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US Supreme Court suggests jurisdiction-less computer searches
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Apr 29, 2016, 02:03 PM
 
Chief Justice John Roberts, writing on behalf of the Supreme Court, has authorized a rule change that could allow any judge in any jurisdiction to issue a search warrant for the contents of computers -- including mobile devices such as smartphones -- in any other jurisdiction, a move that would certainly result in judge-shopping and widespread search powers for the government and various agencies. The rule change will take effect on December 1 unless acted upon by Congress. Senator Ron Wyden (D-Oregon) has already said he will introduce legislation to undo the change, which could have major implications.

The sole purpose of the rule change appears to be to make it possible for the government to bypass local opposition to requests for search warrants in favor of locating a "friendly" judge that could conceivably issue a single warrant to "search thousands or millions" of computers at a time of any sort -- from an individual's personal devices to the entire server farms of companies like Apple, Google, and Facebook, said Wyden, who noted that most of the searched devices would "belong to the victims, not the perpetrators, of a cybercrime."

The US Department of Justice and other agencies have been pushing for expanded powers to probe digital devices more or less at will, citing both the seeking of evidence in cases as well as for preventing future crimes. Both the DOJ and FBI have been aggressive in attacking the concept of using encryption on personal devices, claiming that companies that offer such privacy protections are "operating above the law," but both have been largely unsuccessful in attempts to weaken or outlaw personal encryption, and have either dropped or been rebuffed in cases where it attempted to use the All Writs Act to compel companies like Apple to decrypt devices.

In the latest twist, a court has recently used the All Writs Act to jail an individual indefinitely who refuses to unlock his FileVault-encrypted hard drives in a potential child pornography case -- though the suspect has not actually been charged with any crime other than defying the judge's order to decrypt. The recent rulings by judges in cases involving Apple bring up constitutional questions largely centered around the Fifth Amendment prohibition against self-incrimination, but the Roberts rule change suggests that even some jurists on the Supreme Court would be willing to gut its protections.

Wyden's opposition to the proposal is echoed by privacy and civil liberties groups like the American Civil Liberties Union, the Electronic Frontier Foundation, and Access Now, who object to the rule change on numerous grounds. The proposal comes just as Congress has -- in a rare show of bipartisan unity -- passed an updated Email Privacy Act, which forces law enforcement to obtain a warrant for any searches of email older than 180 days.
     
just a poster
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Apr 30, 2016, 03:26 PM
 
Generally opposed to this rule, but wonder if there is a legal way for parents to get Apple's or other manufacturer's help to unlock the contents of their children's or other family members' smartphones, or for employers to unlock the contents of their employees smartphone if the smartphone is employer-owned and cellular subscription fees are covered by employer. I think there are cases where this may be important and where the interest of privacy is not the most important concern.
     
Mike Wuerthele
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Apr 30, 2016, 03:54 PM
 
There's a simpler solution for kids: The parents know the device password.

If an enterprise device is properly provisioned, the company can have a password to unlock an iOS or Android device as well.
     
jimoase
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Apr 30, 2016, 04:34 PM
 
Where did the Supreme Court get the power to issue a warrant the does not meet these requirments
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

All starts with these two words "created equal". We the People gave government its powers. We the People lack the ability to take a superior posistion over our neighbors. Therefore we could not give that superior power to any government we create.

What say you?
     
DiabloConQueso
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Apr 30, 2016, 05:50 PM
 
Jimoase, I think you're off your rocker again.

Don't forget that "we, the people," includes 100% of the people who comprise all governments across the USA as well. They're citizens, too. They get a say.

Much of the time in your comments it sounds like you're arguing in favor of a completely powerless government with people sitting around in government buildings doing absolutely nothing.

Also, nothing in this article describes a Supreme Court issuing warrants that fail the test of the 4th Amendment (though they may fail in other regards). That doesn't mean that I'm in favor of the things described in this article; it's just saying that you're using specious and ignorant reasons in opposing it.

"Created equal" is in the Declaration of Independence. The 4th Amendment is in the Constitution. Those are two completely separate and independent documents that serve very different purposes. You need to brush up on your American history.
     
sgs123
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May 1, 2016, 02:07 PM
 
So, is Roberts actually in favor of this or is he ruling that it's legal as the real of a loophole current law unless congress does something to close it? (IIRC, that was the issue with Citizens United -- and, of course, Congress didn't fix the problem)

There seems to be a lot of blaming the Supreme Court for ruling that badly written laws aren't unconstitutional when the authors of the laws and congress should be held accountable for passing them.
     
sgs123
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May 1, 2016, 02:16 PM
 
Also, here's a less nefarious case:

Let's say we have a social media bullying case between 2 next-door neighbors.

