In week 7 topics included
many subjects such as: (1) the Patriot Act; (2) Apple and the Writ Order along
with the proposal of the major tech players in the collection of data; (3) Snowden; (4) other developments (5) blog
post discussion; and finally (5) what is the difference between Snowden and
Assange, and what would you do if you could decide how the situation with
Snowden could be resolved.
First, the Patriot Act
215 allows the collection of telephone meta data in bulk by allowing the
government to obtain secret court order requiring third parties—telephone
companies like Apple—t o give all records or any other “tangible thing” it it
is considered relevant to an international terrorism.
a.
15 judges on 35
occasions found in favor of collecting meta data
In an open letter to
Obama, the majors of tech industry united to create a campaign in regards to
the government surveillance practices. Companies demand reform/transparency and
outlined principles that should be considered as a guide/limit on government
access, in the collection of a citizen’s data and surveillance procedures.
Because of consumer trust, it was important for the confidence of the user to
be able to trust their data in the hands of these tech giants.
Five principles proposed
by the major tech players in the US (Apple, Microsoft, Facebook, etc.) as the
extent of the leak of Snowden is being more widely understood, especially in relationship to the NSA in its gathering of data as it
traveled out of the United States.
1.
Limiting governments’ authority to collect users’ information:
2.
Increased Oversight and accountability
3.
Transparency from both the government agencies requesting data and receiving
the requests
4.
Respection of the free flow of information: U.S. tech companies should be able
to operate internationally
5.
Avoiding conflicts amongst governments: Goals are the limitation of surveillance
III.
: There were actually minor errors in what she
reported and so we went over these in class.
Judge
Pym orders Apple to assist the FBI in the hack of the phone of San Bernardino
shooter’s phone because the self-destruct mechanism on the I-Phone actually
automatically erases data on a phone after 10 failed attempts to unlock the
phone(known as brute-forcing). Because the data then erases a key to decrypt
the data must be used—and since a thumb print that was not an option—the FBI needed
this key from Apple.
Facts: Issued Fed. 16th
upon the ex-parte request of FBI.
- · Sought pursuant to All Writs Act
·
Ordered Apple to:
(1) bypass or disable the auto-erase function on iPhone 5c; and (2) allow FBI
to submit passcode via USB port or by Bluetooth/Wifi.
· Why?
o
Because there
are about 10,000 combinations for a 4 digit code
o
A 6 digit pass
code: would consist of about 1 million variations
o
regardless the
government is not going to get it in 10 tries.
: Originally enacted in 1789: (English term for order)
order
in aid of respective jurisdiction
·
All Writs Order is used to issue another order to execute the first order issued.
o
Here the order
to force Apple to help the FBI fulfill the first orderà a search warrant to search the phone.
o
Third parties
that are not parties to the litigation to do their part.
·
Old statute but
issued very few times.
Application
of the All Writs Act:
(1)
Act is only
applicable when other judicial tools/remedies are unavailable.
(2)
Authorizes writs
in the assistance of said jurisdiction,
(3)
Specific
reasons: Must be necessary or appropriate to the particular facts of case.
(4)
Agreeable to the
principles of law
Supreme
Court established a three-factor test in the question of when the All Writs Act
may be utilized,
Three-Factor Test of United States v.
New York Telephone Co.
(1) “[T]he party ordered to perform an action cannot be too far removed
from the case”;
(2) “[T]he government's request cannot impose an undue burden
on that party”; and
(3) “[T]he party's assistance is necessary.”
Apple Response: Address to our customers and states that their reputation and entire business model is protecting their customers privacy and this would completely undercut that. CEO Tim Cook
posts letter “to our customers” and explains why
encryption is important because such information needs to be protected from hackers and this is why encryption has become so
important.
·
Apple has even put the data out of its own
reach and as a corporate entity they believe encryption.
V.
What’s Next ?: Apple: Received Motion to Compel
We then talked about the next steps for Apple and that they already got a motion to compel: The Supreme Court has said an All Writs Order exceeds
if it imposes an unreasonable burden.
(1)
Arguing that it
doesn’t place an unreasonable burden on Apple.
