clamorem et uthesium 2.0. Apple and the FBI. Should we care?

The "hue and cry." I first wrote about it in Chapter 4 of my 1998 graduate Thesis. The privacy vs law enforcement issue of interest to me at the time was the 4th Amendment implications of illicit drug use -- i.e., is not a suspicionless drug test (e.g., in employment or in the schools) in effect a warrantless search for contraband, one conducted extrajudicially via private sector proxy?

We have all heard the phrase “hue and cry,” which most simply take to mean social clamor or indignant uproar over some public controversy. And, if ever there were a widespread, sustained, and vociferous modern “hue and cry,” the concern over and campaign against drug abuse ranks at the top, with many polls reporting sentiment ranking “drug abuse” as our number one social problem and “domestic threat.” A core question examined by this thesis is whether the “threats” posed by recreational intoxication and “addiction” are sufficiently grave as to overwhelm our law enforcement infrastructure and consequently justify abrogation of the privacy provisions of the Constitution through suspicionless drug testing programs. What of this contemporary “hue and cry” from a historico-jurisprudential perspective?

According to William J. Cuddihy’s exhaustive 1990 Claremont College Ph.D. Dissertation Origins and Original Meaning of the Fourth Amendment (cited by Justice O’Conner in Vernonia v. Acton et ux) “hue and cry,” was much more than a mere colloquial expression in the European middle ages from which we trace our American jurisprudential heritage—it was a legal term of art, one we today would equate with vigilante mob “justice” and/or deputization of the private sector for the suppression and/or punishment of wrongdoing. The 1950’s “b-movie” image of angry villagers—pitchforks, clubs, axes, and torches held high—marching en masse on Baron Frankenstein’s castle to mete out a bit of harsh summary justice comes readily to mind. Such is indeed historically accurate; formally announcing a “Hue and Cry” obligated one’s fellow citizens to participate in the ensuing unbridled pursuit and searches of suspects. Cuddihy finds the earliest official references to Hue and Cry—clamorem et uthesium—in 13th century European legal documents.

Cuddihy’s work traces the development of social norms and codified legal restraints against excessive search and seizure doctrines from ancient times through the period of the American Revolution. He recounts in minute detail the evolution of practices involving civilian-led or assisted Hue and Cry episodes into general warrantless searches conducted by formal authority, codifications of unencumbered “general warrants,” and, finally, the English and colonial applications of “General Writs of Assistance”—which were in effect Hue and Cry gussied up in Parliamentary statute, the intent of which was the augmentation of the relatively meager resources of officialdom with the enforced assistance of the private sector...

"Cuddihy finds the earliest official references to Hue and Cry—clamorem et uthesium—in 13th century European legal documents."

Yeah. In short, forced ad hoc deputization of the citizenry/private sector by authority. Specifically,

The 1285 English Statute of Winchester.

1. Forasmuch as from day to day, robberies, murders, and arsons be more often used than they have been heretofore, and felons cannot be attained by the oath of jurors which had rather suffer felonies done to strangers to pass without pain, than to indite the offenders of whom great part be people of the same country, or at least if the offenders be of another country the receivers be of places near; and they do the same because an oath is not put unto jurors; nor upon the country where such felonies were done as to the restitution of damages, hitherto no pain hath been limited for their concealment and laches; our lord the king, for to abate the power of felons, hath established a pain in this case, so that from henceforth, for fear of the pain more than for fear of any oath, they shall not spare any nor conceal any felonies; and doth command that cries be solemnly made in all counties, hundreds, markets, fairs, and all other places where great resort of people is, so that none shall excuse himself by ignorance, that from henceforth every country be so well kept that immediately upon such robberies and felonies committed fresh suits shall be made from town to town and from country to country.

2. Likewise when need requires, inquests shall be made in towns by him that is lord of the town, and after in the hundred and in the franchise and in the country, and sometimes in two, three, or four counties, in case when felonies shall be committed in the marches of shires, so that the offenders may be attained. And if the country will not answer for such manner of offenders, the pain shall be such, that every country, that is to wit, the people dwelling in the country, shall be answerable for the robberies done and also the damages: so that the whole hundred where the robbery shall be done, with the franchises being within the precinct of the same hundred, shall be answerable for the robberies done. And if the robbery be done in the division of two hundreds, both the hundreds and the franchises within them shall be answerable; and after that the felony or robbery is done, the country shall have no longer space than forty days, within which forty days it shall behoove them to agree for the robbery or offense, or else that they will answer for the bodies of the offenders...

