New White House Press Conference Rules Leave Door Open To Future Challenges

from the doesn't-change-much dept

As you've likely heard by now, the Trump administration has restored Jim Acosta's hard pass for media briefings, and CNN has accordingly dropped its lawsuit, returning the battle between Trump and the media to cold-war-status for the time being. But the White House also took the opportunity to issue new rules for its press conferences which, rather than truly addressing any of the issues that formed the basis of the lawsuit, appear to leave the door wide open for future abuses by Trump and challenges by the press:

(1) A journalist called upon to ask a question will ask a single question and then will yield the floor to other journalists;

(2) At the discretion of the President or other White House official taking questions, a follow-up question or questions may be permitted; and where a follow up has been allowed and asked, the questioner will then yield the floor;

(3) “Yielding the floor” includes, when applicable, surrendering the microphone to White House staff for use by the next questioner;

(4) Failure to abide by any of rules (1)-(3) may result in suspension or revocation of the journalist’s hard pass.

Basically, the White House seems to be setting itself up with the absolute bare minimum framework that it could kinda-sorta claim constitutes viewpoint-neutral due process the next time it wants to kick out a reporter. Functionally the rules don't seem to change much, since who gets the floor at White House press conferences has always ultimately been at the discretion of the person at the podium, but this formalizes the threat of pass revocation for those who don't play nice enough for Trump's tastes. Though many reporters are (rightfully) speaking out against the clear anti-press tone of the rules, and (correctly) pointing out that followup questions are one of the most critical components of good journalism, the reality is that this just puts things in a holding pattern until the next time Trump kicks someone out.

For one thing, the rules don't actually address any of the due process requirements set out in Sherrill v. Knight and expanded on by the judge's TRO restoring Acosta's pass, so the entire fifth amendment question still falls to how these rules get enforced:

The court in Sherrill held that this process must include notice, an opportunity to rebut the government's reasons and a written decision. And ... although the court in Sherrill did not have occasion to address it, when an important interest is at stake and when the government is able to provide this process before deprivation, it generally must do so.

Moreover, simply stating that the president has discretionary power doesn't eliminate the first amendment issue. Again, it will come down to how that power is used — specifically, whether it's used for viewpoint-based discrimination. If there is another incident and another legal challenge, these rules won't change much, and something like CNN's initial first amendment argument could easily still apply:

Defendants' justifications for impeding Plaintiffs' First Amendment rights are hollow and hardly sufficiently compelling to justify the indefinite revocation of Acosta’s White House credentials. Consequently, the only reasonable inference from Defendants’ conduct is that they have revoked Acosta's credentials as a form of content- and viewpoint-based discrimination and in retaliation for Plaintiffs' exercise of protected First Amendment activity.

The sole justification for Defendants’ conduct is their dislike for Plaintiffs’ coverage of the administration and critique of the President. But that is insufficient to justify such a substantial restriction on Plaintiffs’ First Amendment rights.

Meanwhile, in the full statement laying out the new rules, Sarah Sanders laments that they were created with "a degree of regret" and are only necessary because they can tragically no longer rely on "a set of understood professional norms."

If only they cared so much about presidential norms.

Filed Under: due process, fifth amendment, first amendment, jim acosta, journalism, sarah sanders, white house
Companies: cnn

Judge Blocks White House From Pulling Jim Acosta's Press Pass, But The Battle Continues

from the freedom-of-the-press dept

Update: The White House has officially restored Acosta's press pass, and also established new rules for press conferences. We'll bring you more info on those rules after we've had a closer look.

Last week I wrote about the case that CNN and its reporter Jim Acosta had filed against the White House for the removal of his press pass over some trumped up claims that he had "assaulted" a White House intern (he did not, he simply resisted returning the microphone to her after she attempted to grab it from him). As we noted, the removal of the pass was clearly based on the content of his questioning and it seemed fairly obvious that the White House would lose the lawsuit, especially based on the existing precedent in Sherrill v. Knight, which gave CNN clear basis under both the 1st Amendment and the 5th Amendment.

Perhaps not surprisingly, a bunch of Trump supporters quickly ran to the comments to screech at me about how wrong and biased I was against them. Let's be clear: this is bullshit. I would have written the same article had Obama removed the press pass of a Fox News reporter under identical circumstances (and, frankly, the Trump supporters here should learn to think beyond their obsession with defending "dear leader" in everything he does, because the same rules will apply when other Presidents are in charge, and they may not always like it in the other direction). The Constitutional elements here are pretty clear. The White House is allowed to set non-content-based rules for who gets a press pass, but once they do that, they absolutely cannot remove a press pass for anything having to do with content, and they can't simply make up rules to remove someone without any form of due process.

The judge in this case, Timothy Kelly, (who, we'll note, was appointed by Trump, even though it shouldn't make a difference), moved quickly on this case, issuing a temporary restraining order on the White House and ordering it to return Acosta's press pass Friday afternoon. The basis for his ruling from the bench was the 5th Amendment due process question, noting that there was no clear reason at all given by the White House:

the government must provide Mr. Acosta due process if it is to revoke his hard pass. Accordingly, the likelihood that the plaintiffs succeed on the First -- on the Fifth Amendment claim hinges on whether the government provided adequate due process to Mr. Acosta. The court in Sherrill held that this process must include notice, an opportunity to rebut the government's reasons and a written decision. And all the court -- although the court in Sherrill did not have occasion to address it, when an important interest is at stake and when the government is able to provide this process before deprivation, it generally must do so. There is no evidence that one of the few exceptions to this rule would apply here such as some kind of emergency. So I do hold that plaintiffs have demonstrated a likelihood of success on their claim that adequate process was not provided to Mr. Acosta. Indeed, whatever process occurred within the government is still so shrouded in mystery that the Government could not tell me at oral argument who made the initial decision to revoke Mr. Acosta's press pass -- his hard pass.

Now, it is true that the public and Mr. Acosta were eventually provided two things. First, explanations as to why his hard pass was revoked through Ms. Sanders's tweets; and a written statement of explanation, apparently prompted by this litigation, but given their timing and their lack of connection to Mr. Acosta's opportunity to rebut -- which we'll talk about in a moment -- these belated efforts were hardly sufficient to satisfy due process.

