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  1. Our client has now been in custody for almost 18 months,” defense attorney says. On Monday, a US federal appeals court sided against a former Philadelphia police officer who has been in jail 17 months because he invoked his Fifth Amendment right against compelled self-incrimination. He had refused to comply with a court order commanding him to unlock two hard drives the authorities say contain child porn. The 3-0 decision (PDF) by the 3rd US Circuit Court of Appeals means that the suspect, Francis Rawls, likely will remain jailed indefinitely or until the order (PDF) finding him in contempt of court is lifted or overturned. However, he still can comply with the order and unlock two FileVault encrypted drives connected to his Apple Mac Pro. Using a warrant, authorities seized those drives from his residence in 2015. While Rawls could get out from under the contempt order by unlocking those drives, doing so might expose him to other legal troubles. In deciding against Rawls, the court of appeals found that the constitutional rights against being compelled to testify against oneself were not being breached. That's because the appeals court, like the police, agreed that the presence of child porn on his drives was a "foregone conclusion." The Fifth Amendment, at its most basic level, protects suspects from being forced to disclose incriminating evidence. In this instance, however, the authorities said they already know there's child porn on the drives, so Rawls' constitutional rights aren't compromised. The Philadelphia-based appeals court ruled: The court also noted that the authorities "found [on the Mac Book Pro] one image depicting a pubescent girl in a sexually suggestive position and logs that suggested the user had visited groups with titles common in child exploitation." They also said the man's sister had "reported" that her brother showed her hundreds of pictures and videos of child pornography. All of this, according to the appeals court, meant that the lower court lawfully ordered Rawls to unlock the drives. The Magistrate Judge did not commit a clear or obvious error in his application of the foregone conclusion doctrine," the court ruled. "In this regard, the Magistrate Judge rested his decision rejecting the Fifth Amendment challenge on factual findings that are amply supported by the record." The suspect's attorney, Federal Public Defender Keith Donoghue, was disappointed by the ruling. "The fact remains that the government has not brought charges," Donoghue said in a telephone interview. "Our client has now been in custody for almost 18 months based on his assertion of his Fifth Amendment right against compelled self-incrimination." A child-porn investigation focused on Rawls when the authorities were monitoring the online network, Freenet. The decision from the appeals court comes as encryption is becoming more common on mobile phones and computers. What's more, encryption has seemingly become part of the national political discussion concerning whether governments should demand that companies bake backdoors into their encrypted products so that authorities can access content on encrypted devices. The Supreme Court has never ruled on the forced decryption issue. A different federal appeals court, the 10th US Circuit Court of Appeals based in Denver, ruled in 2012 that a bank-fraud defendant must decrypt her laptop. The order wasn't enforced, however, as the authorities eventually accessed the laptop without her assistance. The contempt-of-court order against Rawls was obtained by authorities citing the 1789 All Writs Act. The All Writs Act was the same law the Justice Department asserted in its legal battle with Apple, in which a magistrate judge ordered Apple to produce code to enable the FBI to decrypt the iPhone used by one of two shooters who killed 14 people at a San Bernardino County government building. The government dropped the case when authorities paid a reported $1 million for a hack. "Unless the suspect unlocks the drives or a court unwinds the order, he will remain jailed," Marc Rumold, an Electronic Frontier Foundation staff attorney who filed a friend-of-the-court brief in the case, said in a telephone interview. In that brief, the EFF said "compelled decryption is inherently testimonial because it compels a suspect to use the contents of their mind to translate unintelligible evidence into a form that can be used against them. The Fifth Amendment provides an absolute privilege against such self-incriminating compelled decryption." The authorities, however, said no testimony was needed from Rawls. Rather, they said, (PDF) "he can keep his passwords to himself" and "produce his computer and hard drives in an unencrypted state." By David Kravets https://arstechnica.com/tech-policy/2017/03/man-jailed-indefinitely-for-refusing-to-decrypt-hard-drives-loses-appeal/
