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.

Post #532

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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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Full disclosure, this blogger has an immediate family member that works for Apple and this blogger owns stock in the high-profile global company. That said, the show-down between the U.S. Department of Justice and Apple is so timely and important, with such critical privacy implications for users of devices connected to the Internet, we are compelled to blog on this topic.

This case [officially referred to on PACER as "In the matter of the search of an Apple iPhone seized during the execution of a search warrant on a black Lexus IS300 California license plate 35KGD203"] could be the perfect storm to allow the federal courts and ultimately the SCOTUS, to address and attempt to resolve the building tensions between the cyber-privacy of Internet-using citizens and the government's interest in maintaining national security in the terrorist era.

The San Bernardino shooting case in December has now brought these tensions from an esoteric philosophical discussion, to an actual terrorist investigation involving several deaths and one specific iPhone. In the ensuring federal investigation, the shooter's county-issued iPhone 5 device was recovered from his Lexus vehicle shortly after he was shot dead by law enforcement officers.

Due to the genius encryption and design of the recovered phone, the FBI techs cannot access the data contained on the phone; Apple is believed to have the capability to "unlock" the phone; a device it manufactured.

Federal magistrate judge Sheri Pym issued an order in the case stating:

1. Apple shall assist in enabling the search of a cellular telephone [make, model and serial number], (the "SUBJECT DEVICE"), pursuant to a warrant of this Court by providing reasonable technical assistance to assist law enforcement agents in obtaining access to the data on the SUBJECT DEVICE.
2. Apple's reasonable technical assistance shall accomplish the following three important functions: (1) it will bypass or disable the auto-erase function whether or not it has been enabled; (2) it will enable the FBI to submit passcodes to the SUBJECT DEVICE for testing electronically the physical device port, Bluetooth, Wi-Fi, or other protocol available on the SUBJECT DEVICE; and (3) it will ensure that when the FBI submits passcodes to the SUBJECT DEVICE, software running on the device will not purposely introduce any additional delay between the passcode attempts beyond what is incurred by Apple hardware.
3. Apple's reasonable technical assistance may include, but is not limited to: providing the FBI with a signed iPhone Software file, recovery bundle, or other Software Image File ("SIF") that can be loaded onto the SUBJECT DEVICE. The SIF will load and run from Random Access Memory ("RAM") and will not modify the iOS on the actual phone, the user data partition or system partition on the device's flash memory. The SIF will be coded by Apple with a unique identifier of the phone so that the SIF would only load and execute on the SUBJECT DEVICE. The SIF will be loaded via Device Firmware Upgrade ("DFU") mode, recovery mode, or other applicable mode available to the FBI. Once active on the SUBJECT DEVICE, the SIF will accomplish the three functions specified in paragraph 2. The SIF will be loaded on the SUBJECT DEVICE at either a government facility, or alternatively, at an Apple facility; if the latter, Apple shall provide the government with remote access to the SUBJECT DEVICE through a computer allowing the government to conduct passcode recovery analysis.
4. If Apple believes it can accomplish the three functions stated above in paragraph 2, as well as the functionality set forth in paragraph 3, using an alternate technological means from that recommended by the government, and the government concurs, Apple may comply with this order in that way.
5. Apple shall advise the government of the reasonable cost of providing this service. 
6. Although Apple shall make reasonable efforts to maintain the integrity of data on the SUBJECT DEVICE, Apple shall not be required to maintain copies of any user data as a result of the assistance ordered herein. All evidence preservation shall remain the responsibility of law enforcement agents.
7. To the extent that Apple believes that compliance with this order would be unreasonably burdensome, it may make an application to this Court for relief within 5-business days of receipt of the Order.

Of course, Apple is hating both the spirit and the letter of the above court order. For its part, the world's most valuable company issued a statement to its customers via CEO Tim Cook, warning of the dangerous precedent the above order created in terms of circumventing Apple's significant user security features.

Cook also highlighted the potential privacy breaches that could flow from the precedent set in this case, including having the government force Apple to develop surveillance software programs that could: intercept private messages; access medical records and personal financial data; track a user's location; and co-opt a user's private photos and other data stored on a device.

We here at the Law Blogger expect Apple's lawyers to file an objection to the Court's order tomorrow or Monday latest. Then its on the the United States Court of Appeals for the Ninth Circuit in San Francisco for appellate resolution; if the case is fast-tracked, an opinion could be issued by the intermediate appellate court by April or May.

Depending on the rulings and given that the legal positions taken by the parties seem entrenched, the case could potentially be briefed and argued at the SCOTUS during its next term.

Meanwhile, the investigation remains stalled for months and any useful data stored in the recovered device is frozen and of no value to law enforcement and homeland security. Plenty of time for the bad guys, if there were any beyond the shooters, to get away.

Understandably, this irks a great many people; even those who value their own privacy. For our part, we will monitor this potentially seminal case and report all significant developments.

Post #525

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Not a gang, just family.

The good news from Cincinnati is that Juggalos are not gang members. Whew; now I can get a good night sleep.

Juggalos are followers of the Farmington Hills-originated rap duo, Insane Clown Posse. Think: hard-core, off-color drug-addled rap version of Jimmy Buffet's "parrotheads".

The band and its followers are making headlines again from a lawsuit that is grinding along in the federal court system. A small group of Juggalos appealed the dismissal of their federal civil rights lawsuit and the United States Sixth Circuit Court of Appeals reversed the dismissal and remanded the case back to Detroit for further proceedings.

