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February 23, 2016

Judge To Decide If Hillary's Aides Can Be Questioned About Their Role in the Illegal Server Set-Up
Plus, an Update to the Apple Story

The judge will be ruling on Judicial Watch's motion to permit questioning of Hillary's aidesas to their role, and Hillary's, in setting up the illegal server.

Fingers crossed.

Speaking of matters legal and technical, Loaf of Ungrateful Bread has a good post explaining, contra my claims yesterday, that there is in fact a law which permits judges to impress citizens into aiding law enforcement.

That's where the contentious February 16, 2016, order (PDF) comes in. Using the All Writs Act--a modern version of a law the American Founders passed in the first Congress--a federal magistrate judge has ordered Apple to help the FBI gain access to the device’s contents. Under the All Writs Act, a court can order a third party who stands in the way of administering justice to provide assistance so long as an alternative is not available, the ordered assistance is not unduly burdensome, and the third party is reasonably compensated.

I suppose Apple's contention is that this is unduly burdensome, but my post yesterday suggesting this was "unprecedented" was completely wrong.

Gabe also says the FBI isn't looking to keep the skeleton key, once cut:

In other words, the FBI wants to bring Farook's iPhone to Apple, let the manufacturer perform the temporary update, and then allow the FBI to remotely perform a brute force attack to discover Farook's passcode. Once the FBI has discovered the passcode, Apple simply reverses the update and returns the iPhone with its original software and contents to the FBI.

Apparently the FBI is in fact asking Apple for the sort of assistance least injurious to its security system: Gabe says they'd let Apple retain the phone in its security-crippled state, while the FBI attempted the brute-force manner of cracking the security code (which shouldn't take all that long -- 10,000 or even 100,000 variations in a possible touchpad security code could take days to break for a computer).

That way, the key is never not in Apple's sole possession. I suppose the FBI could try to hack the key as they perform this operation, but I also suppose Apple could have people on staff watching for just that, and ready to stop them. And then go to the court saying, accurately, the FBI has violated its own conditions.

It's a good post. If these things are true, Apple's position is weaker than it seemed to me.

Test Case? Sometimes an organization -- the ACLU, and advocacy group, the government -- will contrive a White Knight case where all the facts are charming and likable, in order to get a ruling which they will then use as precedent in other cases.

This is an interesting bit from Investor's Business Daily, cited here by EFF:

"They don't even really care about the data on this particular phone (as evidenced by the facts that this is the suspect's work phone -- he destroyed his personal phones -- and that they're conducting this litigation in public rather than under seal). They chose this particular set of facts to create a precedent," Nate Cardozo, staff attorney for Electronic Frontier Foundation, wrote via e-mail.

That could very well be the case. So we should put aside the Politically Attractive Rubio-Like Facts in this case and consider just the general principle:

If law enforcement has a legitimate reason to get into a secure phone, and a judge is persuaded of this and signs an order to compel, do we want the government to be able to do this?

You need to think about this in two different cases. Not just the one that most people fixate on. People pick one of the below two scenarios and only think about that one. But you gotta think about both.

The two scenarios are:

1. The government wants to get into your phone.

2. The government wants to get into the phone of the guy it strongly suspects, but cannot prove, is the man responsible for your daughter's murder.

I think both have to be kept in mind. I think it's unserious to only think "the government is out to get me," and equally unserious to think "The government has only pure motives and I should give it whatever power it wants to chase Bad Guys."


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posted by Ace at 03:40 PM

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