Of course, in typical White House fashion, members of the Trump Administration have continued to trip over each other to make the dumbest statement possible in response to all of this, some of which mean that CNN has already gone back to court in this case, and it's going to continue. First, White House press secretary Sarah Sanders made the following nonsense statement:

"...the court made clear that there is no absolute First Amendment right to access the White House."

Except... that's not what the court said at all. The court actually said that reporters absolutely are protected by the 1st Amendment once they are given a press pass, but that it was premature to rule on the 1st Amendment question when the 5th Amendment procedural question could be dealt with first.

Then the President himself stepped in with more nonsense claiming:

"We want total freedom of the press."

Uh, no you don't. You're constantly whining about the press, threatening them and their revenue sources, or threatening to "pull" some non-existent licenses. And, of course, Trump then went on to misstate what Kelly's ruling said:

But you have to act with respect when you're at the White House, and when I see the way some of my people get treated at news conferences, it's terrible. So we're setting up a certain standard, which is what the court is requesting.

No, the court is requiring (not requesting) due process, which is not that you get to make up new rules to kick out reporters who are asking you questions you don't like (or even ones who are grandstanding). And, reporters don't need to "respect" the President. Indeed, it's better if they don't, because their role is to challenge the President and to ask tough questions that no administration likes.

Then, over the weekend, things got even more ridiculous, with the White House telling Acosta they plan to remove his press pass again once the 14 day temporary restraining order is up, and arguing that this is part of their due process to get around the 5th Amendment issues:

After CNN won a temporary restraining order on Friday, forcing the White House to restore his press pass for 14 days, White House officials sent Acosta a letter stating that his pass is set to be suspended again once the restraining order expires.

From the looks of the letter, the W.H. is trying to establish a paper trail that will empower the administration to boot Acosta again at the end of the month.

Of course, as Julian Sanchez points out, telling a reporter ahead of any process that you'll be removing his press pass would seem to be evidence of your own lack of due process, so this might get rejected on 5th Amendment grounds again (while still avoiding the 1st Amendment questions, which would likely go against the White House as well...).

The letter itself is quite ridiculous. It still says that they're planning to remove the press pass for his actions back at the November 7th press conference, when the court already made clear that the White House had no legitimate reason to do so based on that conference.

In response to this, CNN has already gone back to court, saying that this retrospective due process is not nearly enough. They ask for a hearing as quickly as possible to deal with the White House making this move.

Either way, this whole fight seems particularly stupid, and one that the White House simply cannot win in any court other than the one of Trump's super fans insisting that everything the President does must be perfectly correct. It is not. It is unconstitutional. And the sooner Trump's kneejerk fans recognize that Trump can and does make mistakes, the sooner they can get back to actually respecting the Constitution they now only pretend to support.

Filed Under: donald trump, due process, fifth amendment, first amendment, free speech, jim acosta, white house
Companies: cnn

Court Says Probation Violations By Teen Don't Justify On-Demand Warrantless Searches Of His Electronics

from the little-bit-of-4th-and-1st-implications-all-tied-up-together dept

It's assumed (wrongly) that minors have few, if any, Constitutional rights. The error is easy to make because they're just kids. They can't drink, smoke, vote, or even serve their country/secure these own valuable freedoms by [checks sources] aiding in the increase of opium production in foreign countries. "Hundreds of government officials can't be wrong!" someone is sure to exclaim, being just as wrong as the hundreds half-assedly cited in their stinging rebuttal.

Minors do have rights. They're subject to more limitations but they're far from nonexistent. But that doesn't stop prosecutors, cops, and school officials from pretending "limited" equals "zero." A case highlighted by FourthAmendment.com shows a court pushing back against this assumption, which took the form of an overly-invasive probation condition slapped on a minor following a search of the student which uncovered a small knife, rolling papers, and a lighter.

The incident leading to the search began when the student fell asleep during class, which is possibly one of the most ordinary things a student can do. The student admitted he had smoked marijuana the night before (also possibly one of the most normal things a high school student can do), but hadn't smoked any that day or on school property. He was asked to consent to a search and he volunteered he had a knife in his possession. The search uncovered the rest of the "contraband." The 15-year-old was then arrested, detained, and placed on home detention.

Had that been the end of it, there would have been nothing to write about. But the dispositional order dealing with probation conditions added a whole bunch of unnecessary stipulations given the violation. This occurred when the minor violated his probation conditions by using marijuana and Xanax. Subsequent violations occurred -- all of them drug-related. A few months later, the minor appeared to be back on the road to the state's good graces. He was doing well in school and had landed a job. For whatever reason, the state decided to punish the minor for getting his life back together. This hearing added stipulations that appear to be far more vindictive than curative, and they're certainly anything but Constitutional. From the decision [PDF]:

In the report submitted for the September 7, 2016 dispositional hearing, without explanation, the probation officer recommended adding an electronics search condition.

[...]

Later the same day, the juvenile court judge issued a signed written disposition order, describing the electronic search condition in greater detail, using the following text, which probation had recommended: “[Minor must] submit all electronic devices under [his] control to search and seizure by the probation officer at any time of the day or night with or without a search warrant, arrest warrant, or reasonable suspicion, including all logs, text and voicemail messages, photographs, emails, and social media account contents contained on any device or cloud or internet connected storage owned, operated, or controlled by [Minor], including but not limited to cell phones, computers, computer hard drives, laptops, gaming consoles, mobile devices, tablets, storage media devices, thumb drives, Micro SD cards, external hard drives, or any other electronic storage devices. [Minor] shall also disclose any and all passwords, passcodes, password patterns, fingerprints, or other information required to gain access into any of the aforementioned devices or social media accounts as requested by any probation officer . . . .”

The minor challenged this order on constitutional grounds, citing its needless violation of his privacy. Given the state's unwillingness to specify which of the offenses these conditions addressed, the court finds the minor has a solid point.

We agree with Minor that the electronics search condition imposed here is unconstitutionally overbroad because it is not narrowly tailored to achieve its ostensible purpose or to meet Minor’s needs. [...] Any connection between Minor’s offenses and his usage of electronic devices is speculative and, absent such evidence, the electronics search condition is not tailored to meet Minor’s specific needs.

