[HN Gopher] Federal Court Says Dismantling a Phone to Install Fi...
___________________________________________________________________
Federal Court Says Dismantling a Phone to Install Firmware Isn't a
'Search'
Author : hn_acker
Score : 238 points
Date : 2024-12-05 15:18 UTC (7 hours ago)
(HTM) web link (www.techdirt.com)
(TXT) w3m dump (www.techdirt.com)
| hn_acker wrote:
| The full title is:
|
| > Federal Court Says Dismantling A Phone To Install Firmware
| Isn't A 'Search,' Even If Was Done To Facilitate A Search
| jerf wrote:
| As the article says, it is probably a reasonable ruling, because
| it isn't a search.
|
| What you have to watch out for is the legal two-step, where they
| do something like "install a firmware on the phone", which isn't
| a search, and then, oh gosh, the firmware just happened to sit
| there and flash all the contents of the phone on the screen
| because that's what the firmware _does_ , we didn't actually
| _search_ the phone, it just voluntarily dumped all its contents
| to the screen, so that wasn 't a search either, so no search
| occurred.
| koolba wrote:
| Does that mean that wiping the firmware or Secure Enclave would
| not constitute destroying evidence?
|
| How about installing firmware that will wipe the Secure Enclave
| on boot? Especially if the secondary step of turning on the
| device is done by the seizing authorities.
| fwip wrote:
| No, the judge would not be okay with that.
|
| In the same way, shredding all your incriminating legal
| documents into a fun jigsaw puzzle for the cops to put
| together is also illegal.
| toast0 wrote:
| I mean, having firmware that securely wipes your phone in
| case it's used by an unauthorized party is a reasonable and
| desirable feature. It's not generally illegal to set that
| up.
|
| Same with destroying documents. Having a retention period
| and destroying documents which have PII and could be used
| for identity fraud is a good practice. It's not generally
| illegal to do that either.
|
| Where you get into trouble with the courts is when you have
| a _specific_ obligation to retain or transfer information
| and you destroy it instead.
| wildzzz wrote:
| It is illegal to intentionally destroy something that you
| suspect could be evidence in a future criminal case
| against you. Say you operate an illegal drug network from
| a specific phone that you've intentionally setup to self-
| destruct at reboot. Both you and the cops know there is
| likely evidence on there that would implicate you. Then,
| if you either intentionally reboot the phone or maybe the
| battery dies while in police custody before they can
| access it and the phone is wiped, you could be liable for
| destruction of evidence. However, if it's just a standard
| smartphone and you accidentally drop it in the toilet,
| unintentionally destroying all evidence, you may not be
| liable.
|
| Basically, if you intentionally destroy evidence, either
| actively passively, you're liable.
|
| It is kind of a broad law and is difficult to prosecute
| in many cases. The cops have to know that you did the
| crime and prove that the evidence existed. If you
| murdered someone and made it look like a suicide, the
| cops would have to not only suspect you but also know
| that you left fingerprints and DNA behind that are no
| longer present.
| PeterisP wrote:
| Intent makes all the difference in the eyes of law.
|
| If a jury of your peers decides that you configured that
| firmware to protect your data from thieves, then it is
| not a problem.
|
| But if a jury of your peers doesn't buy your assertion of
| that, and instead becomes convinced that you applied that
| (otherwise reasonable and legitimate) feature with the
| intent to destroy evidence of a crime so that it doesn't
| reach the court, then setting it up was a felony.
| LPisGood wrote:
| This makes sense, and I actually believe that it isn't a
| search. It is definitely a _seizure_ though and I do wonder how
| often these two things are distinguished in law.
|
| How often do the police raid a place and confiscate filing
| cabinets but not look through them.
| rayiner wrote:
| The seizure was done pursuant to a warrant too. There's an
| argument that, once the warrant extensions expired, keeping
| the device in police custody constituted a continuing
| seizure. But it doesn't seem like the defendant made that
| argument (or at least the court didn't address that argument)
| giantg2 wrote:
| Usually one has to petition/request the return of seized
| items. So it's not unusual that something is still held
| until requested.
|
| Usually instead of fixing what they have, they tend to
| destroy it.
| btilly wrote:
| You and I disagree on reasonableness.
|
| The government is here deliberately planning to take advantage
| of a seizure to damage someone's personal possessions. The
| right of that person to be secure in their possessions
| therefore should require a higher standard from the government
| than is required for mere temporary adverse possession after a
| seizure.
| rayiner wrote:
| The government had a warrant to seize the device. It got
| multiple warrant extensions trying to get into the device.
| They determined it needed a logic board replacement. The
| warrant extensions expired while that was being done. But the
| government got a warrant to then actually access the data.
|
| I fail to see how this doesn't satisfy even a high standard
| of reasonableness.
