"Where there is no vision, the people perish: but he that keepeth the law, happy is he."
-- Proverbs 29:18, King James Bible (KJV)

Friday, February 26, 2016

Flawed Defense Logic in the Apple-FBI Phone Unlock Case Using the Analogy of Safe Deposit Boxes

A locked phone is directly comparable to a bank safe deposit box in a vault, except that in the former case the "key" is electronic and in the latter case the "key" is physical.

In the case of a safe deposit box, entry to the locked inner vault as well as to the user's safe deposit box is protected by pairs of keys -- the bank has one key and the depositor has the other key. Neither the inner vault nor the safe deposit box can be opened unless both pairs of keys are turned at the same time.

In the case of a locked phone, entry to various phone levels can be protected by encryption and passwords, which function as electronic keys, i.e. they are "keys" just as in the case of bank safe deposit boxes in vaults.

The phone has one key -- i.e. it contains stored the key required to unlock the phone -- and the user has the other key, i.e. the password to be entered to match the one recorded on the phone. When there is a match of keys, the phone can be unlocked, just as the vault and safe deposit box can be opened.

In law, there is absolutely no question -- and it is a settled legal matter -- that bank safe deposit boxes can be forced to be opened via a search warrant, even if it involves the use of "brute force", i.e. "boring" the box. Failure of a bank to abide by a court order or informing the depositor of the search prior to its making could result in the banker being put in jail for obstruction of justice. See, for example, Search Warrants - American Safe Deposit Services.

The argument is therefore flawed that there is or should be a legal difference between a physical bank safe deposit box and a physical locked phone that one has probable cause to believe contains evidence of a crime. The only real difference between the two is that the key in one case is a physical key and in the other case the key is an electronic key consisting of "characters" (which nevertheless must be "physically" received by the phone to be operational).

Modern bank vaults, safe deposit boxes or digital vaults that operate on the basis of electronic passwords rather than old-fashioned physical keys do not therefore somehow become less searchable by law enforcement agencies than they were under preceding non-digital technology.

Quite the contrary, most banks have a policy not to issue safe deposit boxes to known criminals. That is an added screening protection of the public.

In the case of smartphones, the phones are sold to anyone, and there is no prior screening protection of the public at all.

In other words, the case for legally permitting the unimpeded search of smartphones via a search warrant is greater than in the case of bank safe deposit boxes, where an initial screening is conducted, not so with phones.

Forcing a bank via a search warrant to open its vaults and to permit "brute force" opening of safe deposit boxes is no different legally than forcing the unlocking a smartphone. In both cases, more may be found in either the safe deposit box or on the phone than is covered by the search warrant, because vaults and phones are ubiquitous in their facility for containing things, and can and do contain many things. This is not the fault of law enforcement.

The argument that forcing a phone-maker to unlock a phone is a violation of free speech is equally flawed. The settled law is that a banker can not implement "NO" if the search warrant to open a safe deposit box says he must implement "YES". That is not an issue of free speech. The banker can SAY what he wants. The banker, however, must DO what is required to open the vaults and safe deposit boxes of his bank if the court-ordered search warrant requires it.

The same is true for digital vaults in whatever shape or form, including encrypted materials protected by passwords on phones. Company executives are free to SAY whatever their opinion may be about the law -- that is free speech, but they must DO what the court order tells them to unlock phones that have been locked by technology they have devised and which otherwise commit the crime of the obstruction of justice by intentionally hiding and/or destroying evidence according to the so-intended design of the phone-maker.

President Barack Obama Writes a Guest Posting About the Impending Supreme Court Justice Nomination at the SCOTUSblog : Where Can A Nominee With Those Qualifications be Found?

We live in a world of many divergent paths and opinions.

President Barack Obama has written a guest posting at the SCOTUSblog
(SCOTUS stands for Supreme Court of the United States)
under the title,
A Responsibility I Take Seriously.

Given the current battle lines drawn by the obstructing and divergent Senate Judiciary Committee as being unprepared to even hold hearings on ANY new Supreme Court nomination during President Obama's remaining term as President of the United States, it will be quite interesting to see who the nominee will be.

There is a mile of difference between qualifications that President Obama lists in his guest posting for the prospective nominee and the political maelstrom that the nominee will be thrown into once the nomination is made.

President Obama appears to be seeking a benevolent more-or-less liberal soul, but what he needs to nominate is a legal field marshal.

You cannot just throw a normal federal judge or a young U.S. Attorney General to a den of wolves, a political reality which reduces any possible "short list" to maybe one or two persons, not more, and we can think of only one.

The person nominated must be ABOVE the crowd, and must -- in the eyes of the world -- stand ABOVE the political obstructionists.

We are convinced that the only truly brilliant nomination at the present time would be Richard A. Posner, because it would give President Obama the upper hand, an upper hand which would remain intact during his last year as U.S. President, regardless of what the Senate Judiciary Committee did or did not do, and regardless of whether the Senate confirmed Posner or not, or when.

Posner stands ABOVE the Senate, clearly, in terms of his "legal standing". He is a nominee to respect, both by liberal and conservative elements, because he is a judge's judge, the way a judge should be, but seldom is.

All the other prospective candidates that are discussed, e.g. by Tom Goldstein at SCOTUSblog in How the politics of the next nomination will play out, would be caught in a political war for which none of them seems prepared, nor do they have the requisite legal RANK to emerge unscathed. We do not think that any of them has the clout to move the present stalemate one inch.

After all, the prospective candidates are mostly judges, not field marshals.

But a juridical field marshal may well be required to win this particular political war.

Only Richard A. Posner fits that bill, as the most cited jurist of all time -- a real legal field marshal, self-admittedly a political conservative, and yet not a man of judicial dogma, but rather, of common sense, who can be difficult to predict, because he applies the LAW, as a judge should do. Any nomination of a lesser-ranking person, must, by definition, be regarded as a "political" nomination, in which case the political stalemate will not be lifted.

Posner has just published a new book which is well worth a read in terms of understanding the demands faced by modern judges. See Richard A. Posner, Divergent Paths: The Academy and the Judiciary, published this January, 2016 by Harvard University Press, to which this abstract summary is found at the Harvard University Press site:
"Judges and legal scholars talk past one another, if they have any conversation at all. Academics couch their criticisms of judicial decisions in theoretical terms, which leads many judges—at the risk of intellectual stagnation—to dismiss most academic discourse as opaque and divorced from reality. In Divergent Paths, Richard Posner turns his attention to this widening gap within the legal profession, reflecting on its causes and consequences and asking what can be done to close or at least narrow it.

The shortcomings of academic legal analysis are real, but they cannot disguise the fact that the modern judiciary has several serious deficiencies that academic research and teaching could help to solve or alleviate. In U.S. federal courts, which is the focus of Posner’s analysis of the judicial path, judges confront ever more difficult cases, many involving complex and arcane scientific and technological distinctions, yet continue to be wedded to legal traditions sometimes centuries old. Posner asks how legal education can be made less theory-driven and more compatible with the present and future demands of judging and lawyering.

Law schools, he points out, have great potential to promote much-needed improvements in the judiciary, but doing so will require significant changes in curriculum, hiring policy, and methods of educating future judges. If law schools start to focus more on practical problems facing the American legal system rather than on debating its theoretical failures, the gulf separating the academy and the judiciary will narrow."
P.S. This is not a paid ad regarding the above book but rather the opinion of the writer of this posting. We do not know Judge Posner personally and there is no guarantee at all if we would even like him if we met him, but that is not the point. What is required now is to find the best man PROFESSIONALLY for the job, and he appears to be it. We posted about this topic previously at: