This is disturbing:
The government hacking into phones and seizing computers remotely? It’s not the plot of a dystopian blockbuster summer movie. It’s a proposal from an obscure committee that proposes changes to court procedures—and if we do nothing, it will go into effect in December.
The proposal comes from the advisory committee on criminal rules for the Judicial Conference of the United States. The amendment would update Rule 41 of the Federal Rules of Criminal Procedure, creating a sweeping expansion of law enforcement’s ability to engage in hacking and surveillance. The Supreme Court just passed the proposal to Congress, which has until December 1 to disavow the change or it becomes the rule governing every federal court across the country. This is part of a statutory process through which federal courts may create new procedural rules, after giving public notice and allowing time for comment, under a “rules enabling act.”1
The Federal Rules of Criminal Procedure set the ground rules for federal criminal prosecutions. The rules cover everything from correcting clerical errors in a judgment to which holidays a court will be closed on—all the day-to-day procedural details that come with running a judicial system.
The key word here is “procedural.” By law, the rules and proposals are supposed to be procedural and must not change substantive rights.
But the amendment to Rule 41 isn’t procedural at all. It creates new avenues for government hacking that were never approved by Congress.
The proposal would grant a judge the ability to issue a warrant to remotely access, search, seize, or copy data when “the district where the media or information is located has been concealed through technological means” or when the media are on protected computers that have been “damaged without authorization and are located in five or more districts.” It would grant this authority to any judge in any district where activities related to the crime may have occurred.
This is not how this is supposed to work. Using a VPN does not make someone a criminal, and certainly shouldn’t void one’s constitutional rights.
Bill Arnold
I read the linked text, and it makes me very unhappy.
EFF can be a little shrill sometimes, but still.
(Using their https-everywhere extension for firefox.)
Any informed comment from our resident lawyers?
singfoom
Old white men who don’t understand technology writing rules for that technology. It’s almost if we need comprehensive legislation dealing with the issues that arise in the inter play between the digital world and our innate rights.
But then there’s the punchline, who will write said legislation? More old white men who don’t understand the technical aspects.
It’s old white men all the way down!
ETA: Who is on that advisory committee? Because this seems like a end run around Congress, so is it on purpose? Unclear from the linked article.
Bob In Portland
Does H. Clinton have a position on government snooping?
Origuy
I believe the committee rosters are here. Rule 41 is a criminal rule; the members of the Advisory Committee on Criminal Rules are Judge Donald Malloy, Professor Sara Beale, and Professor Nancy King. Don’t know about their races or ages, but two of those are not men.
Bill Arnold
@Bob In Portland:
Good question. All I could find on the campaign site was here:
Bold mine.
rea
No. The proposed amendment deals with the appropriate venue for obtaining a warrant, and makes no change to the substantive law of search and seizure. The post is based on a complete misreading of the proposal.
Face
Welcome to America, post 9/11. Any denial of clandestine reconnoitering by any LEO of any stripe makes you wantonly pro-terrorist and a de facto council member of the ISIS Board of Directors. Triple that in an election year.
LAO
i’m not suggesting I approve of the amendment to Rule 41 — but his is an explanation of why the DOJ sought this amendment
Applejinx
@Bob In Portland: Depends on where the votes are, like virtually any politician.
This is an area where the rich technocrats who might otherwise be hot to legalize electronic snooping (as they do it themselves, on a mind-boggling scale) will be up in arms to prevent the government from doing it. Not sure what the outcome will be.
We have NO protection against corporate surveillance but might be able to get some protection against the government having access to that data.
Alex.S
A lot of work is being done by the concept of a warrant being issued by the courts, but that’s always been the case when it comes to police investigations.
singfoom
A bunch of unnecessary words.
guachi
It took me a bit to understand what the rule proposes.But I agree with rea in post #6. This basically solves a problem of jurisdiction.
If you don’t know where someone is located, to which judge to you go to get a warrant?
If you disagree with the government’s solution, what do you propose?
Mnemosyne
Okay, maybe we need some lawyers to read this for us, but:
So my layperson’s mind reads that as saying that people could no longer dodge a warrant by making the location of their server impossible to determine. Is it common for civil liberties proponents to say that a judge shouldn’t be allowed to issue a search warrant if s/he isn’t sure of the physical location of a piece of evidence?
guachi
From the article:
With few exceptions, foreigners in foreign countries already can have their computers accessed without a warrant. I’m not sure what this rule changes.