| fitblipper wrote:
| Why do you feel that info is relevant? If my driver's
| license expired yesterday and then I get pulled over while
| I'm driving to the DMV today to get it renewed, should I
| not get a citation?
|
| Just because they had permission before and after their
| actions took place doesn't make it ok if they didn't have
| permission at the time of the action. To say otherwise
| seems to be begging for abuse of a loophole. I guess that's
| why they had to claim the action wasn't one a warrant was
| required for...
| rayiner wrote:
| It's relevant for the same reason it's relevant in your
| driver's license example. You drive somewhere while your
| license is valid. Then you replace the car battery, which
| has died. Then you renew your license, and drive
| somewhere else. Have you done anything wrong? No, because
| you need a license to drive the car, not to repair the
| car.
|
| Same thing here. The government needs a warrant to seize
| the device or search for information on the device. Does
| it need a warrant to repair a broken device that it has
| properly seized, before then getting a warrant to search
| the device?
| btilly wrote:
| It's not relevant for the same reason that it isn't
| relevant in the driver's license example.
|
| If you don't have a license, then get a friend to drive
| you. Or get an Uber. But you can't drive yourself. If you
| do, no matter how reasonable you feel your case was,
| you'll be in trouble.
|
| In this case, they had an inoperable device, and they had
| a judge. Absolutely nothing stopped them from filing for
| yet another warrant and then proceeding only when they
| actually had it. But no. They wanted to skip their
| paperwork. They shouldn't get to.
|
| The paperwork exists for a reason. That reason is why we
| shouldn't retroactively hand out warrants. And that's why
| we shouldn't do it here. The fruit of the tree and all
| that. The government knows how to do it right, and
| absolutely shouldn't. They don't get to beg a friendly
| judge for forgiveness later. They had no excuse for not
| simply doing it completely right.
| LorenPechtel wrote:
| The repair is a repair, not a search. No data was
| obtained.
|
| I do have a problem with this, but only because of the
| time. The cops shouldn't get to take ages to examine
| stuff unless there's a huge amount of stuff to examine.
| btilly wrote:
| But they did not simply "repair" it. They added something
| that leaves the device more vulnerable. Not just to the
| government, but to anyone with access to the toolkit that
| the police are trying to use. Which includes foreign
| actors and random hackers.
|
| No, attempting to create a damaged version should not
| count as repair. Nor should we be lightly OKing the
| government's desire to do so.
| subroutine wrote:
| There is no law stating the government cant repair a
| broken device that was seized as evidence, while having a
| lapsed search warrant.
|
| There is a law against searching a device without a valid
| warrant.
|
| The judge ruled that repairing a device seized as
| evidence is not a search.
|
| I'm failing to see what the government did, that was
| against any law or policy.
| Suppafly wrote:
| >Does it need a warrant to repair a broken device that it
| has properly seized
|
| Logically, yes. If you borrow someone's car to drive it,
| you don't have permission to change out the stereo.
| toomuchtodo wrote:
| I agree with this perspective, but think we're going to hit
| tension between right to repair and hardening devices against
| threat actors who have physical access to your device.
| Apple's move with the inactivity reboot timer is a step in
| the right direction, but a mode or option to wipe or
| otherwise destroy all my data if tampering is detected
| (device is opened) would be welcome (even if it means one is
| then unable to repair the device). Replacing one's device
| will always be cheaper than any prolonged interaction with US
| law enforcement or the US judicial system.
| taneq wrote:
| Breaking down the door of a house isn't a search. Activating an
| autonomous drone in front of the house which then enters
| through the door of its own volition and records everything it
| sees in the house isn't a search. And if I make a chomping
| motion in the air near a donut and it decides to enter my mouth
| while I'm chomping then I haven't illegally taken a bite of the
| donut.
| nyeah wrote:
| I sense irony here, but I'm American so it's hard to be sure.
| taneq wrote:
| I dunno if irony is exactly the right word (but that's a
| complex discussion and probably any call would be category-
| error-ish anyway) but I was aiming for a Simpsons
| reference. :D
| ortusdux wrote:
| I guess I can understand the argument that picking a lock does
| not count as a search, but the second you open the door...
| qup wrote:
| Like removing the doorframe and putting in your own new door
| that doesn't lock, then walking inside
| tiahura wrote:
| is when they got the warrant
| ortusdux wrote:
| I guess that is the question. If the police are confident
| that they will have a warrant in 30 minutes, can they have
| a locksmith unlock the door while they wait?
| BobaFloutist wrote:
| I would say no, because the whole point of the warrant is
| to remove the police's judgement from the equation. If
| they're taking action based on their expectation that
| they'll get it, that's kind of an end-run around the
| stated purpose.
| thayne wrote:
| What if picking the lock damages the lock?
