Maybe the FBI should have tried harder to get into the iPhone taken from the dead terrorist in the San Bernardino shooting prior to going to federal court for an injunction. Once they filed in the Central District of California, the case gained traction from tech companies the world over.

March was amicus month for this case with the list of briefs crowding the register of actions. Here are some of the companies seeking to weigh-in on the case: Facebook and Google [of course], Amazon, Yahoo, Cisco, Snapchat, Twitter, Mozilla, and WhatsApp to name but a few.

Meanwhile, the FBI has re-thought its strategy, apparently coming-up with some highly skilled tech assistance to hack into the terrorist iPhone instead of trying to force Apple to do so via federal court injunction.

The obvious downside is that, if they do not get it right on the first try, the sophisticated encryption technology includes a self-destruct function which would render the data lost forever, along with any clues to existing terrorist cells or contacts.

With all the attention drawn to the ubiquitous iPhone device and it user-friendly technology, the FBI has received some leads from disparate third-party sources as to how to open an iPhone. FBI Director James B. Comey, Jr. provided details in a letter to the Wall Street Journal earlier this week.

We here at the Law Blogger believe there has to be someone outside Cupertino that can crack one of those confounded devices for the feds. Then we don't need a federal judge ordering the manufacturer to violate its corporate mission relative to the privacy of its customers.

Problem solved...right? We'll see.

For now, the FBI's hopes in this regard were sufficient to persuade Judge Sheri Pym to adjourn the hearing on Apple's objections to the injunction ordering the company to cooperate with the feds to gain access to the terrorist's device.

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In the "anything goes" world of Internet publishing, Gawker Media has staked out a sizable claim for itself for 13-years by aggressively pursuing celebrities in order to place them in a less-than-flattering light.

Last year this case pitting a media outlet's First Amendment right versus a celebrity's right to privacy caught our eye. Hulk Hogan, the ring name for retired "wrestler" Terry Bollea, sued the digital media outlet in a defamation suit alleging that posting a sexual encounter between Bollea and his friend's wife invaded his privacy.

On Friday, a 6-person south-Florida jury awarded the Hulkster a cool $115 in damages, only to be followed-up yesterday with an additional $25 million in punitive damages for the sex tape post. Not to be daunted, Gawker has vowed to appeal the verdict and soon will be angling to avoid posting an appeal bond that could cost every dime of $50 million.

This case featured a vile yet salacious act, recorded under dubious circumstances, blasted onto our news feeds by gutter journalism on steroids. After the verdicts were announced, media outlets showed some concern that a poorly defined right to privacy could trump a media outlet's right to free speech.

There is a notion that if a huge defamation verdict like this one withstands appeal, it will have a chilling effect on the media, including the more traditional media. The Gawker defamation case seems to have created a notion, even if temporarily, that one's right to free speech can be abused and that media outlets can be punished when doing so.

This is one of the cases that we will track on appeal over here at the Law Blogger. We will be sure to keep you posted.

Post Script - June 10, 2016
The Hulkster's judgment will indeed bring down Gawker as we know it today. Gawker has filed for bankruptcy and is for sale; its founder says he and his staff of writers will simply migrate to another platform to continue their craft.

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As the terrorist shooting case in San Bernardino, California receives world-wide headlines, another struggle over encryption is quietly playing out between the federal government and a well-known and well-liked technology company.

WhatsApp, the world's largest instant messaging service, is owned by Facebook. The app allows users to send and receive instant messages and to place phone calls over the Internet. It has over a billion daily users.

Recently, the app service has taken the steps necessary to encrypt its customers' messages from start to finish; no one but the relevant users will be able to access messages. With its long tradition of wiretapping land line phones, federal law enforcement agencies have been chaffing at their inability to tap into the data contained in WhatsApp messages.

Apparently, a federal judge has approved a wiretap request involving WhatsApp in a non-terrorist criminal investigation. Like the iPhone in the San Bernardino case, the feds cannot access the data due to the company's ingenious encryption.

There will be a growing number of cases like these where the antiquated federal wiretapping statutes become increasingly ineffectual relative to the always-improving encryption software and privacy applications.

Should Congress pass new laws that would force private technology companies to develop software allowing law enforcement to access encrypted data through a back door? For their part, law breakers love the idea that the technology they are using ensures no one other than the intended will receive their messages.

