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FBI Says It Will Ignore Court Order If Told To Reveal Its Tor Browser Exploit, Because It Feels It's Above The Law...

from the above-the-law? dept

Tue, Apr 26th 2016 8:29am — Mike Masnick

There are a bunch of different cases going on right now concerning the FBI secretly running a hidden Tor-based child porn site called Playpen for two weeks, and then hacking the users of the site with malware in order to identify them. The courts, so far, have been fine with the FBI's overall actions of running the site, but there are increasing questions about how it hacked the users. In FBI lingo, they used a "network investigative technique" or a NIT to hack into those computers, but the FBI really doesn't want to talk about the details.

In one case, it was revealed that the warrant used by the FBI never mentions either hacking or malware, suggesting that the FBI actively misled the judge. In another one of the cases, a judge has declared the use of the NIT to be illegal searches, mainly based on jurisdictional questions (the warrants were for Virginia, but the individuals were far away from there).

In yet another case, the one involving Jay Michaud -- his lawyers have now told the court that the DOJ has made it clear that despite the court ruling earlier this year that the FBI must reveal the details of the NIT/hacking tool, it will not do so (first revealed by Brad Heath). The redacted filing is in response to a (sealed) motion for reconsideration by the DOJ, but reveals more or less what the DOJ said in that filing:

If you can't see that, the relevant portion reads:

The Government has now made plain that the FBI will not comply with the Court's discovery order... [REDACTED]... The Government further acknowledges that "there may be consequences for this refusal." [REDACTED] Pursuant to the law discussed below, the consequences are straightforward: the prosecution must now choose between complying with the Court's discovery order and dismissing the case.....

The dilemma is one entirely of the Government's own making, and nothing in its Motion for Reconsideration or renewed requests for secret proceedings changes the analysis.

The filing goes on to point out how the FBI has similarly been refusing to reveal details of its Stingray mobile phone surveillance tools (something we've discussed here quite a bit), leading to convictions being overturned. As Michaud's lawyers point out, the situation here is basically the same. If the FBI refuses to obey a court order, then the case should be dropped.

As the Maryland court observed, the FBI’s obstruction of disclosure “from special order and/or warrant application through appellate review – prevents the court from exercising its fundamental duties under the constitution.” ... “[I]t is self-evident that the court must understand why and how [a] search was conducted,” and “[t]he analytical framework requires analysis of the functionality of the surveillance device and the range of information potentially revealed by its use.” ... These conclusions mirror the conclusions reached by this Court at the February 17 hearing.

The filing also highlights how important it is to get the details, noting that the FBI has a history of incorrectly raiding homes because it doesn't understand how Tor works:

The Government’s refusal to comply with the discovery order is all the more untenable given the exceptional technical complexities that are involved with the Tor network and the FBI’s use of sophisticated hacking “techniques.” Just a few weeks ago, Seattle police raided the home of two people who use the Tor network, based on an allegation that their IP addresses had been linked to child pornography, when in fact illicit traffic had merely passed through their connection to the network.....

But perhaps even more amusing, the lawyers point out how the DOJ/FBI's claims here run exactly counter to the DOJ/FBI's arguments about Apple's obligation to respond to the DOJ's court order to help unlock encrypted phones:

Their complaint is that the DOJ said that Apple could use a secure location to keep the code safe, but rejects such a solution here -- but the comparison could go even deeper. After all, the DOJ kept saying that Apple was acting as if it was above the law in telling the FBI that it would not write special software to help break into a phone. Yet, here, the request is much more straightforward. The FBI doesn't have to write any new code at all... it just has to reveal what it has been told to reveal by a court: the software it used to hack into someone's computer.

Of course, there's also the fact that because of the whole Apple/DOJ fight, Senators Dianne Feinstein and Richard Burr started pushing a bill to ban encryption that opens with the following:

Somehow, I get the feeling that both Feinstein and Burr will feel differently when it's the FBI/DOJ refusing to comply with court orders, and will claim the government is correct here. I wonder if anyone else in the Senate will now release a companion bill to the Burr/Feinstein bill suggesting that the DOJ itself should start complying with court orders, as it is not "above the law."