| yencabulator wrote:
| Yeah. It might not be a search, but it's _something_ , and
| the logical question is to ask under what authority can
| that be done.
| gnfargbl wrote:
| Ah, but standard firmware doesn't do that; the agency
| performing the action would need to have developed custom
| firmware which "just happened" to show the information when
| installed. Courts tend to see through those kinds of shams.
| wbl wrote:
| No that would be a search. Judges really don't like having
| these games played.
| jerf wrote:
| A sane judge, yes. A judge searching for a fig leaf, perhaps
| not.
|
| Call me cynical if you like. It won't bother me.
| wbl wrote:
| The judge can just grant the warrant if they want. PC is a
| low bar.
| mindslight wrote:
| Independent of the legal nuance being worked out here, it is
| quite fucked up that the government can just demolish your entire
| digital infrastructure and then keep the pieces indefinitely.
| Imagine if they applied the same standard to your dwelling
| itself. "Sorry you can't live here for the next few years because
| a crime might have been committed. Go buy another house. Or not,
| we don't care".
| readthenotes1 wrote:
| Maybe you haven't heard of civil forfeiture?
|
| https://en.m.wikipedia.org/wiki/Civil_forfeiture_in_the_Unit...
| mindslight wrote:
| I don't know why you would think that might be a possibility
| given the venue we are on.
|
| Government has also demolished people's actual homes in the
| course of "crime fighting" and then refused to pay/fix them
| as well (that notorious case in Colorado comes to mind). But
| surely you can see there is still a distinction between
| things that happen infrequently, often with limited scope, or
| still at least with some semblance of a legal process, and
| what happens _routinely_ to people accused of "digital
| crimes".
|
| It should go without saying that I think _all_ of these
| dynamics are terrible, and in dire need of reform. But at
| least civil forfeiture and "qualified" (nee sovereign)
| immunity are getting talked about, while the totalitarian
| approach to personal digital infrastructure isn't getting so
| much attention.
| sidewndr46 wrote:
| What'd really be a shame is if the police could just show up
| one day and blow up your house. And then just leave
|
| https://www.denverpost.com/2020/03/11/colorado-swat-house-de...
| mindslight wrote:
| I don't get the point to this reflexive whataboutism. Yes,
| that dynamic exists and it is bad too. (I referenced that
| event in a follow up comment, thanks for providing a specific
| link)
|
| And at least that event had some condemnation in the media,
| as opposed to the routine destruction of digital personal
| lives escaping criticism _even on techdirt_.
| btilly wrote:
| What happens if we take this as precedent?
|
| Dismantling a safe to facilitate a search, isn't a search. So
| it's allowed, even if the safe is left damaged.
|
| Tearing a house apart to facilitate a search, isn't a search. So
| it's allowed, even if the house is left damaged.
|
| Disassembling a car to facilitate a search, isn't a search. So
| it's allowed, even if the car never runs the same later.
|
| Meanwhile you'll find me in the corner that reads the 4th
| Amendment as follows:
|
| _The right of the people to be secure in their persons, houses,
| papers, and effects, against unreasonable searches and seizures,
| shall not be violated, and no Warrants shall issue, but upon
| probable cause, supported by Oath or affirmation, and
| particularly describing the place to be searched, and the persons
| or things to be seized._
|
| I think that if the result of a seizure is the potential
| permanent damage of my property, then my right to be secure in my
| possessions should be defended by demanding a higher standard
| from the government than that required for a mere temporary
| possession after a seizure. That principle applies just as much
| to electronics as it does to any physical item.
| modernpacifist wrote:
| > The right of the people to be secure in their persons,
| houses, papers, and effects, against unreasonable searches and
| seizures, shall not be violated, and no Warrants shall issue,
| but upon probable cause, supported by Oath or affirmation, and
| particularly describing the place to be searched, and the
| persons or things to be seized.
|
| If they have a search warrant then a judge has, from a legal
| perspective, determined that the request/search is reasonable.
| So while you have the right to secure against unreasonable
| cases I think it is a reasonable trade off that those security
| mechanisms/processes/etc should either be removed by yourself
| or you should expect them to be removed for you.
| sidewndr46 wrote:
| I don't know what fantasy world you live in but the police
| don't ask you to remove your security mechanisms yourself.
| Your likely to catch a charge for destruction of evidence if
| you do that along with a bunch of other related charges
| Dylan16807 wrote:
| If you want to get a close analogy, they already used a warrant
| to seize the safe/house/car, and already searched it a couple
| times and still have possession, so that makes a pretty big
| difference.
| rayiner wrote:
| The article's headline is rather misleading (I assume
| unintentionally), because it omits that the actual seizure and
| data access was done pursuant to warrants. Only the repair and
| firmware update was performed during a donut hole when one
| warrant had expired before another was granted.
