A simple plan to end the Supreme Court confirmation wars for good

Ian Milhiser wrote in ThinkProgress, A simple plan to end the Supreme Court confirmation wars for good. I didn't know about The Missouri Plan

When a vacancy arises on the state’s supreme court, a seven person commission consisting of ‘three lawyers elected by the lawyers of The Missouri Bar . . . three citizens selected by the governor, and the chief justice’ submits three candidates to fill that vacancy to the state’s governor. The governor then has 60 days to choose among those three names. If the governor fails to meet this deadline, the commission selects one of the three.

Finally, after a year of service, the newly appointed judge must survive a retention election, where a majority of the electorate can cast them out of office — though this only happens rarely.

This method of judicial selection, as well as variants upon it, was adopted by many states since its inception in Missouri."

It’s not a perfect system. In Iowa, which uses variant on the Missouri system, three justices were removed from office after anti-LGBT groups campaigned against them due to their votes in support of marriage equality. In Arizona, which uses a Missouri-style commission but with significantly more gubernatorial appointees, a libertarian attorney with aggressive plans to roll back laws protecting workers recently joined the state supreme court. Judicial selection commissions neither eliminate politics entirely nor shield a state entirely from ideologues.

But they are a whole lot better than the world we live in now at the federal level, where no president is ever likely to appoint a justice again unless that justice shares the ideological preferences of a majority of the Senate.

Does the 9th Circuit really have an 80% reversal rate?

Last week NPR unpacked a bullshit statistic Trump repeated today Does the 9th Circuit really have an 80% reversal rate?.

‘Reviewed by the Supreme Court’ is the operative qualifier — and it’s a very, very important one. Very few cases actually get reviewed by the Supreme Court from any of the circuit courts, and most of them don’t even generate appeals to the Supreme Court in the first place. Parties file appeals to the Supreme Court, which then has to decide whether the justices want or need to review the case. If fewer than four of the justices think that the appeal has merit, the application for certiorari is denied, keeping the appellate decision in place. This happens in most cases.

What does that mean in practical terms? It means that the Supreme Court’s grant of certiorari tend to favor those cases that are likely to be overturned. It’s a major selection bias, and as we’ll see, it gives a very distorted picture of what happens in the appellate court system.

Let’s take a look at the ABA report that generated this talking point. The study covered ten years (1999-2008) across all appellate circuits. During that period of time, the total number of cases decided by all appellate courts was 604,665. How many did the Supreme Court accept for their review? A mere 660 cases, or 0.109% of all decisions reached by the appellate level. The Ninth Circuit accounted for 175 of the cases reviewed, or about 26.5%, but the same circuit handled 114,199 of all appellate cases — 18.9% of the total.

They have some graphs too.

Trump’s Horrifying Executive Order on Refugees and Visas

Benjamin Wittes at Lawfare has a detailed takedown: Malevolence Tempered by Incompetence: Trump’s Horrifying Executive Order on Refugees and Visas. He describes his background, he's no screaming liberal:

Let’s start with the malevolence of the document, which Amira Mikhail summarized and Adham Sahloul analyzed earlier today. I don’t use the word “malevolence” here lightly. As readers of my work know, I believe in strong counterterrorism powers. I defend non-criminal detention. I’ve got no problem with drone strikes. I’m positively enthusiastic about American surveillance policies. I was much less offended than others were by the CIA’s interrogations in the years after September 11. I have defended military commissions.

Some of these policies were effective; some were not. Some worked out better than others. And I don’t mean to relitigate any of those questions here. My sole point is that all of these policies were conceptualized and designed and implemented by people who were earnestly trying to protect the country from very real threats. And the policies were, to a one, proximately related to important goals in the effort. While some of these policies proved tragically misguided and caused great harm to innocent people, none of them was designed or intended to be cruel to vulnerable, concededly innocent people. Even the CIA’s interrogation program, after all, was deployed against people the agency believed (mostly correctly) to be senior terrorists of the most dangerous sort and to garner information from them that would prevent attacks.

I actually cannot say that about Trump’s new executive order—and neither can anyone else.

Read it, it's informative (and scary). I want to add a bit of snark. This is from the actual executive order, Section 1. Purpose, paragraph 3:

In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including "honor" killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

See I think this applies to Trump.

