iConstitution: How Apple is using the Constitution as a basis for its argument against the FBI

It’s quite difficult to imagine exactly what the Framers of the Constitution would think of the construal of their document to protect the locked-away iMessages and data of the San Bernardino terrorists. Yet, the principles of the Constitution that Apple is using to rebut the arguments of the FBI protect the rights of the individual to privacy and due process in a succinct and powerful manner.[i]

Primarily at play are the First and Fifth Amendments, but Apple also relies upon an argument against the All Writs Act of 1789.[ii] The FBI is using the All Writs Act as its source of authority for the court order compelling Apple to create a new version of its operating system that would make it easier to access the iPhone’s password-protected data.[iii] Apple fears that the creation of such software would not only threaten the privacy of all Apple users, but would also place an undue burden on the company to either destroy the program after the FBI uses it or keep and protect it against the certain multitude of attempts by “criminals, terrorists, and hackers” to steal the software. [iv]

Apple’s First Amendment argument relies upon the established classification of computer code as speech.[v] The First Amendment, as it pertains to this issue, prohibits the making of any law abridging free speech.[vi] In this instance Apple argues that its interests are protected because the Supreme Court has clearly decided that First Amendment protections apply when the government attempts to compel speech.[vii] Apple cites Riley v. Nat’l Fed. of the Blind of N.C., Inc., which upholds the idea that the court must scrutinize attempts by the government to compel speech, and it will be allowed only when the request is of a scope narrow enough to obtain a compelling state interest.[viii] The FBI, Apple argues, does not meet this standard because it has produced nothing more than mere speculation of potentially relevant information on the phone.[ix] Further, any relevant information may be encrypted using non-Apple software in secure communication applications.[x]

The Fifth Amendment’s Due Process Clause is applied in an attempt to protect Apple from governmental conscription.[xi] The Fifth Amendment’s Due Process Clause states, “[n]o person shall … be deprived of life, liberty, or property without due process of the law…”[xii]Apple argues that a court order compelling the company to create a backdoor that unlocks the San Bernardino terrorists’ phone violates its Due Process because the government would be depriving Apple of its liberty.[xiii] The government cannot force a private company to perform actions that are excessively burdensome and “contrary to the company’s core principles,” and Apple contends that the FBI’s request that Apple creates software that allows access to this iPhone cannot succeed due to this protection.[xiv]

With respect to the FBI’s use of the All Writs Act, Apple maintains that the FBI’s order violates the two requirements developed through common law that are pursuant to all orders.[xv] The Act requires that orders “must not adversely affect the basic interests of the third party or impose an undue burden.”[xvi] Apple alleges that the FBI’s order fails the first requirement because it has a powerful interest in protecting its security systems and all Apple customers depend on the company for their privacy.[xvii] The FBI’s order fails the second requirement too, argues Apple, because Apple would be forced to create a program that undermines the security features the company spent years developing.[xviii] Further, if Apple is compelled to create such software, it would open the floodgates to a large number of parties seeking similar software.[xix] Apple would be forced to either build and destroy software for each phone they are compelled to break open or safeguard the software against certain numerous attacks by parties with dubious intentions, both of which are alleged to be an undue burden on the company.[xx]

Apple presents itself as the hero of the rights of private companies to protect personal privacy against valid governmental concerns. The company does not seek to negate the FBI’s need to access the San Bernardino terrorists’ iPhone data, but rather hopes to preserve and protect the rights of individuals at the cost of burdening the government. Apple’s reliance on integral amendments to the Constitution serve to bolster its stance and prove that though dated, the Constitution’s elasticity allows its application to the technological intricacies of the current times. The argument is powerful, but the FBI’s reliance upon the All Writs Act and public safety concerns may outweigh Apple’s protection of privacy.

 

[i] Apple Inc.’s Mot. to Vacate Order Compelling Apple Inc. to Assist Agents in Search, and Opposition to Govt.’s Mot. to Compel Assistance, 32:5.