As the court points out, there are less intrusive ways of achieving the same ends and it's highly unlikely blanket search permission for every single electronic device owned by the minor is the least intrusive option. It's also unlikely blanket search permission would somehow prevent the minor from obtaining drugs or alcohol.

Not only that, but the state's arguments for this supposed necessity ignored evidence showing more probation stipulations weren't needed to keep the minor from engaging in criminal activity.

In an interview with probation before the September 2016 dispositional hearing, Minor acknowledged having made poor decisions in the past, but stated he had new motivation to complete treatment and probation going forward, and that he had a new job, which was making a positive impact on his life.

Minor’s statements about his mindset were supported by his school’s report that it had no concerns with Minor’s behavior, that Minor arrived on time, completed all of his work, was “doing great,” and was “exhibiting a positive attitude.” Minor’s mother and his treatment program provided similar accounts. This information does not support the conclusion that only by subjecting Minor to a new, exhaustive, and invasive search condition—allowing probation to review every electronic device under his control, including any “gaming consoles, mobile devices, tablets, storage media devices, thumb drives, Micro SD cards, [and] external hard drives” and to access all of his “passwords, passcodes, password patterns, fingerprints, or other [similar] information”—could Minor be deterred from future use of controlled substances.

That strikes these conditions from the minor's probationary terms, restoring the privacy the state tried to take from him. The state insisted on defending this Constitutional violation despite having zero precedential support to cite. The closest it could come to a prior case in its favor involved a gang member who promoted his gang and its activity on social media when not using those platforms to issue threats to police officers and their families. That's not even close to the same level of severity in observed behavior. As the minor notes in his case, the state AG didn't even provide evidence the minor owned any of the devices the state decided it needed access to. But when you're playing Constitutional poker with someone else's money, why not take a flier on bullshit probation orders?

Filed Under: electronics, fifth amendment, fourth amendment, probation, probation violations, teens, warrantless searches

Minnesota Supreme Court Says Unlocking A Phone With A Fingerprint Isn't A Fifth Amendment Issue

from the non-testimonial-act-of-producing-evidence-against-yourself dept

When it comes to the Fifth Amendment, you're better off with a password or PIN securing your device, rather than your fingerprint. Cellphone manufacturers introduced fingerprint readers in an effort to protect users from thieves or other unauthorized access. But it does nothing at all to prevent law enforcement from using their fingerprints to unlock seized devices.

The US Supreme Court hasn't seen a case involving compelled production of fingerprints land on its desk yet and there's very little in the way of federal court decisions to provide guidance. What we have to work with is scattered state court decisions and the implicit understanding that no matter how judges rule, a refusal to turn over a fingerprint or a password is little more than a way to add years to an eventual sentence.

The Minnesota Supreme Court has issued the final word on fingerprints and the Fifth Amendment for state residents. In upholding the appeals court ruling, the Supreme Court says a fingerprint isn't testimonial, even if it results in the production of evidence used against the defendant. (h/t FourthAmendment.com)

From the ruling [PDF]:

Although the Supreme Court’s distinction between the testimonial act of producing documents as evidence and the nontestimonial act of producing the body as evidence is helpful to our analysis, the act here—providing the police a fingerprint to unlock a cellphone—does not fit neatly into either category. Unlike the acts of standing in a lineup or providing a blood, voice, or handwriting sample, providing a fingerprint to unlock a cellphone both exhibits the body (the fingerprint) and produces documents (the contents of the cellphone). Providing a fingerprint gives the government access to the phone’s contents that it did not already have, and the act of unlocking the cellphone communicates some degree of possession, control, and authentication of the cellphone’s contents. See Hubbell, 530 U.S. at 36. But producing a fingerprint to unlock a phone, unlike the act of producing documents, is a display of the physical characteristics of the body, not of the mind, to the police. See Schmerber, 384 U.S. at 763.

Because we conclude that producing a fingerprint is more like exhibiting the body than producing documents, we hold that providing a fingerprint to unlock a cellphone is not a testimonial communication under the Fifth Amendment.

The ruling notes the defendant did try to holdout on this, sticking to his Fifth Amendment arguments. But when the trial court gives you only unpalatable options, defendants tend to give prosecutors what they want.

The district court concluded that compelling Diamond’s fingerprint would not violate his Fifth Amendment privilege because “[c]ompelling the production of [Diamond’s] fingerprint or thumbprint would not call upon the use of [his] mind. It is more akin to providing a key to a lockbox.” Accordingly, it ordered Diamond to “provide a fingerprint or thumbprint as deemed necessary by the Chaska Police Department to unlock his seized cell phone.”

Diamond continued to object to providing the necessary fingerprint for unlocking the phone. Nevertheless, he finally unlocked the cellphone with his fingerprint in court after being held in civil contempt and warned of the possibility and consequences of criminal contempt.

This is an aspect never discussed by the FBI and others engaged in the war on encryption. Many, many people can be motivated to unlock devices when faced with the prospect of indefinite imprisonment on contempt charges. It's something that should work in all but the most extreme criminal cases where the potential imprisonment might be as close to indefinite as humanly possible.

Filed Under: encryption, fifth amendment, fingerprints, first amendment, minnesota, self incrimination

The Fifth Amendment Vs. Indefinite Jailing: Court Still No Closer To Deciding On Compelled Decryption

from the might-as-well-take-your-time,-as-it's-actually-someone-else's dept

We wrote about this case last April, and it appears very little has changed over the last 10 months. Francis Rawls, a former Philadelphia policeman, is still in jail because he has refused to decrypt his computer for prosecutors. At this point, Rawls has been jailed for sixteen months on contempt of court charges.

How long will Rawls stay jailed without a criminal conviction? The prosecution says that's up to him. As for the appeals court, it apparently doesn't feel a pressing need to address the unresolved issue: whether or not the Fifth Amendment protects citizens against being forced to turn over passwords.

The federal court system appears to be in no hurry to resolve an unresolved legal issue: does the Fifth Amendment protect the public from being forced to decrypt their digital belongings? Until this is answered, Rawls is likely to continue to languish behind bars. A federal appeals court heard oral arguments about Rawls' plight last September. So far, there's been no response from the US 3rd Circuit Court of Appeals, based in Philadelphia.