Gov-Uscourts-Wawd-218206-179-0 (PDF)Gov-Uscourts-Wawd-218206-179-0 (Text)

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Filed Under: court orders, doj, fbi, hacking, jay michaud, malware, nit, tor

69 Comments

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Jeff R, 26 Apr 2016 @ 8:33am

Dredd
"Above the Law? I AM the Law!"
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Anonymous Anonymous Coward (profile), 26 Apr 2016 @ 8:46am

Is the judiciary a joke or a JOKE?
The cops have guns, judges don't. The cops have jails, judges only send people there, via the cops.

The judges only have power when it uses arms of the Executive to enforce laws written by the Legislative. So if, or perhaps more likely when the Executive refuses to comply with the Judiciary where does the enforcement come from? Hell, the Judiciary even has problems ruling the Legislature has overstepped its bounds with regard to The Constitution.

So the real question is who takes the cops into custody?

Government of the people, by the people except when the government refuses to be governed, by the people.
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Anonymous Coward, 26 Apr 2016 @ 8:53am

Re: Dredd
Beat me to it :'o)
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Jeff Green (profile), 26 Apr 2016 @ 8:55am

Re: Is the judiciary a joke or a JOKE?
You missed out the words in small print

Government of the people, by some of the people, for some other people.

Until a few senior people in the relevant departments are jailed for contempt they will continue to treat the courts with utter contempt.
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I.T. Guy, 26 Apr 2016 @ 8:58am

The letter agencies have gone Rouge and are out of control.
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Berenerd (profile), 26 Apr 2016 @ 8:59am

Who do you work for?
I'm the Juggernaut bit...err
We are the FBI.
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Groaker (profile), 26 Apr 2016 @ 9:02am

The Executive and Judiciary branches, and the Congress seem unwilling or unable to control a rogue agency. It would appear to be time to call the FBI upper echelon to testify, and to throw them into to cells under the Capitol.
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DannyB (profile), 26 Apr 2016 @ 9:06am

Ignoring Court Orders
So let me get this right.

The FBI can ignore court orders to reveal how they do their hacking.

But the FBI says that Apple must obey court orders to do unpaid hacking for the FBI.

Once again, I'll say it . . . secret laws, secret interpretations of laws, secret courts, secret warrants, secret arrests, secret trials, secret evidence inaccessible to the defense, secret convictions and secret prisons where secret torture is practiced.

We have become what we spent the last century fighting.

Some say the downfall began right about when we took prayer out of schools. Others say it began when the Mars company introduced the blue M&M.
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I.T. Guy, 26 Apr 2016 @ 9:12am

Re: Ignoring Court Orders
It was all accelerated by the farce that was 9/11.
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DannyB (profile), 26 Apr 2016 @ 9:19am

Re: Re: Above The Law
Also amusing: When Apple challenges a court order, whether the order should even be allowed, we get a chorus of people saying Apple is not above the law! (torches and pitchforks!)

Then we get congress critters wanting to introduce bills with deliberately misleading and deceptive titles about how no company should be above the law; rather than a correct title that the bill is about making encryption illegal. I'm sure major Banks would object to that. Or maybe the bill should be titled making encryption illegal for anyone who is not part of the rich and powerful.

But the FBI is allowed to be Above The Law. Where are the torches and pitchforks? Will these same congress critters have equal outrage at the FBI's behavior? About how the FBI has lied before congress as to the true purpose of it's conflict with Apple over encryption? About the true scope of what the FBI really wanted from Apple?
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Anonymous Coward, 26 Apr 2016 @ 9:20am

Re: Rouge
Red Letter Agencies?
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Anonymous Coward, 26 Apr 2016 @ 9:22am

Re:
They turned red?
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Ben (profile), 26 Apr 2016 @ 9:24am

Re:
I think they are more chartreuse (greenish-yellow) than pinkish/red (rouge), but I've been known to be a bit a rogue in my color choices of late.
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Anonymous Coward, 26 Apr 2016 @ 9:24am

Re: Ignoring Court Orders
Good point, except what the FBI is doing is worse. Apple challenged the legality of the court order, but always said that they would comply if the ruling went against them. The FBI is saying that it will not comply even if the court upholds the order.
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Anonymous Coward, 26 Apr 2016 @ 9:30am

This is really obscene that the FBI can totally ignore and refuse to comply with court orders about how they got evidence on suspects and the worst punishment they get is having to dismiss the case. If the defense did that they'd get huge fines and be locked up, it should be a similar punishment for the government minus the fines since that's just taxpayer money and they couldn't care less if they spent another billion dollars to avoid a court order like this.

