle of American policing.
Manhattan District Attorney Cyrus R. Vance Jr. said at a news conference that investigators cannot access 175 Apple devices sitting in his cybercrime lab because of encryption embedded in the company’s latest operating systems.
“They’re warrant proof,” he said, adding that the inability to peer inside the devices was especially problematic because so much evidence once stored in file cabinets, on paper, and in vaults, is now only on criminals’ smartphones.
Tough luck, that. But considering the information inside is encrypted, it’s a bit bold to declare that whatever’s contained there that the NYPD hasn’t seen would be useful to investigators. The assumption seems to be that if it’s encrypted and on a device seized by law enforcement, then it must be composed of smoking guns and signed confessions in PDF format.
Even if we buy the assumption that the phones contain massive amounts of useful data, there are other pathways to this data. It doesn’t have to run through the smartphone provider. And the efforts made to lock out cops (as it’s always presented) also keeps criminals from accessing the personal data and communications of others. So, there’s that.
Vance claims investigations are being hindered by encryption. Supposedly, the NYPD is sitting on 175 uncracked devices — some of which were displayed during the press conference. But other than this number being cited, very little was offered in the way of further detail. Instead, Vance photo-opped a pile of supposedly inaccessible devices and let the press draw its own conclusions. Police Commissioner Bill Bratton was on hand to back up Vance’s assertions with the sort of jailhouse hearsay Detective Vincent Hanna would find patently ridiculous.
Bratton said criminals are increasingly aware of the protection offered by their devices. He said a prisoner in a city jail was recently recorded saying in a phone call that iPhone encryption was “another gift from God.”.
Devastating.
It’s a shame the Vance-Bratton loop doesn’t seem to be interested in hearing from other law enforcement representatives about whether the government should be forcing companies out of the encryption business or a locked-up phone should be treated as an investigative brick wall.
The Associated Press said in its report, “The dispute places Apple, one of the world’s most respected companies, on the side of protecting the digital privacy of an accused Islamic terrorist.”
Well, no. Apple is protecting its product for the hundreds of millions who possess Apple iOS devices, and it is protecting its own corporate interests. The company’s market position could be jeopardized by taking away one of the elements to its product that is most appealing to consumers (privacy and encryption) and thereby put the shareholders in financial jeopardy. As CEO, it is Cook’s responsibility to resist that.
Furthermore, the FBI may be using terrorism as leverage to secure Apple’s assistance, but its insistence that key info is held on a dead suspect’s phone suggests it’s reading too much into things it can’t actually see, as well as short-circuiting its own investigative processes.
The fact is that the probability that a terrorist would keep sensitive information about his plot/plans on his government-issued mobile phone is pretty preposterous. In the unlikely event that there is information relevant to the investigation on that device, the possibility exists that it resides elsewhere as well, such as with mobile carrier network records, or another person’s phone who spoke or exchanged messages with Farook. Consequently, the FBI should:
Vigorously pursue all of the other avenues of investigation.
Work to develop better decryption capabilities for future investigations.
Withdraw its petition to the court to force a private company to damage its products.
This is coming from the editor of a site that’s so much of a law enforcement echo chamber that you’re not even allowed to see comments unless you can prove you’re a law enforcement officer or official.
When another closed, pro-law enforcement loop can see both the forest and the trees, it clearly exposes Vance’s efforts here as little more than grandstanding. What Vance and Bratton want — along with James Comey — is for every impediment to investigations to be removed, either by courts or by legislators. Because they’ve chosen to focus on encryption, they’re ignoring scalable fences while wringing their hands over the padlock on the gate.
And, once more it must be pointed out that the FBI and other law enforcement agencies solved plenty of crimes before smartphones — much less smartphone encryption — became the norm. They claim everything that used to reside in file cabinets and bedroom drawers now resides in encrypted devices. While many people’s “lives” are contained in their phones, their lives encompass far more than their Companion Rectangles™. They still have computers and laptops that aren’t encrypted, third party social media services/email providers, as well as friends, relatives and co-conspirators who may be able to offer more insight or access. But all people like Vance see is iNcriminating Device 5S standing between them and justice, even when multiple paths around it still exist.
Vigilant Solutions, one of the country’s largest brokers of vehicle surveillance technology, is offering a hell of a deal to law enforcement agencies in Texas: a whole suite of automated license plate reader (ALPR) equipment and access to the company’s massive databases and analytical tools—and it won’t cost the agency a dime.
[…]
Vigilant is leveraging H.B. 121, a new Texas law passed in 2015 that allows officers to install credit and debit card readers in their patrol vehicles to take payment on the spot for unpaid court fines, also known as capias warrants. When the law passed, Texas legislators argued that not only would it help local government with their budgets, it would also benefit the public and police.
