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DOJ Made Secret Arguments To Break Crypto, Now ACLU Wants To Make Them Public (arstechnica.com)
An anonymous reader quotes a report from Ars Technica: Earlier this year, a federal judge in Fresno, California, denied prosecutors' efforts to compel Facebook to help it wiretap Messenger voice calls. But the precise legal arguments that the government made, and that the judge ultimately rejected, are still sealed. On Wednesday, the American Civil Liberties Union formally asked the judge to unseal court dockets and related rulings associated with this ongoing case involving alleged MS-13 gang members. ACLU lawyers argue that such a little-charted area of the law must be made public so that tech companies and the public can fully know what's going on.
In their new filing, ACLU lawyers pointed out that "neither the government's legal arguments nor the judge's legal basis for rejecting the government motion has ever been made public." The attorneys continued, citing a "strong public interest in knowing which law has been interpreted" and referencing an op-ed published on Ars on October 2 as an example. The ACLU argued that the case is reminiscent of the so-called "FBI v. Apple" legal showdown -- whose docket and related filings were public -- where the government made novel arguments in an attempt to crack the encryption on a seized iPhone. Those legal questions were never resolved, as the government said the day before a scheduled hearing that it had found a company to assist in its efforts. "Moreover, the sealing of the docket sheet in this case impermissibly prevents the public from knowing anything about the actions of both the judiciary and the executive in navigating a novel legal issue, which has the potential to reoccur in the future," the ACLU's attorneys continued.
"The case involves the executive branch's attempt to force a private corporation to break the encryption and other security mechanisms on a product relied upon by the public to have private conversations. The government is not just seeking information held by a third party; rather, it appears to be attempting to get this Court to force a communications platform to redesign its product to thwart efforts to secure communications between users."
In their new filing, ACLU lawyers pointed out that "neither the government's legal arguments nor the judge's legal basis for rejecting the government motion has ever been made public." The attorneys continued, citing a "strong public interest in knowing which law has been interpreted" and referencing an op-ed published on Ars on October 2 as an example. The ACLU argued that the case is reminiscent of the so-called "FBI v. Apple" legal showdown -- whose docket and related filings were public -- where the government made novel arguments in an attempt to crack the encryption on a seized iPhone. Those legal questions were never resolved, as the government said the day before a scheduled hearing that it had found a company to assist in its efforts. "Moreover, the sealing of the docket sheet in this case impermissibly prevents the public from knowing anything about the actions of both the judiciary and the executive in navigating a novel legal issue, which has the potential to reoccur in the future," the ACLU's attorneys continued.
"The case involves the executive branch's attempt to force a private corporation to break the encryption and other security mechanisms on a product relied upon by the public to have private conversations. The government is not just seeking information held by a third party; rather, it appears to be attempting to get this Court to force a communications platform to redesign its product to thwart efforts to secure communications between users."
The majority of voters will not support a setup where law enforcement is locked out of communications apps because civil libertarians are concerned that we might enter into a dystopian Hell if valid warrants can be enforced good and hard on both communication providers and individuals. If you don't want the FBI to grow tremendously in power to coerce individuals into compliance, there needs to be some moderation wherein Facebook and others accept the fact that a valid warrant should prima facie trump privacy rights every day of the week.
MS-13 is a huge gang and their activities are so evil that it was rumored that the US deporting thousands of them back to El Salvador was considered a national security crisis in that country. To put it mildly, the average person would rather have an agent of Hezbollah and mob boss living on both sides of them than have MS-13 active in their community.
If the public has to choose between effective elimination of such groups and their rights, even Ben Franklin would be hard-pressed to not defer to executive power to keep society safe from them. That's a terrible recipe for making this the hill that our rights die on.