There's no point in having checks and balances if they are so gutless to use them that ignoring them completely doesn't even get you a slap on the wrist.
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DannyB (profile), 26 Apr 2016 @ 9:33am

Re: Re: Is the judiciary a joke or a JOKE?
But corporations are people too!

Government of the corporations, by the corporations and for the corporations.
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Anonymous Coward, 26 Apr 2016 @ 9:35am

Sounds like the FBI thinks its exploit is "warrant-proof".
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DannyB (profile), 26 Apr 2016 @ 9:35am

Re: Re: Re: Is the judiciary a joke or a JOKE?
A corporation is a person, but it is a person morally superior to natural people.

Proof: a corporation cannot go to jail, or get the death penalty, therefore it must be unable to have done anything wrong.
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DannyB (profile), 26 Apr 2016 @ 9:38am

Re:
By the time the sane parts of the government (if there actually are any) realize how far things have gotten out of control, and wake up from their self indulgent pleasuring and self enrichment, it will be too late for them to act.
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DannyB (profile), 26 Apr 2016 @ 9:42am

Re: Re: Ignoring Court Orders
The FBI says: we won't comply with the order no matter what. We realize there will be consequences. We will have to drop the case. But we don't care.

My interpretation: The FBI only cares about the number of successful convictions. Not about who they convict. And certainly not how they convict. Having to keep the method a secret should make us all very afraid.

Empires rise. And fall. But we think it won't happen to us. I'm sure others also once believed it was unthinkable.
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Anonymous Anonymous Coward (profile), 26 Apr 2016 @ 9:51am

Re: Ignoring Court Orders
Those blue M&M's have a lot to answer for! I pray they do no more...
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Anonymous Coward, 26 Apr 2016 @ 9:54am

Sniveling bitches, admittedly running a kiddie porn web site to catch sick minded people. Makes one wonder if any of them got their jollies from doing it. This while Vinny does 10 years for killing a child molester he caught in the act. That is United States of American justice for you. Personally, I don't like the smell.
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Anonymous Coward, 26 Apr 2016 @ 10:04am

Re:
gone Rouge

Are you saying they're commies now?
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Anonymous Coward, 26 Apr 2016 @ 10:06am

Even if Feinstein's bill passes, the FBI will just secretly interpret a different meaning for the terms "person" and "entity" to argue that they don't fall under either category and are thus still above the law.
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PRMan (profile), 26 Apr 2016 @ 10:18am

Re: Re: Ignoring Court Orders
"I pray they do no more..."

Are you in school right now? Because if so, we might have a chance...
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Ninja (profile), 26 Apr 2016 @ 10:22am

So the FBI would rather have criminals accused of abusing children or contributing for such acts go free than provide details to the justice about how they got to those people. This is sickening. Unless, of course, they just wanted some high profile convictions to entertain the media and the evidence wouldn't self sustain when scrutinized.

Some people here seem to think that the judiciary has no fangs but actually forcing the cases to be dropped because of the lack of cooperation from law enforcement is part of the punishment if you think about it. Of course it should go further than that unless the people accused haven't suffered damages because the social "guilty upon accusation" mindset nowadays.
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Anonymous Anonymous Coward (profile), 26 Apr 2016 @ 10:29am

Re: Re: Re: Ignoring Court Orders
As a matter of fact, I have been attending the School of Hard Knocks for numerous decades. I will graduate into Elysian Fields at some point.
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Black Art (profile), 26 Apr 2016 @ 10:38am

As my brother said to my father...

