Brindle

This is a short video of the Rainbow Road Easter egg that Tesla included in its autopilot feature on the Model S. By activating the autopilot four times in quick succession, the road turns to Mario Kart's Rainbow Road. Want to drive Rainbow Road in real life? Go-Kart on acid. Just don't tell the Go-Kart World employees you're on acid or they might not let you drive. Also, wear sunglasses so they can't see your dilated pupils and try to walk like a normal person until you're in the cart. Then have the time of your life. Just remember that green shell that you hit might have been a person. Keep going for the video in case the GIF isn't enough for you. Thanks to devon, Ash and n0nentity, who agree it would be even cooler if the display turned into Spy Hunter for the NES, complete with enemies and the red truck you can drive into for upgrades.

I guess the real accomplishment of "The Most Transparent Administration" is how much it exposed Americans to domestic surveillance. I suppose that's its own form of "transparency."

Just Security's Patrick Toomey notes that this administration has embraced legal theories wilder and more expansive than those presented by John Yoo on behalf of the Bush administration. Yoo, despite his willingness to treat the collection of communications like a DUI checkpoint for terrorism, had his limits. This administration, however, has seen those limits and lowered them.

Like Yoo, the Obama administration has argued that Americans have a “greatly reduced” expectation of privacy in their international communications — so diminished, in fact, that no warrant is necessary for the government to intercept and search those communications. That might come as a surprise to the millions of Americans who regularly engage in personal or confidential communications with family, friends, business associates, and others overseas. When you pick up the phone to call a family member abroad, there is no reason to believe that your communication is any less private than calling a friend across town. The Supreme Court has certainly never said any such thing. Indeed, Yoo eventually admitted in his memo that the case law did not support the suspicionless interception of “the contents of telephone or other electronic communication[s]” — though he then proceeded to ignore his own conclusion.

But that has not stopped the government from making the same claims in the Section 702 cases now moving through the courts. The government has embraced Yoo’s position, arguing that the privacy interests of US persons in international communications are “significantly diminished, if not completely eliminated,” when those communications are sent to or from foreigners abroad.

Going further, this administration has decided to believe that any communication traveling outside of US borders is a communication with a foreigner, even if it's a domestic-to-domestic conversation taking an extremely circuitous route. If it crosses one of the overseas backbones the NSA has tapped into, it's fair game, no matter who the ultimate recipient of the communication actually is, or where they reside.

This is the NSA's upstream collection under Section 702, which now goes much, much further than Yoo's version ever did. Toomey notes Yoo assured FISA Court Judge Kollar-Cotelly that this collection was not the Bush administration giving itself permission to seize and search every international communication. But that's exactly how the Obama administration has chosen to interpret its powers.

As the ACLU recently explained in Wikimedia v. NSA, this surveillance is the digital analogue of having a government agent open every letter that comes through a mail processing center to read its contents before determining which letters to keep. In other words, today the Obama administration is defending surveillance that was a bridge too far for even John Yoo.

So, John Yoo, the architect of what was once thought to be the greatest expansion of government surveillance powers, is now just the guy who laid the foundation for the intelligence community today. What the Bush administration considered to be too far is the Obama administration's starting point. Considering the breathtaking reach of the NSA under this administration, it's hardly surprising a few leakers have taken it upon themselves to reveal to the public what's being done to them by their government in the name of national security.

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The FBI's Inspector General has released a report on the New Jersey FBI branch's Computer Forensics Laboratory. For the most part, the report is positive and shows this branch tends to handle its forensics work competently. The problem comes when it opens up its tools up to local law enforcement.

The FBI lab has a phone/media forensics kiosk located in the lobby of its building.

The Cell Phone Investigative Kiosk (Kiosk) allows users to quickly and easily view data stored on a cell phone, extract the data to use as evidence, put the data into a report, and copy the report to an electronic storage device such as a compact disk.8 In addition to the Kiosk, there is also a Loose Media Kiosk, which processes digital evidence stored on loose media, such as a DVD or memory card.

Because it's outside of the actual lab, the FBI apparently feels it's ok if it doesn't track who's using the kiosk.

To use the Kiosk, law enforcement personnel are required to schedule an appointment. However, the NJRCFL does not require Kiosk users to sign its Visitors Log since users do not go beyond the reception area or enter the NJRCFL’s laboratory space.

That leads to this sort of thing.

According to the Director, sometimes one investigator will schedule a Kiosk appointment and another investigator will show up in his or her place, or more than one investigator may accompany the scheduled investigator to use the Kiosk. According to the Director, NJRCFL personnel assume that all of the personnel who arrive for a scheduled appointment are part of the same case. However, he said that the NJRCFL does not verify that everyone arriving for a scheduled appointment is working on the same investigative matter.

This is a problem because there are rules in place for use of the forensics kiosk, which include law enforcement officers having the proper authority to perform the search, the training to do so and the permission of the local AUSA (Assistant US Attorney). The FBI's decision to skip this verification step by not requiring signatures on the visitor's log means anyone could show up and use the kiosk without having secured the permission to do so.

The FBI does have this control in place, which couldn't possibly be circumvented.

While the Kiosk is housed in the reception area, the cables necessary to connect the Kiosk to a cell phone are not stored with the Kiosk. Instead, the NJRCFL examiner responsible for supervising the Kiosk provides the cables to a visiting user. Without the cables, cell phones cannot be connected to the Kiosk, ensuring that the examiner on duty would have to know that a person was attempting to use the Kiosk because the examiner would have to supply the appropriate cable.

These "cables" sound a lot like your standard USB cables. There may be a proprietary connection on the FBI kiosk which prevents the use of off-the-shelf cables, but it's not as though no one in law enforcement could secure this sort of cable through other means. Even if these are cables that are only found at FBI offices, there's nothing stopping law enforcement officers from searching removable media without checking in with the reception desk first.

On top of that, there's nothing preventing law enforcement officers from asking for a cable and then performing illegal searches or using the forensics software for non-law enforcement reasons.

As a result of the procedures and practices described above, we found that the NJRCFL did not have adequate controls over the access to and use of its Kiosk. FBI policy requires Kiosk users to confirm they possess the proper legal authority for the search of data on cell phones or loose media. During our fieldwork, neither the FBI nor the NJRCFL provided any confirmation to show that NJRCFL Kiosk users possessed the proper legal authority to search for evidence on the devices examined. In addition, the FBI did not provide us with any information regarding controls in place at the NJRCFL to ensure that users do not use the Kiosk for nonlaw enforcement matters, an inherent risk of Kiosks without adequate controls.

While the form officers are required to fill out to use the kiosk contain statements about having the legal authority to perform the search, the documents do not ask for any specifics about these authorities. It's just boilerplate text that anyone can sign, knowing that the lack of a visitor's log means no one can cross-reference possibly bogus affirmations with kiosk use.

This same problem is likely found at most other FBI offices with forensics kiosks. The report notes the same issues were discovered during its audit of the Philadelphia field office. The form -- and the "best practices" -- provide only the most minimal of safeguards against abuse. And the fact that the changes made in Philadelphia in response to the OIG's investigation never trickled down to the New Jersey office suggests this problem will be corrected on a case-by-case basis following an Inspector General's audit, rather than adopted across all offices.

A new form has been put into use -- at least at the New Jersey office -- that will capture more information about the legal authorities used to perform kiosk searches. However, there's nothing in the report that indicates this office -- or any others -- have stepped up to require kiosk users to sign a visitor's log. In addition, more than a quarter of kiosk users reported they did not have the training in place to use the equipment, yet are accessing it anyway. Until more improvements are put in place, FBI offices can't say they're doing everything they can to ensure lawful use of its forensic equipment.

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How do we know whether information is classified? Well, because the government tells us it is. But what does that mean? It turns out it means whatever the government wants it to mean, subject to time, place, personnel involved, etc.

Classified material handed over to movie producers by Leon Panetta? Probably not a big deal. Classified material handed over to journalists by whistleblowers? That's a prosecutin'.

No one explains this slippery approach to classification better than President Obama, who was gamely trying to answer questions about an ongoing investigation (Hillary Clinton and her famous emails) during an interview with Fox News.

“There’s classified, and then there’s classified,” the president said.

That clears everything up. Clinton sent, received and stored classified info on a private email server. This cannot be disputed. But some classified info is more equal than others. It all depends on who has it and how the current administration feels about that person.

It's also about how the current administration feels about whistleblowers. It doesn't like them. So, Clinton playing fast and loose with classified info is subject to an entirely different standard than the large number of whistleblowers the Obama administration has prosecuted over the years.

Obama, again, digs deep into his feels to provide a technical explanation of this dichotomy.

President Obama said in an interview broadcast on Sunday that while Hillary Clinton had been careless in managing her emails as secretary of state, she would never intentionally do anything to endanger the country.

I believe this is true. Hillary Clinton does love this country -- or at least the part of its she's intimately familiar with: the highly-insulated Beltway interior. She certainly would never do anything intentionally to harm her position of power or her chances of a November promotion. We can tell how much she wants to keep the country safe by how much effort she's put into keeping her communications out of the hands of the public. This is the Administration Way. There's nothing more dangerous to the US government than transparency and accountability. Clinton knows this. Obama definitely knows this.

The problem is, as Trevor Timm points out, violating the Espionage Act doesn't require an intent to harm. Handling classified material carelessly can open one up to charges… provided you're not part of the government's inner circle.

Obama's interview also explained why government agencies redact or withhold information already in the public domain. It all traces back to "classified" being an almost-entirely subjective term when deployed by the government.