Geoff
I agree with rea and guachi at #6 and #12. EFF makes it sound like any computer anywhere can be broken into. This is incorrect, to my reading. Currently, to sign a warrant authorizing a search, the judge has to be in the same district as the target. But this helps in situations where it is unclear where the target is. To sign a warrant, there still must be probable cause. It is very much procedural.
LAO
@Mnemosyne:
FedRCrimP 41(d) currently, ONLY permits a judge (federal or state) located within the district where the evidence sought to be seized to issue a warrant.
In other words, if you don’t know where the computer is located, law enforcement can’t obtain a valid search warrant.
Frankensteinbeck
@Mnemosyne:
It is the norm for civil liberties proponents to challenge every increase of government power that involves any kind of law enforcement, and most other increases as well. I see it as healthy to have advocates fighting that battle, but it means we get a lot of misleading paranoid screeds. GG’s entire career comes to mind.
LAO
@LAO: And, I approve the change — which is in fact, purely technical. As a federal criminal defense attorney — the amendment does not change the government’s obligation to obtain a warrant.
singfoom
This may be a stupid question, I certainly expect the lawyers here to answer with derision, but couldn’t we set up a court specifically for these kinds of digital cases? In which geography becomes secondary to the location in the digital realm?
A court that would have judges that have the dual expertise of law and technical expertise needed?
Or maybe this already exists.
john b
@singfoom: I have no idea, but it sounds like an excellent pitch for a wildly inaccurate network procedural.
oz29
@LAO: I agree. Frankly, the alternative — leaving the Rule like it is — seems far more dangerous. The increasing pressure on law enforcement to make arrests in the kinds of cases affected by this rule coupled with the near-impossibility of getting a warrant invites far worse threats to Fourth Amendment protections.
West of the Cascades
@singfoom: Not a crazy idea – specialized courts already exist in the United States, although there are no specialized federal criminal courts. But at the state court level, some states have created specialized drug courts to handle only criminal drug cases. Not likely to happen at the federal level for cybercrimes, but not crazy. Good overview at http://www.iaca.ws/files/LWB-SpecializedCourts.pdf
guachi
@singfoom:
I think this would be a very good idea. A court specially set aside to deal with (digital) warrant cases where the target is in an unknown location specifically because of actions taken by the target.
Major Major Major Major
@john b: Yes, yes it does. Hmm…
Ruckus
@LAO:
The obligation no but it does seem to change the ability to obtain a warrant in a manner that could not be used before. IAANAL though so my reading of the issue is superficial at best. A question I have is that how could evidence be seized if the location is not known? Now if a federal judge could issue a warrant outside his/her area if they know the location, I can see that. Not having to go to a judge in every area to obtain separate warrants does seem to be better. It changes only who can issue a warrant not that one has to be obtained.
Am I missing something?
Benw
“Sir!”
“Yes, Corporal?”
“Operation Oral Stimulation is a success!”
“Indeed?”
“Yes, sir! The warrant came through and we have complete access to their comment server.”
“And?”
“Sir, Bob in Portland is not even in Portland!”
“Chilling.”
“And, sir, Paul in KY is not named Paul.”
“Anything else, Corporal?”
“Yes, sir. Sir, Mnemosyne, Miss Bianca, and lamh36 are all one middle-aged bald dude in Duluth.”
“That’s enough. Corporal, nuke the site from orbit.”
“But, sir! West Virginia…”
“It’s the only way to be sure, Corporal Hicks.”
Major Major Major Major
@Benw: I’m not even a Major.
LAO
@Ruckus:
As I linked in comment 8 — here is how the government can get “stuck” during a criminal investigation (child pornography) and not know the location of the computers it is hacking. http://motherboard.vice.com/read/this-technicality-could-spoil-the-fbis-dark-web-hacking-operations
Villago Delenda Est
The principle problem is one of trust.
Our federal government has shown, repeatedly, that they will use short cuts to achieve their goals, and thus undermine what trust they have. Because as we see in our “justice” system, “justice” is not what is being sought. Brownie points for career advancement are being sought.
Ella in New Mexico
I have less fear about this if we actually get a judge to review the need and issue a warrant, but…
What’s to protect my Uncle Henry in Pennsyltucky who’s computer was compromised and is relaying child porn–without him even knowing it? How will he be able to defend himself?