"What are you going to do? Get up?"
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Anonymous Coward, 26 Apr 2016 @ 10:56am

It must be embarrassing to work for the an agency as crooked as the FBI.
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Uriel-238 (profile), 26 Apr 2016 @ 11:10am

"Government of the people, by some of the people, for some other people."
No taxation without representation!

Nothing about us without us!

These are very old yet recurring problems, with very old, recurring responses.

If you make peaceful revolution impossible...
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DannyB (profile), 26 Apr 2016 @ 11:18am

Re: "Government of the people, by some of the people, for some other people."
No taxation without repression.

Nothing about us sell out us.
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That Anonymous Coward (profile), 26 Apr 2016 @ 11:26am

Programs!! Get yer programs here!! You can't tell the good guys from the bad guys without a program...
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kallethen, 26 Apr 2016 @ 11:40am

Re:
There are good guys?
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Wyrm (profile), 26 Apr 2016 @ 12:36pm

Re: Ignoring Court Orders
Two points:
1. It's a minor point, but let's be fair. The FBI didn't want Apple to do unpaid sabotage against their own security. They would have been paid. "A reasonable amount", of course. We all know what that means.
2. I think it all started right at the end of WWII, when we decided that "us against them" was a good way to promote democracy. Pointing to someone "evil" and saying "you do what I tell you to, or they will come for you" is not good leadership. The other one can be Nazis, communists, terrorists... It doesn't matter. When you lead the "home of the brave" by insisting that we should always be afraid of the rest of the world, something is broken.
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testing, 26 Apr 2016 @ 12:52pm

This is fascinating, they have an NIT that they may not be able to make admissible in court unless it's details are revealed, but if the details are revealed any vulnerabilities would be patched. In both cases it's irrelevant. Way to back yourself into a wall...
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Uriel-238 (profile), 26 Apr 2016 @ 12:58pm

Re: Re: Ignoring Court Orders
We don't teach this in high-school history class but it was President Wilson who started the Red Scare. He sided with the White Army during the 1917 Russian revolution and never got over that America's side lost.

He also felt that Communism was a direct threat to US Democracy, and the Soviet Union wasn't big into his fourteen points and the League of Nations.

Also big American steel and oil and car moguls thought Fascism (where they would be part of the ruling party, and working class shlubs were thought to be kinda dumb.) was far, far more keen than Communism, and were looking to turn the US into a great fascist empire. It didn't pan out.
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Anonymous Coward, 26 Apr 2016 @ 1:27pm

Re:
I think you misspelled "pogrom" there...
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Anonymous Coward, 26 Apr 2016 @ 1:49pm

Re: Rouge
They now require all employees to wear lipstick?
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Anonymous Coward, 26 Apr 2016 @ 1:53pm

And we say: fuck the FBI, NSA, and all the tyrants out there.
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That Anonymous Coward (profile), 26 Apr 2016 @ 2:14pm

Re:
It'll be more entertaining if all of the cases collapse and then they are charged with running a CP site.
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Anonymous Coward, 26 Apr 2016 @ 2:25pm

And yet they throw a fucking hissy fit when Apple resists a court order.

But what else would you expect from the criminal scum at the FBI?
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Anonymous Coward, 26 Apr 2016 @ 5:29pm

seems like an invitation for a wide scale revolt
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This comment has been flagged by the community. Click here to show it

Whatever, 26 Apr 2016 @ 5:34pm

The FBI is above the law. See, it's because you idiots can't think past the ends of your noses that you think this is unreasonable. You'd rather see every criminal investigation and apprehending become convoluted and difficult, because that's how you pirates roll.

Also, fuck you, PaulT.
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Anonymous Coward, 26 Apr 2016 @ 5:34pm

Re: Ignoring Court Orders
I believe it started when those surviving nazis were incorporated into the victorious allies ranks in exchange for their knowledge of the german warmachine and tech secrets.
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Anonymous Coward, 26 Apr 2016 @ 5:36pm

Re: "Government of the people, by some of the people, for some other people."
only a matter of time before they try and force a repeal of the 2nd amendment. Then comes the genocide, or wide scale removal of undesirables.

