Judge Says Defendant Has Right To Examine FBI's Hacking Tool While Stating FBI Has Right To Withhold Details

from the gridlock dept

Mon, May 23rd 2016 3:23am — Tim Cushing

As we covered recently, the judge presiding over Jay Michaud's case in Washington -- part of the FBI's Playpen child porn sting operation -- recently declared the FBI did not have to turn over information on its hacking tool to the defense. How Judge Robert Bryan arrived at this conclusion wasn't fully explained during his oral order, but it had something to do with the government's secret, judge's-eyes-only presentation that preceded the order.

It also may have had something to do with the government's declaration that it wouldn't be turning over this information to Michaud under any circumstances. Either way, Bryan arrived at the contradictory conclusion that the FBI did not need to turn over this information despite conceding the defense had a right to see this information.

A written ruling has been issued which offers a bit more in the way of explanation while simultaneously failing to deliver Judge Bryan from the conundrum he has created. (via Ars Technica)

The government’s oral arguments on February 17 and May 12, 2016 and its related briefing addressing materiality essentially amount to an ipse dixit argument, without convincing expert support, that 1) giving the defendant full access to the N.I.T. code will not turn up anything helpful to the defense, and 2) a showing of materiality demands facts, not hypotheses, and the defendant has done nothing more than fabricate guesses about what the N.I.T. code could show.

Bryan believes the government is entitled to withhold this information. He also believes the information should be handed over to the defense for a number of reasons.

These arguments bear little fruit. The defendant is not required to accept the government’s assurances that reviewing the N.I.T. code will yield no helpful information. The government asserts that the N.I.T. code will not be helpful to the defense, but that information may well, in the hands of a defense lawyer with a fertile mind, be a treasure trove of exculpatory evidence.

Judge Bryan points out the information still has worth to the defendant even if it doesn't show anything that could result in suppressed evidence. It could also be the details do nothing more than further cement the government's case against Michaud. If so, all the more reason for the defense to have access to it.

Furthermore, even if the defendant’s review of the N.I.T. code ultimately only yields inculpatory evidence,“[e]ven inculpatory evidence may be relevant [because a] defendant who knows that the government has evidence that renders his planned defense useless can alter his trial strategy.

Acknowledging the conundrum is the first step.

The resolution of Defendant’s Third Motion to Compel Discovery places this matter in an unusual position: the defendant has the right to review the full N.I.T. code, but the government does not have to produce it. Thus, we reach the question of sanctions: What should be done about it when, under these facts, the defense has a justifiable need for information in the hands of the government, but the government has a justifiable right not to turn the information over to the defense?

According to motions filed by Michaud, one way out of the mess is the dismissal of the case. Bryan doesn't exactly seem amenable to that outcome -- especially given his belief that the FBI's secrecy is justified -- but with this much paint surrounding his corner, he may be forced to resolve this in favor of the defendant, rather than continue to lock him out of information that could drastically alter its outcome.

Michaud-Catch-22 (PDF)Michaud-Catch-22 (Text)

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Filed Under: catch 22, doj, fbi, hacking, jay michaud, malware, nit, robert bryan

32 Comments

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That One Guy (profile), 23 May 2016 @ 1:44am

Trying to have your cake and eat it too
Seems the judge is bending over backwards to grant the government it's 'request' to withhold the information while at the same time trying to twist the case such that the defense, who he agrees should have access to the information, isn't actually owed the information.

What should be done about it when, under these facts, the defense has a justifiable need for information in the hands of the government, but the government has a justifiable right not to turn the information over to the defense?

If the judge, after having admitting that the defense has a very real interest in having access to the code also admits that the FBI doesn't have to hand it over cared about seeing justice done the answer to the question above would be an easy one:

The FBI doesn't have to give the defense the code, but if they don't then they're not allowed to use any evidence that resulted from it's use. That this would essentially gut their case would be entirely their problem, and one they could easily solve by handing over the code for the defense to examine.

The alternative would be a complete perversion of justice, saying that claims of government secrecy trumps the right of the defense to examine evidence used against them and challenge it, and I'd like to hope that the judge cares more for justice than allowing that in their court room, even if their treatment of the case so far doesn't exactly bode well in that regard.
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Anonymous Coward, 23 May 2016 @ 4:11am

"the government's secret, judge's-eyes-only presentation "

AKA his browser history....
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Anonymous Coward, 23 May 2016 @ 4:11am

"the government's secret, judge's-eyes-only presentation "

AKA his browser history....
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Anonymous Coward, 23 May 2016 @ 4:24am

The Judge was either paid off or blackmailed, one or the other.
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Vidiot (profile), 23 May 2016 @ 4:39am

"...we reach the question of sanctions: What should be done about it..."