The beef arose in 2011 when a much-publicized FBI report characterized Juggalos as a loosely-organized hybrid gang; whatever that means. The Sixth Circuit's opinion states that, "Juggalos are easily spotted because they display, on person or property, insignia representative of the band."  [Yes, in fact, they do  r-e-p-r-e-s-e-n-t, and the "insignia" most commonly displayed is a crazy man running with a hatchet, pictured above.]

The rap group's devotees cried foul in the wake of the FBI report, claiming their civil liberties were impinged through such heavy-handed law enforcement tactics. Juggalos are not a gang, they proclaim, just one big happy sloppy family.

The Sixth Circuit's opinion details the specific transgressions claimed by each of the six plaintiffs, two of whom claim their ICP-themed tattoos caused them grief with the U.S. Army because of their perceived association with a gang on the "government gang list."  Accordingly, plaintiffs claim violations to their First and Fifth Amendment rights under the United States Constitution.

In reversing the federal court in Detroit, the Sixth Circuit held that Juggalos did have proper standing to sue in the federal court under the Administrative Procedure Act and the Declaratory Judgment Act. The appellate ruling, however, also directed the lower court to now consider the governments claim-based motion to dismiss the case.

So this litigation will be around for awhile. If you are a Juggalo, it certainly does not hurt to have Michigan's largest law firm, Miller Canfield, representing your interests along with the ACLU.

Nevertheless, Juggalos beware. This was merely a [small] procedural victory. For his part, the local cop on the beat will always view you a part of a crime gang.

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Detroit's Insane Clown Posse

Juggalos: those zombie-like fans/groupies/followers devoted to the aging Detroit-based rap duo Insane Clown Posse.  Like them or not, ICP has a long tortured history, having been hatched in Detroit's service drive music scene back in 1987; an eternity in the music world.

According to Wikipedia:

The group is composed of Joseph Bruce and Joseph Utsler, who perform under the respective personas of the "wicked clowns" Violent J  and  Shaggy 2 Dope.  Insane Clown Posse performs a style of hardcore hip-hop known as horrorcore and is known for its elaborate live performances.  The duo has earned two platinum and five gold albums.  

The songs of Insane Clown Posse center thematically on the mythology of the Dark Carnival, a metaphoric limbo in which the lives of the dead are judged by one of several entities.  The Dark Carnival is elaborated through a series of stories called Joker's Cards, each of which offers a specific lesson designed to change the "evil ways" of listeners before "the end consumes us all."

Thus is the stage set for hordes of Juggalos.  With the band's history of assault convictions in the late 1990s, every concert retains its recipe for a suburban cult disaster.  And guess what, although the band-mates deny it, there have been incidents of violence, drugs and exhibitionism at many ICP concerts; law enforcement is on to "them".

Yet not all Juggalos are committing crimes at concerts.  And not all Juggalos are bad; misunderstood and perhaps sorely misguided, but not all law breakers.  So over here at the Law Blogger, what we're wondering is whether such extreme yet collective bad taste should be criminalized?

Some time ago, the FBI glommed onto this game for bored suburbanites.  Back in 2011, the FBI's National Gang Intelligence Center designated "Juggalos" as a "loosely organized hybrid criminal gang."  In and around the 313, law enforcement has been on the lookout for Juggalo types, especially at ICP concert venues like the Royal Oak Music Theater.

Juggalos have been harassed, and the band has suffered; now they've stuck back.  The ACLU Detroit has filed a lawsuit in federal court on behalf of the fan base, seeking injunctive relief, i.e. the removal of Juggalos from the FBI gang squad's list of the infamous, and destruction of all Juggalo files and documentation: especially the photos, recording what has to be a rogues gallery of self-deprecation, if not self-mutilation.

After all, criminalizing bad taste is, in the words of the ACLU lawyer assigned to the case, "un-American".  If the First Amendment and its long tortured history means anything to the federal judge assigned to the case, this will be an ACLU victory.

Update:  Here is an update from the Detroit News in April 2014, with the ICP trying to change its image.

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Like the "war on drugs", there has been much federal focus on eradicating those ubiquitous illegal gaming sites.  Yesterday, the feds moved against the owners of two of the biggest sites on the web.

Indictments were unsealed by the U.S. Attorney in Manhattan against the owners of PokerStars and Full Tilt Poker.  The feds have seized all their holdings in the United States.

You may recall that back in 2006, Congress passed the Unlawful Internet Gambling Enforcement Act, an anti-gaming law prohibiting banks from processing winnings from internet gambling sites.  PokerStars and Full Tilt Poker, among other sites, developed ways around the law, disguising gamblers' payments as sales for jewlery, flowers and other goods.

The U.S. Attorney alleges the schemes amount to bank fraud and money laundering.  The case is complicated by the foreign residence of the primary defendants.  Two of the gambling sites, for example, are located in Ireland.

At least 3 arrests were made, however, in Las Vegas and Utah, while the FBI coordinates with Interpol to secure nearly a dozen other named defendants.

The Internet domains of the main sites have been seized by the FBI with a notice posted on the home pages warning would-be Internet gamblers of possible crimes they could be committing under the United States Code.  Approximately 15-million Americans visit gambling sites on any given day.

Well, looks like this could be the end of Internet gambling in the U.S.

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