That pesky right to own guns is stalling the tyrannistic aspirations of those running the show.
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Anonymous Coward, 26 Apr 2016 @ 5:37pm

Re: Re: Ignoring Court Orders
Much like the reichstag fire was a setup to pass heavy handed anti freedom laws
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Anonymous Coward, 26 Apr 2016 @ 5:41pm

Re:
What is stopping them from just targeting people they don't like but have done nothing illegal?

They refuse to show how they get their evidence.

They refuse to show the evidence that they say proves the suspect is guilty.

There is zero accountability other than we have to trust their word what they say is the truth.

They constantly get caught lying about such things or refuse to follow those same laws when it comes time to apply to their criminal misconduct.

Again how much are you being paid to shill for a tyranny whatever?
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JMT (profile), 26 Apr 2016 @ 6:52pm

Re: Re:
You got trolled.
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Uriel-238 (profile), 26 Apr 2016 @ 7:00pm

Guns stalling tyrannistic aspirations...
I wish.

Part of the role of civilian owned arsenals is to keep them nervous, and it does, but not our representatives are more scared of madmen then revolutionaries.

Part of the problem is that that the common shlub is also terrified of assassins, even assassins of tyrants.

It's why I've recommended starting with a sabotage campaign against things that shouldn't exist, like cell spoofer towers.
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Anonymous Coward, 26 Apr 2016 @ 8:55pm

Re: Guns stalling tyrannistic aspirations...
first thing that happens to tyrannies that disarm their citizenry is massive genocide or thousands of people being rounded up for political crimes.

It's not much of a deterrant but the 2nd amendment may be the only thing stopping that from happening at this point.
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Anonymous Coward, 26 Apr 2016 @ 8:59pm

Re: Re: Re:
I really hope I have because I know people that believe the exact same thing he does. That the police and government never do anything wrong simply because they wouldn't be given a position of power if they were going to abuse it.

That anything that portrays them in a bad light is just lies made up by people trying to make them look bad.

Thank god its only a few of my friends that are this stupid.
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Whatever (profile), 26 Apr 2016 @ 9:32pm

Re:
Wow, special.

See guys, when you piss off Paul, this is his childish response.

Techdirt, time to haul out the trash and ban Paul already.
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Whatever (profile), 26 Apr 2016 @ 9:36pm

Re: Re: Ignoring Court Orders
Actually, Apple said no such thing. Their argument in fact was that what was asked was essentially impossible, so they would not try, and that they would continue to fight the order to the very end (generally meaning to SCOTUS).

Apple essentially would have fought the order until it was no longer relevant. In the mean time, you can bet that they are furiously working on an update for all of their phones (including the older ones) to make what the government asked moot.
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Anonymous Coward, 26 Apr 2016 @ 10:12pm

Re:
You'd rather see every criminal investigation and apprehending become convoluted and difficult, because that's how you pirates roll.

Yeah, we can't make things difficult for the FBI. We all know that if they say someone is guilty, they are guilty. And we can totally trust them, because it's not like they've sent innocent people to prison or worse based on faulty evidence or had their experts overstate their evidence.
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nimbo, 27 Apr 2016 @ 12:50am

There's like, actual crime taking place in the world, and the FBI is wasting money going after people looking at pixels on a screen. Is the FBI too retarded to track down the people doing the actual molesting?
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Uriel-238 (profile), 27 Apr 2016 @ 1:04am

Genocide or Gulag
I assume it's happening already. We have presumption of guilt. We have faked forensic evidence. We have obtuse laws like the CFAA and Espionage Act by which enemies of the state can be incarcerated for long sentences. We have prosecutory discretion where attorneys can choose who they prosecute or not.

Essentially, if you're someone that an official doesn't like, you go to prison. If you're someone that an official likes, you don't go to prison.

Then you have extreme prison abuse, which is often fatal. And little oversight of it. If there was a genocide program in our prison systems, it could go on for years without the public ever knowing about it.

It could be going on right now.
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why ever, 27 Apr 2016 @ 2:16am

Re: ?
obviously a cheap knock off
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Seegras (profile), 27 Apr 2016 @ 4:18am

Re: Re: Re: Ignoring Court Orders
I don't know, but if the FBI says it won't comply, were I a judge, I would open proceedings against the FBI itself, on suspicion of illegal hacking and eavesdropping.
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Anonymous Coward, 27 Apr 2016 @ 4:35am

Re: Re:
Childish response? You mean like the exact same replies you've been spamming the site with, logged in or out?