Villago Delenda Est
@singfoom: I think the problem is that our legal system can’t deal with things like this due to the very physical nature of a “jurisdiction”. The advantage of this is that it’s clearly defined and common sensicial. But when the server with the offending bits is outside of the “jurisdiction” things get hazy fast.
Ella in New Mexico
@Benw: you forgot aimai and the Conster. ;-)
LAO
@Villago Delenda Est: This is not a short cut. The government still has to obtain a warrant — it changes the magistrate that has the power to issue the warrant.
I’m not, by any means, arguing that it’s not absurdly easy for the government to obtain a warrant (because it is) but this is not a short cut.
Villago Delenda Est
@LAO: Point conceded. The entire “secret warrant” thing of the FISA court is barely removed from the old Star Chamber meme.
Benw
@Major Major Major Major: impersonating an officer is a crime!
Villago Delenda Est
@Ella in New Mexico: It would help, a lot, if the judge in question had enough technical computer science chops to make these distinctions. Unfortunately, such creatures are few and far between. IT bullshit detectors are needed, because if they’re not there, judges are just like the rest of us…they don’t know it’s bullshit when some prosecutor OR defense attorney makes an IT bullshit argument.
I'mNotSureWhoIWantToBeYet
@rea: But it’s more interesting to get upset about the worst case when all the controlling limitations are ignored, isn’t it?
:-/
Thanks.
Cheers,
Scott.
Major Major Major Major
@Benw: Is it? I thought it wasn’t. I mean, unless you’re trying to gain access to something.
LAO
@Villago Delenda Est: You can conflate the FISA court with the Federal Criminal Justice System but, they are not the same.
? Martin
Right, and echoing singfoom @2, this is a bit of a cultural mismatch with the policymakers being of the old world and not understanding the new one.
It is simply unavoidable that software and technology more broadly will make increasing pockets of the world where government cannot reach. This is because the internet and software in general have characteristics that make them easily decentralized. There is no handful of gatekeepers, be they manufacturers or data centers, etc. that the intelligence agencies and courts can approach for cooperation. And every effort to do so will undermine said gatekeeper in favor of another one not yet approached. The only point of stability is one where the government accepts that they cannot get what they feel they need. They can keep clawing at scraps, but they would be much better served at accepting the inevitable and finding a way to manage their work within that new setting, including setting expectations for the public. There will be intelligence failures directly do to this. People will certainly die. It cannot be avoided no matter how many bills they pass. We need to all accept that, and that message will need to come from the top through all layers below.
This is nothing new. Politics is often nothing much more than the willingness to lie to the public and pretend to act for the sake of sparing their feelings. 50+ Obamacare repeal attempts should prove that well enough, and if not, the very existence of Donald Trump should. But sooner or later you need to come clean. I just wish they’d knock off the bullshit and get down to it.
Paul in KY
@Benw: I’m actually ‘on’ Kentucky and not ‘in’ it. Wrap your mind around that!!
Paul in KY
@Benw: I think he’s impersonating a character from Catch 22. So there!
Benw
@Ella in New Mexico: aimai and the Conster are two personalities of a hyper-intelligent mainframe-based AI locked into a “destroy Bernie” subroutine. :)
? Martin
@Ella in New Mexico:
Well, here’s the American catch-22. Why shouldn’t that argument apply to gun owners?
I know they aren’t comparable – a computer is damn near a necessity but a gun is not in most of the country – but part of the freedom to do a wide range of things comes with the responsibility to prevent a whole bunch of other things from happening. We’re not very good at accepting the responsibilities that accompany the freedoms.
Securing a computer from being compromised is far from impossible, but it does require regular effort and knowledge. Not unlike securing a gun.
Paul in KY
@Major Major Major Major: Depends. Think you can walk around in full uniform, as long as you admit you are no officer (like for Halloween or if you have nothing else to wear, etc.) However, if you walk around in the uniform & say you are a commissioned officer & try to get people to think you are a commissioned officer, then I think that may be a crime.
I will defer to any military person/lawyer who has a better handle on the nuances.