Well, we can see how this will benefit law enforcement and others on the government food chain, but it’s unclear how this will benefit the public. The bill’s sponsor said the law would “relieve the burden” of having their vehicles impounded or being jailed for unpaid fines. But beyond those vague perks, the benefits seem to flow mostly in one direction.
The EFF quotes legal blogger Scott Henson of Grits for Breakfast, who speculated the combination of license plate readers and credit card readers would push cops towards chasing down unpaid fines rather than enforcing traffic laws or performing more routine patrol duties. If so — and it appears to be the case — this is exactly the outcome Vigilant was expecting. It didn’t hand out its tech for free. There may be no price tag on the plate readers at the point of purchase, but that’s only because Vigilant has points on the back end.
The “warrant redemption” program works like this. The agency gets no-cost license plate readers as well as free access to LEARN-NVLS, the ALPR data system Vigilant says contains more than 2.8-billion plate scans and is growing by more than 70 million scans a month. This also includes a wide variety of analytical and predictive software tools.
The government agency in turn gives Vigilant access to information about all its outstanding court fees, which the company then turns into a hot list to feed into the free ALPR systems. As police cars patrol the city, they ping on license plates associated with the fees. The officer then pulls the driver over and offers them a devil’s bargain: go to jail, or pay the original fine with an extra 25% processing fee tacked on, all of which goes to Vigilant.
To make this relationship even more explicit, officers who issue tickets to parked vehicles rather than drivers leave a note instructing them to visit Vigilant’s website to pay the fine. On top of the 25% fee, Vigilant also gets to collect massive amounts of sweet, sweet driver data, which it can then sell to other law enforcement agencies (database access licenses) and private firms (insurance companies, repo men, etc.). And, if the locals seem understaffed, Vigilant is more than happy to pick up the slack.
In early December 2015, Vigilant issued a press release bragging that Guadalupe County had used the systems to collect on more than 4,500 warrants between April and December 2015. In January 2016, the City of Kyle signed an identical deal with Vigilant. Soon after, Guadalupe County upgraded the contract to allow Vigilant to dispatch its own contractors to collect on capias warrants.
As the EFF points out, this freemium service benefits Vigilant and law enforcement, but does very little for the general public… including protect them from Vigilant’s inability to perform its job competently.
During the second week of December, as part of its Warrant Redemption Program, Vigilant Solutions sent several warrant notices – on behalf of our law enforcement partners – in error to citizens across the state of Texas. A technical error caused us to send warrant notices to the wrong recipients.
These types of mistakes are not acceptable and we deeply apologize to those who received the warrant correspondence in error and to our law enforcement customers.
Apologies are nice, if of limited utility, but…
[T]he company has not disclosed the extent of the error, how many people were affected, how much money was collected that shouldn’t have been, and what it’s doing to inform and make it up to the people affected.
As has been discussed here before, turning law enforcement agencies into revenue-focused entities is a bad idea. Case in point: asset forfeiture. Further case in point: speed trap towns. Improper incentives lead to improper behavior. Agencies may like the idea of a “free” license plate reader, but the price still has to be paid by someone — and that “someone” is going to be the general public.
As priorities shift towards ensuring ongoing use of the “free” ALPRs, other criminal activity is likely to receive less law enforcement attention. Unpaid fines and fees are in law enforcement’s wheelhouse, but should never become its raison d’etre. Once it does, the whole community suffers. Anything that could be implemented to lower crime rates would also serve to lower revenue, making it far less likely to be implemented. Fewer infractions mean fewer opportunities to collect court fees. And while the legislators pushing the new law Vigilant is leveraging talked a good game about sending fewer people to overcrowded jails, the governments overseeing these agencies still have budgets to meet and law enforcement to lean on to ensure this happens. Actually achieving the bill’s stated aims would mean a steady reduction in court fees, which would lead to the loss of “free” plate readers. And no one wants that, at least not on the government side of things.
Matthew Braga at Motherboard reports the Canadian Supreme Court has laid down some guidelines for law enforcement’s access to “tower dumps” — call records containing every phone that accessed towers during a specified period of time. While it doesn’t direct law enforcement to seek warrants, it does at least provide more restrictive guidance for collection of these data dumps, which the court originally found to be so broad as to be unconstitutional.
In his ruling, Justice John Sproat defined seven “guidelines” that law enforcement, justices, and telecommunications companies would be able to refer to when faced with future production orders for tower dump data. The guidelines recommend that such requests…
Be tailored for minimal intrusion into subscribers’ privacy.
Explain why specific cell towers and the dates and times specified are relevant to the investigation.
Justify the types of records requested.
