Blog Ipsa Loquitur

Nobody is reading and writing more thoughfully about the Special Counsel’s investigation than freelance national security journalist Marcy Wheeler. Over the weekend, she published an eyebrow-raising note on her continuing obsession with Paul Manafort’s iPods, which the FBI seized in August 2017. Really, her whole note is an exercise in details that make you go “huh, that’s odd,” so let’s just get into it.

First, the Special Counsel’s Office has asked the judge to schedule three weeks for the trial, up from two weeks. The first huh:

Remember that Mueller originally asked for 70 blank subpoenas (35 sets) to call witnesses for the trial. But after the trial got moved, they asked for 150 subpoenas (75 sets). Now we learn they would like 50% more time for the trial. This shouldn’t be a difficult case, given how much paperwork there is. I wonder why the scope of it has expanded. We know, however, that Mueller neither wants nor will be permitted to raise issues related to Trump.

So the scope of the trial keeps increasing, even though Mueller’s folks aren’t going to use the T-word at all. I’m with Wheeler here: tax evasion and money laundering are complicated but not exactly difficult to argue. Maybe the FBI keeps digging up new shell companies and new money laundering, and it’s going to be hard to argue twenty new charges in addition to the twenty-odd from the two Manafort indictments. Or maybe there’s been a lot of developments on the “Conspiracy to Defraud the United States” charge that undergirds the broader investigation into Russia’s 2016 election interference.

Which is where the second huh comes in:

Because of my continuing obsession with Manafort’s iPod habit, I’m also really interested in this passage in [Buzzfeed reporter Zoe] Tillman’s report: “On the home search issue, Manafort is arguing that the search warrant was too broad and that investigators had failed to explain at the outset why they reason to believe there would be evidence on various electronic media devices that they seized.”

As I’ve laid out, Manafort’s lawyers focused on his iPods from their first suppression motion, claiming, falsely, that the iPods might only be used for music: “For example, the search warrant inventory of electronic devices seized or imaged includes things such as an Apple iPod music device and some Apple iPod Touch music and video devices. No agent could have reasonably believed that he was seizing electronic devices used in the commission of the subject offenses.”

Now, I’m no fancy big-city lawyer, but even I know that iPods are great secure communications devices. They run all the same end-to-end encrypted applications as iPhones, but you can walk into a Wal-Mart and buy one with $300 cash instead of giving AT&T your billing address and driver’s license. You can use Signal, you can use WhatsApp, you could even use the iPod as a voice recorder for meetings, such as the June 9 Trump Tower meeting that Manafort attended.

And at the hearing Tillman’s reporting on (and Wheeler’s writing about), Manafort’s lawyers again argued about the seizure of the contents of those iPods. The judge has already decided the search of Manafort’s house (in which the iPods were seized) was proper. Manafort’s lawyers aren’t arguing with the judge because he might overrule himself; they’re arguing with the judge because they want an appeals court to decide the judge was wrong. That’s the long game.

And then there’s the last huh:

Rather than stating that “the government will not be introducing any evidence obtained from those devices at the trial in this case,” Manafort instead claims that “the Special Counsel stated that he would not seek to introduce evidence from the iPods seized from the residence.” Mueller’s team only said they wouldn’t be introducing evidence from the iPods “in this case,” not that they wouldn’t introduce evidence from them “in some future case.”

Wheeler correctly points out that Manafort is the only one who can raise the “improper search and seizure” defense against whatever evidence is on those iPods. Mueller’s team isn’t splitting hairs for no reason. Maybe there’s a recording of that meeting on that iPod, and maybe hypothetically incriminates one of the other attendees from the Trump campaign; it’s up to Manafort to suppress that evidence to protect that other attendee in that—hypothetical—future case.

Mari Uyehara, writing in GQ on the breathtaking spinelessness of a Washington Post editorial, and more broadly on why restaurants everywhere should blacklist members of the Trump Administration after Sarah Huckabee Sanders was asked to leave the Red Hen:

[Red Hen Owner Stephanie] Wilkinson’s recognition of the costs of a principled stance were soon realized. Sanders used her official government Twitter account, instead of her personal one, to criticize the small private business—an ethics violation—and, later in a press conference, described the episode of being politely asked to leave the restaurant as “harm.” Trump jumped in, tweeting that the restaurant was “filthy” and claimed that he “always had a rule, if a restaurant is dirty on the outside, it is dirty on the inside!” Hordes of Trump followers targeted a different restaurant, Red Hen in DC, for days of harassment, including death threats and egging.