6. And further it is commanded that every man have in his house harness for to to keep the peace after the ancient assize; that is to say, every man between fifteen years of age and sixty years, shall be assessed and sworn to armor according to the quantity of their lands and goods ... And from henceforth let the sheriffs take good heed, and bailiffs within franchises and without, greater or lesser, that have any bailiwick or forestry in fee or otherwise, that they shall follow the cry with the country, as they are able, having horses and armor so to do; and if there be any that do not, the defaults shall be presented by the constables to the justices assigned, and after them to the king; and the king will provide remedy as before is said...

"General Writs of Assistance"

Some 500 years after the enactment of the Statute of Winchester, forced enlistment of the private sector in adjunct pursuit of criminality had morphed and congealed into the Crown's widely hated "General Warrants and Writs of Assistance." Again, from my Thesis:

...According to Cuddihy and other historians, it was the reviled General Writs and the abuses they permitted in the colonies that were among the primary causes of the American Revolution. For example, as recounted by O.M. Dickerson in Writs of Assistance as a Cause of the Revolution, 
“[W]rits of Assistance were legalized by a series of acts of Parliament giving the customs officers authority to search for and seize uncustomed goods.” Dickerson cites pertinent provisions of the 1664 Act, (13 and 14 Car. II, c. 11, cl. 5):

And it shall be lawful to or for any person or persons, authorized by writs of assistance under the Seal of His Majesty’s court of exchequer, to take a constable, headborough, or other public officer inhabiting near the place, and in the daytime to enter, and go into any house, shop, cellar, warehouse, room, or other place and in case of resistance break open doors, chests, trunks, and other packages, there to seize, and from thence to bring, any kind of goods or merchandize, whatever, prohibited, and uncustomed... (O.M. Dickerson, Writs of Assistance as a Cause of the Revolution, The Era of the American Revolution, Morris, R., Ed. NY, Columbia University Press, 1939, pp. 43-44).

General enlistment of the private sector in the unfettered search for whatever prohibited goods the government thought it exigent to suppress. Greenhalgh and Yost note that, by the 1750’s

...the English believed that common law search warrants were insufficient to curb smuggling. The requirement of articulating the specific location of the contraband before a justice of the peace or magistrate made it difficult for the government to obtain a common law search warrant. The Writ of Assistance, however, had proved itself to be a more effective enforcement tool. By 1760, its use in the colonies had become commonplace. The Writ of Assistance commanded “all” persons to assist an official, when requested, in conducting a search and seizing persons and/or property...The writs were issued without prior judicial screening. Their use was not limited to searching places for particular persons or objects. The writs granted boundless discretion to the officer. (see Greenhalgh, William J. & Yost, Mark J., In Defense of the “Per Se” Rule: Justice Stewart’s struggle to preserve the Fourth Amendment’s warrant clause, American Criminal Law Review, Vol. 31, No. 4, Summer 1994, pp. 1031 - 1040.)

As Cuddihy makes incontrovertibly clear in the more than 1,200 pages of his dissertation devoted to the 18th century colonial political and legal conditions, revolution, and codification of the Bill of Rights, it was the explicit intent of the victorious American revolutionists who framed our Constitution to enshrine in our Bill of Rights a clear condemnation and prohibition of arbitrary and excessive searches that had for centuries taken place under color of the Hue and Cry.

Eighteen years after I finished my grad thesis, "terrorism" issues have long since replaced drug abuse as "our number one social problem and 'domestic threat'." See, e.g., my July 2008 post Privacy and the 4th Amendment amid the "War on Terror"

"Today, beyond the potential for renewed domestic political surveillance (arguably in violation of the First Amendment as well as the 4th; see below), we see the post-9/11 "War on Terror" bandied about as justification for blurring the lines with respect to "ordinary" law enforcement, weakening or even eliminating Due Process constraints that have long been fundamental to our constitutional system..."

See also my subsequent post "Clapp Trap."

Thesis Chapter 5:

Some regard privacy as an inseparable aspect of personal autonomy requisite for the very notion of liberty we ostensibly revere as a cardinal element our social and legal order. Critics, on the other hand, either dismiss the notion of a general right to privacy out of hand, or assert that it is a relatively recent, weak, and “derivative” declaration, one inherently inimical to and necessarily deferential to society’s “right-to-know” in the interest of commercial efficiency, public safety, and criminal prosecution. Those holding this latter position view the quest for privacy as a reaction to increasing urbanization and advances in information processing technologies, that the inhabitants of earlier eras and non-industrial cultures had and have little concern with our notions of “privacy.” Critics of the former persuasion who disavow the very notion of a general right to privacy under federal law find the concept adequately accounted for principally in terms of property rights. Libertarian advocate Murray N. Rothbard, for example, argues in The Ethics of Liberty that “there is no such thing as a right to privacy except the right to protect one’s property from invasion.” Rothbard holds that what some regard as an invasion of privacy is more correctly seen as a misappropriation of property, “not some vague and woolly invasion of a “right to privacy.”