(2)
Apple is just
worried that they are going to loose customers and this is really a business
issue—business concerns, marketing concerns—which does not fall under what is
considered unreasonable; such as, expensive, unreasonable administrative
burden:
This is Unreasonable Apple Argues: For Apple to disable the auto-erase function, it must
replace it with a new system, which apple says does not exists. Customers may
be apprehensive of accepting any upgrades because they will think there is a back door
or that by upgrading it will remove any encryption.
The Slippery Slope Argument: (1) information will then always be requested;
and (2) if Apple has the technology then it is likely to be hacked and
potentially could be used elsewhere.
Basically
this would be solved by how one will distinguish the
New
York Telephone case. This could be an intense public debate in light of
protection from terrorism in relationship to the tech companies and their
customer’s privacy. If the looser is dissatisfied then there will likely be an
appeal—with deference to the magistrates decision—and then a possible en banc review by the Supreme
Court.
We talked about the
Open questions this leaves us.
1. Can you get at the information in the terrorists
I-phone without putting other I-phones at risk?
2. If apple created a single-use key and kept it (or
immediately destroyed it) would that prevent hackers from ever getting it?
We then spoke about how Apple
has really already lawfully complied with cracking I-cloud. But someone idiot changed
the password and so now the I-phone and I-cloud have two different passwords. Where
the I-could is different from the I-phone is that Apple doesn’t have to create something
contrary to their business method to defeat the system for the I-cloud auto
delete.
Here, we ended with some
open questions:
(1)Is this even worth the
fight and the precedent?
(2) Will there be a public
backlash against Apple for attempting to thwart the FBI or will consumers put
privacy first?
(3) Will companies respond by
building phones that even they themselves can’t hack? Will this be what
customers demand? Technology may just very well find a way to work around this.
We then spoke of
some recent updates:
v
Utah State bills
on regulating body camera for law enforcement officers: H.B 300 [set time]and
S.B.94
·
Utah the S.B.94 orders the board to set rules
and regulations for the use of body cams. Senator issued a 31-page bill and a
whole host of obligation on private use drones S.B 211: Private use of Drones,
you have to at least be 17 years old; governs commercial use; can’t weaponries;
100 feet airport; 100 capitals; not more than 100 miles an hour; and not higher
than 400 feet.
v
Apple/FBI
I-Phone Access Update
·
Manhattan U.S.
attorney says he has 175 phones he wants Apple to unlock
Apple may raise a 1st
Amenmedment argument for compelled speech.
v
Software on
phone allows you to send electronic key to start your car;
Law DATA Security:
- Florida law firm pays ransomeware to hacker to regain access to firm film and you you wanted this then you pay and they paid in bit key 2500.
- Hollywood in CA said that they paid 17,000 dollars to a hacker.
- FBI issued report saying that law firms are going to become a favorite target for hackers b/c they have all of this confidential information from clients but historically they have had less security.
Finally, we did a review of Angela’s Post Takeaway on Snowden: (1)
from a policy prosepective the government is in a difficult position; (2) it
cannot condone the leak of secret gov. info; (3) especially information that
undermines national security; and (4) espionage laws:
First, was Snowden was not
protected by the whistle blower law because it applies only to federal employee,
and Snowden was a federal contractor.
Second, he could have gone through
the office of inspector general? Here, Vik (in class) claimed that this was, “fruitless
ideologically” but he didn’t try to go to solve the problem by going up chain
of command. But, the office of inspector general does take complaints from citizens
and there is an anonymous hotline. We left with the question on if Snowden
should have done this.
Third, what is the
difference between Snowden v. Assange
·
Wiki-leeks
·
Both released
classified documents
·
Both are in
exile in foreign countries
·
Are their
situations different? Yes, because Snowden handed the leaked information to the
journalists. And Assanage was not concerned with the impact of the information
nor the potential harm.
Furthermore, even Obama saw
some importance in what Snowden did and thus tit begs the question of what we
should do with Snowded.
Legality vs. Morality: Do we
Adhere to the law or a higher moral law?
Four Options for Snowden: What would you do?
(1) Pardon
(2) commuted sentenced
(3) plead guilty to single count; serve one year in jail
(4) stand trial with whistleblower protections
a. may find a jury that doesn’t want to give him jury
nullification
b. president would not have authority but maybe come and
stand trial and say jury nullification.
c. At some point in time Russia is going to get tired of
him and he was denied 22 other country
(5) Let another president deal with issue.
