Longtime readers will recall that every computer I’ve owned has been named after a Fraggle or other character from Fraggle Rock (our home wifi network is called “FraggleRock”). There’s been a Gobo, Mokey, Sprocket, Uncle Traveling Matt, Red, Cotterpin, Cantus, and now…
Named for the Fraggle who can convince anyone of anything:
Seems an appropriate name for an attorney’s computer.
I’m a sucker for good legal writing, and Apple’s response to the FBI is really good (pdf).
We did learn one interesting thing from Apple’s brief:
The general consensus had been that Apple had input in the drafting of the Ex Parte Order in order to focus on the legal, Constitutional, and liberty issues instead of getting bogged down in the technical details of implementing the order. It now appears that was not the case. As Apple’s counsel describe it in Footnote 22:
22 The government obtained the Order without notice to Apple and without allowing Apple an opportunity to be heard. See Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (recognizing that one of the "'fundamental requisite[s] of due process of law is the opportunity to be heard'") (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). But this was not a case where the government needed to proceed in secret to safeguard its investigation; indeed, Apple understands that the government alerted reporters before filing its ex parte application, and then, immediately after it was signed and confirmed to be on the docket, distributed the application and Order to the public at about the same time it notified Apple. Moreover, this is the only case in counsel's memory in which an FBI Director has blogged in real-time about pending litigation, suggesting that the government does not believe the data on the phone will yield critical evidence about other suspects. (Citations omitted.)
Assuming this timeline is accurate, the FBI is being as cynically political as we thought.
(Sometimes we forget that the FBI was founded as a political operation, and that it is only in recent times that its actual law enforcement activities have taken precedence over undermining the political enemies of the Powers that Be. But I digress.)
A problem many of my custody clients struggle with is what to do when the litigation is over. We’ve amassed volumes of material about the other side, fortified our own position with evidence, exhibits, and witnesses to show how we meet the needs of the children better than the other parent possibly could. And then it ends, either in a negotiated outcome of an order and decree from a judge. But it is over and time to get back to parenting.
Returning to peacetime is difficult. In almost all cases, the once-litigants are now called upon to co-parent. Where once they were guarded with information for fear of showing any weakness, they’re now expected to cooperate and be open with each other. To say this is a difficult transition is an understatement.
I firmly believe we should have our custody clients attend post-litigation counseling. We often hear about how traumatic divorce and custody litigation is on children, but it is just as harmful to the parents.
The parents who manage to leave the war behind are the ones who win the peace, and their children are better for it. But we aren’t concerned with that. Not as attorneys, not as judges, and not as the courts. We need to do better. The adversarial process is a terrible way to deal with raising children.
Apple may very well lose this thing. What will that look like for us?
Encryption1 is all around you. If you have ever used a credit card, online or off, you’ve benefitted from encryption. Does the FBI really want to compromise all commerce? Of course not.
Is the FBI staffed by idiots and buffoons? Probably not. But they also know what the legislation will look like when this is done. If they win this case, they will ask Congress to adopt the court’s decision as part of Federal law. If they lose, they’ll ask Congress to overturn the court with a new Federal law. Either way, that’s the end-game. This case is all about softening up the public with The Terraists.
I expect that new law will carve out an exception for certain activities. These will need to be licensed by the government, ignoring the gross anti-federalist overreach that will stretch the Commerce Clause to its theoretical limit.
Banks will be licensed for strong encryption. Friendly telecoms probably will. But end users? No way. The rest of us will get the broken version we currently have, or a Pro version where you have to agree to store your master key in a government-run escrow. In that case, see Footnote 1, above.
Using Strong Encryption will become a new Federal crime. It’ll be up there with Perjury and Obstruction of Justice. Get arrested for something and happen to have an iPhone with unlicensed/unregistered Strong Encryption? That’s a paddlin’.2
More thoughts later when I have time (including why Apple has to argue under the 1st Amendment and not the 4th).
I’ve only owned jpmiller.net for a little over a decade (17. July 2001). It had been called “Justin’s Journal” for the longest time. Then most recently “My Other Site.” But today I realized the name had presented itself the other day on Facebook, where I wrote a short sketch from the impromptuly named “Bored Lawyer Theater.”
Here is how caucusing works:
Do you ever write a blog post, revise and polish it, and then decide the answer to the question “Does this add value to the world?” is a resounding “Fuck no?”
I just did. This is in its place.
Many of us were pleased with the outcome of the Grand Jury investigation into allegations that the Centre County District Attorney had acted improperly and committed several potentially criminal acts. At least we were going to be spared a very messy public trial of a sitting District Attorney! We could get back to normal in Centre County!
But the parties continued to escalate their dispute, now in Federal civil court, and our nightmare continues. Centre county’s legal community has become toxic. I suspect the District Attorney will insist, and likely believes, that pursuing the various civil and tort remedies she is seeking in Federal court will restore her reputation in the community, and in turn will restore confidence in the justice system.
This outcome could not be more unlikely. The public is upset about the fighting and the allegations and the acrimony. I see it daily from my clients, friends, family, and people I just happen to meet out in public.
To make matters worse, a private anti-union group (an apparently Thatcherite organization that seems to crusade against evil groups like public schoolteachers) has begun agitating against the District Attorney, accusing her of corruption and other violations of the public trust. Just today, I saw a flashy, professionally produced mail piece arrive at home imploring the public to… I don’t know what. Rise up? It wasn’t clear what their goal is, aside from shitstirring. Maybe they’re just bored?
I’m only half-joking when I tell people we are going to need a Truth and Reconciliation Commission to get over this.
Many of us in the legal community have stayed out of these fights. It is my belief that the Rules of Professional Conduct require us, at least the attorneys, to not do anything that undermines public confidence in the Judiciary and, by extension, the criminal justice system. But there is a conflicting requirement in our Rules: to speak out on issues of public concern and for the reform of the legal system.
So here’s my idea for what needs to happen: For the good of our community, the District Attorney needs to drop her lawsuit. The other various parties need to drop any counterclaims they may have filed.
Apologies should be offered and accepted all around, by and to everyone involved. Only then can we start to work together to restore Centre County’s reputation as a model court in the Pennsylvania Unified Judicial System.