Daily Archives: February 24, 2017

Late last year, Thomas Fox-Brewster of Forbes uncovered a strange search warrant among a pile of unsealed documents. The warrant -- approved by a magistrate judge -- allowed law enforcement officers to demand that everyone present at the searched location provide their fingerprints to unlock devices seized from the same location.

In support of its request, the government cited cases dating back to 1910, as though they had any relevance to the current situation. The most recent case cited was 30 years old -- still far from easily applicable to today's smartphones, which are basically pocket-sized personal data centers.

The judge granted it, stating that demands for fingerprints, passwords, or anything (like encryption keys) that might give law enforcement access to the devices' content did not implicate the Fourth or Fifth Amendments. While the magistrate was correct that no court has found the application of fingerprints to unlock devices to be a violation of the Fifth Amendment, the other access options (passwords, encryption keys) might pose Fifth Amendment problems down the road.

Riana Pfefferkorn has uncovered a similar warrant request, but this one has been rejected by the magistrate judge. Pretty much across the board, the order is the antithesis of the one revealed last year. The judge finds [PDF] that the broad request to force everyone present at the residence to apply their fingerprints to seized devices to unlock them implicates multiple Constitutional amendments.

The issues presented in this warrant application are at the cross section of protections provided by the Fourth and Fifth Amendments. Essentially, the government seeks an order from this Court that would allow agents executing this warrant to force "persons at the Subject Premises" to apply their thumbprints and fingerprints to any Apple electronic device recovered at the premises. (See Attach. B, tT 12.) The request is neither limited to a particular person nor a particular device. And, as noted below, the request is made without any specific facts as to who is involved in the criminal conduct linked to the subject premises, or specific facts as to what particular Apple-branded encrypted device is being employed (if any).

The judge notes the government is able to detain and search persons located at the premises being searched, but that does not extend to forcing every single person in a residence at the time of a search to comply with attempts to unlock seized devices. Because the warrant affidavit contained no particularity about the devices or who in the household the government suspected of engaging in criminal activity, the court can't find anything that justifies the broad, inclusive language contained in the request.

This Court agrees that the context in which fingerprints are taken, and not the fingerprints themselves, can raise concerns under the Fourth Amendment. In the instant case, the government is seeking the authority to seize any individual at the subject premises and force the application of their fingerprints as directed by government agents. Based on the facts presented in the application, the Court does not believe such Fourth Amendment intrusions are justified based on the facts articulated.

The court has other problems with the affidavit -- beyond the government's unwarranted extension of Fourth/Fifth Amendment jurisprudence to cover any devices/fingerprints encountered at a searched location. Early in the order, it notes the government is deploying boilerplate nearly as outdated as its case citiations.

Despite the apparent seriousness of the offenses involved, the Court notes that some of the "boilerplate" background information included in the warrant is a bit dated, such as its explanation that "[t]he internet allows any computer to connect to another computer [so] [e]lectronic contact can be made to millions of computers around the world;" its explanation that a "Blackberry" is a common "Personal Digital Assistant" and its suggestion that the use of "cloud technology" is the exceptional way of transferring files and that transferring images to a computer by directly connecting a cable to a camera or other recording device is the expected means of data transfer.

The judge notes outdated boilerplate isn't enough to undo probable cause assertions, but it certainly doesn't help -- especially not when the government is requesting this sort of broad permission.

The inclusion of this somewhat dated view of technology certainly does not distract from the application's goal of establishing probable cause. However, the dated "boilerplate language" is problematic for what is not included. There is absolutely no discussion of wireless internet service and the possibilities and capabilities that wireless service presents in this context. For example, an unsophisticated intemet user, or a careless one, may fail to properly encrypt his wireless service or may share the password injudiciously. Such practices leave open the possibility that it is not an inhabitant of the subject premises that has used the internet to gather and distribute child pornography, but rather it is a person who has access to the internet service at the subject premises.

Obviously, this possibility holds true in all investigations that track the investigation outlined in the instant application. The limitations of this investigation are not fatal to establishing probable cause, but, in the Court's view, these limitations do impact the ability of the government to seek the extraordinary authority related to compelling individuals to provide their fingerprints to unlock an Apple electronic device.