No, seriously, who do you think you're trying to fool?
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Anonymous Coward, 27 Apr 2016 @ 6:57am

Re: Re: Re: Re: Is the judiciary a joke or a JOKE?
"a corporation cannot go to jail, or get the death penalty"

Nationalization or ban of products/services?
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Monday (profile), 27 Apr 2016 @ 10:50am

Re:
All the Court would need are the names authorizing the action taken to seize and then run that Child Pornography site - PlayPen - and charge a conspiracy to run a site trafficking Child Pornography.

I'd say that this is quite different from Apple not complying with an All Writs... unless... unless they absolutely had to. That is what Apple had stated I believe.

Hell, they may even discover that the website was up for more than just "two weeks", because it seems to me that the FBI has collected a seriously large amount of data for the prosecution to play with. And, who on Earth knows just what sickness / perversity might have transpired if indeed it was longer than the two weeks the FBI are claiming they ceased the website for.
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Jonathan Tooker, 27 Apr 2016 @ 4:15pm

The Power fo the Judiciary
>If the FBI refuses to obey a court order, then the case should be dropped.

Or the Federal Marshal can arbitrate.
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MikeW_CA (profile), 28 Apr 2016 @ 6:38am

The Spirit of Hoover lives.
Keep in mind, the FBI Headquarters building is still named after J. Edgar Hoover. That should tell us what we need to know.
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Wendy Cockcroft, 29 Apr 2016 @ 3:02am

Re: Re: Re: Ignoring Court Orders
Also big American steel and oil and car moguls thought Fascism (where they would be part of the ruling party, and working class shlubs were thought to be kinda dumb.) was far, far more keen than Communism, and were looking to turn the US into a great fascist empire. It didn't pan out.

Maybe not for them but consider the power of the MIC and the oligarchs we have now, the power and reach of FTAs into ordinary people's lives, and the all-pervasiveness of the surveillance states sprouting satellites all over the world in compliant nations. The great fascist empire is here, it's just that other people are running it.
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John Fenderson (profile), 29 Apr 2016 @ 7:58am

Re: Re: Re: Ignoring Court Orders
"It didn't pan out."

It didn't? The US looks very much like a great fascist empire to me. I think it panned out just fine in the big picture -- it just didn't help the steel and auto industries as much as they hoped.
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John Fenderson (profile), 29 Apr 2016 @ 7:59am

Re: Re: Re: Re: Ignoring Court Orders
Ugh, I should have read your comment before making mine, since I basically just repeated what you said!
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Uriel-238 (profile), 29 Apr 2016 @ 10:34am

The NEW Great American Facist Empire.
Yes. The US eventually became it's own version of a totalitarian police surveillance state (that smacks a lot of fascism, though we don't like to call it that). But this is definitely a different fascist empire than the one imagined.

I was referring to the plot revealed by Smedley Butler.

It's kinda like if Joffrey poisoned his father Robert, and a more cunning Tomlin waited until Robert was good and dying before outing Joffrey's plot. And then Cersei manipulated the meeker Tomlin more easily than Joffrey to create a different, but still awful tyranny.

Also in the 1930s, Fascism was new and neat and exciting and didn't yet have all the negative associations with Naziism.

The Fascism-esque state we have, we sorta shambled into as flaws in the Republic were discovered / created and exploited.
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DavidB, 18 May 2016 @ 11:40am

Tor alternatives
Nobody is safe and secure on Tor. Government created Tor in 1996 for the Navy, they monitor traffic on it. If they want to find you, they will (easily). I would recommend you to go for alternatives like Hide My IP VPN.
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John30303, 4 Jun 2016 @ 7:07am

Re: Dredd
... and they got SOOOO mad when Apple did the same thing.
btw, what does child porn have to do with national security? Why does the fbi put so much effort and money into investigating it when they don't bother if the case concerns murder, rape, etc.?
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