• "do not support the Constitution" - the emoluments clause
• "engage in acts of bigotry or hatred" - Mexicans are rapists and murders, "Islam hates us", mocking the disabled, encouraging violence at his rallies, his cabinet picks
• "other forms of violence against women" - grab 'em by the pussy
• "persecution of those who practice religions different from their own" - calls for a muslim ban and other comments
• "oppress Americans of any race" - discriminations against black tenants, the central park five, tacit approval of KKK
• "gender" - he's not doing honor killings though there are plenty of accusal of sexual assault. Evidence of misogyny is thin, but there's no question about a history of sexism
• "sexual orientation" - he's against gay marriage and his VP pick is flagrantly homophobic

It will soon be illegal to punish customers who criticize businesses online

Ars Technica reports It will soon be illegal to punish customers who criticize businesses online “Congress has passed a law protecting the right of US consumers to post negative online reviews without fear of retaliation from companies.”

The Consumer Review Fairness Act voids any provision in a form contract that prohibits or restricts customers from posting reviews about the goods, services, or conduct of the company providing the product or service. It also voids provisions that impose penalties or fees on customers for posting online reviews as well as those that require customers to give up the intellectual property rights related to such reviews. The legislation empowers the Federal Trade Commission to enforce the new law and impose penalties when necessary. The bill also protects reviews that aren’t available via the Internet.

Debunking the Patriot Act as It Turns 15

The Electronic Frontier Foundation on Debunking the Patriot Act as It Turns 15. “In honor of the law’s 15th anniversary, here are 15 things you might not know about the Patriot Act.”

Is the Consumer Financial Protection Bureau constitutional? The D.C. Circuit says no. Here’s why.

Andrew Rudalevige writes Is the Consumer Financial Protection Bureau constitutional? The D.C. Circuit says no. Here’s why. It’s a nice history lesson of Supreme Court decisions on something that seems so obvious, can the president fire appointees?, but like many things is more complex the more you look into it.

Justice Breyer on Charlie Rose (and the Second Amendment)

Last night Charlie Rose interviewed Justice Breyer. Breyer can be wordy and it's rare for any Justice to talk in any detail about cases, but the last 10 mins were really good. Charlie asked "What does the second amendment mean to you?" Here's Breyer's answer:

It says, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." What did I think it meant and John Stevens thought it meant and Ruth Ginsburg thought it meant and what David Souter thought it meant.

In article one of the Constution it gives to Congress the power to call up and regulate state militias. There was a lot of concern, if you read the Federalist Papers you just get a feeling for it; there was a lot of concern and fear that congress might do that, and disband them. And replace the state militias after they had disbanded them with a federal army. And that, many people said vote no on the constution because if they can do that, then they can, the federal government, destroy your freedom.

Well said Madison, in a sense if I paraphrase him, 'never fear we will put in the constution an amendment which says congress can't do that'. It cannot call up and disband the state militias. Why? Because, a well armed militia is necessary for a free state, ie a state militia. And therefore the right to keep and bear arms shall not be infringed. In other words they're talking about that. That's what I thought they were talking about. Which is not the right of an individual to keep a gun next to his bed. Okay?

That's perhaps the most succinct refutation of Heller I've read. His next answer on how he and Scalia approach decisions differently is equally good.

The ‘Smoking Gun’ Proving North Carolina Republicans Tried To Disenfranchise Black Voters

The Washington Post reports on The ‘smoking gun’ proving North Carolina Republicans tried to disenfranchise black voters.

In particular, the court found that North Carolina lawmakers requested data on racial differences in voting behaviors in the state. 'This data showed that African Americans disproportionately lacked the most common kind of photo ID, those issued by the Department of Motor Vehicles (DMV),' the judges wrote.

So the legislators made it so that the only acceptable forms of voter identification were the ones disproportionately used by white people. 'With race data in hand, the legislature amended the bill to exclude many of the alternative photo IDs used by African Americans,' the judges wrote. 'The bill retained only the kinds of IDs that white North Carolinians were more likely to possess.'