Should the judge be able to subpoena the social media posts of the litigants if the servers they're stored on are located in a different jurisdiction?

I'm not (easily) finding a link to the actual opinion or particulars of the case so can't tell what it's really about.
     
DiabloConQueso
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May 1, 2016, 07:02 PM
 
Exactly, sgs123 -- who, precisely, has jurisdiction over data stored in the cloud? What if I commit a crime in Arizona, but the evidence of that crime resides on a server in New York?

This is what this Supreme Court rule concerns.
     
Charles Martin
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May 2, 2016, 02:57 AM
 
DCQ: as we noted in the podcast (appearing on Monday), this was the *intent* of the rule change, probably -- but this implementation is so completely ham-fisted it would pretty much rid the US of the few tattered remains of democracy it has left, and usher in a complete police state.

We're not opposed to the concept of being able to warrant information from the various servers (in the US) in one operation per se (though if that information is on a non-US server, good luck ...), but if you can convince a judge in Arizona you need such a thing, you should be able to convince a judge in each jurisdiction of your need as well, right?
Charles Martin
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sgs123
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May 2, 2016, 08:59 AM
 
Charles, can you provide (a link to) the original rule change and any supporting material?

I'm somewhat allergic to hyperbole so when I hear someone, especially in the press, using inflammatory language like "ham fisted" or your use of quotes around "intent" or "complete police state" without providing any links back to primary source material backing their case, I tend to discount the credibility of the article.

I most likely agree with you, but the combination of sweeping language and lack of any primary source material reduces the credibility of your argument.

You may want to review: https://yourlogicalfallacyis.com

As an exercise, count the logical fallacies in the argument(s) above.
     
Mike Wuerthele
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May 2, 2016, 09:10 AM
 
To be clear on editorial policy around here, comments that staff leave in the forums and discussion in the podcasts are opinions of the staff members who make the comments, and not the opinion of the site, or ownership, itself.

If the site, overall, has an official stance on a subject, we'll do an editorial about it.

Rule 41 as it stands:
https://www.law.cornell.edu/rules/frcrmp/rule_41

Amendments to rule 41:
http://www.supremecourt.gov/orders/c...rcr16_8mad.pdf
     
sgs123
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May 2, 2016, 09:41 AM
 
Mike, thanks -- BTW, both links were broken/mangled somehow -- see if these work:

https://www.law.cornell.edu/rules/frcrmp/rule_41

http://www.supremecourt.gov/orders/courtorders/frcr16_8mad.pdf

(Reading them now)

-Steve
     
Mike Wuerthele
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May 2, 2016, 09:51 AM
 
Now I'm wondering if there's some kind of strange link issue from desktop to mobile or something. The links work fine here.
     
sgs123
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May 2, 2016, 09:59 AM
 
OK, based on the primary source, it appears to be a bit more restricted:

(6) a magistrate judge with authority in any district
where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if:

(A) the district where the media or information is located has been concealed through technological means; or

(B) in an investigation of a violation of 18 U.S.C. ยง 1030(a)(5), the media are protected computers that have been damaged without authorization and are located in five or more districts.

----

I do see where "any district
where activities related to a crime may have occurred" can be abused (and probably always includes the Eastern District Court of Texas or equivalent), but note that (A) or (B) also have to apply.

To save others looking it up, (B) is:
https://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act

It's also worth noting that the rule change also requires (at least attempted) delivery of a copy of the warrant and a receipt for documents seized electronically, although it looks like it goes to the "storage facility" rather than the owner of the information.

HTH,
-Steve
     
sgs123
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May 2, 2016, 11:28 AM
 
Originally Posted by Mike Wuerthele View Post
Now I'm wondering if there's some kind of strange link issue from desktop to mobile or something. The links work fine here.
I'm using desktop Safari and posted from the main article rather than forums.

Looks like the thread's rolled over and new replies are only accessible on forums now. FWIW, the "site" Safari was unable to find was "http" so I suspect a quoting issue with styled text -- mine were in plain.

HTH,

-Steve
     
   
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