If Rawls' devices had been secured with a fingerprint, there's a good chance he'd already have been forced to unlock his devices. There haven't been a lot of decisions pertaining to the use of fingerprints to decrypt devices, but those we have seen indicate judges don't view the taking/application of suspects' fingerprints to be "testimonial." Unlocking a device that contains evidence to convict a person apparently doesn't undermine their right to not be forced to testify against themselves. The reasoning in a recent appeals court decision was that a fingerprint is not something stored in a suspect's mind. Therefore, it's not testimony. It's, for lack of better words, a bodily "fact," like the blood stored in a suspect or a suspect's resemblance to a person described by eyewitnesses.

Because Rawls is facing child pornography charges, there hasn't been much public support for his legal battle. The problem with ignoring this one and waiting for a "better" case to roll around is that the weakening (or rewriting) of Constitutional protections almost always starts with the worst cases. Once precedent and/or legislation is in place, the diminished protections affect everyone -- even those whose alleged actions are far less socially-abhorrent as the accused in this case.

The EFF, however, has stepped into the breach -- as it has in other cases where child porn suspects are central to battles over Constitutional rights.

The Electronic Frontier Foundation told the court in a friend-of-the-court brief (PDF) that "compelled decryption is inherently testimonial because it compels a suspect to use the contents of their mind to translate unintelligible evidence into a form that can be used against them. The Fifth Amendment provides an absolute privilege against such self-incriminating compelled decryption."

The other aspect of this case that bears watching is the All Writs Order the government has deployed to obtain this fingerprint. The All Writs Act of 1789 is seeing an uptick in deployment 200+ years after its passage. The government uses this any time it can't find statutory authority for its demands. It's a feature of the Act, not a bug, and its increased use suggests several other laws are badly in need of updating -- and not just in the government's favor. There are at least as many gaps in protections as there are gaps in authority in the laws governing digital data and communications, many of which were written long before the internet became the main means of public communication and storage capacity/prices allowed any person to store several lifetimes of information on devices small enough to stick in their pockets.

Filed Under: 3rd circuit, compelled decryption, encryption, fifth amendment, francis rawls, passwords

State Appeals Court Says Unlocking A Phone With A Fingerprint Doesn't Violate The Fifth Amendment

from the giving-The-Man-the-finger-no-longer-subversive;-actually-helpful dept

As was hinted heavily three years ago, you might be better off securing your phone with a passcode than your fingerprint. While a fingerprint is definitely unique and (theoretically...) a better way to keep thieves and snoopers from breaking into your phone, it's not much help when it comes to your Fifth Amendment protections against self-incrimination.

The Minnesota Appeals Court has ruled [PDF] that unlocking a phone with a fingerprint is no more "testimonial" than a blood draw, police lineup appearance, or even matching the description of a suspected criminal. (h/t Orin Kerr)

Diamond relies on In re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335 (11th Cir. 2012), to support his argument that supplying his fingerprint was testimonial. In In re Grand Jury, the court reasoned that requiring the defendant to decrypt and produce the contents of a computer’s hard drive, when it was unknown whether any documents were even on the encrypted drive, “would be tantamount to testimony by [the defendant] of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.” Id. at 1346. The court concluded that such a requirement is analogous to requiring production of a combination and that such a production involves implied factual statements that could potentially incriminate. Id.

By being ordered to produce his fingerprint, however, Diamond was not required to disclose any knowledge he might have or to speak his guilt. See Doe, 487 U.S. at 211, 108 S. Ct. at 2348. The district court’s order is therefore distinguishable from requiring a defendant to decrypt a hard drive or produce a combination. See, e.g., In re Grand Jury, 670 F.3d at 1346; United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (holding that requiring a defendant to provide computer password violates the Fifth Amendment). Those requirements involve a level of knowledge and mental capacity that is not present in ordering Diamond to place his fingerprint on his cellphone. Instead, the task that Diamond was compelled to perform—to provide his fingerprint—is no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing.

Of course, it's what's contained in the now-unlocked device that might be incriminating, which is why Diamond pointed to In re Grand Jury as being analogous to the forced provision of a fingerprint. The court's rebuttal of this argument, however, doesn't make a lot of sense. It says the process that unlocked the device requires no knowledge or mental capacity -- which is certainly true -- but that the end result, despite being the same (the production of evidence against themselves) is somehow different because of the part of the body used to obtain access (finger v. brain).

In recounting the obtaining of the print, the court shows that some knowledge is imparted by this effort -- information not possessed by law enforcement or prosecutors.

Diamond also argues that he “was required to identify for the police which of his fingerprints would open the phone” and that this requirement compelled a testimonial communication. This argument, however, mischaracterizes the district court’s order. The district court’s February 11 order compelled Diamond to “provide a fingerprint or thumbprint as deemed necessary by the Chaska Police Department to unlock his seized cell phone.” At the April 3 contempt hearing, the district court referred to Diamond providing his “thumbprint.” The prosecutor noted that they were “not sure if it’s an index finger or a thumb.” The district court answered, “Take whatever samples you need.” Diamond then asked the detectives which finger they wanted, and they answered, “The one that unlocks it.”

This is something only Diamond would know, and by unlocking the phone, he would be demonstrating some form of control of the device as well as responsibility for its contents. So, it is still a testimonial act, even if it doesn't rise to the mental level of retaining a password or combination. (And, if so, would four-digit passcodes be less "testimonial" than a nine-digit alphanumeric password, if the bright line comes down to mental effort?)

Given the reasoning of the court, it almost appears as though Diamond may have succeeded in this constitutional challenge if he had chosen to do so at the point he was ordered to produce the correct finger.

It is clear that the district court permitted the state to take samples of all of Diamond’s fingerprints and thumbprints. The district court did not ask Diamond whether his prints would unlock the cellphone or which print would unlock it, nor did the district court compel Diamond to disclose that information. There is no indication that Diamond would have been asked to do more had none of his fingerprints unlocked the cellphone. Diamond himself asked which finger the detectives wanted when he was ready to comply with the order, and the detectives answered his question. Diamond did not object then, nor did he bring an additional motion to suppress the evidence based on the exchange that he initiated.

