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If they’re not suing to stop it, that means it’s likely legal.

by 7e 6y ago

Taniwha 6y ago
well they don't know if it's legal because the FBI wont tell them what they're doing - that's the whole point here. Citizen oversight of government is an important thing in a real democracy, the FOIA is an important part of that. Remember the FBI must not only act legally but also be seen to be acting legally in order to be trusted by the citizens.
- AdamJacobMuller 6y ago
  I'm not sure how the how matters. If the FBI has a warrant to search your phone, does it matter if its unlocked, or if you have 0000 as a PIN or if they identify develop and exploit in AES to do so? Similarly, if the FBI has a warrant to search your home, it doesn't matter if you leave the door unlocked, if they have a locksmith come and pick the lock, or if they break the door down.
  - noxvilleza 6y ago
    This situation is a bit more complex because it's contested (up to 11th circuit court of appeals) that "the decryption and production would be tantamount to testimony by [the suspect] of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files." - and if it's testimony it's covered under 5th Amendment protections. Quite interesting 4-page summary of the topic by the Congressional Research Service from earlier this year: https://crsreports.congress.gov/search/#/?termsToSearch=LSB10416&orderBy=Relevance https://crsreports.congress.gov/search/#/?termsToSearch=LSB1...
    - thaumasiotes 6y ago
      What would be the argument that the FBI's decryption of the files, with the suspect being uninvolved, would amount to an act of testimony by the suspect? If the FBI is doing the decryption itself, the 4th amendment is the relevant one, not the 5th.
    - paul_f 6y ago
      Please correct me, but I don't think this applies if the suspect is un-involved in the decryption process. I think this was meant to prevent a suspect from being forced to give up their passwords.
bawolff 6y ago
IANAL, but naively it seems to me like the method doesn't matter so much in terms of legality, as how they use it. E.g. the fbi knowing how to break into someone's house is fine. Actually breaking into someone's house, less fine without a warrant.
Clubber 6y ago
>If they’re not suing to stop it, that means it’s likely legal. Pre-9/11, I would totally agree with you. The last 20 years, all that is necessary is the law enforcement agency needs a lawyer that has a somewhat convincing argument or technicality that they could argue is legal. Think "enhanced interrogation techniques," which has been argued is not torture, which would be illegal. https://en.wikipedia.org/wiki/Enhanced_interrogation_techniques https://en.wikipedia.org/wiki/Enhanced_interrogation_techniq... It helps if there is a technique that keeps it out of courts altogether, like civil forfeiture which charges the property with a crime and not the person. To get back property, the owner must prove their innocence rather than the state proving their guilt. https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United_States https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United...
- HenryBemis 6y ago
  Quis custodiet ipsos custodes? 9-11 taught us many things. One of which was that we don't need to crack all encryption on the planet. The "suspects" who did this were exactly that. Previously been identified as potential baddies, with the intent to do bad things. Authorities knew them/about them. Authorities failed to track/monitor/<other verbs> them, and 9-11 happened (and it was a horrible horrible event). Now, for the solution. Get authorities to get their shit straight, remove their heads from their asses, operate properly. The solution that "if nothing is a secret we would have prevented that".. imho doesn't stand. One shouldn't go about messing up with EVERYONE's privacy (and defined rights) because 100/1000 people in the world are baddies. The world shouldn't create next one Stasi in every country because of 9-11 or Bataclan or London Bridge. And lack of transparency is a pure characteristic of a "Stasi". Anyone with power, funding, combined with no transparency or accountability will become a dictator in their own domain. Humanity is not yet mature 'enough' ('enough' varies - eye of the beholder thingie)(btw this is not a threat, it's dissapointment/acceptance).
  - Clubber 6y ago
    >Quis custodiet ipsos custodes It's supposed to be us via the people who represent us in the government. The news is supposed to inform us of what the government is doing that they don't want us to know. That's how the system is supposed to work and was designed. That entire system has broken down or been coopted by the very people we are supposed to be watching at multiple levels.