I've also had a recurrent run at some of the privacy issues pertaining to our current digital age on this blog as well. See. e.g., The old internet of data, the new internet of things and "Big Data," and the evolving internet of YOU, and Health IT, the data, the dx, the dogs of uncertainty, and the miners' dig that is your digital life.

Misappropriation of property, “not some vague and woolly invasion of a “right to privacy.”

OK, some facts are not in dispute in this Apple-vs-FBI dustup in the wake of the San Bernardino terror attack. The authorities have valid warrants. They have the authority to "break down the door" to the iPhone by any technical means at their disposal and examine its contents without any 4th Amendment violation (interestingly, it was not even the property of the dead attacker; it belonged to his public agency employer).

The salient question is this: Having requested Apple's voluntary assistance and having been rebuffed on broad "slippery slope" customer data privacy/security grounds, does the federal government have the subsequent power, via a "national security" argument (in apparent contravention of the 4th Amendment), to essentially issue a 'Writ of Assistance" (via the judiciary)?

Interesting "property" aside. I pulled this off my iPhone, from the "Legal/TOS" stuff:

General.
(a) The software (including Boot ROM code, embedded software and third party software), documentation, interfaces, content, fonts and any data that came with your iOS Device (“Original iOS Software”), as may be updated or replaced by feature enhancements, software updates or system restore software provided by Apple (“iOS Software Updates”), whether in read only memory, on any other media or in any other form (the Original iOS Software and iOS Software Updates are collectively referred to as the “iOS Software”) are licensed, not sold, to you by Apple Inc. (“Apple”) for use only under the terms of this License. Apple and its licensors retain ownership of the iOS Software itself and reserve all rights not expressly granted to you. You agree that the terms of this License will apply to any Apple-branded app that may be pre-installed on your iOS Device, unless such app is accompanied by a separate license, in which case you agree that the terms of that license will govern your use of that app...

Absent the IOS software, an iPhone is just a useless, worthless bunch of metal and plastic made-in-a-Chinese-sweatshop junk. The actual "tangible" property of foundational investigatory interest, then, (beyond any recoverable user data) is the Apple IOS itself, not the dead terrorist's (employer's) hardware. The very functional utility of the product, in the end, is inseparably, materially intertwined with the IOS.

And, Apple owns that, not the end-user. Why not issue a warrant to examine that piece of "private property" (the IOS source code) directly?

It appears that the larger "Writ" constitutionality issue has for now been dodged (as of March 28th).

Apple's San Bernardino fight is officially over as government confirms working attack

After months of work, the FBI finally has a way into the San Bernardino iPhone. In a court filing today, prosecutors told the court the new method for breaking into the phone is sound, and Apple's assistance is no longer required. "The government has now successfully accessed the data stored on Farook’s iPhone," the filing reads, "and therefore no longer requires assistance from Apple." The filing provides no further details on the nature of the new method. Still, the result effectively finishes the court fight that has consumed Apple since February.

The Department of Justice first announced the existence of the new attack on March 21st, less than 24 hours before the first hearing on the order was scheduled to begin. According to prosecutors, the method was first demonstrated to law enforcement on the 20th and was sufficiently plausible that the bureau could no longer continue its case, which was premised on the claim that only Apple was capable of unlocking the San Bernardino iPhone. The government was scheduled to report on the effectiveness of the exploit on April 5th, but the FBI's researchers appear to have finished early...

From CNBC, "Apple vs FBI: All you need to know"

...[A] federal judge asked Apple to help the FBI unlock an iPhone belonging to Syed Farook, who was responsible for the shootings in San Bernardino in December which left 14 people dead.

The judge asked Apple to provide "reasonable technical assistance" to the U.S. authorities, which would require the technology giant to overhaul the system that disables the phone after 10 unsuccessful password attempts. Once this feature kicks in, all the data on the phone is inaccessible. Apple declined to help the FBI.

At the time, Apple chief executive Tim Cook called the order "chilling" and said that it would require writing new software that would be "a master key, capable of opening hundreds of millions of locks". Cook's argument was that if the FBI could access this iPhone, nothing would stop them from doing it to many others.

Law enforcement authorities insisted that it was a one-off request. As a result the case went to court...

Well, their story, while useful, was not really "all you need to know."

Suffice it to observe at this point that, beyond even the "Writs of Assistance" concern lies a deeper and broader issue, one also avoided for now. Should unbreakable encryption be illegal?

"The Constitution is not a suicide pact."

Recall that saying? Difficulties remain, 'eh?