And so, in first decision of its kind for this Appeals Court, the precedent established is that fingerprints are less protective of defendants' Fifth Amendment rights than passwords.

Filed Under: fifth amendment, fingerprints, minnesota, self-incrimination

So Much For The Fifth Amendment: Man Jailed For Seven Months For Not Turning Over Password

from the enjoying-your-rights,-citizen? dept

The FBI recently spent more than $1 million for assistance in decrypting a device's contents. It may have overpaid. Alternatives exist, whether it's a $5 wrench or indefinite imprisonment for not helping the government with its prosecution efforts.

A Philadelphia man suspected of possessing child pornography has been in jail for seven months and counting after being found in contempt of a court order demanding that he decrypt two password-protected hard drives.

The suspect, a former Philadelphia Police Department sergeant, has not been charged with any child porn crimes. Instead, he remains indefinitely imprisoned in Philadelphia's Federal Detention Center for refusing to unlock two drives encrypted with Apple's FileVault software in a case that once again highlights the extent to which the authorities are going to crack encrypted devices. The man is to remain jailed "until such time that he fully complies" with the decryption order.

The Fifth Amendment should prevent the government from punishing a person for not testifying against themselves, which is what's being argued by the defendant's representation in its appeal to the Third Circuit. (Although it's actually indirect representation. The government's case is actually against Doe's devices ["United States of America v. Apple MacPro Computer, et al"] and his lawyer is hoping for a stay of the contempt order during the appeal process.)

Mr. Doe… has a strong likelihood of success on the second issue: whether compelling the target of a criminal investigation to recall and divulge an encryption passcode transgresses the Fifth Amendment privilege against self-incrimination. Supreme Court precedent already instructs that a suspect may not be compelled to disclose the sequence of numbers that will open a combination lock — clearly auguring the same rule for any compelled disclosure of the sequence of characters constituting an encryption passcode.

Doe's rep also argues that the All Writs order obtained by the government has no jurisdiction over Doe or his devices.

Mr. Doe’s first claim is that the district court lacked subject matter jurisdiction. The claim stems from the government’s apparently unprecedented use of an unusual procedural vehicle to attempt to compel a suspect to give evidence in advance of potential criminal charges. Specifically, the government took resort not to a grand jury, but to a magistrate judge pursuant to the All Writs Act, 28 U.S.C. § 1651. (Ex. F at 1).

It is black letter law that the All Writs Act never supplies “any federal subject-matter jurisdiction in its own right[.]” Sygenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 31 (2002) (citation omitted). It is equally well-settled that the Act has no application where other provisions of law specifically address the subject matter concerned. Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 40-42 (1985). The compelled production of evidence in advance of criminal charges is specifically addressed by Rules 6 and 17 of the Federal Rules of Criminal Procedure, which authorize the issuance and enforcement of grand jury subpoenas; and by 28 U.S.C. § 1826(a), which specifies the authorized penalties for a witness who refuses without good cause to give the evidence demanded by the grand jury.

As it stands now, Doe is still being held in contempt of court for refusing to decrypt his devices for investigators. The district court that held him in contempt has refused direct appeal of that order, resulting in the labyrinthine legal strategy of using the government's case against Doe's devices as a vehicle for challenging the lower court's contempt order.

Doe has not been charged, yet he's in prison. Backing up the government's assertions for holding him in contempt are two dubious pieces of hearsay. One is from his estranged sister, who claims to have seen child porn on Doe's computer, but can't actually say whether it was located on the devices the government is seeking to have decrypted. The other is from some sort of law enforcement encryption whisperer, who can apparently see things in the scrambled bits.

The government’s second witness was Detective Christopher Tankelewicz, a forensic examiner with the Delaware County District Attorney’s Office. He testified only that it was his “best guess” child pornography would be found on the hard drives. (Ex. J at 346). According to Tankelewicz’s understanding of the Freenet online network (in which he admits having no training), there were signs on an Apple Mac Pro computer seized with the hard drives of a user accessing or trying to access message boards with names suggestive of child pornography. (Ex. J at 306, 311-312, 339-340). In rather ambiguous testimony, Tankelewicz did not appear to say this meant any image traded over these boards was on the hard drives. (See Ex. J at 303-317, 336-340, 345-350). Instead, he identified a single image he believed there to be a “possibility” was on the drives. (Ex. J at 308-309). As he described it, the image was of “a four or five-year-old girl with her dress lifted up, but the image itself was small so you really couldn’t see what was going on with the image.” (Ex. J at 308).

No one wants to see a sex offender walk away from charges, but at this point, Doe hasn't even been officially charged with anything more than contempt. The problem with that charge is it has no end date. He can either stay in jail or comply with the order, even when the order conjures jurisdiction out of nowhere and violates his Fifth Amendment rights. If the government doesn't have enough evidence to pursue a case against Doe, it should cut him loose until it does.

Filed Under: all writs act, child porn, contempt, encryption, fifth amendment, in rem, jail, password, philadelphia

Using The All Writs Act To Route Around The Fifth Amendment

from the all-fun-and-games-until-someone-loses-a-right dept

USA Today's Brad Heath has dug up another use for the FBI's now-infamous All Writs Act orders: skirting the Fifth Amendment. In a 2015 case currently headed to the Appeals Court, the government is attempting to use All Writs to force a defendant to unlock his devices.

The order finding Francis Rawls guilty of contempt contains a footnote pointing to the government's use of an All Writs order to force Rawls to unlock his devices -- and, one would think -- allow the government to dodge a Fifth Amendment rights violation.

On July 29, 2015, the Government obtained a search warrant for certain electronic media previously seized by Delaware County and Philadelphia County law enforcement officials. Dkt. No. 1. On August 3, 2015, the Government made an application pursuant to that All Writs Act to require Francis Rawls to assist in the execution of a previously executed search warrant.

"Assist in the execution" means forcing Rawls to possibly provide evidence against himself, depending on what's contained in the devices. However, the court didn't see it this way. It considered his unlocking of the devices to be "non-testimonial." While it did grant him a chance to respond to the All Writs application, it ultimately found in favor of the government.

Importantly, the August 27th Order rejected Rawls contention that providing any assistance to the Government would violate his Fifth Amendment privilege against self-incrimination.