[ii] Id.; Id. at 14:13,14.

[iii] Id. at 14:13,14.

[iv] Id. at 25:6-9.

[v] Id. at 32:15,16 (citing sources that treat computer code as speech under the First Amendment).

[vi] U.S. Const. amend. I.

[vii] Mot. to Vacate, 32:21,22.

[viii] Id. at 32:22-6 (citing Riley v. Nat’l Fed. of the Blind of N.C., Inc., 487 U.S. 781,796 (1988)).

[ix] Id. at 33:3-6.

[x] Id. at 33:8-10.

[xi] Id. at 34:10,11.

[xii] U.S. Const. amend. V.

[xiii] Mot. to Vacate, 34:14-17 (citing Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010).

[xiv] Id.

[xv] Id. at 23:8,9 (citing United States v. Hall, 582 F. Supp. 717, 719 (E.D. Va. 1984).

[xvi] Id.

[xvii] Id. at 23:11-16.

[xviii] Id. at 23:20-22.

[xix] Id. at 24:6-8.

[xx] Id. at 24:17-19, 25:1,2.

 

 

 

Targeted Killings: The Blurry Lines of Applicable Legal Frameworks in the Context of Global Terrorism

Is it legal to use Uninhabited Aircraft Systems (UAS) technology to target and kill people suspected of terrorist activities? The short answer: it depends. The ever-expanding technology used in combat, married with the transnational arena in which wars are now waged has compelled lawmakers to reconsider traditional customs and laws that govern war. The interplay between international human rights law, military law, and the laws applicable to the use of inter-state force, have been a topic of heated debate in recent years, especially in the context of the United States’ national security practices.[1] According to the U.N. Charter, a state is not allowed to use force against another state unless it is authorized by the Security Council, or is in the context of self-defense.[2] The Authorization for the Use of Military Force (AUMF), a statute passed by Congress days after the September 11 attacks, provides the President an exclusive right to “to use all necessary and appropriate force” in pursuit of those responsible for the terrorist attacks.”[3] Do these legalities work in conjunction, or is the nature of transnational warfare redefining traditional standards and legal customs? Controversy surrounding targeted drone attacks against U.S. citizens abroad engaged in terrorist activities has been at the forefront of this debate.

Anwar al-Awlaki was the first United States citizen targeted and killed in a United States led drone strike, which occurred in Yemen in 2011. According to government officials, Answar al-Awlaki was a “key figure in al-Qaeda in the Arabian Peninsula (AQAP), [and] he had played a “significant role” in plots to blow up US airliners and had sought use poison to kill US citizens.”[4] Answar al-Awlaki also became the first United States citizen added to a list of suspected terrorists whom the CIA had executive authorization to kill.[5] Paul Gimiliano, a CIA spokesman interviewed about the matter stated that the “agency conducts its counterterrorism operations in strict accord with the law.”[6] An additional CIA spokesperson added that:

[Anwar al Awlaki’s] working actively to kill Americans, so it’s both lawful and sensible      to try to stop him.” The official stressed that there are “careful procedures our             government follows in these kinds of cases, but U.S. citizenship hardly gives you blanket protection overseas to plot the murder of your fellow citizens.”[7]

Since the drone strike on Anwar al-Awlaki, the United States government continues its “drone war” against suspected Al-Qaeda radicals, and these operations have sparked an ongoing conversation among lawyers, academics, policy makers and activists as to what constitutes a “legal” drone strike and what the repercussions of these missions are having on both the domestic and international legal community. Lawyers for the Obama Administration argued that AUMF is a congressional act that allows the president to “kill an American citizen without trial in Yemen” in accordance with a global war against al-Qaida.[8] Not everyone contends to this notion, and many have harshly criticized AUMF’s ambiguity especially when drone attacks have led to the deaths of innocent civilians.