“There’s stuff that is really top-secret top-secret, and there’s stuff that is being presented to the president or the secretary of state that you might not want on the transom, or going out over the wire, but is basically stuff that you could get in open-source.”

Classification: all things to all people, as long as it allows officials and agencies to control narratives and disrupt public accountability. No matter what the FBI concludes from its investigation into Hillary Clinton, Obama has already granted her a pardon.

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The criminal justice system theoretically operates on a presumption of innocence. An arrest booking is hardly an indicator of guilt, but try telling that to millions of people who believe being accused is no different than being found guilty by a jury. Everyone knows this presumption of guilt exists, despite it being wholly contrary to the basis of our justice system.

Cops know this best. A high-profile bust is as good as a guilty verdict. So it's no surprise that they've increasingly turned to the greatest shaming mechanism known to man: the internet.

In a long, detailed and disturbing piece for the New Republic, Suzy Khimm examines law enforcement's infatuation with harnessing the internet to prey upon the public's continual presumption of guilt. It leverages the most lurid of accusations for maximum shaming, knowing that anything with "sex" in the vicinity will gather news crews like pyros to a dumpster fire.

Prostitution stings are a favorite. You can easily tell it's a victimless crime because none of the parties involved receive any privacy protections from law enforcement. Being swept up in one of these stings means seeing your name and face splashed across a variety of news outlets while the fine print ("all arrestees are innocent until proven guilty") is relegated to the end of the coverage, if it's mentioned at all.

The name of the crackdown suggested a cheeky tabloid headline: Operation Flush the Johns. The other news hook was its sheer scale: 104 men arrested for trying to buy sex through the sting. At a press conference in June 2013, Nassau County District Attorney Kathleen Rice and Police Commissioner Thomas Dale unveiled the arrests with great fanfare, arraying the mug shots of all the accused men on a big poster board propped up next to the podium.

How could any self-respecting tabloid resist? “Heeeere’s the ‘Johnnies’!” screamed the New York Post: “104 Horndogs Exposed in Prostitution Sting’s Wall of Shame.” Their names and faces made the U.K.’s Daily Mail. ABC News’s New York affiliate and The Huffington Post turned the 104 photos of the men into online slide shows, leaving out the disclaimer that officials had put in small letters at the bottom of the original image: “All are presumed innocent until proven guilty.” As the articles spread online, they begat more stories and links. All of it now swamps the search results for the names of many of the men arrested, regardless of whether they were ultimately convicted.

Rarely do these stings result in large numbers of convictions. In fact, sex trafficking stings -- ones that encompass years of investigations -- rarely result in anything more than a handful of prison terms. Sex trafficking is almost always tied to prostitution busts, even when no evidence of trafficking can be found. But police departments and politicians love nothing more than to shame everyone involved -- especially the paying customers.

This isn't a recent development. This country's Puritanical approach to sex has long been the focus of law enforcement shaming efforts. It's not enough to simply arrest and charge customers and sex workers. An effort must be made to uphold the stigma. This law enforcement "tradition" traces back to the late 1970s, if not earlier. Politicians and judges, working in concert with like-minded law enforcement who felt laws and statutes weren't doing enough to deter offenders, came up with creative ways to further punish arrestees.

In 1979, New York’s mayor Ed Koch introduced “The John Hour,” in which he read over the public radio the names of men who had been convicted of buying sex. (It actually lasted less than two minutes and only aired once.) In 1988, a Brooklyn slumlord was sentenced to live in one of his buildings, where his tenants greeted him with a banner that read “Welcome, You Reptile.” In a 1994 domestic violence case, a court ordered an Ohio man to either pay a $100 fine or let his ex-wife spit in his face.

As for the 104 busts that went viral, prosecutors have nearly nothing to show for it.

In the end, 18 men pled guilty to the misdemeanor charge, 67 pled guilty to disorderly conduct, six were acquitted, including the scientist, one was designated as a youthful offender—a teenager whose records are sealed—and seven cases were dismissed. Of the 104 men originally arrested in Operation Flush the Johns, only one was convicted at trial. (As of this February, three cases are still pending, and a warrant is still out for one man’s arrest.)

That nearly everyone walked away without being charged with soliciting prostitution is lost to history. One scientist (whose story is detailed in the report) basically lost everything, even though he was acquitted. And still, law enforcement officials -- along with the politicians who have made sex "crimes" their pet issue -- continue to claim there's nothing wrong with leveraging public perception to destroy lives.

Today, Rice and Nassau County both deny that Flush the Johns went out of its way to shame anyone or treat their arrests differently. The biggest difference, Rice argues, was that our culture continues to view prostitution as a “socially acceptable crime,” unlike other offenses. “Every DA’s office puts out a press release when they make arrests—there are pictures of people accused of murder,” she told me in a recent interview.

[...]

“This was not ‘shaming’ nor was it intended to be—this was enforcing the law and raising awareness of a violent industry that too many people don’t consider to even be criminal,” said Shams Tarek, a spokesman for the Nassau County District Attorney’s office. “The wealthy college-educated professional and the poor drug dealer deserve the same treatment by the justice system every day of the year; some people want different sets of justice systems for different kinds of defendants, and that’s wrong.”

But none of this is true. Law enforcement officials don't hold press conferences to announce every misdemeanor bust and they certainly don't do it under cutesy mission titles like "Flush the Johns." It's all about shaming people for consensual transactions, simply because some people feel it's morally wrong and law enforcement knows its an easy way to ensure positive press.

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"But for video," as they say. (Well, mainly Scott Greenfield…)

Abusive conduct by police officers -- up to and including killing someone for, say, holding a plastic bucket -- has always flown under the "your word against ours" radar. But now everyone has a camera, even the cops.

The push for body-worn cameras is still a good idea, but it has many, many flaws. It won't save the nation from police misconduct but it will put a dent in it. Back when the NYPD was ordered to begin a body camera pilot program, then-Mayor Bloomberg said the devices would become nothing more than another way to play "gotcha" with good cops.

A camera on the lapel or hat of a police officer... He didn't turn the right way. My god, he DELIBERATELY did it. It's a solution that's not a solution…

Bloomberg was prescient, but not in the way he imagined it. He felt cops would be accused of covering something up by failing to get the best angle when recording an arrest. But it looks like the limitations of the cameras themselves are capable of covering up bad behavior even without the active involvement of the officers wearing them.

The ACLU's Jay Stanley pointed this out last year in a post that echoes Bloomberg's complaint, but with the view that cops could use cameras to defeat transparency, rather than participate in it. We already know cameras operated by police officers seem to develop technical issues during controversial interactions. Some are switched off. Some produce video but no audio. Some develop intermittent problems that can't be replicated by tech support, but always seem to have captured everything but potentially damning footage.

Even when they're left on, they can still be used to control the narrative, as Stanley points out.

A stellar example of what I’m talking about can be found in the case of a man named Marcus Jeter, who was pulled over, beaten, and arrested by a Bloomfield, New Jersey officer in 2012. The officer who is beating Jeter can be heard on video yelling, “Stop resisting! Stop resisting! Why are you trying to take my fucking gun! Get off my gun!” In the officer’s dashcam video, it is unclear whether Jeter was, in fact, resisting and/or trying to take the officer’s gun, and Jeter was charged with a number of criminal counts including assault. Internal affairs cleared the involved officers of any wrongdoing and prosecutors offered Jeter a plea deal of 5 years in prison.

Fortunately for Jeter, a second video surfaced showing the incident from another angle. The video was from the dashcam on another patrol car that arrived at the scene as backup, and which prosecutors said was not initially provided to them by police. In the second video, it is clear that Jeter had his hands in the air from the beginning before being attacked by the officer. (The police officer was charged with aggravated assault, and he and another officer also faced charges including conspiracy and falsifying reports. A third officer pleaded guilty to tampering and retired. All charges against Jeter were dropped.)

By falsely shouting that Jeter was resisting and trying to take his gun, even as he beat the motorist, the officer was clearly acting for the cameras, aware that he was playing a role in a public drama where later interpretations of what took place would be contested. And his aggressive physical behavior was matched by an equally aggressive attempt to define how his own actions would be interpreted. He almost succeeded.

Officers are actors and directors in their own scenes. Even when performances are captured by bystanders and their cell phones, there's still plenty of "drama." Multiple cops swarm the same suspect, blocking the body from view. Officers shout "Stop resisting!" even when subjects are prone with hands behind their back and under the weight of four or five cops. This allows officers to deliver extra amounts of force, instantly justified by the repeated shouts about resistance.

This scenario has played out again. Footage captured by police body cameras appears to show a tough, physical struggle to subdue a suspect. Shouts of "stop resisting" continue throughout the recording. The up-close-and-personal body cam footage gives every appearance that officers are wrestling with a highly-combative suspect. But footage captured by another camera shows an entirely different scenario.


Here's Stanley's description of what actually happened, as captured by a security camera:

It’s hard to imagine what more a suspect could do to avoid being beaten by the police. Derrick Price not only puts his hands high in the air, he then proceeds to lie spread-eagle on the pavement before any of the Marion County sheriff’s deputies reach him. And yet the deputies beat him. What appears to be taking place in this video (as in many others, including the granddaddy of them all, the Rodney King video) is that police officers, angry at a suspect for fleeing (and perhaps disobeying previous orders to stop), have taken it upon themselves to punish the suspect for that disobedience.

Compare that to the "official" footage (which starts at 1:42 in the video above) captured by the officer's body camera. (There's a side-by-side comparison of the footage available here.)