Then there's the other assertions. The government's application does nothing to narrow down which resident it's seeking or what device(s) might contain evidence of criminal activity. What it does appear to be certain about -- for reasons not included in the application -- is that the devices it seeks are Apple products. A footnote in the order questions this assertion.

Why Apple devices are likely to be found at the premises is not explained. The Court is aware that Apple has a large market share in online hardware, but Microsoft's Windows operating systems continue to dominate the overall market share of operating systems used.

What makes these broad, unsupported assertions even worse, especially when combined with the outdated boilerplate, is that this is apparently the direction the government is heading with its search warrants.

In closing, upon presentation of the warrant application to this Court, the government identified for this Court that the warrant application was seeking the forced fingerprinting discussed herein. The government further noted "[t]his is the language that we are making standard in all of our search warrants." This declaration of standardization is perhaps the crux of the problem. As the Court hopes it is plain from the above, the issues presented here require a fact-intensive inquiry both for purposes of the Fourth Amendment and the Fifth Amendment.

More particularity, better probable cause, and fewer assumptions about the Fourth and Fifth Amendment's application in a post-Riley world are what's needed from the government, according to this order. Even though this application was rejected, it's safe to say this same approach has worked elsewhere. We've seen one approved warrant already and there are likely several more safely hidden from the public eye in the government's multitudinous sealed cases.

What's troubling about the government's assertions in this application is its apparent belief it's found an encryption workaround: one that blows past Fourth and Fifth Amendment concerns using little more than boilerplate that still considers cables to be an essential part of "cloud computing," and magistrate judges willing to buy its outdated legal arguments.

See original here:
Judge Rejects Warrant Seeking To Force Everyone At A Searched ... - Techdirt

This article first appeared on the Verdict site.

Donald Trump may have had a rocky first three weeksin office, but they now look like a blissful honeymoon compared to the fourth one.

Amida flurry of leaks and reports of staff disarray, Trump suffered his first defeat on a Cabinet nomination, withdrawing his choice for labor secretary. He gave up on his appeals in State of Washington v. Trump, leaving the order suspending his travel ban intact.

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Anonymous aides portrayed the nations CEO roaming the White House alone at night in his bathrobe, watching cable news obsessively, and calling his national security adviserMichael Flynnat 3 a.m. to ask whether a strong or weak dollar was better for America. That same retiredLt. Gen. Flynn soon found himself defenestrated from the young administration, ostensibly for misrepresenting his contacts with the Russian ambassador during the transition.

Flynns departure revived long-standing charges that Trumps election was propelled by a Russian intelligence operation. A thorough investigation of these chargeswere the Republican-controlled Congress to permit onecould well implicate key campaign aides as coconspirators, and perhaps reach the president himself. Impeachment began to loom as a distinct (though distant) possibility.

It would normally take a Category 5 hurricane or an alien invasion to move such a story off the front pages, but President Trump may have momentarily succeeded in doing so with his 80-minute press conference. In a performance that seemed to rattle even sympathetic observers, Trump lashed out against the media and his critics with a vehemence that often bordered on incoherence.

MSNBCs Joe Scarborough tweeted that Republicans on the Hill were panicked behind the scenes by Trumps performance. Fox News chief anchor Shepard Smith called Trumps allegations against the media absolutely crazy. CNNanchor Jake Tapper judged his performance unhinged and wild. One unnamed Republican senator texted CNNs John King: He should do this with a therapist, not on live television.

Donald Trump speaks as Vice President Mike Pence looks at the Congress of Tomorrow Republican Member Retreat on January 26 in Philadelphia. Dean Falvy writes that Trumps marathon press conference refocused attention on his mental competence and stability. Critics have never been shy about diagnosing Trump with various psychological conditions, the most popular being narcissistic-personality disorder. But many self-obsessed people are capable of functioning at a high level professionally, as Trump has for much of his life. But the astonishing achievement of reaching the presidency seems to have aggravated Trumps insecurities and grievances, to the point where mental illness has become the elephant in the White House Situation Room. Alex Wong/Getty

While the Russia story isnt going away, Trumps press conference refocused attention on his own mental competence and stability. Critics have never been shy about diagnosing Trump with various psychological conditions, the most popular choice being narcissistic-personality disorder.