|
| Here, the government obtained multiple, time-limited warrants to
| search the device, but was unable to get into it. They sent it to
| be repaired. After the warrant extension expired, the repair guy
| fixed it and updated the firmware. (The record doesn't say what
| version the firmware was, but it seems like it was standard
| firmware, not some special forensic firmware.) The next day, the
| government again obtained a warrant. Only after doing so did the
| government perform the search.
|
| In this unusual situation, it's reasonable to conclude that the
| device repair wasn't a search. The seizure and the data access
| were both performed pursuant to a warrant. The only part that
| wasn't covered by the warrant was just fixing the device in a
| seemingly conventional way to get it working again.
|
| Original decision here, pages 3-4 has the relevant facts:
| https://s3.documentcloud.org/documents/25423841/no-disassemb...
| chefandy wrote:
| I agree that most readers won't really 'get it' by reading the
| headline, and appreciate your useful addition so we all can get
| some context without the click, but in defense of the author, I
| think writing layperson-accessible headlines for technical
| legal articles is often impossible. Having attempted to make
| interfaces and applications that made raw legal data useful for
| laypeople, including with NN summaries and such, if there's a
| meaningfully better solution, I sure couldn't find it after a
| few years of work. For the same reason reading case law doesn't
| effectively help laypeople represent themselves in court, you
| need context and background knowledge to make sense of legal
| concepts. (If you've ever seen an overconfident 'sovereign
| citizen' cite opinions in court while representing themself,
| you've seen why. And while most are obviously under-educated
| for the task, they're probably not unintelligent and they
| clearly put a lot of effort into it.) To people used to reading
| legal texts and familiar with the trajectory of decisions in
| this space, the headline makes sense, and I think that's
| probably the best you can do. Trying to construct a headline
| that's representative while also giving laypeople the
| background and context they need to make sense of the topic
| becomes way too long to be a headline long before it
| accomplishes it's goal.
| rayiner wrote:
| Yes, I wouldn't know how to explain all that in a headline
| either! Unfortunately the word "misleading" has multiple
| connotations--I wasn't saying the author was trying to
| deliberately mislead, but rather that the reader shouldn't
| conclude too much based on the headline alone.
| chefandy wrote:
| Sure, that makes sense. Additionally, whether something is
| misleading had as much to do with the person reading it as
| the person writing it.
| throwup238 wrote:
| The author probably didn't come up with the headline, the
| editor did. It's one thing if the Office of Legislative
| Counsel tries and fails to come up with a succinct one liner,
| it's another when an editor driven entirely by clickbait
| economic incentives does it. The latter rarely even try to be
| accurate.
| pc86 wrote:
| I do sometimes wish articles had information in the byline
| about who wrote the headline as well as just the article,
| or that it became standard practice for authors to write
| the headlines as well.
| dcrazy wrote:
| It's Techdirt. The author and editor are the same person.
| chefandy wrote:
| Can you propose a more appropriate one? I can't think of
| one that is still headline length.
| Bjartr wrote:
| "Federal court says merely repairing a seized device
| isn't a search"
|
| I think that's a bit better
| weaksauce wrote:
| "federal court decides that repairing a phone's firmware
| during a period of lapsed warrants is not an
| unconstitutional search" maybe?
| autoexec wrote:
| Is it a "mere" repair when they crack open your device
| swap out the main board and replace the firmware? Imagine
| that their "search" turned up nothing? You'd still be
| left unable to get your device back intact or unaltered.
| Should the government be able to swap out hardware
| components and install whatever firmware they like on
| them without a court order? People have their own reasons
| for selecting the hardware that they do and for not
| installing certain firmware. Should the police be able to
| install firmware that isn't official?
|
| "merely repairing" seems misleading given what this
| allows for.
| unreal37 wrote:
| They clearly hacked the device.
|
| In fact, maybe they "repaired" it by installing an older,
| hackable firmware.
| pc86 wrote:
| Sovereign citizenry and misquoting admiralty law in your
| hearing about driving without valid registration or saying
| the court doesn't have jurisdiction because the flag has gold
| fringe on it is so close to mental illness it's hard to
| assign concepts like "smart" or "dumb" to it.
| ronsor wrote:
| Sovereign citizen activities basically have no correlation
| with intelligence or political views. It's such a strange
| category of weirdness.
| potato3732842 wrote:
| Some people like to portray petty mostly victimless
| lawlessness as sovereign citizen shenanigans as a means
| to discredit the reasoning that lead to those people to
| decide not to follow the law.
|
| Not everyone who doesn't get a building permit or a
| fishing license is a sovereign citizen.
| pas wrote:
| By what definition of intelligence? :)
|
| It seems like a waste of time at best. But have any
| sovereign citizen got what they wanted at the end of any
| kind of proceeding?