[T]he difference between the two videos is… a result of intentional manipulation by the officers beating Price, who repeatedly yell “stop resisting!” as they kick and punch his unmoving body. And the body camera never properly captures the beating of Price, actually facing fully away from the action at some points. It is hard to tell how intentional this was on the part of the officer wearing the camera, but it’s easy to imagine that the officer knew that what his colleagues were doing was not acceptable, and intentionally sought to avoid videotaping them.

The devices that were supposed to result in better policing are becoming complicit in their abusive behavior. Stanley notes the camera was turned on far too late (after the officers had already swarmed the suspect) and turned off far too early (before the suspect was actually in custody). If this had been the only recording available, "our word against yours" would have been completely unassailable. After all, the police department had footage of a highly-physical struggle with a combative suspect. Without the footage captured by an impartial surveillance cam, everything about the arrest would have appeared justified.

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The Baltimore Police Department's warrantless deployment of Stingray devices has come to an end. It may have gotten away with more than 4,300 times so far, but the Maryland Special Appeals Court has declared these devices operate as searches under the Fourth Amendment.

The 74-page opinion -- which belatedly follows its two-page order from nearly a month ago, indicating which side it had taken in this dispute -- dives into every issue implicated by the warrantless use of Stingray devices and examines them alongside a long list of Fourth Amendment-related Supreme Court decisions and the Fourth Circuit Appeals Court's precedent-setting US v. Graham opinion on cell site location info.

The court rejects the government's arguments that location data is something cell phone users "share with the world," along with its Third Party Doctrine assertions. It does this by using the government's own testimony against it. The government maintained the defendant willingly shared location data and other info with the phone company by turning his phone on and using it. But, according to its own statements, the defendant "willingly shared" nothing. In fact, if he had been using his phone to make a call, it's likely the PD would not have been able to locate him.

[DEFENSE COUNSEL]: So, how do you get information about where the phone is on the machine?

[DETECTIVE HALEY]: Because when it captures that identifier that you put into the machine or the equipment, it then tells you -- it looks like a clock on the equipment. And it tells you where the signal’s coming from, like 12, 1, 2, 3 o’clock (indicating). And it will give you like a reading. Like if it says 1:00 at like an 80, well, then you know that you’re kind of close to it. But if it says 1:00 at like a 40, then you know that you’re probably within, I don’t know, probably, you know, 20 yards of it.

[DEFENSE COUNSEL]: The person doesn’t have to be using their phone for you to get that information, do they?

[DETECTIVE HALEY]: Actually, if they’re on their phone, then they’re already connected to -- in this case, the Sprint network. And we’re not going to be able to pull them off of that until they’re -- until they hang -- until they hang the call up.

[...]

[DEFENSE COUNSEL]: When I am not on my phone, you will drive by my house, and you will get a signal from my phone indicating where I am, right?

[DETECTIVE HALEY]: Correct.

[DEFENSE COUNSEL]: If I am using the phone, you won’t get that signal, right?

[DETECTIVE HALEY]: Correct.

[DEFENSE COUNSEL]: So, the phone cannot be in use. You are searching for my phone as you’re driving through my neighborhood, right?

[DETECTIVE HALEY]: Yes.

[DEFENSE COUNSEL]: And in order to get to my phone, you are sending an electronic signal into my house, right?

[DETECTIVE HALEY]: Yes.

As the court notes, this is far from the passive acquisition of information the government has portrayed it as.

[I]t is clear from Det. Haley’s testimony that “the Hailstorm equipment acts like a cell tower,” but, unlike a cell tower awaiting incoming signals, the Hailstorm is an active device that can send an electronic signal through the wall of a house and “draw[] the phone to [the] equipment.”

The government sought to compare this to warrantless physical surveillance utilizing a beeper for tracking. The court finds nothing comparative in the two cases.

Here, there was no visual surveillance. The mere fact that police could have located Andrews within the residence by following him as he travelled over public thoroughfares does not change the fact that the police did not know where he was, so they could not follow him. Unlike Knotts, the information obtained in this case did reveal at least one critical detail about the residence; i.e., that its contents included Andrews’s cell phone, and therefore, most likely Andrews himself. Further, “pings” from Andrews’s cell phone to the nearest tower were not available “to anyone who wanted to look.”

Further dismantling the government's notions about cell phone users being nothing more than convenient generators of a wealth of third-party records, the court notes Andrews performed no "affirmative" action.

In the present case, there was no affirmative act like “dialing.” This is made abundantly clear by Det. Haley’s testimony stating that “if they’re on the phone, then they’re already connected to . . . the [] network[, a]nd we’re not going to be able to pull them off of that until . . . they hang up the call.” Det. Haley’s testimony reveals that, in the event that an individual is actively using the cell phone to knowingly transmit signals to nearby cell towers, the cell site simulator will not be able to access the phone.

The pin-point location information that led to finding Andrews was obtained directly by law enforcement officers and not through a third-party. It is not the case that Andrews’s cell phone transmitted information to the service provider that was then recorded and shared with law enforcement. Thus, it cannot be said that Andrews “assumed the risk” that the information obtained through the use of the Hailstorm device would be shared by the service provider as in Smith. The function of the Hailstorm device foreclosed that possibility.

Having taken apart the government's Third Party assertions, the court examines the search under the Fourth Amendment and finds the use of Stingray devices to track individuals in real-time by sending signals into residences to be invasive enough to require the use of warrants.

The court also takes time to point out the PD's evasive behavior -- supposedly "justified" by the FBI's standard Stingray-device nondisclosure agreements.

The analytical framework requires analysis of the functionality of the surveillance device and the range of information potentially revealed by its use. A nondisclosure agreement that prevents law enforcement from providing details sufficient to assure the court that a novel method of conducting a search is a reasonable intrusion made in a proper manner and “justified by the circumstances,” obstructs the court’s ability to make the necessary constitutional appraisal.

And it wasn't just the magistrate judge signing the pen register order that was cut out of the loop by the NDA. It was the defendant and his representation. In addition to the very belated notification about the technology used to locate the defendant, there was also a Brady violation.

On November 3, 2014, defense counsel filed a supplemental discovery request seeking, inter alia, “[a]ll evidence indicating how Andrews was located at 5032 Clifton Avenue.” The State’s response to that request, dated January 8, 2015, stated, “[a]t this time the State does not possess information related to the method used to locate [Andrews] at 5032 Clifton Avenue.” However, five months later defense counsel received an email from the Assistant State’s Attorney (“ASA”) assigned to the case indicating that it was her understanding that “the ATT used a stingray to locate[] your client via his cell phone,” but she was waiting for “the paperwork.” The next day, May 7, the ASA also notified defense counsel of exculpatory evidence in the form of a negative photo array that was conducted the previous January.

This all adds up to the Baltimore PD having all evidence obtained from its search warrant thrown out as "fruit of the poisonous tree," thanks to its reliance on the use of a Hailstorm IMSI catcher to locate the suspect. The PD will no longer be able to use pen register orders to deploy the technology and won't be allowed to hide its use from the courts or defendants because each warrant application must provide details on the methods and tech to be used to perform the search.

This won't change much for the rest of the nation, as it only affects the state of Maryland, but it does apply the judicial brakes to one of the nation's heaviest users of cell tower spoofers. Thanks to its very thorough examination of the issues at stake in light of several major decisions related to the Fourth Amendment and Third Party Doctrine, it will likely be referenced and cited by defense lawyers around the nation during suppression motions related to Stingray use.

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USA Today's Brad Heath has dug up another use for the FBI's now-infamous All Writs Act orders: skirting the Fifth Amendment. In a 2015 case currently headed to the Appeals Court, the government is attempting to use All Writs to force a defendant to unlock his devices.

The order finding Francis Rawls guilty of contempt contains a footnote pointing to the government's use of an All Writs order to force Rawls to unlock his devices -- and, one would think -- allow the government to dodge a Fifth Amendment rights violation.

On July 29, 2015, the Government obtained a search warrant for certain electronic media previously seized by Delaware County and Philadelphia County law enforcement officials. Dkt. No. 1. On August 3, 2015, the Government made an application pursuant to that All Writs Act to require Francis Rawls to assist in the execution of a previously executed search warrant.

"Assist in the execution" means forcing Rawls to possibly provide evidence against himself, depending on what's contained in the devices. However, the court didn't see it this way. It considered his unlocking of the devices to be "non-testimonial." While it did grant him a chance to respond to the All Writs application, it ultimately found in favor of the government.

Importantly, the August 27th Order rejected Rawls contention that providing any assistance to the Government would violate his Fifth Amendment privilege against self-incrimination.

More on the court's reasoning can be found in the order granting the government's All Writs application -- again relegated to a footnote.

By way of a "Motion to Quash Government's Application to Compel" filed August 26, 2015, Mr. Rawls objects to providing assistance to the government in the execution of the search warrant because his act of decrypting the electronic devices seized by the government would be considered testimonial and, therefore, violate his Fifth Amendment privilege against self-incrimination. However, federal courts have recognized the "foregone conclusion" doctrine. The courts hold that the act of production of encryption codes is not testimony - even if this production conveys a fact regarding the possession or authenticity of the images contained in the electronic devices - if the government can show with "reasonable particularity" that, at the time it sought to compel the assistance of Mr. Rawls, it already knew of the materials, thereby making any testimonial aspect a "foregone conclusion."

[...]