In April 2015, New York Times journalist Peter Baker wrote about the press conference President Obama held at which he apologized on behalf of the United States government for a CIA drone strike that occurred in January 2015, which resulted in the death of Warren Weinstein, “an American held hostage by Al Qaeda since 2011” and Giovanni Lo Porto “an aid worker [who] was kidnapped in Pakistan in January 2012.”[9] President Obama apologized to the nation and to the families of the victims stating that “As president and as commander in chief, I take full responsibility for all our counterterrorism operations.”[10] Baker contends that this tragic accident has led the government to conduct reviews of the operation to determine the mistakes which could lead to a “broader rethinking of Mr. Obama’s approach to fighting Al Qaeda.”

In the aftermath of this incident, some members of Congress criticized the Obama Administration, arguing for more transparency regarding CIA drone strikes and intelligence gathering.[11]Additionally, human rights organizations such as Amnesty International have criticized the entirety of United States drone operations. Amnesty International’s Naureen Shah, responded to President Obamas apology by stating: “Today’s demonstration of transparency is a welcome step, but apology and redress should be available for all civilians killed in U.S. drone strikes, not just Americans and Europeans.”[12] Radical transnational actors permeate and predominate modern wars, making the discussion concerning the legality of drone warfare of vital importance.

It is crucial that policy makers, lawyers, academics, and activists continue the debate over the “legality” of drone operations. Traditional standards and customs that define “the laws of war” such as the UN Charter and AUMF should be consistently analyzed in accordance with the dynamic and evolving technology that has come to define modern day warfare.

[1] Coleen Rowley, Legality of Drone Warfare or Illegality of Drone Assassination? Let a Real Debate Begin!, The Blog (May 5, 2015 10:59 AM), http://www.huffingtonpost.com/coleen-rowley/-legality-of-drone-warfar_b_7210116.html?1430826956

[2] Jonathan Masters, Targeted Killings, Council on Foreign Relations (May 23, 2013), http://www.cfr.org/counterterrorism/targeted-killings/p9627

[3] Id.

[4] Frank Gardner, Islamist cleric Anwar al-Awlaki killed in Yemen, BBC News: Middle East (September 30, 2011), http://www.bbc.com/news/world-middle-east-15121879

[5] Greg Miller, Muslim cleric Aulaqi is 1st U.S. citizen on list of those CIA is allowed to kill, The Washington Post: World, (April 7, 2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/04/06/AR2010040604121.html

[6] Id.

[7] Id.

[8] Spencer Ackerman, US cited controversial law in decision to kill American citizen by drone, The Guardian (June 23, 2014) http://www.theguardian.com/world/2014/jun/23/us-justification-drone-killing-american-citizen-awlaki

[9]  Peter Baker, Obama Apologizes After Drone Kills American and Italian Held by Al Qaeda, NY Times: Asia Pacific (April, 23, 2015) http://www.nytimes.com/2015/04/24/world/asia/2-qaeda-hostages-were-accidentally-killed-in-us-raid-white-house-says.html?action=click&contentCollection=Asia%20Pacific&module=RelatedCoverage&region=Marginalia&pgtype=article

[10] Id.

[11] Id.

[12] Elias Groll, Yochi Dreazen, Botched U.S. Strike Highlights Risks of Obama’s Drone War, Foreign Policy Report (April 21, 2015) http://foreignpolicy.com/2015/04/23/botched_us_drone_strike-_kills_two_western-_hostages/

The Allowable use of Cell-Site Simulators

By: Keith Violante

In a recent statement, the Department of Justice adopted a new policy for the use of cell-site simulators, a highly controversial cell phone surveillance tool that can be used to determine the approximate location of a cell phone.[1] When a modern cell phone is turned on, it operates by sending out signals, or “pings” to nearby cell towers, every seven seconds, on a continuous basis.[2] These signals used by the cell service provider to service the cell phone with the best reception with respect to their geographic location.[3] Cell-site simulators or ‘Stingrays” function by mimicking a cell tower to intercept the target cell phone’s signal to determine the users location.[4]