The Washington establishment piled on the small restaurant and its seven-person staff, with an array of misguided commentary. In a now-deleted tweet, Politico’s Jake Sherman, last seen obsequiously defending the administration by decrying Michelle Wolf’s stand-up as “mean,” sided with the president, tweeting “kind of agree on the outside/inside dirtiness deal.” David Axelrod, CNN commentator and former Obama staffer, sarcastically noted: “Oh yes. Let’s get REALLY tough and deprive the Trumpies Chanterelle & Scape Risotto! That will change EVERYTHING!” Ari Fleischer, former press secretary for George W. Bush, snickered: “I guess we’re heading into an America with Democrat-only restaurants, which will lead to Republican-only restaurants.” None, mind you, peeped up when Vice President Joe Biden was turned away by a Virginia cookie shop in 2012.

I’m going to skate right on by the old white guys dying to prove how principled they are by carrying water for the right-wing’s half of the outrage-industrial complex here. I hear Vichy is lovely this time of year.

Uyehara seems equally irritated by the ridicule lobbed at people standing up for their principles here, and reserves special (and well-deserved) outrage for the morning talk show talking head who decried the Red Hen for violating the spirit of the Civil Rights Act. Now, I’m tempted to go for the easy joke here: if a bake shop in Colorado gets to refuse service to folks based on their marital partners, it seems that discrimination on the basis of employer should be fair game as well.

But the easy joke is too easy and too glib for a law blog. First, the Colorado baker won his court case because his state’s civil rights commission was unconstitutionally biased against his religious views, not because the Supreme Court thinks cake-based discrimination against gay people is permissible. The Constitution is 100% silent on cake-based discrimination, so we’re on our own here. No, the Colorado case was a weird decision based on weird facts, and now there’s a growing body of law allowing businesses to use the First Amendment’s freedom of religion clause as both shield and sword. Great. Fine. Whatever.

Second, take a step back and let’s talk about what discrimination actually means. Uyehara touched on this, but discrimination is the unfair treatment of a class of people who share some immutable characteristic. The Fifteenth Amendment recognizes three characteristics of people upon which it’s illegal to discriminate: race, color, and previous condition of servitude. Congress has added a few more to that list, and now it looks something like this:

1. Race
2. Color
3. Gender
4. Religion
5. National Origin
6. Age
7. Disability
8. Genetic Information

When discrimination is alleged, courts take a look, and apply various levels of scrutiny to the defendant’s actions. You will notice that “works for the federal government” is not on that list, otherwise VP Biden could have sued his way into that cookie shop.

Thursday, June 14 was President Trump’s birthday. Now, for my birthday, I got a notebook with special fountain pen-friendly paper because I live in Brooklyn, and they’ll kick me out if I don’t use an old-fashioned pen.

For the President’s birthday, he and his three favorite children found out they were the subjects of a lawsuit filed by the New York State Attorney General, Barbara Underwood. The AG is suing the four Trumps for their maladministration of the Donald J. Trump Foundation, a not-for-profit corporation; as a bonus, the Foundation itself is a party to the lawsuit.

Now, first things first. This is a civil suit, not a criminal case. While the defendants (the four Trumps and the Foundation they run) are accused of breaking the New York State Not-For-Profit Corporation Law, nobody’s going to jail at the end of this trial. The law says non-profits have to do ABC and can’t do XYZ, and the Attorney General has complained to a court that the Foundation did not do ABC and did do XYZ in violation of the law. Think penalties being imposed and business permits being revoked, not people going to jail.

So in a civil suit, the complainant is the person who files the complaint to the court. In addition to complaining that the defendant(s) did something wrong, the complainant asks the court to do something about it. In this case, the AG has asked the NY Supreme Court to freeze the Foundation’s assets, dissolve the Foundation (i.e. the not-for-profit death penalty), fine the Trumps for the benefits they accreted by breaking the Not-For-Profit Corporation Law, and ban the various Trumps from running New York charities for various lengths of time.

And one last thing: the terms “non-profit” and “not-for-profit” can be used interchangeably. A non-profit is just a kind of corporation with some extra rules on it: it’s not allowed to pay dividends to its shareholders, for example. (More on that below.) A charity is a specific kind of non-profit corporation in New York; not all non-profits are charities, but all charities are non-profits.

Anna Maria Barry-Jester and Mai Nguyen measured how bail works in New York City, analyzing over 100,000 cases handled by the largest public defense organization in the State. When you’re indicted by a grand jury, you’re arraigned – taken to the court and asked by a judge how you plead.

[We] found that how much bail you owe — and whether you owe it at all — can depend on who hears your case the day you’re arraigned. New York’s judges are assigned to arraignment shifts, hearing every case that comes into the court during that time. Because the assignments are random — judges hear cases solely based on when people are arrested and how busy the court is — we can identify whether defendants are being treated equally regardless of who hears their case. They are not.

In New York City, when clients of The Legal Aid Society who were charged with a misdemeanor in 2017 entered their initial arraignment, they had anywhere between a 2 and 26 percent chance of the judge setting a cash bail, depending on which judge was randomly assigned to oversee the court that day. For felonies, the range was even wider: anywhere between 30 and 69 percent. Those not assigned bail are likely to be released without having to pay, which means getting arrested on the wrong day can have a major consequence: You are more than twice as likely to have to pay your way to freedom. Can’t find the money? You’re stuck in jail.