Major Major Major Major
@Paul in KY: I categorically deny having any resemblance to Henry Fonda!
bemused senior
@Ella in New Mexico: This doesn’t change things in that regard. I have been an expert witness (disk forensics and looking at logs produced by ISPs) for the defense in multiple child pr0n prosecutions, and prosecutors who know exactly where the computer is already can be quite bad about ignoring the possible alternatives in how questionable material gets on computers. Typically the evidence produced by the prosecution in these cases simply is images found on the disk, irrespective of whether the data is in the browser cache, whether the computer had been accessible or used by others or whether the illicit images are a tiny fraction of adult porn (likely part of a download that didn’t entail examination of the image before downloading). It seems to me that prosecutors know the shock value of the images and (for elected prosecutors) get bragging points for CP convictions. Obligatory note: I am a mother and grandmother and hate CP and the behavior of ped0philes. That doesn’t make it right to railroad someone who has images on their computer inadvertently.
burnspbesq
I’m not surprised that EFF went all Chicken Little on this; that’s how that organization rolls, and one person’s Chicken Little is another person’s canary in a coal mine.
On this specific issue, I think the proposed amendment to Rule 41 looks like a sensible solution to the problems caused by Tor and similar technologies, but I also want to acknowledge the validity of what LAO said about the erosion of the probable cause standard, and note that as the grandson and nephew of cops, I am no stranger to stories about cops making shit up on warrant applications.
Benw
@Major Major Major Major: do I sound like a person who knows anything about anything?!
Benw
@Paul in KY: you’re right, Yossarian, it does make a lot of sense to think of KY as a mind-altering drug! You’re still on the flight list for tomorrow, though!
Uncle Cosmo
@Boob In Putinland: But we know what your position is on everything, Boob: Pointy head jammed a foot up your flabby arse. Since you’ll never get close enough to Vlad’s…
Ruckus
@LAO:
Yes I see that. But as Villago pointed out in the next comment, trust is a major part of the issue. Governments of all stripes want what they want and will lie to their citizens in the name of justice. I agree that in the case of child abuse, be it sexual or otherwise this can be a real problem. But it seem is comes back to the phrase “If you aren’t doing anything wrong, you shouldn’t have anything to fear.” And yet I’m reminded of a number of black people who were doing nothing wrong and are dead at the hands of the government. These are the visible cases, what about the invisible ones?
Yes there is a fine line in many areas of justice and government but should we jump over that line or figure out how to maintain it and work with it? I can see that there are issues with government power in this one issue, you touched upon it yourself concerning how easy it is to obtain a federal (or probably any other type) of search warrant. Take the case you linked to, child p0rn from an unknown location. The data is out there, the location is not. So currently no warrant to seize is possible, the crime is unstoppable, legally. Would it be better to write a law that would allow a warrant to be issued in the case of child p0rn without the location, rather than a blanket change in procedure that will allow hacking and hunting for unknown crimes? A fine line yes but then doesn’t everything come down to crossing lines, fine or otherwise?
Ella in New Mexico
@? Martin: That’s really a stretch.
It’s pretty easy to secure a gun for most people. It’s a physical object, and we have long established ways to keep our guns out of the hands of criminals we can use, from trigger locks to gun safes. It would be like saying that any random criminal out there can identify that you are a gun owner, break into your home, take your gun you have placed under lock and key, commit a crime with it and then return it to you completely unbeknownst to you–and then and later you be arrested for that crime with absolutely NO way to prove the negative, aka, you didn’t do it.
However, It takes a fair amount of tech saavy–sometimes, a real computer nerd–for the average person out there in Podunk who accidentally replies to a phishing scam to know his or her computer has been hacked by pros and is secretly being used to commit a crime.
Ella in New Mexico
@bemused senior: This is what worries me. Once they get some images they railroad my Grampa to having to register as a sex offender just to boost their numbers. :-(
LAO
@Ruckus:
I am a federal criminal defense attorney — I do not subscribe to the belief that “If you aren’t doing anything wrong, you shouldn’t have anything to fear.”
BUT this is not as you describe it,–
The crime is KNOWN and described with specificity in the search warrant. The only change is the rule is what judge can authorize the warrant.
What is not known is the location of the computer housing the data. Under the current rules — the government hacks without a valid warrant. Is that better?
Paul in KY
@Major Major Major Major: Henry Fonda was in Catch 22?!
Paul in KY
@Benw: I have been jibed that the ‘KY’ stands for KY jelly. Of course, that was in a Yahoo comments section, a noted hive of scum & villainy.
Paul in KY
@Ella in New Mexico: 2nd paragraph is a good movie plot line.