Mistrial. Drop the prosecution. Or dismantle the American "presumption of innocence".
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Anonymous Coward, 23 May 2016 @ 4:52am

Re:
this universal surveillance is so useful when the government wants to get its way.
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Keroberos (profile), 23 May 2016 @ 4:58am

but the government has a justifiable right not to turn the information over to the defense?
How so? In my understanding, if a judge orders any documentation to be revealed during discovery--it must be revealed, especially if not revealing it leaves any amount of doubt of possible innocence. Which is a point you could raise against not revealing it--the FBI either knows or is concerned that the software they used has some non-trivial margin of error which could or would raise reasonable doubt suspicions.

So, how could a judge possibly compel someone to release information during discovery? I don't know--possibly, maybe filing contempt of court charges against the person responsible, and indefinitely jailing them until they comply. Do you think that could work? Nah, we only use that option against defendants, it'd be bad form to do that to a prosecutor or the FBI.
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slarabee (profile), 23 May 2016 @ 5:04am

What a twisted web we weave...
Anytime legal reasoning begins (and continues) to be convoluted, justice is bound to fail.

When have we ever in the history of jurisprudence found that justice was served by over analyzing statue, rule and practice ad nasueam until we finally arrive at allowing the government the right to defy the very laws it is meant to protect?

Never, and this case will not be the first time. If the government is allowed to continue to hide the methods they use to gather evidence, then justice is not served. Instead we have simply declared that we have no rights other than what rights law enforcement decides we should have and only under the circumstance that law enforcement deems appropriate.

There is no dilemma with this case. The only reason anyone is even considering the governments arguments regarding this issue, is the emotional nature of the alleged crime. Our revulsion at the nature of a crime is never a justification for side stepping due process. Once you start pulling those threads and allowing law enforcement "leeway", it never ends. Today it is a matter of child porn... tomorrow it is a marijuana dealer... next year it is a tax evader... and finally a copyright violator.
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Anonymous Coward, 23 May 2016 @ 5:18am

Ugh..so helpful. It's like it's not even his job to deliver, well, judgement, and pick a side.
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MadAsASnake (profile), 23 May 2016 @ 5:54am

Seems to me the FBI argument is the defense shouldn't see the NIT code because they don't know what they will find... I am surprised that this judge has painted himself into a corner with a logical fallacy this simple...
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Anonymous Coward, 23 May 2016 @ 5:54am

Constitution? What constitution?
While this guy may have been involved in a heinous act, he should have access to any and all evidence against him. There can be no justice with secret laws, secret interpretations of laws, secret courts or secret meetings with judges.

To quote Thomas Jefferson, "If a law is unjust, a man is not only right to disobey it, he is obligated to do so." Does the government want people to ignore the law? If they keep heading into secrecy, surveillance and mistrust, this is what will happen.
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Anonymous Coward, 23 May 2016 @ 6:01am

Can't they just make him sign an NDA?
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Keroberos (profile), 23 May 2016 @ 6:22am

Re:
No they can't. Doing so would allow the prosecution or the court to decide what expert witnesses the defense could show the information to, which would be an abrogation of the defendants right to a fair trial.
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Anonymous Coward, 23 May 2016 @ 6:29am

Re:
Presumption of innocence has already been dismantled.

Just the mere accusation of certain crimes will publicly assassinate them, having the veritable effect of just being guilty.

Hell you are automatically guilty of attempting to smuggle contraband onto an aircraft the moment you buy a ticket and are guilty until you are proven innocence upon search & possible seizure.
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Coyne Tibbets (profile), 23 May 2016 @ 6:32am

I sense a solution coming up
"Here's your drive with the software. It's encrypted, but you can look at it all you like. That okay with you, judge?"

"Fine with me. Government keeps its secrets; defense gets to look. Justice has been served!"
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Quiet Lurcker, 23 May 2016 @ 6:57am

Re: Trying to have your cake and eat it too
Seems to me, the response is even simpler than that. I'm thinking something along the lines of

You won't let the defendant or court see your work? Okay, then. Case dismissed with prejudice. Have a nice day.

Anything else is just flat wrong, and no two ways around it.
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GrooveNeedle (profile), 23 May 2016 @ 6:59am

Re:
"...but the government has a justifiable right not to turn the information over to the defense?"