More on the court's reasoning can be found in the order granting the government's All Writs application -- again relegated to a footnote.

By way of a "Motion to Quash Government's Application to Compel" filed August 26, 2015, Mr. Rawls objects to providing assistance to the government in the execution of the search warrant because his act of decrypting the electronic devices seized by the government would be considered testimonial and, therefore, violate his Fifth Amendment privilege against self-incrimination. However, federal courts have recognized the "foregone conclusion" doctrine. The courts hold that the act of production of encryption codes is not testimony - even if this production conveys a fact regarding the possession or authenticity of the images contained in the electronic devices - if the government can show with "reasonable particularity" that, at the time it sought to compel the assistance of Mr. Rawls, it already knew of the materials, thereby making any testimonial aspect a "foregone conclusion."

[...]

Here, the Affidavit of Special Agent David Bottalico, supporting the application for a Search Warrant, establishes that (1) the Government has custody of the electronic devices; (2) prior to the Government's seizure, Mr. Rawls possessed, accessed and owned all the electronic devices; and (3) there are images on the electronic devices that constitute child pornography. Therefore, under the "foregone conclusion" doctrine, requiring Mr. Rawls to assist in the decrypting of those devices does not violate his privilege against self-incrimination.

According to this reasoning, the government already "knows" what's contained on the devices, so there's nothing incriminating about Rawls unlocking them for it. But why would that require the use of an All Writs order? It would seem if the evidence is a "foregone conclusion," then there's no need for the devices to be unlocked at all. The government should have all the evidence it needs to continue with its prosecution.

The All Writs Act is in place to work around limitations in law -- for situations where current laws don't completely apply. Lately, it seems to used most often to advance ahead of Congress and exploit areas where technology has outpaced legislation. In this case, the Act is being used to create a loophole in the Fifth Amendment -- seemingly for no other reason than to allow the government to bolster its case. While that is the point of seeking evidence, it would appear the government already has evidence of criminal activity and is using All Writs to do what it can't do directly without jeopardizing its prosecution: force Rawls to unlock his devices.

The case citations are also illuminating. Apparently all the government needs to acquire an All Writs order compelling decryption is the knowledge that a.) said device exists and b.) the government knows where it is located.

[U]nited States v. Sabit, 2014 WL 1317082, at *2 (E.D. Mich. April 1, 2014) ("[W]hen a witness produces a document that the government knows exists, the act of production is tantamount to a "surrender" and is not "testimonial.")

[...]

United States v. Fricosu, 841F.Supp.2d1232, 1236 (D. Colo. 2012) (defendant's Fifth Amendment privilege against self-incrimination was not implicated by requiring her to produce the unencrypted contents of a computer, when the government knew of the existence and location of the computer's files); In re Boucher, 2009 WL 424718, at *3 (D. Vt. Feb. 19, 2009) (requiring defendant to produce an unencrypted version of his laptop's Z drive did not constitute compelled testimonial communication when the government previously knew the location of the Z drive and its files).

Brad Heath notes that this a "more common" use for All Writs requests. There does appear to be some history here. Notably, a similar effort made during a prosecution over similar subject matter was denied by a magistrate judge in Wisconsin. While the judge in the 2015 case found the unlocking of devices to be "non-testimonial" and a foregone conclusion, Judge William E. Callahan Jr. found it to be "compelled incrimination" -- a violation of the defendant's Fifth Amendment rights.

This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with “reasonably particularity”—namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.

The only difference between the two cases is the strength of the government's assertions as to the defendant's "personal access and control" of the devices in question. Because much of the docket is sealed in the 2015 case involving Rawls, we can't see firsthand what evidence the government provided that makes this case stronger than the 2013 case where its All Writs request was denied. (We do have access to Rawls' lawyer's arguments to the contrary.) The footnote contained in the contempt order only points to an affidavit by an FBI agent stating that devices were in Rawls' possession and he owned them -- right up until they were seized.

So, it appears the Fifth Amendment only goes so far in the US judicial system. But if it's that limited, it would seem an All Writs order is extraneous. If there's nothing protecting defendants from incriminating themselves when compelled by an All Writs order, then there's nothing stopping the FBI from "sweating down" defendants until they comply. As interpreted in this case, the only difference between an All Writs order and several hours of nonstop interrogation is FBI man-hours.

Rawls' case made be headed for the Appeals Court, but he'll be spending that intervening time in jail. His motion to stay the contempt order pending appeal was also denied.

Filed Under: all writs act, encryption, fbi, fifth amendment, francis rawls

We Read Apple's 65 Page Filing Calling Bullshit On The Justice Department, So You Don't Have To

from the and-off-we-go dept

Apple didn't need to reply until tomorrow, but has now released its Motion to Vacate the magistrate judge's order from last week, compelling Apple to create a new operating system that undermines a couple of key security features, so that the FBI could then brute force the passcode on Syed Farook's work iPhone. It's clearly a bit of a rush job as there are a few typos (and things like incorrect page numbers in the table of contents). However, it's not too surprising to see the crux of Apple's argument. In summary it's:

• The 1789 All Writs Act doesn't apply at all to this situation for a whole long list of reasons that most of this filing will explain.
• Even if it does, the order is an unconstitutional violation of the First Amendment (freedom of expression) and the Fifth Amendment (due process).

I really do recommend reading the 65 page filing (it goes fast!). But on the assumption that you have more of a life than we do, let's dig in and detail what Apple's argument is. The brief is quite well written (other than the typos) in making the issues pretty clear:

This is not a case about one isolated iPhone. Rather, 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. The government demands that Apple create a back door to defeat the encryption on the iPhone, making its users’ most confidential and personal information vulnerable to hackers, identity thieves, hostile foreign agents, and unwarranted government surveillance. The All Writs Act, first enacted in 1789 and on which the government bases its entire case, “does not give the district court a roving commission” to conscript and commandeer Apple in this manner. Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979). In fact, no court has ever authorized what the government now seeks, no law supports such unlimited and sweeping use of the judicial process, and the Constitution forbids it.