The data also showed that black voters were more likely to make use of early voting — particularly the first seven days out of North Carolina's 17-day voting period. So lawmakers eliminated these seven days of voting. 'After receipt of this racial data, the General Assembly amended the bill to eliminate the first week of early voting, shortening the total early voting period from seventeen to ten days,' the court found.

Most strikingly, the judges point to a 'smoking gun' in North Carolina's justification for the law, proving discriminatory intent. The state argued in court that 'counties with Sunday voting in 2014 were disproportionately black' and 'disproportionately Democratic,' and said it did away with Sunday voting as a result.

'Thus, in what comes as close to a smoking gun as we are likely to see in modern times, the State’s very justification for a challenged statute hinges explicitly on race — specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise,' the judges write in their decision.

Evidently we all knew this would happen except for John Roberts.

One Simple Change to the Law Could Make Prosecuting Killer Cops Easier

The Intercept describes One Simple Change to the Law Could Make Prosecuting Killer Cops Easier

Currently, police abuse is subject largely to one federal statute enacted in 1866: Title 18 U.S. Code, Section 242, which punishes anyone who ‘willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.’

The problem is that the statute ‘has nothing to do on its face with police officers or police violence,’ said former Assistant Attorney General for Civil Rights William Yeomans. ‘It’s about deprivation of rights. So what you’re actually proving in these cases is that the officer acted with the intent to [deny the victim rights].’

This willfulness standard makes it difficult to prosecute police officers. ‘The government has to show beyond a reasonable doubt the officer acted with willful attempt to deny the victim a right,’ he said."

He suggested a solution. Congress could lower the intent standard to “something like if the officer acted with reckless disregard.” That way, “you don’t have to actually show that the officer intended to use more force than was necessary. … If the officer recklessly used more force than was necessary, he could then be prosecuted.”

I'm no expert, but it seems like a place to start a conversation...

Odd SCOTUS Couples (and Trios)

Adam Feldman in Empirical SCOTUS wrote Odd Couples (and Trios). He tracks unusual combinations of justices in dissents this term. E.g.,

Now for one of the really intriguing combinations. In Bank Markazi v. Peterson, Justice Roberts wrote a dissenting opinion which Justice Sotomayor joined. This is a first for this combination that do not often align in their perspectives. In this case we do not see simultaneous dissents, but a single dissent where the two Justices agree in the rationale.

We see the favor repaid in Ocasio v. United States where Justices Roberts, Thomas, and Sotomayor dissented. Justice Thomas wrote one dissent, while Justice Sotomayor wrote a dissenting opinion that Chief Justice Roberts joined. For two Justices that so infrequently agree in dissent, these two cases present a possibility for a burgeoning voting relationship.

I wish he went into the rationales in the cases. Is there a legal principle that these two agree on? I'm also bothered by the use of "quite unique" but that's just me.

Utah v Strieff and Sotomayor's Dissent

Yesterday the Supreme Court announced a decision in Utah v. Strieff. It's a case about whether to surpress evidence a cop found while illegally searching a suspect. Since 1961's Mapp v. Ohio, the Exclusionary rule applies to evidence obtained from illegal searches, it is excluded from trial because including it (a) isnt' fair to the defendant and (b) encourages police to perform future illegal searches. There are some exceptions (as we'll see a lot). Here are the facts of this case from the Syllabus:

Narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week made him suspicious that the occupants were dealing drugs. After observing respondent Edward Strieff leave the residence, Officer Fackrell detained Strieff at a nearby parking lot, identifying himself and asking Strieff what he was doing at the house. He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop.

So everyone agrees that the detective could talk to Strieff on the street, but this was more than that, note the word "detained". The police can't "stop" or "detain" you without probable cause. Thomas' opinion says "Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so." Thomas called this "a good-faith mistake". He went on to apply three factors in a decision process to see if the evidence needed to be excluded and concludes it doesn't.

It's not surprising that Alito, Roberts and Kennedy joined this opinion. Conservatives in general don't like the exclusionary rule. If there's evidence you commited a crime the law should use it to prosecute you. Apparently they don't agree with the idea of encouraging the police with incentives to not break the law. Sotomayor, Kagan and Ginsburg dissented. I don't know why Breyer joined the majority in this, in the past he's supported the exclusionary rule.