|
| It seems like a very bad strategy to solve their own
| selfish problems. (DUI, speeding, not paying taxes, going
| against gun regulations, etc.)
|
| And this strategy is usually coming from being
| unfortunately so tragically misinformed that they cannot
| help but reject the boring standard model of reality for
| a bouquet of conspiracy theories.
| sandworm101 wrote:
| They do "win" sometimes. The rational person just pays
| the ticket. The sovcit demands a jury trial and, rarely,
| gets a win when a deal is offered or a witness fails to
| show. And often just having the proceeding is the win.
| They get off on being the center of attention. Defending
| themselves in court is the one time all the important
| people have to listen to them. They enjoy it.
| echoangle wrote:
| Do you not have to pay court costs if you're convicted?
| That's a pretty bad gamble if you get convicted maybe 90%
| of the time?
| notjulianjaynes wrote:
| In the past I have considered pursuing litigation pro se
| because it is very difficult to find an attorney willing to
| take a public records case on contingency. The stereotype
| that anyone who represents themselves in court must be a
| soverign loon or think they're Will Hunting is one reason I
| did not do so. It is not ideal, but neither is not having
| access to the justice system due to not having a bunch of
| money to burn.
| potato3732842 wrote:
| I represented myself pro se in a civil matter that really
| should have been in small claims but was in superior
| court because of the remedy being sought by the
| plaintiff.
|
| It went fine, ended in settlement in my favor.
| EvanAnderson wrote:
| I would love to know the origin of the "gold fringe" bit,
| specifically. I remember hearing about that in the 90s.
| pc86 wrote:
| It has something to do with (incorrectly believing) what
| laws apply to what court based on the type of flag. This
| is from memory so may be wrong but I seem to recall it
| being basically if there is gold fringe, the court is
| in/part of a different jurisdiction, and the procedures
| are different, and as such the (actually correct)
| procedures the judge and prosecutors follow are viewed as
| incorrect by the SC.
| c22 wrote:
| https://starspangledflags.com/did-you-know-what-gold-
| fringe-...
| sandworm101 wrote:
| https://youtu.be/i0rL0ukZmf0
|
| https://www.flags.com/blog/everything-you-need-to-know-
| about...
|
| >> While some people believe that the fringe has symbolic
| meaning, its primary purpose is ornamental, giving the
| flag an air of distinction and honor. Fringed flags are
| usually displayed on indoor flagpoles, though they may
| also be used in parades or during other ceremonial
| presentations. It's important to note that these flags
| are not typically flown outside, as the fringe is not
| designed to withstand outdoor weather conditions.
|
| In short: people get confused because they only see the
| fringe on special occasions or indoors as in courtrooms.
| It has no meaning.
| sandworm101 wrote:
| It isnt mental illness. Having incorrect beliefs is
| different than being insane. But it is a mental heath issue
| that leads people to adopt these beliefs. Be it flat earth,
| Qanon or Sovcit, people under stress will reach out to
| conspiracy theories in an attempt to regain a sense of
| community and control whilst thier lives are otherwise
| going off the rails. The beliefs are the symptom, not the
| disease.
|
| With sovcit specifically, there is also a rational layer.
| Many people think the law some sort of elite club where
| mastery of a secret language can allow one to escape legal
| scrutiny. This comes from TV and the news that never
| explain the nuance of legal practice. They arent insane,
| just very incorrectly educated. Rosa parks was not insane.
| She knew she was breaking the law. The rational sovcit
| thinks themselves the next Rosa Parks, but mistakenly
| believe that means they cannot be arrested. Rational but
| wrong.
| JumpCrisscross wrote:
| > _people think the law some sort of elite club where
| mastery of a secret language can allow one to escape
| legal scrutiny_
|
| _pc86_ didn't say sovereign citizenry is mental illness
| _per se_. They said it's indistinguishable from mental
| illness if pursued all the way to a hearing. At that
| point, enough flags have been intentionally ignored to
| validly cross into delusion.
| sandworm101 wrote:
| But i would say they are very distinguishable. The man
| who drives as 85mph because the spiders are chasing him
| is insane. The man who drives as 85mph because facebook
| told him that the state lacks jurisdiction over roads
| painted with yellow lines is not. The incorrect behavior
| (speeding) is identical but the overall situation is very
| distinguishable.
| JumpCrisscross wrote:
| > _man who drives as 85mph because facebook told him that
| the state lacks jurisdiction over roads painted with
| yellow lines_
|
| This is a stretch, but possible. It breaks when that man
| is pulled over, cited, given the opportunity to research
| or consider another viewpoint, and then shows up in court
| to plead that case. That's invisible-spiders levels of
| delusion, and while it may not be caused by a chemical or
| physical problem in the brain, it's indistinguishable
| from it.
| jfengel wrote:
| As I read the original comment, it sounds as if they
| meant that continuing to insist that you were legally in
| the right is the problem. Being gullible is one thing.