Here, the Affidavit of Special Agent David Bottalico, supporting the application for a Search Warrant, establishes that (1) the Government has custody of the electronic devices; (2) prior to the Government's seizure, Mr. Rawls possessed, accessed and owned all the electronic devices; and (3) there are images on the electronic devices that constitute child pornography. Therefore, under the "foregone conclusion" doctrine, requiring Mr. Rawls to assist in the decrypting of those devices does not violate his privilege against self-incrimination.

According to this reasoning, the government already "knows" what's contained on the devices, so there's nothing incriminating about Rawls unlocking them for it. But why would that require the use of an All Writs order? It would seem if the evidence is a "foregone conclusion," then there's no need for the devices to be unlocked at all. The government should have all the evidence it needs to continue with its prosecution.

The All Writs Act is in place to work around limitations in law -- for situations where current laws don't completely apply. Lately, it seems to used most often to advance ahead of Congress and exploit areas where technology has outpaced legislation. In this case, the Act is being used to create a loophole in the Fifth Amendment -- seemingly for no other reason than to allow the government to bolster its case. While that is the point of seeking evidence, it would appear the government already has evidence of criminal activity and is using All Writs to do what it can't do directly without jeopardizing its prosecution: force Rawls to unlock his devices.

The case citations are also illuminating. Apparently all the government needs to acquire an All Writs order compelling decryption is the knowledge that a.) said device exists and b.) the government knows where it is located.

[U]nited States v. Sabit, 2014 WL 1317082, at *2 (E.D. Mich. April 1, 2014) ("[W]hen a witness produces a document that the government knows exists, the act of production is tantamount to a "surrender" and is not "testimonial.")

[...]

United States v. Fricosu, 841F.Supp.2d1232, 1236 (D. Colo. 2012) (defendant's Fifth Amendment privilege against self-incrimination was not implicated by requiring her to produce the unencrypted contents of a computer, when the government knew of the existence and location of the computer's files); In re Boucher, 2009 WL 424718, at *3 (D. Vt. Feb. 19, 2009) (requiring defendant to produce an unencrypted version of his laptop's Z drive did not constitute compelled testimonial communication when the government previously knew the location of the Z drive and its files).

Brad Heath notes that this a "more common" use for All Writs requests. There does appear to be some history here. Notably, a similar effort made during a prosecution over similar subject matter was denied by a magistrate judge in Wisconsin. While the judge in the 2015 case found the unlocking of devices to be "non-testimonial" and a foregone conclusion, Judge William E. Callahan Jr. found it to be "compelled incrimination" -- a violation of the defendant's Fifth Amendment rights.

This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with “reasonably particularity”—namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.

The only difference between the two cases is the strength of the government's assertions as to the defendant's "personal access and control" of the devices in question. Because much of the docket is sealed in the 2015 case involving Rawls, we can't see firsthand what evidence the government provided that makes this case stronger than the 2013 case where its All Writs request was denied. (We do have access to Rawls' lawyer's arguments to the contrary.) The footnote contained in the contempt order only points to an affidavit by an FBI agent stating that devices were in Rawls' possession and he owned them -- right up until they were seized.

So, it appears the Fifth Amendment only goes so far in the US judicial system. But if it's that limited, it would seem an All Writs order is extraneous. If there's nothing protecting defendants from incriminating themselves when compelled by an All Writs order, then there's nothing stopping the FBI from "sweating down" defendants until they comply. As interpreted in this case, the only difference between an All Writs order and several hours of nonstop interrogation is FBI man-hours.

Rawls' case made be headed for the Appeals Court, but he'll be spending that intervening time in jail. His motion to stay the contempt order pending appeal was also denied.

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The political season lingers upon us, for all the world appearing to be less democracy in action and more likely some kind of test initiated by aliens to see exactly how much mind-numbing stupidity a populace can handle. In any case, for some reason presidential politics brings out the touchiest behavior amongst us. For instance, take a quick look at this brilliantly, if unintentionally, hilarious "trailer" a Donald Trump Supporter put together.

Hopefully you can still see the trailer embedded there, but more on that in a moment. So, the Donald retweeted the video out after the author had brought it to his attention, causing some in the press to comment on how it was a "fake movie trailer", and how it was the "most over the top" thing any candidate has done ever. Those of us in the gaming community, of course, just laughed, because the entire thing was a mashup of political footage and Mass Effect 2. The best part of the whole thing, intentional or not, is that the trailer is narrated in its original form by Martin Sheen, who plays a major villain role in the game and who has been "indoctrinated" by the bad guys into doing evil. If you aren't laughing at the irony at this point, you need to see your doctor because your sense of humor is busted.

Electronic Arts, publishers of the Mass Effect franchise, almost immediately DMCA'd the shit out of every form of this video it could find.

Publisher Electronic Arts took action against this video, removing it from YouTube and later from Twitter on copyright claims. It's company policy that its assets are not used for political gain.

"The video was an unauthorized use of our IP," a senior communications representative for EA told GameSpot today. "We do not support our assets being used in political campaigns."

And here's where things get tricky. Let's establish first that EA doesn't have any actual problem with people using its "assets" to create mock up trailers and fan videos. It's even cool with people doing so in a mocking or funny way, evidenced by it hosting a mocking trailer for Mass Effect 3 on its own YouTube page. The claim here is entirely about the footage and sounds being used by a political campaign.

But was it? Trump didn't create the video; he merely tweeted it out to all of this followers. This is complicated by the fact that so much of Trump's popularity has been built upon his rather deft use of both social media and the admittedly masterful way he conjures the press with a wave of his hands so that they might cover whatever thing he has to say at the moment. But is that a campaign at work, or just a private citizen doing private citizen-y things? This wasn't some paid political advertisement, nor was it shown at a rally. This is Twitter being used in its intended way: to share things with followers that might be of interest.

Regardless, the video is almost certainly covered by Fair Use, being transformative, non-commercial, and limited in its use. But EA DMCA'd it anyway, likely because it doesn't want its property being associated with The Donald. Which I understand, except that post-DMCAing the video, here we all are talking about it, watching it some more, and pumping even more conversation into Donald Trump's strange co-opted media machine. That's the Streisand Effect at work, and the Streisand Effect is more powerful than the Mass Effect, it seems.

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This is a video of Uncle Rob doing some arts & crafts by throwing cans of spraypaint into a lawnmower. Weird, I didn't even know I had an Uncle Rob. And, based on his life choices and everything about this video, I'm not sure how much longer I'll have one either. *reading eulogy* Uncle Rob was mentally ill and we should have gotten him the help he needed. Keep going for the video, the third can explodes in a glorious fireball. Thanks to Barnaby, who agrees arts & crafts time has certainly gotten out of hand.

We've seen this sort of thing proposed at the state level on more than one occasion. But Rep. Ken Buck, a former DOJ prosecutor, wants to take it national, as Chris Seaton reports for Fault Lines.

Colorado representative Ken Buck is very concerned about the health and well being of our nation's police officers. His concern for officer safety in a world that "hates cops" is such that that he's introduced legislation making attacks on police officers a federal hate crime.

Buck's "Blue Lives Matter Act," H.R. 4760, would make "an attack on a police officer a hate crime," according to the bill's text. The name of the legislation, filed Wednesday, alludes to the "Black Lives Matter" mantra taken up by activists who protest police violence against black people, particularly the killings of unarmed black people at the hands of police.

The bill not only makes an attack on a police officer (or an attack that appears to be motivated by the fact that the person represents law and order) a "hate crime," but it also makes it a federal crime. Buck apparently feels this legislation is going to win hearts and minds, as there's no avoiding it when you visit his website.


The proposal is also accompanied by a heartfelt "Dear Colleague" letter that talks about cops "holding together the fabric of our nation" and how they've been "intimidated" by recent acts of violence. No statistics are cited to back up his insistence that this a real problem that needs to be addressed with legislation… because there aren't any.

The National Law Enforcement Memorial Fund's stats show the number of officers killed in the line of duty has been decreasing over the last several years and appears to have hit a lower plateau of ~120/year for the past four years.


The number of officers killed in the line of duty to date this year stands at 29, which would put year-end totals roughly in the same neighborhood as the past half-decade. And yet, every death is greeted with claims that the law enforcement profession is deadlier than ever.

Law enforcement officers are better protected (by laws and policies, on top of actual physical protective gear) than members of the public but they're apparently not protected enough. Buck's legislation allows officers -- who have made a voluntary choice to pursue a more dangerous career -- to count themselves as an underprivileged class, most of whom have no choice whatsoever in their current status. Back to Chris Seaton:

Why add a job, something a person applied for and trained to do, to a list of concepts like "religion, national origin, gender, sexual orientation, gender identity, or disability?" If you're a logical, rational person (and we'll assume you are, since reading Fault Lines puts you in that bracket), you should be able to spot the flaws with Buck's rationale right away…

People can't choose their race, gender, disability or sexual orientation. Cops choose to be cops. If officers don't like the increased risk inherent to their profession, they can always quit. Most of the other groups routinely covered by hate crime legislation don't have that luxury.

The bill's broad wording would allow federal prosecutors to bring hate crime charges for even the simplest of assaults -- provided the action could conceivably be perceived as "anti-law enforcement." Here's Seaton's hypothetical:

The arbitrary nature of the Blue Lives Matter Act is clear when you notice it's a federal offense if someone is attacked because they're "perceived" to be a police officer. There's no need to prove cop status under the Blue Lives Matter Act. If an AUSA has evidence someone yelled "FUCK THE POLICE" at a Rage Against the Machine concert before slugging a security guard, they can make it a hate crime and force the defendant to plead down from there.