So far, the federal government has elected not to drag WhatsApp into court to compel a resolution. Some tech experts believe they are waiting for the perfect storm to bring the right case into the courthouse.

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Long-serving Ingham County Prosecutor Stuart Dunnings III is expected to get arraigned in the next few days on sex charges brought by the Michigan Attorney General. Stunned is the only word for us over here at the Law Blogger.

The prosecutor is facing 15 separate charges spread across three counties. The charges are a mix of misdemeanors and at least one felony.

Dunnings' troubles surfaced in the course of a federal prosecution for sex trafficking. The soon-to-be-sentenced leader of a sex ring that serviced Lansing, Chicago and Atlanta obviously gave-up some names.

Human trafficking has been a priority issue for Michigan Attorney General Bill Schuette. In addition, this is the type of prosecution that only the AG's office is equipped to handle.

At this stage of the proceedings, it is too early to determine whether Dunnings will plead and, if convicted, the likely sentence. We will keep you posted.

Post #529

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Dread Pirate Roberts?

Ross Ulbricht, whose nom de guerre is "Dread Pirate Roberts", infamous for being the mastermind behind the now-defunct dark web site Silk Road according to the FBI, was jury-convicted last year and sentenced to life in prison without parole. He filed his 174-page appeal brief in January with the United States Second Circuit Court of Appeals in New York.

The Silk Road web site proved difficult for the feds to deconstruct; it's progenitor was elusive. It took an innovative IRS task-force agent familiar with the shady world of bitcoin to put 2 and 2 together, locate and arrest Ulbricht.

This is a fascinating cyber-crime tale. Ulbricht's appeals brief, the best money can buy, tells the story of a month-long jury trial gone wrong. Appellant's brief raises several legal arguments and asserts the federal district judge in Manhattan repeatedly abused his discretion and got several evidentiary and legal rulings wrong.

For those unfamiliar, Silk Road was a dark web site that offered many illegal items for sale including computer hacking equipment, false documents, and an assortment of illegal controlled substances. Bitcoin was the currency used for these transactions. As a currency, bitcoin was perfect for the Silk Road enterprise: it is electronic currency; and it allows sellers and purchasers to remain anonymous.

We here at the Law Blogger realize that few of our readers will take the time to read the Appellant's brief linked above; a veritable legal tomb. The brief nevertheless reads like a cyber-crime thriller that only a defense lawyer could love.

Basically, Mr. Ulbricht denies that he was Dread Pirate Roberts; claims that he was framed by the real DPR; and says he was denied a fair trial due to the "vulnerabilities inherent to the internet and digital data such as fabrication and manipulation of files and hacking," and that these vulnerabilities invalidated most of the government's evidence.

In a very well-written brief, the Pirate raises the following issues:

• a key DEA agent involved in the Silk Road investigation was himself under investigation and evidence of this corruption was precluded from being introduced in Ulbricht's defense; 
• the trial court severely curtailed Ulbrecht's cross-examination of key special agent witnesses relative to the accused's "alternate perpetrator" defense;
• the trial court erred by disallowing two defense expert witnesses from testifying;
• the "unlimited" searches and seizure of Ulbrecht's lap top, GMail account and Facebook account violated the Fourth Amendment's search and seizure clause; and 
• Ulbrecht's life sentence was both procedurally and substantively unreasonable.

Often tasked with mining federal jury trial transcripts for error and writing-up the issues in appellate briefs, we here at the Law Blogger love this brief; a masterpiece that raises wide-ranging evidentiary and constitutional issues in a very unique and significant case.

With the usual extensions, the United States' appellee's brief will be filed in Manhattan sometime in June or July; we will keep you posted on this one as we will be tracking the Pirate's path.

Post #528

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Shying away from items of pop-culture, this case nevertheless caught our attention over here at the Law Blogger. Rochester Hills native and pop superstar Madonna is embroiled in a protracted custody battle over her 15-year old son Rocco with her ex-husband, the British director Guy Ritchie.

Apparently, while on the Rebel Heart tour with her mother in Europe last December, Rocco decided to stay with his father in London. Anguished, but not one to take adversity sitting down, the material girl filed a hasty application in the Hague, a tribunal which deals with kidnapped children; the application has since been withdrawn.