Ruckus
@LAO:
No, and I was not saying that. Really I see that there may be more to this than just a different judge can authorize a warrant. Maybe I’m full of shit here, I am absolutely not a lawyer, especially not a federal criminal lawyer on either side. Maybe I’m not as trusting of the people presenting a request for a warrant, or the quality of representation that I can afford if wrongly accused, or the biases of some judges in writing warrants. IOW I see issues, I may be seeing and associating things here that don’t apply and really maybe nothing will change for better or worse with this, it really is just a procedural change to make fighting crime better in a more modern age.
I just wonder how much goes on that we don’t know of until it hits the fan. I know it’s a lot because it’s a big country and a big system, run by humans. Some of whom are not nice at all.
NCSteve
Yet another example of how much of the shit people think they know about electronic surveillance is based on believing hysterical shit that feeds into their personal confirmation bias feedback loop.
The Fourth Amendment says our safeguard from unreasonable search and seizure is the requirement that the cops go to a judge and show the judge probable cause for the issuance of a search warrant. If they do that and a search warrant issues, you’ve gotten all the process you’re due and the search is presumptively reasonable.
This amendment merely expands the jurisdictional reach of a warrant under carefully limited circumstances. It doesn’t abolish the requirement that a warrant be obtained. It doesn’t weaken the showing the government has to make to get a warrant. Instead, all it does is take cognizance of the fact that, what with this not being the 19th century, electronic communications often extends beyond the boundaries of a single federal judicial district and empower a magistrate judge in one district, under well-defined and limited circumstances, to issue a warrant authorizing a search of a remote computer or server if there’s a reasonable nexus between the criminal activity connected to the remote computer and the district in which the warrant is issued AND a) the remote computer’s location has been concealed or b) computers in five or more federal judicial districts have been hacked in an attack. And that’s all. How in the fuck is this all “dystopian?”
The EFF’s hysterical Greenwaldian scaremongering is the exact reason that I have never, ever been able to get behind them however much I might agree with their cause philosophically or theoretically. They’re just such an intemperate bunch drama queens.
Jesus, get a grip, Cole.
LAO
@Ruckus:
I’m going to take it down a notch — I agree with you that the entire criminal justice system is inherently flawed, But the small limited point I’m making here, is that this amendment is a small procedural change. One that is necessitated by technology.
singfoom
@West of the Cascades: Thank you for the link, on my reading list for later!
oz29
I find the notion that we need special courts for cybercrimes curious. Judges at every level of the State and Federal systems issue rulings touching on state-of-the-art science and scholarship in fields from ballistics to psychiatry to shock physics to complicated surgical procedures to . . . well, you name it. For some reason, though, there is this idea that they can’t wrap their teensy little minds around information technology.
NCSteve
@Bill Arnold: I’m a lawyer. See my comment above.
This amendment applies in two situations. Here are examples in both of them.
a) Hackers try to hack into a bank’s computer located in Charlotte, which is in the Western District of North Carolina. The FBI has followed the electronic breadcrumbs back to the hacker’s computer and can get into it, but doesn’t know where it is physically located (a thing that actually happens). This rule change lets the federal court in Charlotte issue a warrant authorizing a search of the remote computer, cutting the gordian knot of needing to access the computer before you can know where it is.
b) A criminal hacker gang launches a spear-phishing attack on five or more small businesses all over the country, like in the Zeus trojan attacks four or five years back. This rule change lets the IRS show probable cause and get a warrant in any of the districts where an attack occurred that will let them get into the computer that launched it, regardless of where it’s located.
Oh the tyranny! Nightmarish dystopia!
The EFF’s real panty bunch here is apparently over the very idea of the FBI hacking hackers remotely, even with a warrant and appear to be saying the that FBI should have to first find out where the computer or server is located and then get a warrant from the magistrate in that district and then, most likely, either seize the computer or access it locally. Either you think that position makes sense or you don’t.
Ruckus
@LAO:
I believe that it looks like a small procedural change as well. I see and agree with @NCSteve: that this is a limited enhancement of obtaining a search warrant in the 21st century. BUT. Can it be used for far more than this? How many small procedural changes have been made that can or are being used in ways not envisioned when they were made? None, several, a lot? I don’t know and I’d bet there are few who do. Should we think these types of things out farther than the next 5 minutes, or even can we, given that things change faster than they used to and there are more people to make both good and bad decisions?