  2. Oracle insinuates Google was “a plagiarist” that committed “classic unfair use.” Google successfully made its case to a jury last year that its use of Java APIs in Android was "fair use." A San Francisco federal jury rejected Oracle's claim that the mobile system infringed Oracle's copyrights. But Oracle isn't backing down. Late Friday, the company appealed the high-profile verdict to a federal appeals court. This is the latest stage of a seemingly never-ending legal battle over intellectual property that began in 2010. The conflict has meandered through two federal trials, in addition to multiple trips to the appellate courts and to the Supreme Court. Oracle opened its brief to the US Court of Appeals for the Federal Circuit right where it left off after losing its case. Among other things, Oracle is refusing to believe that the "fair use" defense to copyright-infringement allegations should have protected Google from having to pay billions of dollars in damages. "When a plagiarist takes the most recognizable portions of a novel and adapts them into a film, the plagiarist commits the 'classic' unfair use," Oracle said in its opening brief. Fair use is a defense to copyright infringement if certain elements are met. It's decided on a case-by-case basis. "There is no specific number of words, lines, or notes that may safely be taken without permission," according to the US Copyright Office. There are, however, at least four factors to be considered when deciding fair use: the purpose of use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market. Before going to the appeals court, Oracle asked US District Judge William Alsup to overturn the jury's verdict. Alsup, who presided over the second trial, ruled that Google's use cleared all four factors. Here's how we got to this point: Oracle purchased Sun Microsystems and acquired the rights to Java in 2009. Oracle then sued Google in 2010, saying that Google infringed copyrights and patents connected to Java. The case went to federal trial in 2012. Oracle initially lost. But part of its case was revived on appeal and another trial was ordered. The sole issue in the second trial, the one now being appealed, was whether Google infringed the APIs in Java, which the appeals court held were copyrighted. In May, a jury found in Google's favor after the second trial. The jury found that Google's use of the APIs was protected by "fair use"—a decision Alsup refused to disturb. Google declined to comment on the appeal. Google must file its response in the coming months. By David Kravets https://arstechnica.com/tech-policy/2017/02/oracle-refuses-to-accept-pro-google-fair-use-verdict-in-api-battle/
  3. The U.S. Justice Department on Friday said it would keep fighting to force Apple Inc to open an iPhone in a New York drug case, continuing its controversial effort to require Apple and other tech companies to help law enforcement authorities circumvent encryption. Just two weeks ago, the government dropped its effort to require Apple to crack an iPhone used by one of the shooters in the December attacks in San Bernardino, California, saying it had unlocked the phone without Apple’s help. Some observers thought the government would back away from the New York case too, since the suspect has already pleaded guilty. But in a letter filed in federal court in Brooklyn, New York, the Justice Department said, “The government continues to require Apple’s assistance in accessing the data that it is authorized to search by warrant.” An Apple attorney said Friday the company was disappointed but not surprised that the government would continue to fight in New York after giving up in California. He said the appeal belied the FBI’s claim that the San Bernardino case was about a single phone and the need to stop future terror acts. Apple, with the strong support of most of the technology industry, argues that requiring it to circumvent the encryption in its own products would inevitability open the door for hackers and foreign spies and undermine security for everyone. The company has said it is willing to take the issue to the Supreme Court. The phones in the two cases have different security features, with the New York phone running an earlier version of the iPhone operating software. The director of the Federal Bureau of Investigation, James Comey, who is leading the battle with Apple, said Thursday that the method used on the San Bernardino phone would not work on other models. But the New York phone is much easier for Apple to break into. Apple has acknowledged it could get data from the drug dealer’s phone without crafting special software, as it would have had to do with the San Bernardino phone. Apple helped law enforcement with earlier iPhones on some 70 occasions, according to court documents, and it objected to the order in the New York case only after it was invited to do so last fall by U.S. Magistrate Judge James Orenstein. Since then, Apple has declined to comply with such orders without a fight, a person close to the company said. In a ruling issued on March 1, Orenstein came down firmly on Apple’s side, rejecting the idea that an old law known as the All Writs Act gave judges the power to order Apple’s help. Jill Bronfman, director of the Privacy and Technology Project at University of California Hastings College of the Law, questioned whether the facts involved in the New York case would make a strong test case over encryption. While extracting data from the phone in the New York case would be an easier technical feat for Apple, the facts in the case are far less compelling, she said. “If you want to do a balancing test and you’ve got terrorism on one side of the scale, that’s a very heavy weight,” she said. “We’ll see how the request is balanced when we have drugs on the other side.” Apple is scheduled to file papers in opposition of the Justice Department’s appeal by April 15. In its appeal, the Apple lawyer said the company would try the same thing it was planning in California: demanding that government show it had tried all possible alternative means of getting into the phone. That could force the FBI to reveal closely held details of its efforts to break into phones. The phone in the Brooklyn case belonged to Jun Feng, who has pleaded guilty to participation in a methamphetamine distribution conspiracy. The Justice Department is seeking to unlock Feng’s phone to find other conspirators. SourcE