But many self-obsessed people are still capable of functioning at a high level professionally, as Donald Trump apparently has for much of his life. But the astonishing achievement of reaching the presidency seems to have aggravated Trumps insecurities and grievances, to the point where mental illness has become the elephant in the Situation Room.

Some mental health professionals have begun to overcome their reticence (and perhaps professional standards) to argue that the grave emotional instability indicated by Mr. Trumps speech and actions makes him incapable of serving safely as president.

Is the president able to distinguish between fact and fantasy? Can he absorb and process complex information? Does he have the capacity to make rational decisions? To many observers of his press conference, the answers were not reassuring.

Can anything be done about it? The answer to that question is not simple either.

The Twenty-fifthAmendment provides a process for the president to declare himself unable to discharge the powers and duties of his office. In that case, the vice president becomes the acting president until the president recovers from his disability.

This is simple enough when the president is aware of an upcoming medical procedure and voluntarily invokes the Twenty-fifth Amendment for a limited period of time, as President Reagan and President George W. Bush did on three separate occasions. But what if the president is so physically or mentally disabledas to be unable to recognize or acknowledge his own disability?

As I discussed in a previous article on Trumps chances of completing his term, Section 4 of the Twenty-fifth Amendment provides an involuntary procedure allowing the vice president and a majority of the Cabinet to notify the leaders of Congress that the president is disabled. In that case, the Vice President shall immediately assume the powers and duties of the office as Acting President.

This assures continuity of government if the president falls victim to a sudden illness. But if the president recoversor disputes the existence of a disability at allhe can attempt to reclaim his office by informing Congress. This will happen automatically, unless the vice president and a majority of the Cabinet provide a further declaration to Congress within four days that the president remains disabled.

If that happens, Congress must convene and make a high-stakes decision: Who is entitled to exercise the powers of the presidency, the president or the vice president?

But the president has a clear advantage in this contest: He will regain his powers unless the House and the Senate each confirm his disability by two-thirds majorities. To put it in the simplest terms, the support of either 34 senators or 145 members of the House would be sufficient to restore power to an allegedly disabled president.

In the case of physical disability, invocation of the Twenty-fifth Amendment is likely to be straightforward. In most cases, an inability to communicate will signal the presidents disability, and the restoration of communication will mark the end of it.

Mental disability is an entirely different kettle of fish. It is not necessary to argue that the president is insane in a legal or clinical sensethe constitutional standard is simply whether he is unable to discharge the powers and duties of the office.

What if a president performs his duties, but does so erratically and irrationally? And if the president loudly insists that he is capable, will the vice president and Cabinet dare invoke the Twenty-fifth Amendment, even if they are privately convinced that he is not?

As long as he retains the loyalty of a substantial minority in either the House or Senate, the president can turn the tables on his scheming lieutenants and reclaim his office. Once restored to his powers, the president can (and certainly would) dismiss the Cabinet members who doubted his capacity.

While the vice president cannot be removed from office, he can be sidelined and humiliated in countless ways until his term is over. And that assumesthe president would not seek even more extreme forms of vengeance.

Under these circumstances, the vice president and Cabinet may fear usingthe Twenty-fifth Amendment to constrain an unbalanced president until his madness has put the nation in serious peril. Is there any way out of this dilemma?

Collecting the required signatures on a declaration of disability from a majority of the Cabinet would be no simple task for Vice President Pence. He would have to do so under the nose of President Trump and his watchful staff.

Pence and his allies would have to act before any sympathetic Cabinet members are dismissed for suspected disloyalty. Any attempt by Pence or the Cabinet to consult with Congress in advance to ensure support would likely blow the secrecy of the operation and leave it dead in the water.

But Congress can act on its own to give Pence and the Cabinet the assurance they need to proceed. For example, Congress could pass a resolution, by a two-thirds vote in each House, urging the invocation of the Twenty-fifth Amendment. This would largely remove the threat that a declaration of disability would be reversed. Pence and the Cabinet could then relieve the president of his duties without much fear that Trump could recapture power within days or weeks.