| Insisting on your gullible belief when it's about to
| result in a prison sentence comes much closer to
| "invisible spider" territory.
| Suppafly wrote:
| >The man who drives as 85mph because the spiders are
| chasing him is insane. The man who drives as 85mph
| because facebook told him that the state lacks
| jurisdiction over roads painted with yellow lines is not.
|
| They are both insane, just in different ways. Sane people
| don't just automatically believe random stuff from
| facebook that is contrary to everything they know and
| have been taught.
| pas wrote:
| How can you think you're breaking a law that does not
| apply to you?
|
| > They arent insane, just very incorrectly educated.
|
| Well, they can be both. The test of insanity is to see
| what happens as they are faced with the usual adversity
| that comes with these beliefs. Are they capable of
| learning or keep doing something that every sane person
| recognizes will certainly lead to ruin (or at least
| failure)?
| greenavocado wrote:
| > Many people think the law some sort of elite club where
| mastery of a secret language can allow one to escape
| legal scrutiny.
|
| Freemasons exist and your judges, lawyers, and cops are
| freemasons.
|
| (1/3) https://www.travelingtemplar.com/2017/05/justices-
| of-supreme...
|
| (2/3) https://www.travelingtemplar.com/2017/06/justices-
| of-supreme...
|
| (3/3) https://www.travelingtemplar.com/2017/09/justices-
| of-supreme...
| Suppafly wrote:
| >Freemasons exist and your judges, lawyers, and cops are
| freemasons.
|
| Sure, but they don't have a secret language that allows
| them to escape legal scrutiny. Freemasonry isn't even an
| elite club, they'll take pretty much anyone willing to
| pay the dues and memorize some stuff.
| greenavocado wrote:
| Not talking about lower levels here because those are the
| commoners. High ranking freemasons such as those found in
| positions of power are obligated to get each other out of
| trouble to the greatest effort possible given the
| circumstances.
| throwawaycities wrote:
| I've attending 1,000's of arraignments, motion calendars and
| pleas.
|
| In all my experience I've seen 2 pro se defendants pull the
| "I'm a sovereign" spiel. Credit to them they both turned what
| should have been a 5 minute hearing into at least 15 minute
| circuses refusing to even announce their names for the
| record. Both were threatened with being held in contempt
| before the Judges passed on their cases and made them wait to
| hear the other matters on the docket.
|
| Truly fascinating & unusual events and people, I think if you
| draw a vin diagram mental illness and Dunning-Kruger Effect
| these folks would be the overlap.
| chefandy wrote:
| For sure. I think part of it is what happens when Dunning-
| Krueger strikes someone confident and charismatic enough to
| teach their ill-conceived ideas to others who find the idea
| appealing enough to take it and run with it. A runaway
| bullshit train. Eventually it becomes widespread enough to
| become "conventional wisdom" to to some groups and most
| people don't question conventional wisdom imparted by
| people they trust. It seems a lot of conspiracy theories
| work that way.
| throwawaycities wrote:
| Natural result of YouTube scholars learning "appeal to
| authority" logic fallacy - it somehow becomes reasonable
| to reject any and all authorities while simultaneously
| accepting any single YouTube video as truth.
| psunavy03 wrote:
| There's a huge gray area between "not understanding the law"
| and "being competent to litigate a case in court." It is
| entirely possible for non-lawyers to understand the gist of
| the law at a high level. And thus it's not acceptable to
| tolerate misleading headlines about legal decisions any more
| than it is to tolerate misleading headlines about any other
| decision. And God knows I've seen enough of them about other
| issues that are within my realm of professional expertise.
|
| The problem is that our system as currently set up does not
| incentivize reporters working a "beat" for years where they
| develop enough domain expertise on a field to report on it
| competently. If we had actual senior legal reporters, senior
| national security reporters, senior tech reporters, and so
| on, they would have enough knowledge of those fields to
| effectively write for laypeople.
| nightpool wrote:
| > The problem is that our system as currently set up does
| not incentivize reporters working a "beat" for years where
| they develop enough domain expertise on a field to report
| on it competently. If we had actual senior legal reporters,
| senior national security reporters, senior tech reporters,
| and so on, they would have enough knowledge of those fields
| to effectively write for laypeople.
|
| How does this apply to Techdirt? Tim Cushing has been a
| staff writer at techdirt for 12 years and works heavily on
| a legal, civil liberties/policy beat with a tech
| perspective. By your criteria, he should be a perfect
| example of journalists who have enough knowledge to
| effectively write for laypeople.
| psunavy03 wrote:
| I didn't say they don't exist. I said the system does not
| incentivize for that.
| stonemetal12 wrote:
| It doesn't seem misleading to me just overly technical for no
| reason.