So both Kagan and Sotomayor argued against the majority's logic. The opinion and two dissents are short, 31 pages in all (including the Syllabus). Read those or Orin Kerr's excellent SCOTUSBlog post. But what is getting the post press is Sotomayor's "blistering dissent". This is referring to the last section, which is powerfully written (perhaps moreso after making it through Thomas' boring prose). Scalia would approve (though he clearly would have voted with the majority). Here is the last section of Sotomayor's dissent with the references turned into the best links I could find. The referenced cases are mostly Wikipedia pages, so you can find a summary about them.

Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.

Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. Whren v. United States (1996). That justification must provide specific reasons why the officer suspected you were breaking the law, Terry, but it may factor in your ethnicity, United States v. Brignoni-Ponce, (1975), where you live, Adams v. Williams, (1972), what you were wearing, United States v. Sokolow, (1989), and how you behaved, Illinois v. Wardlow, (2000). The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous. Devenpeck v. Alford, (2004); Heien v. North Carolina, (2014).

The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. See Florida v. Bostick, (1991). Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” Terry. If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’ ”.

The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.” Atwater v. Lago Vista, (2001). At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Florence v. Board of Chosen Freeholders of County of Burlington; Maryland v. King, (2013). Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. Chin, The New Civil Death, (2012); see J. Jacobs, The Eternal Criminal Record (2015); Young & Petersilia, Keeping Track, (2016). And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future. A. Goffman, On the Run (2014).

This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner. See M. Gottschalk, Caught 119–138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95–136 (2010). For generations, black and brown parents have given their children “the talk”— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.

We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274–283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.

I dissent.

Apropos to this, yesterday I saw this story, Boston Students Learn To Exercise Their Rights. 8th graders know the Miranda speech from TV but are being taught what it actually means.

The $65-Million Pants Case: Chapter 28

Remember the judge who sued a dry cleaner for $65 million over a pair of pants? That's still going on... The $65-Million Pants Case: Chapter 28.

The Senate’s Draft Encryption Bill Is ‘Ludicrous, Dangerous, Technically Illiterate’

Wired reports The Senate’s Draft Encryption Bill Is ‘Ludicrous, Dangerous, Technically Illiterate’ "On Thursday evening, the draft text of a bill called the ‘Compliance with Court Orders Act of 2016,’ authored by offices of Senators Diane Feinstein and Richard Burr,  was published online by the Hill.1 It’s a nine-page piece of legislation that would require people to comply with any authorized court order for data—and if that data is ‘unintelligible,’ the legislation would demand that it be rendered ‘intelligible.’ In other words, the bill would make illegal the sort of user-controlled encryption that’s in every modern iPhone, in all billion devices that run Whatsapp’s messaging service, and in dozens of other tech products. ‘This basically outlaws end-to-end encryption,’ says Joseph Lorenzo Hall, chief technologist at the Center for Democracy and Technology. ‘It’s effectively the most anti-crypto bill of all anti-crypto bills.’"

There are issue I really hate Diane Feinstein on.

Merrick Garland would shift the Supreme Court left. A lot.

Eric Posner writes in Slate Merrick Garland would shift the Supreme Court left. A lot. and I agree with everything in the article. After pointing out the obvious, that swapping Scalia for Garland will change the 5-4 tide from conservative to liberal, and pointing out both sides overturn the other sides decisions, he concludes with:

Of all the bizarre and broken features of the American political system, the selection of Supreme Court justices tops the list. The justices claim the last word on the most controversial issues of our time—abortion, gun rights, religious freedom, affirmative action, gay marriage, campaign finance. Yet they are unelected, unaccountable, out of touch—drawn from a tiny elite of Ivy League–educated lawyers—and completely inexperienced in politics. Possibly to resolve the cognitive dissonance of elite rule in a democracy, the myth has arisen that the justices decide these issues by applying the “law” when in fact they apply their ideological commitments in legal guise. So powerful is this myth that it would be considered the highest breach of political etiquette for anyone to ask Judge Garland for his views on the very political controversies he will resolve. Not only are we denied the right to vote for or against this man who will decide these issues for the next two decades at least; we are not even allowed to know what he thinks.