There are several downsides to this approach, however. The need for prolonged debate in Congress over such a resolution would give President Trump and his supporters an opportunity to take countermeasures. He could threaten members of his party in Congress and extract declarations of fealty from the Cabinet. Individuals suspected of disloyalty could be isolated from the herd and subjected to intense pressure.

Vice President Pence would almost surely have to go on the record as opposing the resolution. This would make it awkward, to say the least, for Pence and the Cabinet to turn around and invoke the Twenty-fifth Amendment after its passage. Even more dangerously, if the resolution failed to gain a two-thirds majority in the Senate orHouse, the Twenty-fifth Amendment would essentially be deactivated as an option. Invoking it wouldnt just be risky for Pence and his cohortsit would border on political suicide.

However, there is a more subtle waythat Congress can choose to smooth the path for a declaration of disability. Individual members of Congress could send private letters to Vice President Pence, giving him confidence of support in the event of a Twenty-fifth Amendment showdown. Such a letter might look something like this:

CONFIDENTIAL

Dear Vice President Pence:

Based on President Trumps public statements and conduct in office, I have grave and increasing concerns about his capacity to perform the duties of the presidency.

If you and a majority of the principal officers of the executive departments determine that President Trump is unable to discharge the powers and duties of his office, I will give substantial weight to that determination in the event that Congress is required to decide the issue in accordance with Section 4 of the Twenty-fifth Amendment to the Constitution.

This letter will remain valid unless and until I revoke it in writing to you. You may disclose the existence of this letter on a confidential basis to members of the Cabinet. You may release it publicly as you see fit in the event that Section 4 of the Twenty-Fifth Amendment is invoked.

Such a letter would respect the separation of powers on two points. First, it would recognize that the vice president and the Cabinet (rather than Congress) must initiate the involuntary disability procedure. Second, by only promising to give substantial weight to their determination, it would preserve the power given to Congress by the Twenty-fifth Amendment to act as a check against usurpation of power by the vice president and the Cabinet.

Most importantly, such an approach would allow members of Congress to remain out of Trumps line of fire until a critical mass has been achieved. At the same time, it would shield Pence and the Cabinet from the impossibly delicate task of lining up support before invoking the Twenty-fifth Amendment.

The vice president, as the presiding officer of the Senate, maintains an office on Capitol Hill. Members of Congress could deliver their confidential letters there, where Pence would store them in a safe until needed, away from the prying eyes of the White House staff. The letters could even be handwritten, in order to avoid leaving digital tracks on congressional computer systems.

Once assured of sufficient support in Congress, especially from its GOP contingent, Vice President Pence would still need to persuade a majority of the Cabinet to support a declaration of presidential disability. This could be a formidable task. But doing so would be much easier with the knowledgeand, if necessary, the proofthat the declaration is very unlikely to be overturned by Congress.

With the outcome of any contested vote in Congress more or less assured, Acting President Pence would also have less to fear from extralegal resistance by President Trump. With little prospect of his powers being restored by legal means, Trump would find it hard to convince loyalists and waverers within the government to risk dismissal or prosecution by obeying his orders instead of Pences.

All this can be done by members of Congress at little risk to themselves. They can avoid taking a public stance on Trumps mental capacity until a critical mass has gathered and Pence has made his move. If, on the other hand, the movementto invoke the Twenty-fifth Amendment fails to gather sufficient steam in Congress, any letters received can quietly remainin Mike Pences care and disposed of at the end of his term.

If Trump resigns, or is impeached and removed from office for some other reason, the effort would become a historical footnote. And if Trump steadies himself in office and somehow dispels doubts about his mental fitness? Well, that would be the biggest surprise yet from a relentlessly astonishing man.

Unless that happens, the Twenty-fifth Amendment will be on the mind of every member of Congresswhether they admit it or notuntil the day Donald Trump relinquishes the presidency. Perhaps they will sleep better at night having placed their trust safely in the vice presidents hands. Whether Mike Pence will sleep well with that knowledge is a question for another day.

Dean Falvy is an attorney with an international business practice. He teaches constitutional law, international business transactions and other subjects at the University of Washington School of Law in Seattle.

Continued here:
How Congress Can Remove an Unstable President - Newsweek - Newsweek