The motion also notes the importance of strong encryption in keeping people safe and secure:

Since the dawn of the computer age, there have been malicious people dedicated to breaching security and stealing stored personal information. Indeed, the government itself falls victim to hackers, cyber-criminals, and foreign agents on a regular basis, most famously when foreign hackers breached Office of Personnel Management databases and gained access to personnel records, affecting over 22 million current and former federal workers and family members. In the face of this daily siege, Apple is dedicated to enhancing the security of its devices, so that when customers use an iPhone, they can feel confident that their most private personal information—financial records and credit card information, health information, location data, calendars, personal and political beliefs, family photographs, information about their children—will be safe and secure. To this end, Apple uses encryption to protect its customers from cyber-attack and works hard to improve security with every software release because the threats are becoming more frequent and sophisticated. Beginning with iOS 8, Apple added additional security features that incorporate the passcode into the encryption system. It is these protections that the government now seeks to roll back by judicial decree.

And the filing makes it clear that the government is lying in claiming that this is all just about this phone:

The government says: “Just this once” and “Just this phone.” But the government knows those statements are not true; indeed the government has filed multiple other applications for similar orders, some of which are pending in other courts.2 And as news of this Court’s order broke last week, state and local officials publicly declared their intent to use the proposed operating system to open hundreds of other seized devices—in cases having nothing to do with terrorism. If this order is permitted to stand, it will only be a matter of days before some other prosecutor, in some other important case, before some other judge, seeks a similar order using this case as precedent. Once the floodgates open, they cannot be closed, and the device security that Apple has worked so tirelessly to achieve will be unwound without so much as a congressional vote. As Tim Cook, Apple’s CEO, recently noted: “Once created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks—from restaurants and banks to stores and homes. No reasonable person would find that acceptable.”

There's a footnote in the middle of that which points to Manhattan DA Cyrus Vance already talking about why he supports the FBI, and how he has 155 to 160 phones that he wants to force Apple to help unlock.

Apple also details how accepting the government's interpretation of the All Writs Act here could easily extend in absolutely crazy ways:

Finally, given the government’s boundless interpretation of the All Writs Act, it is hard to conceive of any limits on the orders the government could obtain in the future. For example, if Apple can be forced to write code in this case to bypass security features and create new accessibility, what is to stop the government from demanding that Apple write code to turn on the microphone in aid of government surveillance, activate the video camera, surreptitiously record conversations, or turn on location services to track the phone’s user? Nothing.

Apple also doesn't pull any punches on how the FBI itself messed things up:

Unfortunately, the FBI, without consulting Apple or reviewing its public guidance regarding iOS, changed the iCloud password associated with one of the attacker’s accounts, foreclosing the possibility of the phone initiating an automatic iCloud back-up of its data to a known Wi-Fi network... which could have obviated the need to unlock the phone and thus for the extraordinary order the government now seeks.21 Had the FBI consulted Apple first, this litigation may not have been necessary.

Apple's filing also does a good job debunking the DOJ's ridiculous "this is no burden, because it's just software and Apple writes software" argument:

The compromised operating system that the government demands would require significant resources and effort to develop. Although it is difficult to estimate, because it has never been done before, the design, creation, validation, and deployment of the software likely would necessitate six to ten Apple engineers and employees dedicating a very substantial portion of their time for a minimum of two weeks, and likely as many as four weeks.... Members of the team would include engineers from Apple’s core operating system group, a quality assurance engineer, a project manager, and either a document writer or a tool writer.... No operating system currently exists that can accomplish what the government wants, and any effort to create one will require that Apple write new code, not just disable existing code functionality.... Rather, Apple will need to design and implement untested functionality in order to allow the capability to enter passcodes into the device electronically in the manner that the government describes.... In addition, Apple would need to either develop and prepare detailed documentation for the above protocol to enable the FBI to build a brute-force tool that is able to interface with the device to input passcode attempts, or design, develop and prepare documentation for such a tool itself.... Further, if the tool is utilized remotely (rather than at a secure Apple facility), Apple will also have to develop procedures to encrypt, validate, and input into the device communications from the FBI.... This entire development process would need to be logged and recorded in case Apple’s methodology is ever questioned, for example in court by a defense lawyer for anyone charged in relation to the crime....

Once created, the operating system would need to go through Apple’s quality assurance and security testing process.... Apple’s software ecosystem is incredibly complicated, and changing one feature of an operating system often has ancillary or unanticipated consequences.... Thus, quality assurance and security testing would require that the new operating system be tested on multiple devices and validated before being deployed.... Apple would have to undertake additional testing efforts to confirm and validate that running this newly developed operating system to bypass the device’s security features will not inadvertently destroy or alter any user data.... To the extent problems are identified (which is almost always the case), solutions would need to be developed and re-coded, and testing would begin anew.... As with the development process, the entire quality assurance and security testing process would need to be logged, recorded, and preserved.... Once the new custom operating system is created and validated, it would need to be deployed on to the subject device, which would need to be done at an Apple facility.... And if the new operating system has to be destroyed and recreated each time a new order is issued, the burden will multiply.

From there we dig into the meat of the filing: that the All Writs Act doesn't apply.

The All Writs Act (or the “Act”) does not provide the judiciary with the boundless and unbridled power the government asks this Court to exercise. The Act is intended to enable the federal courts to fill in gaps in the law so they can exercise the authority they already possess by virtue of the express powers granted to them by the Constitution and Congress; it does not grant the courts free-wheeling authority to change the substantive law, resolve policy disputes, or exercise new powers that Congress has not afforded them. Accordingly, the Ninth Circuit has squarely rejected the notion that “the district court has such wide-ranging inherent powers that it can impose a duty on a private party when Congress has failed to impose one. To so rule would be to usurp the legislative function and to improperly extend the limited federal court jurisdiction.”

Congress has never authorized judges to compel innocent third parties to provide decryption services to the FBI. Indeed, Congress has expressly withheld that authority in other contexts, and this issue is currently the subject of a raging national policy debate among members of Congress, the President, the FBI Director, and state and local prosecutors. Moreover, federal courts themselves have never recognized an inherent authority to order non-parties to become de facto government agents in ongoing criminal investigations. Because the Order is not grounded in any duly enacted rule or statute, and goes well beyond the very limited powers afforded by Article III of the Constitution and the All Writs Act, it must be vacated.