Offer any additional details that might help a telecom company narrow their search and return fewer records.
Request “a report based on specific data instead of a request for the underlying data itself”
Or, if a report will not suffice, justify why the underlying data is required.
Request manageable amounts of data that can be “meaningfully reviewed.”
The new approach stems from the overly-broad nature of a request made by the Peel Regional Police, which was challenged by a service provider. During the agency’s investigation of a jewelry store robbery, it requested dumps from 21 towers, covering more than 43,000 phone records. (The requested information was ultimately never handed over to the police.)
While the new guidance is useful and will hopefully deter future expansive data requests (and is one step further than US courts have taken), it doesn’t specifically address minimization of “non-hit” data, nor does it set a time limit for data prevention. While one Canadian privacy law (PIPEDA – Personal Information Protection and Electronic Data Act) sets limits for “organizations,” law enforcement agencies do not fall under the law’s definition. The court’s instructions admit as much, noting the guidelines it suggests reside in a legislative black hole.
This will now sit uncomfortably within the patchwork of privacy protections granted by the Canadian court. Law enforcement must now seek warrants to obtain subscriber information from ISPs — something it used to be able to obtain with five minutes of self-generated paperwork. That’s a good step forward, but the same court has also ruled that law enforcement can search arrestees’ cell phones without a warrant — devices that contain much more information than could be obtained from an ISP or cell phone provider. Its rationale for this decision? Drugs are bad, therefore warrantless searches.
Cellphones are the bread and butter of the drug trade, the majority said in a 4-3 ruling. It said police have been given the “extraordinary power” to do warrantless searches during an arrest, under common-law rules developed by judges over centuries, because of the importance of prompt police investigations.
This moves Canada slightly ahead of the US in terms of limits on the acquisition of third party records, but behind it in terms of cell phone contents. The guidelines are a welcome addition, but the court is still a fair distance away from a coherent view on privacy expectations.
Budget cuts can be glorious things: the Department of Justice announces this week that, thanks to cuts in its budget of an initial $746 million in November’s Bipartisan Budget Act of 2015, followed up by a wondrous addition $458 million rescission in the Consolidated Appropriations Act of 2016 that became law last week, it is temporarily halting its so-called “equitable sharing” program.
The DOJ’s statement notes it will definitely try to keep the equitable sharing program up and running, but doesn’t see how that’s going to be possible in the immediate future.
By deferring equitable sharing payments now, we preserve our ability to resume equitable sharing payments at a later date should the budget picture improve….We explored every conceivable option that would have enabled us to preserve some form of meaningful equitable sharing while continuing to operate the Program and meet our other fiscal obligations. Unfortunately, the combined effect of the two reductions totaling $1.2 billion made that impossible.
This means state and local law enforcement agencies can still use the federal program to dodge local restrictions on asset forfeiture, but they’ll just have to accept the fact that payouts will be delayed for an indefinite period of time.
The National Sheriffs’ Association is shocked and disappointed by the Department of Justice’s decision to suspend the equitable sharing of Asset Forfeiture Program funds to state, local, and tribal law enforcement. This is yet another blow to those who work every day to prevent terrorism and crime in our communities.
By rescinding nearly $1.2 billion from the Program, Congress and the Administration have openly chosen to focus on the financial bottom line over protecting communities. They should be ashamed because this decision will have severe and direct consequences for our communities.
First off, lol “terrorism.”
If there’s anything asset forfeiture has done little to impact, it’s terrorism. Most law enforcement agencies talk a good terrorism game, but use funding, tech and secondhand military gear to target ordinary crooks — the sort of criminals they’ve always been able to pursue without armored vehicles, cell tower spoofers and hundreds of thousands of dollars in forfeiture funds.
Secondly, the last thing I’d want to criticize Congress and the Administration for is “focusing on the bottom line.” That’s what budgets are for and that’s what legislators should be doing. Of course, the budgeting process in our country has become a tragicomic farce, as can easily be seen by the passage of the horrible Cybersecurity Act (the rebranded CISA) under the pretense of sussing out the nation’s future spending. This criticism can basically be rephrased as “Screw the taxpayers. We want ours.”
The NSA also points out that it’s become highly reliant on a single “income stream.”
The Congress and the Administration have once again failed to understand the repercussions of their actions. In this case, joint task forces across the country will do without the critical manpower support of state, local, and tribal law enforcement agencies because many, if not most, sheriffs will be unable to sustain the anti-terror and criminal prevention tempo sufficient to meet the ever-increasing demands. Our federal law enforcement partners will now carry that unimaginable burden.
“Anti-terror tempo.” Hilarious.