Police officers are already a protected class. They have their own Bills of Rights. They have good faith exceptions, immunity that shields them from many civil lawsuits, the power to stop and detain people for almost any pretense and the constant support of hundreds of legislators around the country. They don't need any more help. They're as far away from "underprivileged" as any group could be.

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Last fall, Comcast added a new wrinkle to its plan to impose arbitrary and unnecessary usage caps on the company's broadband customers. It began charging users a $30-$35 premium if users wanted to avoid caps, effectively turning the idea of unlimited data into a luxury option many could no longer afford. Caps continue to be a great way to impose price hikes on uncompetitive broadband markets, charge more money for the same service, with the added bonus of both curtailing -- and cashing in on -- the growing use of Internet video.

And because the broadband market is so uncompetitive, AT&T this week effectively just came out and decided it would follow Comcast's lead. In a blog post, the company announced that it's bumping the usage caps on its U-Verse broadband customers, but it's also going to be following Comcast's lead and charging users a $30 premium if they want to avoid them entirely. That is, unless you sign up for AT&T or DirecTV (now owned by AT&T) TV services:

"On May 23 we will introduce a new unlimited data option for our U-verse home Internet customers. Customers who subscribe only to our home Internet service who anticipate they will use more data than their new higher monthly data allowance – or who don’t want to think about how much data they are using – can sign up for unlimited home Internet data for $30 more a month. If you have AT&T U-verse Internet and DIRECTV® or U-verse TV service and pay for your services on a single bill you will automatically get unlimited home Internet data at no additional charge – a discount worth $30 a month.

What sweethearts! To soft sell the idea, AT&T emphasizes that they're raising the company's previous caps, but it forgets to mention (and most news outlets aren't noticing) that it had never bothered to enforce caps on U-Verse previously, effectively making these new caps. And like other ISPs before it, AT&T tries to argue that the caps aren't a big idea because most of its customers won't run into them:

"Today, our home Internet customers use just over 100 GB of data per month on average. So even with our smallest U-verse Internet data allowance of 300 GB the average customer has plenty of data to do more...If you don’t have unlimited home Internet data and you exceed your data allowance at any point during the billing cycle, you will receive increments of 50 GB of additional data for $10 each. The usage of approximately 4% of AT&T U-verse Internet customers currently exceeds our new higher data allowance.

The fact that the majority of your customers won't hit the caps now doesn't mean they won't in a year or two. It also doesn't magically explain away the reality that usage caps on fixed-line networks simply aren't necessary. They exist solely as a way to take advantage of uncompetitive markets, charging users more money for the same product. They're also an ingenious, anti-competitive way of protecting legacy TV revenue from Internet video. But an ISP can't come out and just say that, so AT&T sells it as a way for consumers to have "more choices":

"We want to continue providing a great experience for our Internet customers so we’re giving U-verse® Internet customers more choices and more data, including an unlimited data option available to any U-verse Internet customer."

Again, forcing customers to pay more money for the same service isn't giving consumers more choices. All AT&T's doing is imposing a glorified price hike. That's after the company announced it would be charging users a different $30 fee to opt out of AT&T snoopvertising, making privacy a luxury option just like unlimited data. It's yet another example of how the only real competition in the broadband industry -- is a competition over who can screw a captive market the hardest while with a straight face proclaiming they're improving the "customer experience."

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After many of its customers have suffered the ill-fate of purchasing a non-compliant USB Type-C cable from Amazon, the company is now banning any USB Type-C cables that are not fully compliant with the standard.

Historically, MIT Media Lab students who released their work under free/open licenses had to get approval from a committee (that always granted it). (more…)

Microsoft continues its manifest destiny-like drive to pull as many apps as possible onto Windows 10. It announced a Win32/.NET converter called "Project Centennial," Xamarin for mobile dev, and native Bash on Windows.

On Monday, President Obama gave a speech about journalism in Washington DC, in which he bemoaned the state of investigative journalism today, suggesting that the lack of good investigative journalism is partly to blame for the mess that is this year's Presidential election season:

A job well done is about more than just handing someone a microphone. It is to probe and to question, and to dig deeper, and to demand more. The electorate would be better served if that happened. It would be better served if billions of dollars in free media came with serious accountability, especially when politicians issue unworkable plans or make promises they can’t keep. (Applause.) And there are reporters here who know they can't keep them. I know that's a shocking concept that politicians would do that. But without a press that asks tough questions, voters take them at their word. When people put their faith in someone who can’t possibly deliver on his or her promises, that only breeds more cynicism.

There's plenty in the speech that I certainly agree with. The state of media coverage that has moved towards shallow entertainment and he said/she said journalism is sad. And it's good that the President called out that kind of stuff as well:

I think the electorate would be better served if we spent less time focused on the he said/she said back-and-forth of our politics. Because while fairness is the hallmark of good journalism, false equivalency all too often these days can be a fatal flaw. If I say that the world is round and someone else says it's flat, that's worth reporting, but you might also want to report on a bunch of scientific evidence that seems to support the notion that the world is round. And that shouldn’t be buried in paragraph five or six of the article.

He also highlighted some strong investigative reporting from the past and claims he's dismayed that we're seeing less of that today:

Whether it was exposing the horrors of lynching, to busting the oil trusts, to uncovering Watergate, your work has always been essential to that endeavor, and that work has never been easy. And let's face it, in today’s unprecedented change in your industry, the job has gotten tougher.

But he leaves out his own administration's actions as a big part of why the job of reporting has "gotten tougher." While he came into office promising "the most transparent administration in history" and one of his first official actions as President was to tell the entire federal government to default to revealing information in response to Freedom of Information Act (FOIA) requests, as we've detailed over and over again, the administration has actually been one of the most opaque, setting records for denying FOIA requests, and making it nearly impossible to get any information out of the government without a lawsuit.

Former NY Times Executive Editor, Jill Abramson, who's worked in journalism in DC for decades, noted that the Obama administration was the most secretive, by far.

"I would say it is the most secretive White House that I have ever been involved in covering, and that includes — I spent 22 years of my career in Washington and covered presidents from President Reagan on up through now, and I was Washington bureau chief of the Times during George W. Bush's first term," Abramson told Al Jazeera America in an interview that will air on Sunday.

And part of her complaint was not just in how the administration refuses to reveal anything, but also in how vindictive the White House was against reporters and sources.

The AP's Washington chief of bureau, Sally Buzbee, said the Obama administration's efforts to control information extend even to agencies not directly involved in intelligence gathering. Some sources, she said, have reportedly been warned they could be fired for even talking to a reporter.

"Day-to-day intimidation of sources is also extremely chilling," she said.

Buzbee said she's frequently asked if the Obama administration, when it comes to transparency, is worse than the administration of President George W. Bush.

"Bush was not fantastic," she said. She added, "The (Obama) administration is significantly worse than previous administrations."

And then, of course, there are the criminal lawsuits. The Obama administration has used the Espionage Act against more journalists and leakers than every other President in history combined... and doubled. And, as of two years ago, he had put media leakers in jail for nearly 50 times as long as all other administrations combined.

That is not supporting investigative reporting. That is threatening and intimidating journalists and their sources. Creating true chilling effects and scaring people away from doing the very work that the President insists the media should be practicing.

Way back in 2011, I saw Daniel Ellsberg speak, and he speculated that a key reason why President Obama was so incredibly hostile to a free and open press was because he was embarrassed by his own actions that they were investigating. Ellsberg pointed out that the previous president, George W. Bush was known for widely abusing the power of his position, but he seemed proud of doing so. President Obama, on the other hand, got elected with promises of moving away from such abuses and restoring civil liberties. But that didn't happen. Things went in the other direction under his watch and his command. So you could understand why the President remains less than keen about leaks and the media digging into things like mass surveillance of Americans, or secret drone bombing campaigns.

It's a shame that the President feels the need to berate reporters over failing to do real investigative reporting, when a big part of the issue is his own administration's concerted effort to make that much more difficult.

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A jury couldn't decide on what the damages should be for Google's use of Java in Android. Oracle -- which has been locked into an infringement battle with Google for over half a decade now -- seems to have a pretty good suggestion (pretty good in their eyes, anyway). The company is asking for $9.3 billion.

The FBI's supposed method to break into an encrypted iPhone 5c seems to have worked like a charm, with the Department of Justice announcing that they have successfully gained access to the data on the phone without Apple's help. But was it ever an actual issue or just a play to take away civil liberties?

Last week, we wrote about Donald Trump's fairly astounding interview transcript with the Washington Post editorial board. In that post, we focused on his bizarre and nonsensical comments on defamation law, though there was lots of other nuttiness in the interview. Over the weekend, the NY Times published its own transcript of an interview between Donald Trump and two reporters, Maggie Haberman and David Sanger, focusing on foreign policy questions. Once again, reading it presents an incredible picture of a man running for President who doesn't know the most basic things about foreign policy (he literally seemed shocked and confused when the reporters pointed out that the US has sanctions against Iran, barring it from buying Boeing airplanes).

But the issue that is relevant to folks around here is his completely confused and nonsensical responses to two things: cybersecurity and Ed Snowden. Let's start with cybersecurity. They first ask him if "cyberweapons" might present an "alternative" to nuclear weapons, which, with some background knowledge is an interesting question. Obviously, the US has used its power there using tools like Stuxnet to slowdown Iran's nuclear program, and possibly has done a lot more as well. Whether or not you agree with this approach, it's clearly a tool available to the US government these days. Trump doesn't even seem to understand the nature of the question, and just focuses on how dangerous nuclear weapons are... and his brilliant uncle at MIT telling him about how dangerous nukes are.

