[10/19/16] As more and more people use encryption to protect their data, surveillance hawks at all levels — local, state, and federal — continue to seek ways around the privacy protections offered by that encryption. A recently published court filing from California shows that the hawks are stooping to new lows in their treatment of the constitutional protections afforded to people’s data.
Forbes is reporting on an application for a warrant by U.S. Attorney Eileen Decker in the U.S. District Court for the Central District of California on May 9, 2016 to allow “law enforcement” officers serving the warrant to “depress the fingerprints and thumbprints of every person who is at located at the subject premises during the execution of the search and who is reasonably believed by law enforcement to be a user of a fingerprint sensor-enabled device that is located at the subject premises and falls within the scope of the warrant.”
Although the warrant itself and the other court documents are not available to the public, the memorandum is more than enough to show that the hawks have overstepped any reasonable line of protection in their attempt to get around both the Fourth and Fifth Amendments. Since those who have been used to taking the easiest path of mass surveillance see encryption as “a threat to law enforcement efforts” and “a boon to dangerous criminals,” they demonstrate that they are more than willing to sacrifice liberty and privacy to attack that encryption. Never mind that normal, everyday non-criminals use encryption to protect their data from both criminal hackers and overreaching government agents.
After it became obvious that the FBI would lose its case to force Apple to create a backdoor into the encryption of devices running iOS 8 and above, the agency backed down. It is obvious, though, that the surveillance hawks simply continued to look for ways to pervert the law in their quest for circumventing encryption. This new low, though, is so far off track and without precedent that it should be seen on its face as an attack on the very fabric of the Constitution.
Besides the fact that the application for the warrant seeks to force people to “depress the[ir] fingerprints and thumbprints” and unlock their devices (which in and of itself would violate the Fourth and Fifth Amendments), the memorandum itself admits that the warrant is for a fishing expedition to gain evidence the government does not even know about from the unknown devices of suspects it cannot even identify. The document states:
While the government does not know ahead of time the identity of every digital device or fingerprint (or indeed, every other piece of evidence) that it will find in the search, it has demonstrated probable cause that evidence may exist at the search location, and needs the ability to gain access to those devices and maintain that access to search them.