From there, the association delivers its parade of horribles, none of which seem particularly horrible to anyone but law enforcement officials used to getting what they want, whenever they want it.
The protective capabilities of our nation are being downgraded at every level in never ending attacks on law enforcement. From this rescission to the early release of thousands of federal inmates to the restrictions on surplus military equipment available to state and local law enforcement, the safety and security of our communities is being put at risk.
Let’s see: the “bad” things stem from overcriminalization, militarization of law enforcement agencies and the widespread dissemination of police accountability tools (mainly, cell phones with built-in cameras). And now, the ability to route around local laws to grab a greater share of assets seized without corresponding convictions has been temporarily curtailed.
Let’s hope these federal agencies will hold up under the “unimaginable burden” of shaking down recreational marijuana users for any cash they might be carrying, busting people for thinking about robbing imaginary stash houses containing imaginary drugs, and whiling away the hours at the FBI’s Build-A-Terrorist Workshop.
For the immediate future, law enforcement agencies will have to play by local rules. Fortunately for them, most states still run highly-questionable forfeiture programs, so the temporary loss of federal-level sharing should have minimal impact.
As you may have heard, last night Apple CEO Tim Cook was on 60 Minutes. The overall story really wasn’t all that insightful for anyone who’s been following Apple for any length of time, but what got a lot of attention was Tim Cook reiterating his position on protecting the privacy of Apple users through encryption. Here’s basically the entire exchange:
Charlie Rose: In the government, they say it’s like saying, you know, you have a search warrant, but you can’t unlock the trunk.
Tim Cook: Here’s the situation is on your smartphone today, on your iPhone, there’s likely health information, there’s financial information. There are intimate conversations with your family, or your co-workers. There’s probably business secrets and you should have the ability to protect it. And the only way we know how to do that, is to encrypt it. Why is that? It’s because if there’s a way to get in, then somebody will find the way in. There have been people that suggest that we should have a back door. But the reality is if you put a back door in, that back door’s for everybody, for good guys and bad guys.
Charlie Rose: But does the government have a point in which they say, “If we have good reason to believe in that information is evidence of criminal conduct or national security behavior?”
Tim Cook: Well if, if the government lays a proper warrant on us today then we will give the specific information that is requested. Because we have to by law. In the case of encrypted communication, we don’t have it to give. And so if like your iMessages are encrypted, we don’t have access to those.
Charlie Rose: OK, but help me understand how you get to the government’s dilemma.
Tim Cook: I don’t believe that the tradeoff here is privacy versus national security.
Charlie Rose: Versus security.
Tim Cook: I think that’s an overly simplistic view. We’re America. We should have both.
Same basic stuff he’s said before. Nothing new. Nothing controversial. But grandstanding Senator Tom Cotton apparently flipped out about it and pushed out a statement that shows a rather stunning ignorance of the law.
“Apple is a distinctive company that has improved the lives of millions of Americans. But Tim Cook omitted critical facts about data encryption on 60 Minutes last night. He claimed that Apple does not comply with lawful subpoenas because it cannot. While it may be true that Apple doesn’t have access to encrypted data, that’s only because it designed its messaging service that way. As a society, we don’t allow phone companies to design their systems to avoid lawful, court-ordered searches. If we apply a different legal standard to companies like Apple, Google, and Facebook, we can expect them to become the preferred messaging services of child pornographers, drug traffickers, and terrorists alike–which neither these companies nor law enforcement want. Our society needs to address this urgent challenge now before more lives are lost or shattered.”
Of course, Senator Tom Cotton apparently didn’t bother to read the actual law dealing with the issue of “assistance capability requirements” because, among other things, it says:
A telecommunications carrier shall not be responsible for decrypting, or ensuring the government?s ability to decrypt, any communication encrypted by a subscriber or customer, unless the encryption was provided by the carrier and the carrier possesses the information necessary to decrypt the communication.
So, yes, as a society we do allow companies to design their systems with encryption. It’s in the law.
And there’s a good reason why we do that. Because it makes everyone safer. Again, the idea that this suddenly creates a “going dark” problem where “child pornographers, drug traffickers, and terrorists alike” are able to hide out from the law is a massive exaggeration — which is why the government has still failed to show any real examples of it being a serious problem. Even with encryption, people engaged in illegal behavior leave plenty of other evidence. Even with encryption, basic detective work can usually track down those responsible. Even without encryption, people have always been able to communicate in ways that defy warrants and surveillance orders (e.g., talking in person or writing in code).
The whole idea that this is a big problem is wrong on multiple levels. First, the “problem” is barely a problem at all. Second, those who are attacking encryption, like Senator Tom Cotton, don’t seem to have the first clue about how much encryption protects everyone and makes us safer from the actual threats that people face.