SANGER: You know, we have an alternative these days in a growing cyberarsenal. You’ve seen the growing cybercommand and so forth. Could you give us a vision of whether or not you think that the United States should regularly be using cyberweapons, perhaps, as an alternative to nuclear? And if so, how would you either threaten or employ those?

TRUMP: I don’t see it as an alternative to nuclear in terms of, in terms of ultimate power. Look, in the perfect world everybody would agree that nuclear would, you know, be so destructive, and this was always the theory, or was certainly the theory of many. That the power is so enormous that nobody would ever use them. But, as you know, we’re dealing with people in the world today that would use them, O.K.? Possibly numerous people that use them, and use them without hesitation if they had them. And there’s nothing, there’s nothing as, there’s nothing as meaningful or as powerful as that, and you know the problem is, and it used to be, and you would hear this, David, and I would hear it, and everybody would hear it, and — I’m not sure I believed it, ever. I talk sometimes about my uncle from M.I.T., and he would tell me many years ago when he was up at M.I.T. as a, he was a professor, he was a great guy in many respects, but a very brilliant guy, and he would tell me many years ago about the power of weapons someday, that the destructive force of these weapons would be so massive, that it’s going to be a scary world. And, you know, we have been under the impression that, well we’ve been, I think it’s misguided somewhat, I’ve always felt this but that nobody would ever use them because of the power. And the first one to use them, I think that would be a very bad thing. And I will tell you, I would very much not want to be the first one to use them, that I can say.

So, after that Sanger tries again, noting that Trump didn't actually answer the question, which was actually about cybersecurity and cyberweapons, and Trump presents us with his patented form of word salad:

SANGER: The question was about cyber, how would you envision using cyberweapons? Cyberweapons in an attack to take out a power grid in a city, so forth.

TRUMP: First off, we’re so obsolete in cyber. We’re the ones that sort of were very much involved with the creation, but we’re so obsolete, we just seem to be toyed with by so many different countries, already. And we don’t know who’s doing what. We don’t know who’s got the power, who’s got that capability, some people say it’s China, some people say it’s Russia. But certainly cyber has to be a, you know, certainly cyber has to be in our thought process, very strongly in our thought process. Inconceivable that, inconceivable the power of cyber. But as you say, you can take out, you can take out, you can make countries nonfunctioning with a strong use of cyber. I don’t think we’re there. I don’t think we’re as advanced as other countries are, and I think you probably would agree with that. I don’t think we’re advanced, I think we’re going backwards in so many different ways. I think we’re going backwards with our military. I certainly don’t think we are, we move forward with cyber, but other countries are moving forward at a much more rapid pace. We are frankly not being led very well in terms of the protection of this country.

It seems pretty clear that Trump has no clue what is being discussed and just falls back into his usual talking points about how America just isn't that good any more, and then uses the tiny bit of information he does have (China and Russia have been in the news around hackings) and argues that they're better than us. But, "we're obsolete"? Huh? As noted above (not by him, of course), the most powerful computer-based attacks do seem to be coming from the US itself, not Russia or China.

Also, what does "inconceivable that, inconceivable the power of cyber" even mean? All I can think of is the scene from The Princess Bride. Then we get to Ed Snowden. Trump, perhaps not surprisingly, is not a fan:

HABERMAN: Mr. Trump, just a quick follow-up on that question. As you know, we discovered in recent years that the U.S. spies extensively against its allies. That’s what came up with Edward Snowden and his data trove including Israel and Germany.

TRUMP: Edward Snowden has caused us tremendous problems.

HABERMAN: But would you continue the programs that are in place now, or would you halt them, in terms of spying against our allies?

SANGER: Like Israel and Germany.

TRUMP: Right. They’re spying against us. Edward Snowden has caused us tremendous problems. Edward Snowden has been, you know, you have the two views on Snowden, obviously: You have, he’s wonderful, and you have he’s horrible. I’m in the horrible category. He’s caused us tremendous problems with trust, with everything about, you know, when they’re showing, Merkel’s cellphone has been spied on, and are – Now, they’re doing it to us, and other countries certainly are doing it to us, and but what I think what he did, I think it was a tremendous, a tremendous disservice to the United States. I think and I think it’s amazing that we can’t get him back.

Wait, Ed Snowden is the one who's caused us problems with trust? Not the fact that the US was spying on people it maybe shouldn't have been spying on? Talk about blaming the messenger.

There's then a follow-up about whether or not Trump agreed with President Obama's publicly stated agreement not to spy on Angela Merkel's phone (though it's now been said that everyone else in the German government remains fair game), and Trump goes back to word salad, and concludes with another dig at Snowden where, bizarrely, he seems to argue that other countries are spying on us because of Snowden. Huh?

SANGER: President Obama ordered an end to the spying, to the listening in on Angela Merkel’s cellphone, if that’s in fact what we were doing. Was that the right decision?

TRUMP: Well you see, I don’t know that, you know, when I talk about unpredictability, I’m not sure that we should be talking about me – On the assumption that I’m doing well, which I am, and that I may be in that position, I’m not sure that I would want to be talking about that. You understand what I mean by that, David. We’re so open, we’re so, “Oh I wouldn’t do this, I wouldn’t do that, I would do this, I would do that.” And it’s not so much with Merkel, but it’s certainly with other countries. You know, that really, where there’s, where there’s a different kind of relationship, and a much worse relationship than with Germany. So, you know there’s so, there’s such predictability with our country. We go and we send 50 soldiers over to the Middle East and President Obama gets up and announces that we’re sending 50 soldiers to the Middle East. Fifty very special soldiers. And they now have a target on their back, and everything we do, we announce, instead of winning, and announcing when it’s all over. There’s such, total predictability of this country, and it’s one of the reasons we do so poorly. You know, I’d rather not say that. I would like to see what they’re doing. Because you know, many countries, I can’t say Germany, but many countries are spying on us. I think that was a great disservice done by Edward Snowden. That I can tell you.

Again, I know that all the other candidates are pretty horrible as well. But at least most of them can grasp basic concepts around the issues they're facing (even if they have terrible ideas about what to do about them). Trump doesn't even seem to understand the basics -- or even understand that he doesn't understand.

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Support our crowdfunding campaign to help us keep making content like this! So now that there's been a little time to process the Justice Department's last minute decision to bail out on the hearing in the San Bernardino case, claiming it was because some mysterious third party had demonstrated a way to hack into Syed Farook's iPhone, it's becoming increasingly clear that (1) the DOJ almost certainly lied at some point in this case and (2) this move was almost entirely about running away from a public relations battle that it was almost certainly losing (while also recognizing that it had a half-decent chance of also losing the court case). Just replace "Sir Robin" with "the DOJ" in the following video. That said, there are still some things to clear up. First, did the DOJ lie? It seems pretty obvious that it must have. After all, it insisted earlier in the case, multiple times, that it had "exhausted" all other possibilities and "the only" way to get into the phone was with Apple's help. That's certainly raised some eyebrows:

Perjury never felt so good. #FBIvsApple pic.twitter.com/9z5xpgpFhZ

— Edward Snowden (@Snowden) March 22, 2016

The DOJ and its supporters, of course, will argue that "new shit has come to light, man," but that seems... doubtful. My first thought was that when the FBI said that it had been alerted to a way in over the weekend, it potentially was using the announcement from researchers at Johns Hopkins about a flaw in iMessage encryption. If so, that would be particularly bogus, since everyone admits that the vulnerability found would not apply to this case.

However, there's now a ton of speculation going around about the likely method (and the likely third party) that the FBI is probably using, involving copying the storage off the chip and then copying it back to brute force the passcode without setting off the security features or deleting the data. But, again, this possible solution isn't really new. Just a few weeks ago, during a Congressional hearing, Rep. Darrell Issa quizzed FBI Director James Comey about this very technique (which was so deep in the technical weeds, that many reporters and other policy folks were left scratching their heads): That video is worth watching, because Director Comey insists, pretty clearly, that there is no way to get into the phone:

Comey: We wouldn't be litigating it if we could [get in ourselves]. We've engaged all parts of the US government to see 'does anyone have a way -- short of asking Apple to do it -- with a 5c running iOS 9 to do this?' and we do not.

At that point Issa starts asking really technical questions about can't the FBI remove the data from the phone to make copies of the storage, putting it with the encryption chip, trying passcodes, and then reflashing the memory before the 10 chance are used up -- thus brute forcing the passcode without setting off the security features. As Issa notes:

If you haven't asked that question, how can you come before this committee and before a federal judge and demand that somebody else invent something if you can't answer the question that your people have tried this? ... I'm asking who did you go to? Have you asked these questions? Because you're expecting to get an order and have somebody obey something they don't want to do and you haven't even figured out if you can do it yourself.

Comey is clearly befuddled by the questions and basically says that he's sure that his people must have thought about this, but he assumes that they're watching and if they haven't thought of this then they'll test it out. But, really, a few people had suggested similar things early on, so if that is the solution then it only adds weight to the idea that the FBI didn't do everything it could possibly do before running to the judge.

Others have questioned the "two week" timeframe for the DOJ to issue a status report to the court, noting that a brand new solution would almost certainly take much longer to test thoroughly before using it on the iPhone in question.

And then there's the other question: if the FBI really has tracked down a new "vulnerability" in Apple's encryption... will it tell Apple about it so that Apple can patch it? Remember, the White House has told the various parts of the federal government that they should have a "bias" towards revealing the flaws so they can be patched... but leaving a "broad exception for 'a clear national security or law enforcement need.'" It's pretty clear from how the DOJ has acted that it believes this kind of hole is a "law enforcement need."