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  5. A federal appeals court has upheld a contempt citation against the founder of the defunct secure e-mail company Lavabit, finding that the weighty internet privacy issues he raised on appeal should have been brought up earlier in the legal process. The decision disposes of a closely watched privacy case on a technicality, without ruling one way or the other on the substantial issue: whether an internet company can be compelled to turn over the master encryption keys for its entire system to facilitate court-approved surveillance on a single user. The case began in June, when Texas-based Lavabit was served with a “pen register” order requiring it to give the government a live feed of the email activity on a particular account. The feed would include metadata like the “from” and “to” lines on every message, and the IP addresses used to access the mailbox. Because pen register orders provide only metadata, they can be obtained without probable cause that the target has committed a crime. But in this case the court filings suggest strongly that the target was indicted NSA leaker Edward Snowden, Lavabit’s most famous user. Levison resisted the order on the grounds that he couldn’t comply without reprogramming the elaborate encryption system he’d built to protect his users’ privacy. He eventually relented and offered to gather up the email metadata and transmit it to the government after 60 days. Later he offered to engineer a faster solution. But by then, weeks had passed, and the FBI was determined to get what it wanted directly and in real time. So in July the government served Levison with a search warrant striking at the Achilles’ heel of his system: the private SSL key that would allow the FBI to decrypt traffic to and from the site, and collect Snowden’s metadata directly. The government promised it wouldn’t use the key to spy on Lavabit’s other 400,000 users, which the key would technically enable them to do. Levison turned over the keys as a nearly illegible computer printout in 4-point type. In early August, Hilton – who once served on the top-secret FISA court – ordered Levison to provide the keys instead in the industry-standard electronic format, and began fining him $5,000 a day for noncompliance. After two days, Levison complied, but then immediately shuttered Lavabit altogether. Levison appealed the contempt order to the 4th Circuit, and civil rights groups, including the ACLU and the EFF, filed briefs in support of his position. But the appeals court today said that the bulk of Levison’s arguments couldn’t be considered, because he hadn’t clearly raised them in the lower court, where he represented himself without a lawyer for much of the proceedings. Prior to appeal, Levison’s only voiced objection to turning over the SSL keys was this statement in court: “I have only ever objected to turning over the SSL keys because that would compromise all of the secure communications in and out of my network, including my own administrative traffic.” “We cannot refashion this vague statement of personal preference into anything remotely close to the argument that Lavabit now raises on appeal: a statutory-text-based challenge to the district court’s fundamental authority under the Pen/Trap Statute,” wrote Judge G. Steven Agee, for the three appellate panel. “Levison’s statement to the district court simply reflected his personal angst over complying with the Pen/Trap Order, not his present appellate argument that questions whether the district court possessed the authority to act at all,” wrote Agee. The Lavabit case is the only publicly documented instance where a district judge ordered an internet company to hand over its SSL key to the U.S. government. If the practice had been given the imprimatur of the U.S. 4th Circuit Court of Appeals, it could have opened a new avenue for U.S. spies to expand their surveillance against users of U.S. internet services like Gmail and Dropbox. “The court focused its decision on procedural aspects of the case unrelated to the merits of Lavabit’s claims,” says ACLU attorney Brian Hauss, in a statement. “On the merits, we believe it’s clear that there are limits on the government’s power to coerce innocent service providers into its surveillance activities.” The 4th Circuit panel wasn’t terribly sympathetic to the privacy issues during oral arguments in the case. So today’s ruling on a procedural technicality is probably for the best. And the next time a secure e-mail provider tangles with the feds, you can bet it will get a lawyer earlier on in the process. Source