Barely Legally

Confessions of a Moot Court Bailiff

Burn After Reading

Woodrow Hartzog, of Stanford Law School’s Center for Internet and Society, on the FBI’s claim that iPhones are the first warrant-proof devices in history:

This is a curious argument. For most of mankind’s history, the overwhelming majority of our communications were warrant-proof in the sense that they just disappeared. They were ephemeral conversations. Even wiretapping was limited to intercepting phone transmissions, not retrieving past conversations. For law enforcement purposes, encrypted phones are equally inaccessible: no one can recover information from them. But Comey’s description of warrant-proof technologies is vague enough to apply to many different things. We should use a different term if we care about the preserving the ephemerality of some communications. Otherwise we might end up with a requirement to store everything.

Hartzog makes a good point, but I’d go further than that. A piece of paper outlining my criminal conspiracy—which I light on fire after the successful commission of my crime—is warrant-proof. A hard drive with selfies I took at the crime scene, but which I erased when the police knocked on my door, is warrant-proof. Police can get a warrant for the screwdriver used in the commission of a crime, but if I tossed the evidence into a lake, that’s a little warrant-proof; I don’t have to dive in and get it for them. The police have to go looking. They might not find it!

Everything the criminal knows is also warrant-proof, because the government can’t force anyone to testify against themselves.

Simply put, warrants are not magical evidence-summoning devices. Warrants are magical documents that judges give the police so officers can go looking in a particular place for particular evidence. Criminals destroy evidence because they know getting caught with evidence, while a great way to speed your trial along, usually ends with Not Passing Go and Not Collecting $200.

So this whole kick that the FBI is on, about how the iPhone is the first time in history the police have had warrants thwarted? That’s ridiculous. The FBI doesn’t think that criminals kept contraband and incriminating evidence neatly piled up on their coffee tables, ready for a properly executed search warrant, riiiiight up until the invention of the iPhone.

Weirdly, it’s not just the FBI. City police departments are acting like the iPhone is the first consumer device in history that can be rendered inaccessible to a warrant, too. I’m going to invite the reader to scroll up a few paragraphs, and remember that sheets of paper are consumer devices which are quite flammable. How exactly are we supposed to trust the police with the keys to every iPhone in the country, when they can’t even be trusted to describe the scope of the issue accurately? My friend wants to borrow my car keys, but he insists it’s only because the last thirty times I’ve driven, I’ve crashed and killed us both each time. Your assessment of the situation is suspect enough that I think I’d like to keep my keys.

These folks all have such long-term memory problems; maybe they should be writing all this stuff down!