So, if the FBI really did figure out a vulnerability in Apple's encryption, it probably won't actually reveal it -- but I'd imagine that Apple's security engineers are scrambling just the same to see if they can patch whatever flaws there may be here, because that's their job. And, again, that gets back to the point here: there are always some vulnerabilities in encryption schemes, and part of the job of security folks is to keep patching them. And one of the worries with the demand for backdoors is that the introduce a whole bunch of vulnerabilities that they're then not allowed to patch.

Either way, the DOJ's actions here are highly questionable, and it seems pretty clearly an attempt to save face in this round. But the overall fight is far from over.

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We've been noting for years: when Senator Ron Wyden says that (1) there's a secret interpretation of a law that is at odds with the public's understanding of it, or (2) that government officials are lying, you should pay attention. It may take a while, but it always comes out eventually that he's absolutely correct. For at least five years now, we've been posting semi-regular updates to Wyden calling out the government for its secret interpretations of the law, and some of that was proven entirely accurate thanks to the Snowden revelations concerning how the PATRIOT Act and the FISA Amendments Act had been interpreted. However, since the Snowden revelations, Wyden has made it clear that that's not all. In particular, he's spoken about a Justice Department legal opinion, written by John Yoo, that Wyden insists is important and should be revealed.

A year ago, we wrote about Wyden asking then Attorney General Eric Holder to release the document, which is currently the subject of a FOIA lawsuit filed by the ACLU. He's now asking yet again for it, in a new letter to Attorney General Loretta Lynch:

As you may be aware, I have previously written to the Department of Justice regarding a particular secret legal opinion from the DOJ's Office of Legal Counsel. which has now been the subject of a recent suit under the Freedom of information Act. This opinion remains classified, but it pertains to common commercial service agreements. The DOJ's motion to dismiss the now-pending FOIA case also noted that this opinion was signed by Deputy Assistant Attorney General John Yen and dated March 30, 2003.

As I have noted in previous correspondence with the DOJ, I believe that this opinion is inconsistent with the public's understanding of the law, and should be withdrawn. I also believe that this opinion should be declassified and released to the public, so that anyone who is a party to one of these agreements can consider whether their agreement should be revised or modified. For these reasons, I encourage you to direct DOJ officials to comply with the pending FOIA request.

As we noted in our previous coverage, the contents of this memo almost certainly impact the various cybersecurity issues, in particular the Cybersecurity law (a variation on CISA) that passed and became law late last year.

But, the much bigger news comes in the following paragraph, in which Senator Wyden says that the DOJ is lying to the court in trying to kill the ACLU's FOIA request:

Additionally, I am greatly concerned that the DOJ's March 7, 2016, memorandum of law contains a key assertion which is inaccurate. This assertion appears to be central to the DOJ's legal arguments, and I would urge you to take action to ensure that this error is correct.

I am enclosing a classified attachment which discusses this inaccurate assertion in more detail.

You can see the DOJ's memorandum of law here (or embedded below) to see if you can sniff out the "key assertion which is inaccurate." Marcy Wheeler, who is damn good at this stuff, has some suggestions and thoughts, though each has some caveats. Either way, just the fact that this is a guessing game is ridiculous. The fact that the DOJ appears to be purposely misleading the court is a travesty -- but one that has become all too common these days.

In the meantime, are there any legal opinions that John Yoo authored that didn't turn out to be absolutely horrific? He wrote the legal opinion that authorized torture. And just a few weeks ago, another one of his ridiculous legal opinions (from 2002) was released, revealing his absolutely ridiculous legal rationale for warrantless wiretapping. Yoo seemed to specialize in trying to paper over basically anything illegal that the government wanted to do.

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This isn't necessarily surprising, but it is incredibly stupid. As you hopefully recall, in the summer of 2014 the EU Court of Justice came out with a dangerous ruling saying that a "right to be forgotten" applied to search engines and that Google needed to "de-link" certain search results from the names of individuals. We've discussed at great length the problems with this ruling, but it continues to be a mess.

Last summer, French regulators began to whine about Google's implementation of the right to be forgotten, saying that it should apply worldwide. Google, instead, had only applied it to its EU domainspace. That is, if you were on Google.fr, you wouldn't see those results, but Google.com you would. Since Google tries to default you to the right top level domain for your country, that would mean that most people in the EU would not see the results that people wanted censored. But French regulators still demanded more. Google responded, telling the French regulators that this was crazy, because it would be a threat to free speech globally. If Google had to moderate content globally based on the speech laws of a single country, we'd have the lowest common denominator of speech online, and a ton of ridiculous censorship. Furthermore, Google pointed out that 97% of French users were on the Google.fr domain, so demanding global censorship was pointless.

The French regulators came back, saying "don't care, censor globally." Finally, last month, Google made a small change to try to appease the regulators, saying that it wouldn't just censor based on the top level domain, but entirely on whether or not it thought you were in France, based on your IP address or other indicators. So, even if you were in France, you couldn't get around the block by typing the ".com" address in instead of the ".fr."

And now, the French regulators have decided, once again, that this just isn't good enough. It's issued a fine for failing to censor the global internet:

On Thursday, France’s privacy regulator said its citizens’ rights could be upheld only if the European privacy decision was applied globally, and that Google had failed to remove — or “delist” — links from search results outside the European Union.

"For people residing in France to effectively exercise their right to be delisted, it must be applied to the entire processing operation, i.e. to all of the search engine’s extensions,” the agency, known as the Commission Nationale de l’Informatique et des Libertes, or CNIL, said in a statement.

CNIL also claims that Google's concerns about regulating speech outside of France are misplaced, since it only applies to speech about people in France, so it's their "data protection rights" that are the issue. That seems... shortsighted at best.

Google is planning to appeal the decision, and this is a big, big deal. Again, France -- or any country -- should have no authority to regulate or censor the global internet. It shouldn't be difficult to recognize why this is.

In the decision, CNIL directly notes that a non-global solution is no good since people can use VPNs:

... technical solutions exist to circumvent the filter measure proposed by the company that allow Internet users to select the geographical location of their IP address (e.g. use of a VPN).

Um, yes. Of course not many people do that, but some do. Is that really a reason to argue that the global internet must be censored? Would France be comfortable if, say, China or Iran or North Korea suddenly decide that Google must also be censored to block out links to content they dislike, and that such content must be inaccessible in search results in France? Or are French data protection regulators really so short-sighted to not see the impact of this ruling?

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The FBI announced (without going into verifiable detail) that it had implemented new minimization procedures for handling information tipped to it by the NSA's Prism dragnet. Oddly, this announcement arrived nearly simultaneously with the administration's announcement that it was expanding the FBI's intake of unminimized domestic communications collected by the NSA.

So, which was it? Was the FBI applying more minimization or was it gaining more raw access? The parties involved have so far refused to offer any further details on either of the contradictory plans, save for vague assurances about the lawfulness of both options.

Fortunately, a few legislators have stepped up to do something about it. Megan Geuss of Ars Technica reports that Reps. Ted Lieu and Blake Farenthold have sent a letter to the NSA telling it to hold off on its plans to share unminimized data and communications with domestic intelligence agencies… at least until it's been discussed publicly.

We respectfully request you confirm whether the NSA intends to routinely provide intelligence information-collected without a warrant-to domestic law enforcement agencies. If the NSA intends to go down this uncharted path, we request that you stop. The proposed shift in the relationship between our intelligence agencies and the American people should not be done in secret. The American people deserve a public debate. The United States has a long standing principle of keeping our intelligence and military spy apparatus focused on foreign adversaries and not the American people.

The letter points out that while Congress has granted the NSA "extraordinary authority" to conduct warrantless surveillance and harvest massive amounts of data, it has not done so for domestic intelligence and law enforcement agencies. But that deliberate limitation of powers has been undone by the administration's expansion. It may be indirect -- requiring the assistance of the NSA -- but it accomplishes the same purpose: giving warrantless surveillance and bulk collection powers to domestic agencies by proxy.

The letter -- sent to the heads of a variety of Congressional committees -- pulls no punches in its comparative depiction of this overreach.

We believe allowing the NSA to be used as an arm of domestic law enforcement is unconstitutional. Our country has always drawn a line between our military and intelligence services, and domestic policing and spying. We do not -- and should not -- use U.S. Army Apache helicopters to quell domestic riots; Navy Seal Teams to take down counterfeiting rings; or the NSA to conduct surveillance on domestic street gangs.

What's most amazing about the administration's move is that it followed -- directly -- two and a half years of NSA document leaks, their accompanying protests, lawsuits and backlash, the passage of the USA Freedom Act and an intense debate over the lawfulness of the PATRIOT Act. Add to that the fact that it was dropped right in the middle of a heated legal battle that has shown the FBI to be both grasping for power and incapable of telling the truth -- and it clearly shows the administration is so insulated from the collateral damage of a decade-plus of constantly expanding surveillance powers as to be completely unable to detect shifts in tone.

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Despite the fact that copyright has been repeatedly extended and strengthened over the years, the thought never seems to cross publishers' minds that they could ever have too much of it, or that the public might have some countervailing rights here. As a consequence of this insatiable appetite, there have been a number of recent moves to create an ancillary copyright, also known as a "snippet tax," "link tax" and "Google tax," since it aims to make it obligatory to pay for making even short excerpts or linking to copyright material -- for example, in search results. Rather amazingly, publishers are still pushing for this new monopoly "right" despite abundant evidence from their own research that it harms their businesses.