Separately, I think that as we progress as a society and a government that we should be a bit more informed and enlightened as to how our laws and government work. It’s pretty obvious that the vast majority have NO clue and the rest of us have maybe a tenth of a clue. And I’m pretty sure that it is vast enough that having a tenth of a clue is actually not all that bad as long as we don’t all have the same tenth and could discuss our tenth with others as necessary.
burnspbesq
@? Martin:
That’s remarkably tone-deaf. Has goblue hijacked your account?
As a society, we should cease trying to solve heinous crimes simply because of the means used to commit them?
NO. FUCKING. WAY.
LAO
@Ruckus: I can’t say it better than NCSteve in comment 65. But what I will say is, it’s not technical amendments to procedural rules that have weaken the 4th amendment. That distinction rest with the Supreme Court.
? Martin
@Ella in New Mexico:
Yes and no. It would be pretty straightforward for vendors to design computers that would be much less susceptible to this kind of thing (and Apple takes some steps in that direction) but the result is something that consumers by and large reject. They reject the cost of doing it and the constraints that come from it.
You’re taking the viewpoint that consumers would need to solve this problem in the context of current products, but the problem could be solved in the next generation of products (see the iPad as an example of a general purpose computer that is much harder to compromise, but which also restricts what you can do) provide that consumers were willing to pay for them/accept those constraints.
Of course it takes a fair amount of tech savviness to secure a 5-year old Windows PC that hasn’t been updated. It takes a lot less to secure a brand new Windows 10 PC when you use modern password security software and the like. It takes even less when you work from an iPad, and it could take even less from a device sold next year or 3 years from now if the market demand were there for it.
I approach the question from why the general public don’t carry some of the responsibility for the current state of affairs when so much of the current state of affairs is a byproduct of consumer behavior. I get that everyone wants free pørn and movie torrents to a $300 PC or $100 Android phone, but that’s about 90% of the attack vectors to consumer PCs/mobile devices. Consumers need to carry some of the responsibility for malware from demanding low priced, insecure products in the same way that anti-vax parents need to carry some of the responsibility for the spread of preventable diseases.
Ruckus
@NCSteve:
I think that many do not trust the government as a whole to actually use this change this way. They can’t say why but they see the government as a very large, self serving entity that takes their rights into account only when it suits them. As @Villago Delenda Est: states it is a matter of trust. And given the fact that lots of our fellow citizens want the government to do so (of course only against the dreaded others) makes that trust hard to build and easy to destroy. Look at the last 7 yrs. On most any measurable way we have improved. Yes there is still lots and lots of places that it is an almost invisible improvement (racial for example). And yet a good portion of the population hates the man who leads us there. They don’t trust him. At all. Maybe few governments have ever or will ever be trusted, that’s just the way it is. But our government, over my lifetime, has proven more than a few times that it shouldn’t be trusted at least not totally.
So here we have what can be made to look like a horrible change, which it might not be at all, (your examples are the same type that first come to my mind), shouldn’t there be some questioning?
ETA And if you want to question why we don’t trust government all that much, look at the last president and all he did for us and to us. That’s a pretty good reason.
CONGRATULATIONS!
@oz29: Judges don’t understand one whit of these issues either. If you’re going into court and need judicial expertise in any of these things to keep you from going to prison or facing a massive civil penalty, you are fucked. The side that wins is the side with the most resources – civil, the side with the most money, criminal, the prosecution.
Ruckus
I like that the lawyers that work within the system we are talking about trust this change. Really, how much more can we do?
oz29
@CONGRATULATIONS!: That’s an incredibly foolish and naive statement. Were you correct, the Innocence Project would have closed up shop long ago.
? Martin
@burnspbesq:
No, what I’m saying is that we need to recognize the limits to doing so. We have in the past – the 4th, 5th and 8th amendments are such recognition. We (should) reject torture even in the cases where it might reveal information. We stop short in a great many situations either because it is not possible to continue or it is counterproductive to continue. Technology is going to introduce a number of new situations, and the legal system is going to have to yield to some of them. Or it may need to radically change to accommodate some. We are not far from a point where individuals can launch their own satellites – a way to send an encrypted message from one place to another, with the endpoints being impossible to trace and the intermediate being not only outside jurisdiction, but effectively outside the physical reach of law enforcement.
I’m not saying to give up, I’m saying to be realistic about what the limits are of reaching certain pieces of evidence.
Denali
@BenW
I am not a mountain in Alaska.
CONGRATULATIONS!