Under the new policy, law enforcement agencies are required to obtain a search warrant “supported by probable cause and issued pursuant to Rule 41 of the Federal Rules of Criminal Procedure” prior to the use of a cell-site simulator.[5] The new policy also recognizes two exceptions where a warrant is not required 1) exigent circumstances under the Fourth Amendment, and 2) exceptional circumstances where the law does not require a warrant.[6] In applying the exigent circumstances exemption, courts have generally considered whether an extreme threat to public safety exits. In United States v. Caraballo,[7] the court upheld the real time “pinging” of a suspects cell phone under the exigent circumstances doctrine when law enforcement had a “strong belief” that the suspect has committed an “execution style” murder earlier that day, was presently armed and dangerous, and posed a serious threat to public safety if not swiftly apprehended.[8]

In applying the “exceptional circumstances” exemption, law enforcement is required to obtain “judicial authorization before use of the cell-site simulator, based on the government’s certification that the information sought is relevant to an ongoing criminal investigation.”[9] In applying this standard courts have typically considered whether the suspect had a reasonable expectation of privacy in their cell phone location information. In United States v. Barrera-Barron,[10] the court denied a defendant’s motion to suppress evidence obtained through the use of a cell-site simulator when he was not a named subscriber on the provider’s service plan. The Court found the defendant did not have a subjective expectation of privacy because the cell phone was not registered to him or his business, and no other evidence connected the cell phone to the defendant.[11]

In other cases the court also considered whether the suspects location could be tracked using any other means. In United States v. Skinner,[12] the Sixth Circuit held that the government did not violate a defendant’s Fourth Amendment rights by using a cell-site simulator to track a suspected drug dealer while he was traveling on public thoroughfares because “that same information could have been obtained through visual surveillance.”[13] Alternatively, In United States v. White,[14] found that that law enforcement’s use of a cell-site simulator to search a suspects cell phone location information was prohibited by the Fourth Amendment. The court found that the government’s warrant lacked sufficient probable cause to authorize the ongoing surveillance of the suspect’s cell phone location information lasting thirty days based on the assumption that such information would tie the suspect’s illegal activity to a particular place.[15]

In conclusion, it is clear that the recent change in the Department of Justice’s policy regarding the appropriate use of cell-site simulators will draw a bright line in many cases. However it could also be argue that the policy permits a number of exceptions where a warrant would not be required. Accordingly, the Department of Justice will need to continue to ensure any developments will conform to the Department’s philosophy.

[1] Department of Justice, Department of Justice Policy Guidance: Use of Cell Site Simulator Technology, 1 (Sept. 10, 2015), http://www.justice.gov/opa/pr/justice-department-announces-enhanced-policy-use-cell-site-simulators.

[2] State v. Earls, 70 A.3d 630, 632 (N.J. 2013).

[3] William Curtiss, Triggering A Closer Review: Direct Acquisition of Cell Site Location Tracking Information and the Argument for Consistency Across Statutory Regimes, 45 Colum. J.L. & Soc. Probs. 139, 143 (2011).

[4] Id.

[5] Supra Note 1, at 3.

[6] Id. 3-4.

[7] United States. v. Caraballo, 963 F. Supp. 2d 341 (D. Vt. 2013)

[8] Id. at 346.

[9] Id. at 4.

[10] United States v. Barrera-Barron, 2013 WL 3989182 (D. Kan. 2013)

[11] Id. at 6.

[12] United States v. Skinner, 690 F.3d 772(6th Cir. 2012)

[13] Id. at 778 (citing United States v. Knotts, 460 U.S. 276, 281 (1983)).

[14] United States v. White, 62 F. Supp. 3d 614 (E.D. Mich. 2014).

[15] Id. at 624 (noting that long-term prospective tracking may be justifiable in cases where there is a serious threat to public safety (i.e. domestic terrorism)).