|
| Something like "Court Says Repairing Seized Phone isn't a
| Search" conveys the same meaning with fewer technical details,
| but is a little no duh. To me that is just as click bait-ish,
| because I would want to know who was dumb enough to try that as
| a defense, or wonder what the actual situation was.
| thayne wrote:
| Was it just a repair, or did they install custom firmware? It
| isn't really clear from the article, and that seems like it
| would make a big difference.
| rayiner wrote:
| The forensics report suggests the device was reflashed with
| its normal firmware, and a different set of forensics tools
| were used to access the device once it was repaired.
|
| > I brought both devices to the Newberg-Dundee Police
| Department Digital Forensics Lab and evaluated the iPhone 6
| for function. I connected the device to power via the
| lightning connector and found it drew electrical current
| indicating it was attempting to charge the battery however
| the screen remained black. I attempted to power the device
| on with no change on the device screen. I located an
| identical model donor phone an A1549 and verified the donor
| device functioned properly. To eliminate the possibility of
| a hardware issue on the evidence device, I swapped the
| circuit board from the evidence device into the housing of
| the known good donor device. I attempted to boot the device
| however the screen remained black. I could tell the device
| was booting because it drew current when powered directly
| from a power supply however it was not booting normally. I
| was able to cycle the device between DFU mode and recovery
| modes but was unable to get to boot into a normal state and
| there was no change on the devices screen. Because the
| device would not boot normally or light the display, I
| believed there was likely and issue with the device
| firmware. I used a repair tool to re-flash the devices
| firmware. After the re-flashing repair process the device
| booted normally to the screen requesting the passcode. The
| board swap and firmware re-flashing processes do not change
| the user data on the device. During the board swap process,
| I only reassembled the device to a condition sufficient to
| make the device function.
|
| > After receiving the copy of the search warrant, I
| connected the iPhone 6 to an advanced forensic extraction
| tool (Graykey). I used the passcode 070106 obtained from
| the previous extraction of the iPhone XS to unlock the
| device and obtained a Full File System extraction from the
| iPhone 6.
| BurningFrog wrote:
| Since I had to look it up:
|
| _pursuant_ : in accordance with (a law or a legal document or
| resolution). "conversations that they wiretap pursuant to court
| order"
| Suppafly wrote:
| Are you new to learning English or have you managed to not
| come across it before?
| WarOnPrivacy wrote:
| > _The only part that wasn't covered by the warrant_ was just
| fixing the device in a seemingly conventional way to get it
| working again.
|
| By 'the only part that wasn't covered', I think you meant "The
| only part that _wasn 't within a warrant period_" (as opposed
| to _not falling the scope of one of the warrants_ ).
|
| Assuming that, this is what I think you are considering.
| Are the constitutional safeguards of these warrants reasonably
| satisfied here?
|
| Instead, I believe the following is the matter for concern
| here. By declaring a repair [a
| repair which occurred to enable and assist a search for
| incriminating evidence] to not be a search (to
| not be an action that merits 4th amendment protections)
| a court establishes that LEO are now free to forcefully perform
| certain evidence gathering actions on private devices without a
| warrant - as long as those actions can be construed as a
| 'repair'.
| Suppafly wrote:
| >In this unusual situation, it's reasonable to conclude that
| the device repair wasn't a search.
|
| I'm more comfortable concluding that it's an _illegal_ search
| than I am concluding that it 's not a search at all. During the
| period that the warrant(s) didn't apply, it should have been
| sitting in a sealed evidence bag and not being modified by a
| 3rd party. The law doesn't and shouldn't make provisions for
| "eh, it's probably not a big deal, we'll probably get another
| warrant".
| Pxtl wrote:
| So if the government bugs your car and home but doesn't turn the
| bug on, is that a search?
| Clubber wrote:
| Yes and I believe if you remove it, they can charge you with
| theft.
| rolph wrote:
| [0] Is It Considered Theft if You Remove a Law Enforcement
| G.P.S. Tracking Device from Your Automobile?[2020]
|
| https://www.wimmercriminaldefense.com/is-it-considered-
| theft...
| ezfe wrote:
| No, and there's actually an analogy: phone taps. The "bug" is
| already installed, they just need the warrant to turn it on.
| rangestransform wrote:
| we found out that "lawful" intercept is a lie recently, and
| it left a gaping hole in our infrastructure
|
| can we please encrypt everything and turn off government
| access for all communications now
| yapyap wrote:
| Federal court is stupid,
| throwawaycities wrote:
| This will be great legal precedent for the courts to extend to
| implanting neuralink style chips in your brain - although a
| neuralink chip may facilitate a future search and seizures (pun
| intended), the installation of the chip itself is neither a
| search nor a seizure; therefore, the 4th Amendment does not apply
| WaitWaitWha wrote:
| Couple of notes on this:
|
| 52 devices _could_ mean a phone, a tablet, and 50 USBs, SD cards,
| and such.