Currently, there are proceedings ongoing in both London and New York to decide the fate of the famous teenager. When his parents quietly divorced back in 2008, the couple had joint custody.

Due to the fame of Rocco's parents, both parties have requested that the details of their dispute be kept to the courtroom.

Regardless how wealthy or famous the parents, custody battles cut deeply into the child's world.

Post #527

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The San Bernardino shooting has taught us that, if you are a terrorist intent on communicating with your comrades-in-arms, the devices you select for such communication, data transmission and storage will be manufactured by Apple. This is largely because the NSA, FBI, Homeland Security or other law enforcement agencies cannot reach the data contained in the device without it self-destructing.

The battle between privacy -more specifically, encryption- and national security has been playing out at least since Edward Snowden drew attention to the issue with his leaks back in 2013. Apple has drawn a line-in-the-sand on the San Bernardino shooting case, which is puzzling at first considering that the device in question was supplied by the county government and also considering Apple's track record of cooperation in other criminal investigations.

Walter Isaacson's 2011 authorized biography of Apple founder Steve Jobs sets a detailed stage for the privacy vs security debate that the December California terrorist shooting has brought onto center stage within the national security context. By now, it is a matter of technological and intellectual history that Jobs and co-founder Steve Wozniak had fundamental differences on the critical issue of the software architecture to be designed and implemented for their wonderful computing machines.

Jobs favored, and prevailed, on the use of closed-source software for Apple devices, shunning Wozniak's preferred open-source approach; the approach utilized by Microsoft's Bill Gates. Now, as a result of these 1980s macro-planning decisions, Apple products are rarely afflicted with computer viruses like Microsoft products and hardware.

In addition, it turns out that the closed source approach is far superior from a privacy and data integrity standpoint. For example, if someone other than the owner attempts to infiltrate the data -to hack into the data- then the data stored on an Apple device will be destroyed.

This is the problem currently facing the FBI in the California shooting case. They have sought and have been granted injunctive relief from the United States District Court for California's Central District, Eastern Division.

In the introduction to Apple's motion to set aside the injunction, the tech giant's heavy-weight lawyers from Gibson, Dunn & Crutcher state their client's position on the matter:

Apple is committed to data security. Encryption provides Apple with the strongest means available to ensure the safety and privacy of its customers against threats known and unknown. For several years iPhones have featured hardware and software based encryption of their password-protected contents.These protections safeguard the encryption keys contained on the device with a passcode designated by the user during setup. This passcode immediately becomes entangled with the iPhone's Unique ID ["UID"] which is permanently assigned to that one device during the manufacturing process. The iPhone's UID is neither accessible to other parts of the operating system nor known to Apple. These protections are designed to prevent anyone without the passcode from accessing encrypted data on iPhones.

Cyber-attackers intent upon gaining unauthorized access to a device could break a user-created passcode, if given enough chances to guess and the ability to test passwords rapidly by automated means. To prevent such "brute-force" attempts to determine the passcode, iPhones running the iOS 8 or higher include a variety of safeguards. For one, Apple uses a "large iteration count" to slow attempts to access an iPhone, ensuring that it would take years to try all combinations of a six-character alphanumeric passcode. Finally, Apple includes a setting that -if activated- automatically deletes encrypted data after ten consecutive incorrect attempts to enter the passcode. This combination of security features features protects users from attackers or if, for example, the user loses the device.

Apple does not believe the federal government's assurances that it is just this one device; just this one time. Apple knows there will be another time with another one of its devices.

Also, the world's most valuable company is concerned about the precedent this case would set if it is forced by the feds to create software to access a user's private data, even when that user is a murderous terrorist. Apple asserts such an injunction would fundamentally compromise the privacy of its users; an unacceptable scenario for the corporation.

For its part, the USDOJ advanced a traditional and fundamental point: companies -and for that matter, citizens- cannot select which laws it will honor and which it will violate. In addition, they characterize this case as a particularly dangerous one which could lead to more deaths if not aggressively pursued.

A hearing on Apple's motion is currently scheduled for March 22, 2016, in Riverside, CA. Stay tuned for further developments in this important privacy rights case.

Post #526

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