In short, Apple is leaning heavily on the idea that CALEA pre-empts the All Writs Act here, and that CALEA explicitly says that companies can't be forced into helping to decrypt encrypted content. Beyond that, Apple is claiming that it's "too far removed" from the case for the All Writs Act to apply and mocks the idea (put forth by the DOJ) that because Apple licenses its software instead of selling it, that makes it okay:

Apple is no more connected to this phone than General Motors is to a company car used by a fraudster on his daily commute. Moreover, that Apple’s software is “licensed, not sold,”..., is “a total red herring,” as Judge Orenstein already concluded.... A licensing agreement no more connects Apple to the underlying events than a sale. The license does not permit Apple to invade or control the private data of its customers. It merely limits customers’ use and redistribution of Apple’s software. Indeed, the government’s position has no limits and, if accepted, would eviscerate the “remoteness” factor entirely, as any company that offers products or services to consumers could be conscripted to assist with an investigation, no matter how attenuated their connection to the criminal activity. This is not, and never has been, the law.

From there, Apple attacks the argument that there is no undue burden on Apple if it's forced to build this system, which Apple calls GovtOS. It starts out by noting that the idea that Apple can just create the software for this one phone and delete it appears nonsensical when put in context:

Moreover, the government’s flawed suggestion to delete the program and erase every trace of the activity would not lessen the burden, it would actually increase it since there are hundreds of demands to create and utilize the software waiting in the wings..... If Apple creates new software to open a back door, other federal and state prosecutors—and other governments and agencies—will repeatedly seek orders compelling Apple to use the software to open the back door for tens of thousands of iPhones. Indeed, Manhattan District Attorney Cyrus Vance, Jr., has made clear that the federal and state governments want access to every phone in a criminal investigation.... [Charlie Rose, Television Interview of Cyrus Vance (Feb. 18, 2016)] (Vance stating “absolutely” that he “want[s] access to all those phones that [he thinks] are crucial in a criminal proceeding”). This enormously intrusive burden—building everything up and tearing it down for each demand by law enforcement—lacks any support in the cases relied on by the government, nor do such cases exist.

The alternative—keeping and maintaining the compromised operating system and everything related to it—imposes a different but no less significant burden, i.e., forcing Apple to take on the task of unfailingly securing against disclosure or misappropriation the development and testing environments, equipment, codebase, documentation, and any other materials relating to the compromised operating system.... 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. Indeed, as the Supreme Court has recognized, “[t]he term ‘cell phone’ is itself misleading shorthand; . . . these devices are in fact minicomputers” that “could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”...By forcing Apple to write code to compromise its encryption defenses, the Order would impose substantial burdens not just on Apple, but on the public at large. And in the meantime, nimble and technologically savvy criminals will continue to use other encryption technologies, while the law-abiding public endures these threats to their security and personal liberties—an especially perverse form of unilateral disarmament in the war on terror and crime.

That last point is key. Criminals will still use other forms of encryption, while forcing Apple to do this harms everyone else by putting them more at risk.

Here Apple goes even deeper in questioning what are the limits to the All Writs Act:

For example, under the same legal theories advocated by the government here, the government could argue that it should be permitted to force citizens to do all manner of things “necessary” to assist it in enforcing the laws, like compelling a pharmaceutical company against its will to produce drugs needed to carry out a lethal injection in furtherance of a lawfully issued death warrant, or requiring a journalist to plant a false story in order to help lure out a fugitive, or forcing a software company to insert malicious code in its autoupdate process that makes it easier for the government to conduct court-ordered surveillance.

Next, Apple calls bullshit on the DOJ's claim that it absolutely needs Apple's help here. First, the FBI messed things up with the whole resetting iCloud password thing, and then what about the NSA? Why can't the NSA just hack in? That's what the following is saying in a more legalistic way:

... the government has failed to demonstrate that the requested order was absolutely necessary to effectuate the search warrant, including that it exhausted all other avenues for recovering information. Indeed, the FBI foreclosed one such avenue when, without consulting Apple or reviewing its public guidance regarding iOS, the government changed the iCloud password associated with an attacker’s account, thereby preventing the phone from initiating an automatic iCloud back-up.... Moreover, the government has not made any showing that it sought or received technical assistance from other federal agencies with expertise in digital forensics, which assistance might obviate the need to conscript Apple to create the back door it now seeks. See... (Judge Orenstein asking the government “to make a representation for purposes of the All Writs Act” as to whether the “entire Government,” including the “intelligence community,” did or did not have the capability to decrypt an iPhone, and the government responding that “federal prosecutors don’t have an obligation to consult the intelligence community in order to investigate crime”).

From there, we move onto the Constitutional arguments, which the court might not even address if it decides the All Writs Act doesn't apply. But, here, Apple starts with the First Amendment concerns of "compelled" speech.

Under well-settled law, computer code is treated as speech within the meaning of the First Amendment.... The Supreme Court has made clear that where, as here, the government seeks to compel speech, such action triggers First Amendment protections..... Compelled speech is a content-based restriction subject to exacting scrutiny... and so may only be upheld if it is narrowly tailored to obtain a compelling state interest....

The government cannot meet this standard here. Apple does not question the government’s legitimate and worthy interest in investigating and prosecuting terrorists, but here the government has produced nothing more than speculation that this iPhone might contain potentially relevant information... It is well known that terrorists and other criminals use highly sophisticated encryption techniques and readily available software applications, making it likely that any information on the phone lies behind several other layers of non-Apple encryption....

This argument feels a bit weakly supported. Then there's the Fifth Amendment argument, concerning due process:

In addition to violating the First Amendment, the government’s requested order, 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 government.’”

Again, this feels a bit weakly developed, but not surprisingly so. Apple is betting heavily that its main argument, concerning the All Writs Act not applying, will win the day (which seems to have a strong likelihood of being true). The Constitutional arguments are just being thrown in there so that they're in the case at this stage, and can then be raised on appeal, should it get to that level.

I imagine the DOJ will respond to this before long as well, so stay tuned (we certainly will).

Filed Under: all writs act, backdoors, compelled speech, doj, due process, encryption, fbi, fifth amendment, first amendment, iphone, san bernardino, syed farook
Companies: apple