|
| The problem with loading firmware to permit is the potential
| damage to the evidence and the potential to imply that the
| evidence was planted.
|
| The vast majority of the cell phone hacking involves loading
| material into at least into memory and often modify the boot load
| sequence. This is how all that I worked with (e.g., Cellebrite,
| Magnet, MSAB, Oxygen, AccessData) function.
|
| damage: I have toasted devices by hooking them up to forensic
| tools, mobile phones and more.
|
| planted evidence: There have been several challenges to this (I
| think US v. Ganias), and let's not forget the Casey Anthony trial
| where they argued that the forensic tool CacheBack reliability.
| Not surprisingly, F/LOSS tools are better defense for this than
| black-box commercial ones.
|
| The more complex the evidence collection, the more likely damage
| can occur, or planted evidence can be argued.
| julianeon wrote:
| It seems like the writing is on the wall.
|
| There will be some Official Ruling that you can't do this
| (probably antiquated 20th century) thing because that constitutes
| an Unlawful Search or whatever. Thank you to the Constitution for
| protecting our freedoms, etc.
|
| Meanwhile, there will be a much more powerful way to achieve that
| goal using a smartphone, which is 100x more subtle and effective,
| which will be legal because technically it doesn't cross the big
| red line. There will be some arcane logic here that only a lawyer
| could love, but it will amount to 20th century technique =
| banned, 21st century cellphone technique = fine. So everyone will
| do that.
|
| It'll just get more pronounced over time.
| wbl wrote:
| Look at Katz to see the opposite.
| salawat wrote:
| I second this. That kind of trickery is absolutely obvious to
| the judiciary, and as of yet Katz hasn't been overturned,
| even if it has been at times pointedly ignored.
| renecito wrote:
| I'd guess that's the criteria to make government mandated
| backdoors legal.
| yieldcrv wrote:
| nah, appeal. reviving it involved modifying someone's personal
| property.
|
| I like that this is in the 9th circuit so I think the defendant
| and this country's subjects will get a favorable ruling
|
| people ask me how much I want to make: enough to take any cases
| through federal appeals court
| singleshot_ wrote:
| Analogize to those cases where they seize an inoperative gun
| and then go to certain, specific lengths to make the gun
| operate before charging the possessor with possession of a
| (potentially) operative gun.
|
| Distinguishable because it's not a search. Can you draw a rule
| from this?
| yieldcrv wrote:
| I would argue that what theyre doing is outside of the scope
| of the warrant they already used, and also possible that the
| defendant asked the wrong question for this challenge
|
| And that those other cases should have been challenged too,
| if they weren't
|
| I've seen too many things that were either difficult to
| challenge or only affected people too poor to challenge, to
| just accept a common practice because its common. I will
| accept prior case law from federal appeals courts though
|
| I feel like there should be a limitation on government power
| here either way as they changed the circuitry and firmware.
| they should at least give more information about the
| firmware, for mounting a defense we should have information
| about the firmware itself
| dhx wrote:
| Is this ruling effectively that it's irrelevant whether or not a
| warrant existed to modify the iPhone 6 because in this case,
| there is no loss to the claimant from that modification having
| been made? How much would an old second hand broken iPhone 6 that
| needs repair sell for? ... not much. Yet the repair carried out
| has seemingly significantly increased the value of the iPhone 6.
| The only argument that otherwise comes to mind is an iPhone 6
| with an old and very specific version of firmware could be more
| valuable due to rarity and people are transacting them for
| $20,000 on eBay because of that firmware version's ability to be
| rooted. Yet an eBay confirms this is seemingly not the case.
| Perhaps though there is a non-insignificant cost to buying and
| selling 20 or 50 iPhone 6's off eBay before finding one with an
| old enough firmware version installed?
| Sparkyte wrote:
| It isn't, but it should be illegal to repair or modify something
| you do not own without the consent of the owner. You wouldn't
| rent an apartment only to put 10k renovations into it? I mean
| lets be real that is practically illegal.
| radicaldreamer wrote:
| This was an iPhone 6, so I assume that the logic board change
| enabled brute force passcode searches. This was fixed in a
| subsequent update to the secure enclave, so this is less likely
| to work on the latest devices.
| sharpshadow wrote:
| Maybe Apple was right after all with their iPhone refusing any
| replacement parts.
| ReptileMan wrote:
| Fair game. The government shouldn't be able to force you to
| unlock a device. Even with fingerprint or face. But it is totally
| ok to get inside any way they can.
| 015a wrote:
| Unrelated to the ruling: Why is the Department of Homeland
| Security investigating and pursuing a CSAM case in the first
| place? Isn't that more FBI's jurisdiction?
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