Apple v FBI

One of the San Bernardino shooters, Syed Rizwan, had an iPhone (it was actually a work phone owned by his employer). Now the FBI has it but they can't unlock it. They've looked at other info, they can get call records from Verizon and they asked for and Apple gave them iCloud backups of the device, but those stopped in October. Now the FBI wants Apple to provide them with software to help them unlock the phone. Apple has said no but the FBI got United States Magistrate Judge Sheri Pym to issue a writ to compel Apple to help them, and Apple has said no.

Techdirt in a addition to a description of the order, has the actual order itself. No, A Judge Did Not Just Order Apple To Break Encryption On San Bernardino Shooter's iPhone, But To Create A New Backdoor. Wired has it too, pdf.

Here's Apple's reply, A Message to Our Customers. I think it's very well worded. Here's the heart of it:

Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation. In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession.

The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a backdoor. And while the government may argue that its use would be limited to this case, there is no way to guarantee such control.

Here's a technical analysis by Dan Guido saying, Apple can comply with the FBI court order. It's mostly because the iPhone in question is a 5C which doesn't have TouchID or the Secure Enclave as later models do. More info: Errata Security: Some notes on Apple decryption San Bernadino phone and tl;dr Apple’s technical capabilities under FBI AWA order.

There's also a debate about the governments use of the All Writs Act to compel Apple. I've seen some debate on the point, but Apple says this is "unprecedented".

The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.

Now the writ itself says on page 11:

Further, based on the authority given to the courts under the All Writs Act, courts have issued orders, similar to the one the government is seeking here, that require a manufacturer to assist in accessing a cell phone's files so that a warrant may be executed originally contemplated. See, e.g., In re Order Requiring [XXX], Inc. to Assist in the Execution of a Search Warrant Issued by This Court by Unlocking a Cellphone, 2014 WL 5510865 at *2 (S.D.N.Y. Oct. 31, 2014)

I wonder what company XXX is? Apparently even Judges being asked to issue similar writs don't know (see footnote at bottom of page 8 in this pdf! Ars Technica says the All Writs Act has come up in other cases, but cites several experts saying "The DoJ went with the nuclear option" and they can't think of similar precedents.

Joshua Gans writes about Game Theory and Apple’s Encryption Challenge. It's interesting that Apple can do this but the FBI (or NSA) can't. Also interesting is that Apple can't do this on more recent iPhones and this is clearly another salvo in the debate of should companies like Apple be able to make devices with secure encryption technology.

Ben Thompson provides a really good summary and makes some good points in Apple Versus the FBI, Understanding iPhone Encryption, The Risks for Apple and Encryption.

This solution [a government backdoor using a master key in future products] is, frankly, unacceptable, and it’s not simply an issue of privacy: it’s one of security. A master key, contrary to conventional wisdom, is not guessable, but it can be stolen; worse, if it is stolen, no one would ever know. It would be a silent failure allowing whoever captured it to break into any device secured by the algorithm in question without those relying on it knowing anything was amiss. I can’t stress enough what a problem this is: World War II, especially in the Pacific, turned on this sort of silent cryptographic failure. And, given the sheer number of law enforcement officials that would want their hands on this key, it landing in the wrong hands would be a matter of when, not if.

This is why I’m just a tiny bit worried about Tim Cook drawing such a stark line in the sand with this case: the PR optics could not possibly be worse for Apple. It’s a case of domestic terrorism with a clear cut bad guy and a warrant that no one could object to, and Apple is capable of fulfilling the request. Would it perhaps be better to cooperate in this case secure in the knowledge that the loophole the FBI is exploiting (the software-based security measures) has already been closed, and then save the rhetorical gun powder for the inevitable request to insert the sort of narrow backdoor into the disk encryption itself I just described?

Then again, I can see the other side: a backdoor is a backdoor, and it is absolutely the case that the FBI is demanding Apple deliberately weaken security. Perhaps there is a slippery slope argument here, and I can respect the idea that government intrusion on security must be fought at every step. I just hope that this San Bernardino case doesn’t become a rallying cry for (helping to) break into not only an iPhone 5C but, in the long run, all iPhones.

Rich Mogull in Why the FBI's request to Apple will affect civil rights for a generation says:

The crux of the issue is should companies be required to build security circumvention technologies to expose their own customers? Not “assist law enforcement with existing tools,” but “build new tools.”