@oz29: Statement of a guy who’s a digital forensics examiner. I get see how these trials play out. Judges don’t know anything other than their legal education and whatever their pet hobby might be. That’s really it.
I'mNotSureWhoIWantToBeYet
@CONGRATULATIONS!: Isn’t it fine that judges don’t understand the details of data encryption and the like? Aren’t they supposed to apply the law to the evidence that is presented to them and be an impartial arbiter?
I understand where you’re coming from – it would be nice if judges didn’t get snowed by one side or other due to jargon and the like – but our legal system wouldn’t work if judges had to be experts on all the things they were trying. It’s the responsibility of the two sides to present the most compelling case they can, and the judge’s responsibility is to apply the law to the circumstances. And it’s the responsibility of lawmakers to keep up with the times (and they should be calling the experts to testify, etc., etc.).
Cheers,
Scott.
oz29
@CONGRATULATIONS!: That’s nice. I’ve spent 15 years as a criminal defense lawyer. I get to see how these trials actually happen — start to finish. I also get to see the months of pretrial work and motion practice where evidentiary issues are decided. Judges don’t need to be experts on every given subject that might come before them. Such a requirement would be asinine. They need to comprehend it well enough to discern and apply the proper legal standard.
NCSteve
@Ruckus: The whole point of the probable cause plus warrant requirement of the Fourth Amendment is that trust’s got nothing to do with it: warrants are required because we don’t trust cops. The point of the Fourth Amendment isn’t to prevent searches, it’s to set the standard for when they can happen and put an independent set of eyes on the cops to makes sure they can articulate probable cause to believe a crime has occurred, or is afoot, and the target has something to do with it.
As long as someone has to show probable cause and get a damn warrant, who cares whether it’s issued by a judge in the Western District of North Carolina where the server farm is, or the Southern District of New York where the bank was? Same law, same standard, same appointment process for the magistrates?
What we need to worry about are all of the work-arounds and carve-outs and exceptions to the warrant requirement the Supreme Court devised in the 80’s and 90’s and, most particularly, presidents who authorize warrantless wiretaps and suggest that somehow the idea of warrants was obsolete or that his mighty presidential war dick power rendered the provisions of the FISA Act–which set up a warrant procedure for secret intelligence wiretaps–null.
The most the Feds can do with this rule revision is use it as a way to shop around for a less skeptical magistrate to present a warrant request to. And that kind of thing is built into, and accounted for by, the whole system.
Ruckus
@oz29:
Judges that were experts in every segment of information that came before them would be the smartest humans on earth. But they can’t all be that, so as you allude to there must be another dynamic going on. And that is, as you say, they need to apply the law, as written and decided over time. It’s the law they need to know and how to find the appropriate cases law and information on evidence gathered before trial and admitted to trial.
The idea that we should all know every aspect of life is bullshit. All of us would be curled up in little balls, with blood running out our ears if we had to know all the details of everything. We can know a lot. but knowing it all? Why that would make us all gods and then who would we worship?
Ruckus
@NCSteve:
Not totally disagreeing with you on this. I may just be plugging in the larger, who do we trust issue into it. If we don’t trust cops, why is that? And if we don’t trust them, why and how do we trust prosecutors, and judges and….. Yes we have juries, I’ve been on them, 12 people with no knowledge of the case or the person being tried. Theoretically. But we all bring our biases into the courtroom, just like it sounds like I’m bringing mine into this discussion. I’d bet you have fewer biases about the law than I do, or at least different ones, as you work within it’s boundaries every day. You know more about it than I do. You are an expert, or at least far more of one than me.
But can I trust you any more than the cops? I have gone to doctors who I ended up not trusting and went to another. Doesn’t happen often but it does happen. How do I change the cops, prosecutors, lawyers, judges, laws that I may never have to deal with to provide me a fair hearing?
I’ve been screwed by my own lawyer once before, btw. And I changed lawyers. I can’t do that on the other side of the fence.
Ruckus
@NCSteve:
It isn’t trust in the law. It’s trust that the people carrying out the law fairly that’s the problem. It’s being able to afford the protection of a knowledgeable enough lawyer after being charged that is a problem. That’s why trust is an issue. Most of us have to trust people to do their jobs reasonably, and not everyone does that. If I’m black, I’m far more likely to be unfairly involved in the criminal justice system, and I’m far more likely to be fucked by the people you tell me to trust. It’s not just the cops that regular people don’t trust.