Deradicalization Programs: Lessons Learned from Europe

Homegrown militants have become a major threat for European countries. Europe’s police organization Europol estimates that up to 5,000 radicalized Europeans have left to fight in Syria and Iraq. These numbers demonstrate that it is imperative for European countries to take significant steps in stopping citizens who want to travel abroad and fight alongside ISIS. Countries are taking differing approaches in attempting to ensure their national security. The Italian government has issued an emergency law demanding tougher penalties on those recruiting fighters for ISIS. Spain is proposing anti-terrorism legislation containing broad and ambiguous terms criminalizing the acts of glorifying or justifying terrorism.

However there is another equally pressing issue that is demanding the attention of Europe: what measures to implement when dealing with their citizens returning after fighting abroad? Many European countries have already employed deradicalization programs that focus on preventing individuals from adopting radical and pro-violent ideologies in the first place, as well as deradicalizing and disengaging existing radicals. Many countries credit their deradicalization programs for reducing the domestic terrorism usually perpetrated by homegrown jihadists.

The United Kingdom set up one such program in 2006 in response to the 2005 London bombings carried out by British citizens. The Channel program is designed to pinpoint and mentor individuals at risk of being drawn into extremism before they engage in terrorist activity. It is also working to deprogram British citizens returning from fighting abroad. It is mandatory to participate in the deradicalization program for all returning militants which also provides mentorship and counseling.

Denmark offers returning militants rehabilitation programs instead of bringing criminal charges against them. Instead of prosecution, intelligence agencies work with the government to reintegrate jihadists into society. After Belgium, Denmark has the second highest number of citizens leaving to fight in Syria. Danish Parliament has allocated $9 million for deradicalization programs to rehabilitate radicals as well as prevent Danes from joining the extremist movement. In 2007, the city of Aarhaus was the first city to establish a deradicalization program. For returning citizens, a risk assessment if first conducted by intelligence agencies. Then the individual is offered counseling, mentorship, and assistance in getting a job or continuing their education.

According to National Intelligence Director James Clapper, 180 Americans have tried to go fight in Syria. However it is unclear how many were attempting to fight for ISIS. While the United States is not facing the high number of citizens returning from fighting with ISIS, it is still imperative to develop and implement an effective deradicalization program. The White House has outlined its deradicalization initiative to prevent violent extremism domestically and recently hosted a summit to build upon its strategies. The three main prongs include building awareness about radicalization and recruitment, countering extremist narratives by encouraging civil society-led counter narratives, and emphasizing community led intervention to disrupt the radicalization process. In September, the Department of Justice unveiled its program to counter extremist recruitment through community involvement of social and mental health workers, religious leaders, and law enforcement.

Missing from this strategy is rehabilitation for domestic and returning radicals. This part of deradicalization should not be overlooked and has the potential to allow disillusioned ISIS fighter to return and even assist in deradicalizing Americans. By taking the one dimensional approach of merely prosecuting those individuals for their criminal acts of providing or conspiring to provide material support for terrorism, the U.S. is loosing a potential tool being utilized by many European countries to fight extremism.

European counterradicalization programs differ greatly from one another in terms of aims, structure, budget, and underlying philosophy. Each one is also deeply shaped by political, cultural, and legal elements unique to that country. The success of these programs in reducing radicalization is also extremely difficult to assess. Government’s are seeing them as an important supportive tool that assist police and intelligence services in preventing a terrorist attack.

While it’s true the U.S. is probably not going to stop prosecuting returning ISIS fighters, it should seriously consider finding a balance integrating rehabilitation into its counterterrorism policy. The decision to rehabilitate verse prosecute is strictly policy. The United States can look to a wide range of deradicalization programs and stands to learn considerably from Europe’s experience. Furthermore this is one program that avoids the national security versus civil rights conundrum that has plagued the United States since September 11. Developing these programs is not only imperative for protecting the security of the U.S., but also protects our domestic and international human rights obligations.