Comey & Victims: Can You Look Them In The Eye?

A reflection of who reads, and perhaps comments, at SJ, few could conceive of a sound basis for the government’s efforts to compel Apple to comply with Magistrate Judge Pym’s order.  Even as the government sought to seize the narrative, neither the geeks nor lawyers seemed to be persuaded. But then, the world isn’t made up of only geeks and lawyers.  And FBI Director Jim Comey knows that.

The San Bernardino litigation isn’t about trying to set a precedent or send any kind of message. It is about the victims and justice. Fourteen people were slaughtered and many more had their lives and bodies ruined. We owe them a thorough and professional investigation under law. That’s what this is. The American people should expect nothing less from the FBI.

Do it for the children victims.  And, indeed, the victims agree.

Some victims of the San Bernardino attack will file a legal brief in support of the U.S. government’s attempt to force Apple Inc to unlock the encrypted iPhone belonging to one of the shooters, a lawyer representing the victims said on Sunday.

Stephen Larson, a former federal judge who is now in private practice, told Reuters that the victims he represents have an interest in the information which goes beyond the Justice Department’s criminal investigation.

“They were targeted by terrorists, and they need to know why, how this could happen,” Larson said.

Will their knowing what was on that cellphone bring the dead back to life?  Will it do anything beyond, possibly, satisfying morbid curiosity? Of course not, but that’s an unfeeling, uncaring, unkind response. After all, they’re victims, and if nothing else, it’s insensitive not to feel for the victims.

Larson said he was contacted a week ago by the Justice Department and local prosecutors about representing the victims, prior to the dispute becoming public. He said he will file an amicus brief in court by early March.

DoJ reached out to “help” the victims lawyer up?  Because . . . victims?  Or because the DoJ understood that it was about to become enmeshed in a fight for internet hegemony, and wanted its gun fully loaded.  By getting a lawyer for the victims, the right lawyer, it could create a spokesman for a group who couldn’t be subject to criticism.  And that group, through the lawyer the DoJ got for them, could prop up the sympathy vote for the government’s position.

The particular legal issue is actually quite narrow. The relief we seek is limited and its value increasingly obsolete because the technology continues to evolve. We simply want the chance, with a search warrant, to try to guess the terrorist’s passcode without the phone essentially self-destructing and without it taking a decade to guess correctly. That’s it. We don’t want to break anyone’s encryption or set a master key loose on the land. I hope thoughtful people will take the time to understand that. Maybe the phone holds the clue to finding more terrorists. Maybe it doesn’t. But we can’t look the survivors in the eye, or ourselves in the mirror, if we don’t follow this lead.

It’s not that Comey, the FBI, the government want the capacity to access your technology for the rest of eternity, but that Jim “couldn’t look survivors in the eye, or ourselves in the mirror.” Do you want your FBI director to never be able to look in a mirror? How would he comb his hair or brush his teeth? That would be horrible.

The same sappy, teary appeals to emotion that permeate public discourse are now a tool of the government, as well as college students, feminists and deeply passionate advocates.  The government may not be able to win you over, or me, with Jim Comey’s sad tears, but will they work with the unduly emotional, the studiously ignorant, the survivors of terminal feelz?

Before reaching an answer, there is yet another depth to plumb. Orin Kerr posted a couple polls on the twitters to get a sense of how people who followed him viewed the issue. Hardly scientific, but still, it’s easy and available. Except it backfired on Orin, because people on twitter can occasionally be dumbasses.

While Comey’s “Mr. Sensitivity” pitch may be laughable to many of us, Orin’s effort to ascertain whether there was any sensitivity toward the legitimate need of law enforcement to do its job was legitimate, because even if not this time, eventually there will be real people hurt, killed, because of the inability of law enforcement to access information that might have been used to prevent it.

While the government’s appeal to emotion may not play here, that doesn’t mean that it has no legitimate interest, sound argument, for needing access to technology. It also doesn’t mean the government wins, but to ignore the merit of its argument is just as foolish as Jim Comey pandering to the delicate teacups.

So I hope folks will remember what terrorists did to innocent Americans at a San Bernardino office gathering and why the FBI simply must do all we can under the law to investigate that. And in that sober spirit, I also hope all Americans will participate in the long conversation we must have about how to both embrace the technology we love and get the safety we need.

Cool story, Jim. But if we’re to have a conversation in that “sober spirit,” then don’t treat us like emotional idiots. Or any other kind of idiot.  And be prepared for the reality that not everyone in America is willing to give up all rights in the “technology we love” for the “safety we need.”

8 comments on “Comey & Victims: Can You Look Them In The Eye?

  1. Franklin Michaels

    Sounds like Mr. Comey’s pitching a bit of the old P.T. Barnum / J. Edgar.

    L.A Times had a story on Sunday on how our local gas co. was assembling interest groups from whole cloth in order to oppose pending legislation to require strict inspection of 75 year old wells from the 4th largest [and quite recently belching] gas reserve in the country, and how “seniors” are now concerned about keeping warm in our brutal winters, etc. And we expect this kind of shilling from industry, whether or not it’s kosher with the PUC. But it’s hard to believe that there are no limits on the ability of federal agencies and their officers in the creation of amici. Just don’t sound right . . .

  2. bmaz

    I haver been trying since yesterday to think of a case where the government, whether in a federal or state case, affirmatively went out and secured private counsel for “victims”. And doing so BEFORE they even filed the case. Drawing a complete blank.

    Sure, the prosecution will speak for the victims, and there is the available assistance of various victim/witness advocates, but this is a new one. This is no prosecution, nor a monetary case for restitution. There is no basis for involvement of victims whatsoever other than emotional tear jerking. I feel sorry for the victims in SB, but this is really pretty craven stunt. Also, nice touch that the chap DOJ secured for the victims is a former federal judge from that district with direct ties to the very judge hearing the matter in the first instance.

  3. Patrick Maupin

    I read a few days ago how Carole Adams, a mother of one of the victims, was on Apple’s side. My first reaction was “how the hell is this even on her RADAR?”

    It all makes sense now. If I were in her shoes, there would probably be a dead lawyer and I’d be reaching out to one of you guys for assistance.

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