The FBI Director has been clear that the government wants back doors into our devices, even though the former head of the NSA disagrees and supports strong consumer encryption. One reason Apple is likely fighting this case so publicly is that it is a small legal step from requiring new circumvention technology, to building such access into devices. The FBI wants the precedent far more than they need the evidence, and this particular case is incredibly high profile and emotional.

He also previously explained Why Apple Defends Encryption "Apple is nearly unique among technology firms in that it’s high profile, has revenue lines that don’t rely on compromising privacy, and sells products that are squarely in the crosshairs of the encryption debate. Because of this, everything Apple says about encryption comes from a highly defensible position, especially now that the company is dropping its iAd App Network."

As he points out, "Google is fundamentally an advertising company that collects data on its users." For Google to use that info, it has to have access to it, so available to the government with a warrant. Microsoft until recently has a history of working with the government. Most of Facebook's and Twitter's information about you is already public.

The ACLU is, not surprisingly, on Apple's side here. "“This is an unprecedented, unwise, and unlawful move by the government. The Constitution does not permit the government to force companies to hack into their customers' devices. Apple is free to offer a phone that stores information securely, and it must remain so if consumers are to retain any control over their private data."

Even a Congressman agrees with Apple, it's probably no coincidence it's one with a computer science degree from Standford, Rep Ted Lieu (D-CA), Congressman Lieu Statement on Apple Court Order .

This court order also begs the question: Where does this kind of coercion stop? Can the government force Facebook to create software that provides analytic data on who is likely to be a criminal? Can the government force Google to provide the names of all people who searched for the term ISIL? Can the government force Amazon to write software that identifies who might be suspicious based on the books they ordered?

Forcing Apple to weaken its encryption system in this one case means the government can force Apple—or any other private sector company—to weaken encryption systems in all future cases. This precedent-setting action will both weaken the privacy of Americans and hurt American businesses. And how can the FBI ensure the software that it is forcing Apple to create won’t fall into the wrong hands? Given the number of cyberbreaches in the federal government—including at the Department of Justice—the FBI cannot guarantee this back door software will not end up in the hands of hackers or other criminals.

Researching this I learned this is not the first time that a government agency has used the All Writs Act to coerce Apple to break into an iPhone. The EFF wrote about a case last October, Judge to DOJ: Not All Writs. The documents for that case are here and apparently the Judge still has not ruled on the matter.

In one of those documents the government says:

Apple has an established track record of assisting law enforcement agents by extracting data from passcode-locked iPhones pursuant to court orders issued under the All Writs Act. The government has confirmed that Apple has done so in numerous federal criminal cases around the nation, and the vast majority of these cases have been resolved without any need for Apple to testify. In the course of handling these requests, Apple has, on multiple occasions, informed the government that it can extract data from a passcode-locked device and provided the government with the specific language it seeks in the form of a court order to do so.

Interesting past history, but they're clearly trying to move away from this and it's for the privacy of their customers. I'm on Apple's side here. Not the least of reasons is that our own government is when other governments try to do this. This is from March 2015, Obama sharply criticizes China's plans for new technology rules.

In an interview with Reuters, Obama said he was concerned about Beijing's plans for a far-reaching counterterrorism law that would require technology firms to hand over encryption keys, the passcodes that help protect data, and install security "backdoors" in their systems to give Chinese authorities surveillance access.

"This is something that I’ve raised directly with President Xi," Obama said. "We have made it very clear to them that this is something they are going to have to change if they are to do business with the United States."

Drew Hartwell gives a nice overview of Tim Cook's recent advocacy, Tim Cook just escalated Apple’s fight with the FBI – and his own role as corporate activist

On a good note, The President's NSA Advisory Board Finally Gets a Tech Expert. Steve Bellovin is a great choice.

The tragedy of Antonin Scalia.

Eric Posner wrote a great piece, The tragedy of Antonin Scalia. "He thought he could remove politics from the Supreme Court, but he only made things worse."

Scalia refused to acknowledge that originalism does not enable justices to decide cases neutrally. If they choose to adopt this methodology, and manage to figure out a way to make it constrain them, they are committed to enforcing mostly 18th-century values—which are, by definition, conservative.