Undeterred by these facts, some politicians in France are pushing for the creation of yet another kind of ancillary copyright, covering thumbnail images. That idea was squashed a long time ago in the US, but as the public domain advocacy group Comunia explains, in France, the following is still a real possibility:

A new right that would require search engines and indexing services to pay royalties for the use of thumbnail images of copyright protected works. According to French proposal, which has been approved by the French Senate, this new right would be managed by one or more collecting societies, regardless of the intention of the rightholders whether to be financially compensated for the use of their works by search engines.

In an open letter to the French Minister of Culture (pdf) Comunia explains why this is a really stupid idea:

Its scope will impact many online services and mobile apps, from search engines to creative commons models and [the online cultural collection] Europeana. Money would be collected arbitrarily and without any realistic way of redistributing it accurately. Basic, every day activities of online users, such as posting, linking, embedding photos online, would be subject to a cloud of legal uncertainty.

It would isolate France in the European Union, at a time when courts across Europe have made clear these were lawful activities under national, European and international laws. It would isolate France globally, as a country where using images online would be subject to restrictive and unworkable practice.

Unfortunately, France isn't the only part of Europe that is considering the introduction of ancillary copyright. This week, the European Commission launched a public consultation on the idea of giving publishers what it calls "neighbouring rights" -- in other words, ancillary copyright:

[The European Commission] is seeking views on the role of publishers in the copyright value chain, including the possible extension to publishers of the neighbouring rights. Publishers do not currently benefit from neighbouring rights which are similar to copyright but do not reward an authors' original creation (a work). They reward either the performance of a work (e.g. by a musician, a singer, an actor) or an organisational or financial effort (for example by a producer) which may also include a participation in the creative process.

The European Commission paints European publishers as somehow missing out on the ancillary copyright currently enjoyed by those in the music or theatre worlds. The intention is clearly to suggest that this kind of extra right is perfectly normal, and that it should -- of course -- be granted to those poor, struggling publishers, who barely have any copyright at all, apparently. However, that framing rather skates over the fact that posting an article on a website is hardly a creative act on a par with performing a song, or appearing in a play. So it's not entirely clear why the European Commission thinks it deserves an extra layer of legal protection on top of standard copyright -- other than the fact that publishers want that new monopoly in the hope of extracting money from Google.

Fortunately, the consultation is open to everyone, including those outside the EU, which means Techdirt readers everywhere can make their views known using the online questionnaire. As a bonus, you can also give your views on the so-called "panorama exception" -- another area where lobbyists are working hard to make copyright even less fit for the digital age than it is now.

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This is a video of Apple demonstrating Liam, a robot designed to disassemble iPhones so the parts inside can be recycled. Pfffft, I don't need a robot to disassemble a phone, my phones like to disassemble themselves. Spontaneous disassembly I like to call it. "You break them." They fall out of my pocket and die horrible deaths on the sidewalk. "You should get a case." I just ordered one of those flower cases from the last post. With my luck I'll break my phone putting the case on. I need a life coach. "I'll be your life coach." Awesome. TAKE ME OUT, COUCH. "Don't you mean, 'Put Me In?'" No I absolutely do not. I just want to sip Gatorade on the sidelines and eat orange wedges. Keep going for the propaganda video about Apple's recycling efforts.

More than a year after San Francisco police officers arrested public defender Jami Tillotson for doing her job, the city's Office of Citizen Complaints has issued its report. It clears Tillotson of any wrongdoing and lays the blame solely at the feet of the San Francisco PD.

First, a quick refresher, since we're discussing something that happened last January: Tillotson's clients were approached by police officers in a courthouse hallway. The officers began asking her clients questions and photographing them for a photo array. She inserted herself between the officers and the men and demanded the officers stop questioning them/photographing them without running it through her. The officers responded in the only way they knew how: they arrested her for resisting arrest -- an arrest in which she cooperated fully with no amount of resistance. (It seems like circular reasoning, but "resisting arrest" is a catch-all for other sorts of interference with police work, rather than simply resisting an arrest.)

Thirteen months later, the review board has this to say about the officers' actions.

Police arrested Jami Tillotson without cause in January 2015 and detained her in an "unduly prolonged manner without justification," the Office of Citizen Complaints concluded.

The agency also determined that there was found a policy failure on two allegations: interfering with the right to counsel and conduct reflecting discredit on the department in the case of an officer who made inappropriate comments to the media following the incident.

The report was released by the public defender's office because presumably the SFPD had no plans to. In fact, the police chief -- despite dismissing charges and apologizing to Tillotson -- still insists his officers did nothing wrong.

[H]e stood by the actions of Sgt. Brian Stansbury and the other officers who arrested Tillotson. Stansbury "had reasonable suspicion to take the pictures” and a right to do so in a public area, the chief has said.

Maybe so, but the complaint review board says otherwise. his officers may have had the "reasonable suspicion" to take pictures, but they clearly didn't have the right to continue to do so after being told not to by an officer of the court (the public defender), much less prevent her from doing her job by arresting her.

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More evidence of Stingray obfuscation has been uncovered in Milwaukee. What appeared at first to be a bog standard court order for tracking of a suspect using a cell phone provider's own "network equipment" actually appears to be something else. The ACLU was already involved in this case, arguing that such tracking by cell phone providers only be available with a warrant. But as it dug into the specifics, it became obvious the tracking had not been performed by the cell provider.

As we read through documentation from the case, however, we began to suspect that something else was going on. It appears that police secretly used a cell site simulator, also known as a Stingray, to track the phone, but successfully concealed that fact from the defense and the court.

Our suspicion was first raised because police initially did not disclose to the defendant that they had located him by tracking his phone, only revealing it at an evidentiary hearing. In reports prepared after the defendant’s arrest, police officers used oddly vague language to explain how they located him: one officer merely wrote that law enforcement had “obtained information” about the defendant’s location; another said that police “obtained information from an unknown source” about where he was. This sounded to us a lot like the kind of intentionally ambiguous language used by police across the country to hide their Stingray use.

Like every other law enforcement agency with a Stingray device in its possession, the Milwaukee PD had signed a nondisclosure agreement with the FBI. This "allowed" it to withhold the information from courts and defendants. But cracks in the NDA appeared and a prolific FOIA filer was able to pry loose documents detailing MPD's use of cell tower spoofers.

Last fall, privacy activist Mike Katz-Lacabe obtained a list of 579 investigations in which the Milwaukee Police Department used Stingrays. (Here are Mike’s public records request and MPD’s response letter). That previously unpublicized list includes an entry for a case that matches the date and description of this one: an October 28, 2013, apprehension of a “fugitive” “related to [an] FBI roundup.”

The ACLU is now arguing for suppression of the evidence obtained with the Stingray. That isn't local law enforcement's only problem, however. The ACLU's exposure of this secret Stingray use (along with the Milwaukee Journal-Sentinel's coverage) has attracted the attention of people in a better position to demand answers from the FBI: Reps. Jim Sensenbrenner and Sheila Jackson.

In a letter sent to James Comey (who kind of has a lot on his plate already, tbh), the Congress members demand to know why the FBI is actively hiding information about these tracking devices from the public.

The FBI’s stated reason for secrecy was that disclosing the existence of the capabilities may allow “the subject of investigation wherein this equipment/technology is used to employ countermeasures to avoid detection by law enforcement.” But certainly not lost on the FBI was the fact that secrecy shields the technology from debate and inevitable controversy. Courts could not review its constitutionality. The public could not debate the merits and costs of the technology and what limitations might be appropriate. While this type of secrecy may be appropriate in the national security context, it is entirely inappropriate in the context of law enforcement where citizens have the constitutional right to challenge the government’s evidence against them

We are not prejudging the outcome of the debate over the use of Stingray technology, but we categorically denounce the use of nondisclosure agreements that limit the ability of the public and of courts to debate the merits of the technology and to implement limits they may deem appropriate.

The letter acknowledges that the FBI has recently backed away from supporting its own NDAs. The FBI's last statement on the matter basically said the NDAs should not be read as saying exactly what they say: that information about Stingray usage should be hidden from everyone, if possible. It also expressed mild disbelief that the agreements were being taken so literally. The disingenuous and self-serving nature of this walkback is highlighted in the letter.

This, however, is at odds with the explicit language of the NDA which precludes disclosure to the public in any manner “including but not limited to: in press releases, in court documents, during judicial hearings, or during other public forums or proceedings.” The agreement, in fact, goes much further and states that the Milwaukee Police Department should seek FBI permission before responding to court ordered disclosures and should be prepared to dismiss cases at the FBI’s request if necessary to protect against disclosure.

The FBI has until March 25th to answer the following questions:

• Does the FBI consider state and local law enforcement to be bound by the NDAs related to the use of cell-site simulators?
• Has the FBI ever requested that a law enforcement agency dismiss a case to maintain the secrecy of law enforcement technology?
• How many NDAs has the FBI signed with state and local law enforcement agencies regarding cell-site simulators?
• Are there other technologies for which the FBI demands state and local law enforcement sign an NDA?
• Does the FBI continue to believe that NDAs are appropriate?
• Would the FBI ever condone perjury to Congress or judges to protect the existence of technology?

The answers should be illuminating -- if the public is actually allowed to see the responses. The FBI may still try to claim this super-secret technology that everyone knows about can't be discussed in an open forum. And I'm certain the agency will claim it would not condone perjury even though its NDAs strongly hint this would be preferable to exposing "sensitive" law enforcement methods.

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