There are a lot of interesting implications here. While I think the idea that the justice system’s imposition of bail is inequitable isn’t terribly controversial (in my circles, at least), seeing it quantified like this is striking. On the one hand, judges are people, and people aren’t identical. There will always be tougher judges and more lenient judges, so long as people are doing the job of setting bail after an arraignment.

But on the other hand, this is a little like having instant replay for called strikes in baseball, or offsides calls in ice hockey. What’s striking isn’t the fact that umpires and referees get it wrong sometimes, it’s how often that happens and what that says about all the times these decisions were made before we could review them qualitatively or quantitatively.

I enjoyed this piece from Riana Pfefferkorn, writing in NYU Law’s Just Security, on the implications of a forthcoming iPhone feature called “USB Restricted Mode” that blocks all connections to a computer if the phone hasn’t been unlocked in over an hour. Today, even if the police don’t know the passcode to unlock your phone, they can connect your phone to a special computer that will try all possible passcode combinations from 000000 to 999999 over the span of a few days. This fall, Apple will push an update to iPhones that disables that port, and makes it harder to break into a locked iPhone.

As Pfefferkorn explains, the police don’t need a search warrant if there are what’s called “exigent circumstances” – and if the phone is about to lock everyone out of itself forever, Apple might be shooting itself in the foot:

The 2014 Supreme Court case Riley v. California requires police to get a warrant before searching a smartphone seized from someone who’s been arrested. […] “If ‘the police are truly confronted with a “now or never” situation,’ … they may be able to rely on exigent circumstances to search the phone immediately,” the Court said. Id. at 2487 (citation omitted). DOJ could thus thread the needle by arguing that the mere possibility that USB Restricted Mode is enabled on a seized iPhone creates “a ‘now or never’ situation” necessitating the immediate use of Cellebrite or GrayKey without waiting for a warrant.

Applied broadly to iPhones, this exception would swallow the Fourth Amendment’s general rule. The “we need to dump the phone ASAP just in case USB Restricted Mode is on” approach might fly in a one-off situation. But that uncertainty will probably be present most times police seize a locked iPhone. Under that logic, it would be OK to forensically search any iPhone immediately without a warrant, because there would always be exigent circumstances.

That is not how an exception to a rule works. “Exigent circumstances” are supposed to be situational and case-specific. The DOJ’s own manual for electronic evidence search and seizure acknowledges as much: “in electronic device cases, as in all others, the existence of exigent circumstances is tied to the facts of the individual case.” Given that recognition, DOJ would be hard-pressed to adopt or defend a policy allowing warrantless searches of iPhones a priori in all instances on the rationale that every single time police seize an iPhone, they “are truly confronted with a ‘now or never’ situation” as Riley said. That is particularly so given the alternative ways that police, with a warrant, could get data from a locked, encrypted phone, as a recent law review article about Riley explains—for example, going to the relevant service provider and asking for cloud backups of the phone’s contents.

The Fourth Amendment isn’t exactly my strong suit, so this was an extremely educational read.

Sam Rutherford in Gizmodo on how Spain’s Biggest Football App Reportedly Turned Fans Into Unwitting Narcs:

The La Liga app, which is the official streaming app for Spain’s most popular football league, has reportedly been using the microphones on fans’ phones to root out unauthorized broadcasts of matches in public venues like bars and restaurants. It sounds exactly like the kind of surveillance people are afraid of when it comes to modern technology, but as is often the case, the La Liga app technically asks users in Spain for permission to access their mics, according to Spanish Website El Diario.

After downloading the La Liga app, it presents Spanish users with two options: a standard terms-of-service agreement, and a second, opt-in permission that gives La Liga consent to activate your device’s mic and even turn on GPS to help pinpoint the location of unlicensed broadcasts. However, according to the report, the only way you’d know that is by reading the fine print that accompanies the permissions—which no one ever does. Even more troubling, it seems this behavior has been going on for a while, and only recently has been brought back to light thanks to Europe’s new GDPR online privacy laws.

First, it’s nice that modern smartphone platforms have a structured permissions system through which users can grant—and deny—apps access to certain sensors on the phone. The app I use to take notes or write emails doesn’t need access to my GPS coordinates, for example. That was not always the case, and this is definitely an area where smartphone manufacturers have done a good job protecting their consumers.

Second, it makes much more sense for the Googles and Facebooks of the world to offer this kind of surveillance as a service to copyright holders than for companies like La Liga to try to freelance this thing. While El Diario mentions the La Liga app has been downloaded more than 10 million times, that’s still a small fraction of the overall smartphone base.

For example, YouTube scans uploaded videos for copyrighted content, but that might be a result of its tortured history with copyright holders as much as anything else. It’s unclear to me how the La Ligas of the world would convince Google to turn every Android phone into a copyright informant.