If they’re not suing to stop it, that means it’s likely legal.

by 7e 6y ago

If they’re not suing to stop it, that means it’s likely legal.

well they don't know if it's legal because the FBI wont tell them what they're doing - that's the whole point here. Citizen oversight of government is an important thing in a real democracy, the FOIA is an important part of that. Remember the FBI must not only act legally but also be seen to be acting legally in order to be trusted by the citizens.

AdamJacobMuller 6y ago
I'm not sure how the how matters. If the FBI has a warrant to search your phone, does it matter if its unlocked, or if you have 0000 as a PIN or if they identify develop and exploit in AES to do so? Similarly, if the FBI has a warrant to search your home, it doesn't matter if you leave the door unlocked, if they have a locksmith come and pick the lock, or if they break the door down.
- noxvilleza 6y ago
  This situation is a bit more complex because it's contested (up to 11th circuit court of appeals) that "the decryption and production would be tantamount to testimony by [the suspect] of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files." - and if it's testimony it's covered under 5th Amendment protections. Quite interesting 4-page summary of the topic by the Congressional Research Service from earlier this year: https://crsreports.congress.gov/search/#/?termsToSearch=LSB10416&orderBy=Relevance https://crsreports.congress.gov/search/#/?termsToSearch=LSB1...
  - thaumasiotes 6y ago
    What would be the argument that the FBI's decryption of the files, with the suspect being uninvolved, would amount to an act of testimony by the suspect? If the FBI is doing the decryption itself, the 4th amendment is the relevant one, not the 5th.
  - paul_f 6y ago
    Please correct me, but I don't think this applies if the suspect is un-involved in the decryption process. I think this was meant to prevent a suspect from being forced to give up their passwords.

bawolff 6y ago

IANAL, but naively it seems to me like the method doesn't matter so much in terms of legality, as how they use it. E.g. the fbi knowing how to break into someone's house is fine. Actually breaking into someone's house, less fine without a warrant.

Clubber 6y ago

>If they’re not suing to stop it, that means it’s likely legal. Pre-9/11, I would totally agree with you. The last 20 years, all that is necessary is the law enforcement agency needs a lawyer that has a somewhat convincing argument or technicality that they could argue is legal. Think "enhanced interrogation techniques," which has been argued is not torture, which would be illegal. https://en.wikipedia.org/wiki/Enhanced_interrogation_techniques https://en.wikipedia.org/wiki/Enhanced_interrogation_techniq... It helps if there is a technique that keeps it out of courts altogether, like civil forfeiture which charges the property with a crime and not the person. To get back property, the owner must prove their innocence rather than the state proving their guilt. https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United_States https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United...

HenryBemis 6y ago
Quis custodiet ipsos custodes? 9-11 taught us many things. One of which was that we don't need to crack all encryption on the planet. The "suspects" who did this were exactly that. Previously been identified as potential baddies, with the intent to do bad things. Authorities knew them/about them. Authorities failed to track/monitor/<other verbs> them, and 9-11 happened (and it was a horrible horrible event). Now, for the solution. Get authorities to get their shit straight, remove their heads from their asses, operate properly. The solution that "if nothing is a secret we would have prevented that".. imho doesn't stand. One shouldn't go about messing up with EVERYONE's privacy (and defined rights) because 100/1000 people in the world are baddies. The world shouldn't create next one Stasi in every country because of 9-11 or Bataclan or London Bridge. And lack of transparency is a pure characteristic of a "Stasi". Anyone with power, funding, combined with no transparency or accountability will become a dictator in their own domain. Humanity is not yet mature 'enough' ('enough' varies - eye of the beholder thingie)(btw this is not a threat, it's dissapointment/acceptance).
- Clubber 6y ago
  >Quis custodiet ipsos custodes It's supposed to be us via the people who represent us in the government. The news is supposed to inform us of what the government is doing that they don't want us to know. That's how the system is supposed to work and was designed. That entire system has broken down or been coopted by the very people we are supposed to be watching at multiple levels.