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Category: Federal Court
Apple Escalates
From the New York Times, on Apple's probably response to the FBI's current attempt to gain access to an iPhone's data:
WASHINGTON — Apple engineers have begun developing new security measures that would make it impossible for the government to break into a locked iPhone using methods similar to those now at the center of a court fight in California, according to people close to the company and security experts.
If Apple succeeds in upgrading its security — and experts say it almost surely will — the company will create a significant technical challenge for law enforcement agencies, even if the Obama administration wins its fight over access to data stored on an iPhone used by one of the killers in last year's San Bernardino, Calif., rampage. If the Federal Bureau of Investigation wanted to get into a phone in the future, it would need a new way to do so. That would most likely prompt a new cycle of court fights and, yet again, more technical fixes by Apple.
See, Apple Is Said to Be Trying to Make It Harder to Hack iPhones.
Apple (and Friends) Consider 5th Amendment Defense in Encryption Case
Over at Ars Technica, David Kravets writes that in addition to a First Amendment defense against the federal government's efforts to gain access to the data on an encrypted iPhone, the tech company will use a Fifth Amendment defense. See, Forget the 1st Amendment, Apple to plead the 5th in iPhone crypto flap.
The First Amendment defense is straightforward:
Apple will also argue in its legal papers to be filed by Friday that computer code and its cryptographic autograph are protected speech under the First Amendment and that the government cannot compel speech by Apple. Bloomberg reported:
Apple is expected to argue in federal court that code should be protected as speech. The company is fighting a government order requiring it to write software to help the Federal Bureau of Investigation unlock an iPhone used by one of the San Bernardino shooters. Apple views that as a violation of its philosophy. Just as the government can't make a journalist write a story on its behalf, according to this view, it can't force Apple to write an operating system with weaker security.
Here's a sketch of the Fifth Amendment claim:
….the Fifth Amendment goes beyond the well-known right against compelled self-incrimination. The relevant part for the Apple analysis is: "nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
The idea here is that the government is conscripting Apple to build something that it doesn't want to do. That allegedly is a breach of its "substantive due process." The government is "conscripting a company's employees to become agents for the government," as one source familiar with Apple's legal strategy told Ars. The doctrine of substantive due process, according to Cornell University School of Law, holds "that the 5th and 14th Amendments require all governmental intrusions into fundamental rights and liberties be fair and reasonable and in furtherance of a legitimate governmental interest."
(One small nitpick, about my alma mater's name: it's the Cornell Law School (no one calls it anything else).
Kravets writes that the ACLU "is to file a friend-of-the-court brief in the dispute that cites the Fifth Amendment in Apple's defense. "If this legal argument sounds novel, it's because the government's claim is unprecedented," [ACLU staff attorney Alex] Abdo said in a telephone interview."
The next court hearing is 3.22.16.
Venezuelan Gov't Tries U.S. Court to Silence Currency-Info Website
If you thought that simply publishing online the exchange rate between the American dollar and Venezuelan bolivares was an innocuous act, then you're not a member of the (fumbling, stumbling) Venezuelan government:
In its bizarre and bombastic civil complaint, the US-based lawyer for the CBV [Central Bank of Venezuela] argued that the three Venezuelan-American men who run the site [DolarToday] are engaged in "cyber-terrorism" designed to create "the false impression that the Central Bank and the Republic are incapable of managing Venezuela's economy."
The CBV formally accuses DolarToday of violating a major anti-racketeering and criminal conspiracy statute (RICO Act), false advertising, unjust enrichment, and strangely, breaching a Venezuelan civil statute that refers to "causing harm." (Obviously, an American federal court is unlikely to adjudicate claims made under Venezuelan law.)
To put it mildly, the Venezuelan economy has been in something of a tailspin in recent years. Its authoritarian president, Nicolas Maduro, the successor of strongman Hugo Chavez, has been unable to rein in skyrocketing inflation (now near 100 percent) and a massively depressed economy. Recent press reports have detailed that many people are unable to buy basic goods like diapers and cooking oil. This week, the Financial Times described the country as being on the "edge of a political crisis."
Via As Venezuelan economy collapses further, gov't targets US-based currency news site @ Ars Technica.
See, also, Plaintiff's Complaint and Defendants' Motion to Dismiss with Prejudice.
Reading the complaint from of the Banco Central de Venezuela, a Venezuelan government organization, counts as three separate readings, at least: of a federal civil complaint, of science fiction, and of low comedy.
Still, it's a cautionary tale, too: that even the oddest claims, from the most unexpected quarters, may lead one into litigation.
Perhaps the maxim should be something along the lines of 'expect the unexpected.'
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