My problem is that the government doesn't have rights to my knowledge. The People have rights, the government is granted powers by the People, which can be revoked by the People (albeit, unlikely given the current state of the nation).
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Wendy Cockcroft, 23 May 2016 @ 7:30am

Re: What a twisted web we weave...
They're over-reacting to copyright infringers NOW, slarabee. You're absolutely right, mate. Due process is NOT an impediment to justice. Sadly, that's what many people involved in law enforcement believe.
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TripMN, 23 May 2016 @ 7:35am

Re: I sense a solution coming up
You forgot the small room with armed guards and no electronics or anything with which to take notes.
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Anonymous Coward, 23 May 2016 @ 8:01am

I'd hate to point out the ridiculous here but I don't see anyone getting convicted over the FBI's hacking tool. The reason for this is because it a serious violation of the 'Due Process' clause of the constitution. It's a serious violation of a suspect's constitution rights not to mention that it's a serious violation of the "discovery" process.
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Anonymous Coward, 23 May 2016 @ 9:34am

Re:
how about threatened to be vanished in the middle of the night never to be seen again because "terrorism"
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Anonymous Coward, 23 May 2016 @ 10:07am

Re: Constitution? What constitution?
To quote Thomas Jefferson...

The founding fathers were what are called terrorists today.
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Anonymous Coward, 23 May 2016 @ 10:10am

Re:
Yeah, well, what the government is asking for is "new rules".
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slarabee (profile), 23 May 2016 @ 10:20am

Re: Re: What a twisted web we weave...
Indeed that is true. However, to date they have not used the NIT with a warrant to track copyright violators all over the nation, that I am aware of anyway. I'm sure that will be on the schedule just as soon as they manipulate this though the system.
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That One Guy (profile), 23 May 2016 @ 11:27am

"We're the good guys, we never do anything wrong."
The problem(one of them anyway) is that so many involved in the legal system, from government down to police on the street have come to see themselves as the 'good guys'.

Now if they were constantly striving to meet that idea that would be a good thing, but by assuming that they are the good guys it follows that everything they do is automatically 'good', because 'Good Guys Don't Do Bad Things'. As such if something gets in their way it's an impediment of justice, not something designed to protect it, and it's to be removed or bypassed as soon as possible so that 'justice', which is not seen as the innocent protected and the guilty punished(in that order of priority)but rather the conviction of the accused, can be carried out.
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Avantare, 23 May 2016 @ 11:32am

A right being overlooked.
He has the right to meet his accuser.
The 'hacking tool' the FBI used is what they are claiming got the information.
Therefore that's the accuser.
If the government doesn't want to give it up they need to dismiss the case.
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Khaim (profile), 23 May 2016 @ 3:13pm

Re: Re: Trying to have your cake and eat it too
They did let the judge see something, just not the defendant.

I agree that the government needs to put up or shut up, but I don't think "dismissed with prejudice" is plausible. I'm not even sure it applies in criminal law - can we get a lawyer in here?
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Anonymous Coward, 23 May 2016 @ 3:40pm

Re: Re: Constitution? What constitution?
"The founding fathers were what are called terrorists today."
They would have been terrorists if they lost. But because the winner writes the history books they are patriots and heroes.
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Anonymous Coward, 23 May 2016 @ 3:53pm

This Ladies and Gentlemen is what we get when one side can have secret evidence in court.
A schizophrenic judge unable to make a judgement and saying both parties are correct in matter in which such a ruling is impossible by sane standards.
Granting the Government a position above the law can not result in a fair trial. They will always have the advantage to decline basic rights and force a ruling in their favor.
Imagine a defense lawyer saying "We have prove that our client didn't kill the victim but we won't give it to the prosecution" and the judge says ok.
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Tin Foil Hat, 23 May 2016 @ 5:08pm

The judge is right
There are situations where both parties are right (or wrong). At least the judge is able to think in realistic terms rather than the typical black and white. It is a conundrum so how will it be resolved?
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Wendy Cockcroft, 24 May 2016 @ 2:37am

Re: The judge is right
The "conundrum" is created by the judge allowing secret evidence (and the method of obtaining it) to be hidden from the defence on the grounds that good guys do no wrong even when they do the most awful things.

It can be resolved by relying on due process, not good faith.
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Anonymous Coward, 24 May 2016 @ 4:51pm

Re: Re: Re: Constitution? What constitution?
But because the winner writes the history books they are patriots and heroes.

In whose book? Is that what they teach British schoolchildren?
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