In fact, the historical sources are rarely clear, and foundational questions about how originalism is supposed to proceed—including how much weight (if any) should be given to post-founding judicial precedents that deviate from the original understanding, and how broadly constitutional principles like “due process” and “equal protection” should be understood—are irresolvable. One of the original originalists—Supreme Court Justice Hugo Black—was a stalwart liberal. A liberal Yale law professor has mischievously proclaimed himself an originalist and shown how originalism can lead to liberal outcomes. Scalia’s interpretation of originalist sources has been frequently criticized, and in notable instances when he could not bend them to his will, he simply ignored them. His belief that campaign finance laws and commercial speech regulations violated the First Amendment would have surprised the founders, for example.

Last July: GOP Blocks Dozens of Obama Court Picks

This Politico article from last July offers some interesting perspective, Judge not: GOP blocks dozens of Obama court picks. I'd look to see if more progress has been made since then, but I expect I'll see articles on the topic in the coming week.

Republicans say statistics show that Obama is receiving comparable treatment to Bush. So far, Obama has gotten 311 judges installed nationwide — compared with 276 for Bush at the same point in his presidency.

And while Democrats boast that they had confirmed 21 judges at this point in 2007, Republicans noted that 13 of them had been awaiting floor consideration the previous year. In contrast, Democrats confirmed 27 judges during the lame-duck session late last year before Republicans took over.

“We’re trying to move them at about the same speed as the Democrats did when they took over the Senate the last two years of the Bush administration,” said Judiciary Chairman Chuck Grassley (R-Iowa). He said the Thurmond Rule “won’t be in effect until next summer.”

I guess summer starts in February.

The Democratic majority confirmed 68 district and circuit court nominees during Bush’s final two years, a mark that won’t be matched during this president’s final two years unless McConnell, Grassley and even Obama reprioritize the federal bench. And even that comparably torrid pace in 2007 and 2008 lags behind the confirmation rates of the final two years in office of Presidents Ronald Reagan, George H.W. Bush and Bill Clinton.

It's funny to see the party of the unitary executive theory say the president shouldn't nominate a justice to a vacant seat on the Supreme Court. Chief Justice Roberts for several years has been begging Congress and the President to fill vacant federal seats to alleviate the strain on the courts. It will be interesting to see if he weighs in.

Here's another good article, How Obama Transformed the Federal Judiciary by Jeffrey Tobin from October 2014.

The Senate is so crazily designed it would be literally illegal for a US state to copy it

A month ago Vox wrote The Senate is so crazily designed it would be literally illegal for a US state to copy it "In the case of Reynolds v. Sims in 1964, the Supreme Court ruled that all state legislature districts have to have roughly equal populations, because the Equal Protection Clause of the 14th Amendment enshrines a principle of 'one man, one vote.' That means that an institution like the US Senate, with wildly unequal populations in its various 'districts,' cannot exist at the state level — at least not anymore."

"The evidence suggests that the malapportionment of the Senate is, in fact, a big deal that probably leads the federal government to spend substantially more in places like Wyoming and Vermont and substantially less in places like California and Texas than would otherwise be the case."

Oral Argument

Tor published Oral Argument "We’re thrilled to have the opportunity to publish internationally bestselling author Kim Stanley Robinson’s first stand-alone short story in twenty-five years. In it, we get a glimpse of a very green future through the lens of a Supreme Court transcript."

It's a short and fun story about science and patents and the supreme court. The prior cases he references are real.

A Cybersecurity Bill Loathed By Tech Companies Is Now Law

A Cybersecurity Bill Loathed By Tech Companies Is Now Law "Yesterday, Congress and President Obama approved the Cybersecurity Information Sharing Act (CISA), a measure that lets private companies turn over consumers’ personal data to Homeland Security, as long as that data meets some broad and vague criteria of relevance to cybersecurity investigations. Homeland Security can then pass said data directly the NSA, the Department of Defense, and the FBI.

Tech companies, civil liberties groups and security experts have all decried this bill. How did it become law? Simple. House Speaker Paul Ryan attached CISA as a rider to the omnibus budget bill, a $1.15 trillion federal spending plan. If Congress and the President hadn’t approved the measure, we would be on the brink of another government shutdown right now."