I cannot help but wonder whether DOJ decided that this case was not a good "Reinstate the Writs" vehicle, particularly given that they might lose in court, thereby re-affirming the unconstitutionality of Writs of Assistance, in fairly high profile fashion. Perhaps their "we-got-what-we-needed" claim in withdrawing the court challenge is a bit of "keep our powder dry for another day" demurral.

Just conjecture. We're unlikely to ever know.

UPDATE

From NBCnews: "Apple Refused Chinese Request for Source Code, Top Lawyer Says"

"Apple has never made user data, whether stored on the iPhone or in iCloud, more technologically accessible to any country's government," Apple software chief Craig Federighi said in a March declaration filed in the case over the iPhone used by San Bernardino terrorist Syed Farook. "Apple has also not provided any government with its proprietary iOS source code."

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UPDATE: MY NEW ISSUE OF HARPER'S

apropos, from a paywalled long read.

...Dark Mail’s real innovation concerns metadata. “It’s extremely hard in the current mail system to hide metadata,” Facebook’s Alex Stamos told me. “It’s pretty much impossible.” Levison seized on a solution inspired by The Onion Router, commonly called Tor. Originally developed by the U.S. Navy in an attempt to protect government communications, Tor links some 5,000 servers across the globe, bouncing Internet traffic randomly from one to another to conceal a user’s location and activity. (Illicit enterprises, including the drug marketplace Silk Road, which was shut down by the FBI in 2013, have also relied on Tor for buyer–seller anonymity.) With Tor, encrypted data is partially decrypted at each node to reveal the routing instructions for the next destination, like peeling layers of an onion. Levison told me that Dark Mail uses “something of a pseudo-onion between the sender’s server and the recipient’s server.” When a Dark Mail user sends an encrypted email, his server will be able to identify only the domain of the intended recipient, not the specific email address. On the other end, the recipient’s server will know only the sender’s domain as it decrypts the information to transmit it to the specific email address.

This level of encryption requires essentially a new protocol for email, and it represents a more ambitious undertaking than other secure email ventures. But as Yen told me, “if you want to change the protocol, then every single mail service in the world would have to comply for this to work.” That’s why Levison will distribute Dark Mail freely, with the software open for all to see, test, and improve.

“If they have a new protocol and it’s open-source and vigorously tested, then it’s something we may use ourselves at Protonmail,” Yen said. Levison is optimistic that the big players, who have moved toward increased privacy after the Snowden revelations, will follow suit.

“We pay attention to any new innovations, protocols, standards, and proposals impacting online communications,” David Dennis, who directs Microsoft Outlook, said in 2013 in response to questions about Dark Mail. “And we’re always open to discussions with potential partners.”

If the Dark Mail protocol is widely adopted, it could achieve what Levison has promised: privacy that even the U.S. government can’t crack. “I’m not protecting against criminals with limited resources,” he said. “I’m trying to protect my network against a thousand of the best hackers in the entire world, employed by the NSA.” After his defiance over Lavabit, Levison said, the government knew he wasn’t likely to turn over any information concerning Dark Mail. “They’re going to be targeting me from day one.”

"If you create a product that allows evil monsters to communicate in this way, to behead children, to strike innocents,” Senator Dianne Feinstein told Andrea Mitchell on MSNBC last fall, about efforts such as Levison’s, “whether it’s at a game in a stadium, in a small restaurant in Paris, take down an airliner, that’s a big problem.”

The senator was speaking three days after the terrorist attacks in Paris last November. At the time, statements by Feinstein and others seemed to suggest that law-enforcement agencies had the suspects in their web of surveillance but were prevented by encryption from uncovering the details of their plans. But it appears that much of the planning was done through unencrypted SMS messages — and that the failures of intelligence were conventional and all too familiar.

The U.S. government has seized on a better example in its ongoing dispute with Apple over unlocking Syed Rizwan Farook’s iPhone.

“We’ve now learned of other instances when the authorities have made similar requests of Apple, for instance, but only in the San Bernardino case has the Department of Justice filed an order to make Apple comply with the court order for assistance,” Levison said. “It makes sense, given the optics of this case. You have a horrific incident, fresh in peoples’ minds. And you have a device that is clearly associated with the attacker that could have critical data linking that attacker to an accomplice.”

While the Justice Department says that it’s asking Apple to cooperate in only a few cases — the suit in San Bernardino being the most prominent — the company argues that creating a program to hack into its privacy features will set a precedent for further law-enforcement intrusions, as well as weaken iPhones’ overall security. In a formal legal rebuttal to Apple’s claim, the Justice Department cited the Lavabit case and indicated that, if Apple was unprepared to help with the hack, the government would seek “access to the source code and Apple’s private electronic signature.”...

Highly recommended reading.
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OFF-TOPIC ERRATUM

Ugh.
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More to come...