Your Rights In Geek Hands

On top of the news of the FBI spoofing the Seattle Times in an email to plant a virus on a target’s computer comes Nina Totenberg’s NPR post about a black bag job in Vegas.

Some legal cases do more than raise eyebrows — they push the legal envelope to change the law. Such is a federal case in Las Vegas now working its way through the courts. The question is whether federal agents can disrupt service to a house and then, masquerading as helpful technicians, gain entry to covertly search the premises in hopes of finding evidence that might later justify a search warrant.

Yeah, yeah. Another day, another violation of the Fourth Amendment.  Another ruse to circumvent the warrant clause, because knowing, intelligent and voluntary is such an archaic view of consent.  To the lawyer, this subterfuge specifically designed to obtain voluntary entry is a good idea only when compared to “consent or I’ll shoot your children.”

But what raises concerns is the geek reaction to this flagrant constitutional violation reflected in a post by Jeff Reifman at Geekwire.

This week’s outrage over the FBI’s impersonation of The Seattle Times (and Associated Press) may prove a good example of why it’s important to wait until the facts are known before reacting — or overreacting. Outrage on the Internet often grows when only a partial story is told — this is especially true with Twitter’s 140 character limit — just enough to inflame but not enough to inform.

Well, maybe, if there are facts that alter the situation.  So what are those facts being ignored?  Reifman goes through a litany of facts, all of which conform to exactly what was already known.  The dude was bad (his FBI friend told him so), and they didn’t really subvert the Seattle Times website, but only pretended to do so for the sake of sucking in the target.  Reifman even did something similar himself.  Uh huh. Got it. And so?

This technique is called a honeypot. It’s similar to what the FBI did to identify the anonymous MySpace account holder but its action was precisely targeted via email to a single MySpace account. This isn’t outrageous, it’s smart effective law enforcement.

So when you wrote that the facts weren’t known, what you really meant to say was that the facts were completely known, but you were good with it because “it’s smart effective law enforcement.”  Well, that’s true. It was smart. It was effective. It was also unconstitutional.

I also care deeply for journalism and the integrity of the fourth estate. But the facts of this case don’t upset me. I for one side with the court and with law enforcement on this case.

Would the Twitterverse been just as upset if the FBI had impersonated Buzzfeed? How about Fox News?

Perhaps we move in different spheres of the twitterverse, but you bet mine would be, and often is.  As for your caring deeply for journalism, not to mention your preference for “smart effective law enforcement,” who cares?

I think everyone who’s pounced on the FBI for this story, including the press, should take a deep breath here, review the facts of the case and reconsider their response. In an age of unconstitutional blanket data collection, we should support precisely targeted ops like this one.

Finally, we reach the point: Reifman is against “unconstitutional blanket data collection,” but is in favor of unconstitutional precisely targeted ops.  This reflects a fairly pervasive view of rights from the geek perspective.  Rather than concern themselves with the question of whether law enforcement has the constitutional authority to engage in certain conduct, they focus on whether the conduct seems subjectively cool with them, or subjectively better than other conduct that’s worse.  Nowhere does Reifman consider exploring the question of whether any of the conduct, whether it’s the stuff he deems bad or the stuff he deems good, is constitutional.  He is, however, attuned to whether it’s effective.

Aside from the normative nature of so many non-lawyer opinions, where guys decide on each individual story whether it’s okay with them or not, this binary view of the world seems to permeate geek culture.  Reifman put up a Q&A to explain his “facts,” which includes this exchange:

Q. Does the fact that the FBI kept the judge in the dark about how they planned to deliver their malware change your analysis? The court had no idea the FBI would impersonate the press. The search warrant application doesn’t mention that.

The FBI said that it does not disclose details of its operational or deployment tactics in affidavits for search warrants. While not transparent, this is understandable; lest the bad guys learn their tactics.

My understanding is that the agent must appear before a judge and sign the affidavit in front of them. The judge has an opportunity to ask questions of the agent but there is no public record of the content of this discussion.

So, we don’t know what the judge knew or didn’t know. In the absence of information, even with as much faith as I’ve lost in Congress and the Supreme Court, I generally will give the benefit of the doubt to judges to be smart and responsible.

Soghoian: you won’t find the word “hack” or “exploit browser flaw” in any of the FBI’s malware warrant applications.

On Twitter and in online discourse – people often want to shout their views and convince everybody that they’re right and the other is wrong. It’s really okay for us technologists to have different views and values on issues such as these.

I personally am okay with the government exploiting technology to fight crime. I also understand that transparency can’t always be provided in these circumstances. But, I’m a believer that government should offer as much transparency as it can and a lot more than it does today.

I don’t suggest that Reifman is insincere in his bizarre naiveté, but to the extent lawyers are ignorant of technology, it’s dwarfed by geeks’ ignorance of law.  If Reifman’s Geekwire post reflects the views of geeks toward permissible use of technology to subvert constitutional rights, we’re in for a rough ride ahead.

23 thoughts on “Your Rights In Geek Hands

  1. Ken Hagler

    You’re making some pretty broad assumptions about geeks based on one article that the author himself said he wrote in response to considerable outrage (from geeks) over what the FBI did.

    1. SHG Post author

      That’s true. I do so based on my experience on a vast array of other issues, here and elsewhere, as well as the reaction he got at Geekwire. Still, I would very much hope I’m completely wrong and he’s an outlier.

          1. David M.

            Oh, i was just quoting the wisdom of Reifman. I mean, he’s lost so much faith in Congress and SCOTUS. We need to cut him some slack for believing in judges, it’s a beautiful thing.

  2. Liz W

    I assure you, geeks hate Reifman and turncoats like him.
    If this were 2006, forum groups would have banded together to disrupt his life for being a tool, but alas those days are over.

    Screw this apologist jackass.

    1. SHG Post author

      You warm the cockles of my heart. Really.

      That was actually part of the reason why I bothered with him, that he not only had a smattering of “you’re the ginchiest,” but where was the wave of geeks calling him names? That probably scared me more than anything, that even the geeks have lied down with the lambs.

      1. Patrick Maupin

        In my book, true morality is derived from good long-term critical thinking.

        But there are a lot of people who are clever enough to make machines do what they want, who are incapable of, or unwilling to, engage in such thought exercises, and some of those people believe the end of making the world safer rationally justifies all manner of means. For whatever reason, they are incapable of applying the parable of the camel’s nose until the camel has already carried off the tent.

        There are “geeks” who will work at Microsoft, and geeks who won’t.

        Reifman has; a lot of geeks, including me, never would, due to the evil baggage there. For me, at least, this is not theoretical — I actually did turn down an evil job once even though I was unemployed and broke — the prospective employer wanted me to improve call center predictive dialling algorithms.

        1. SHG Post author

          Morality is a personal thing, so it doesn’t necessarily translate well to others. That said, if a person doesn’t adhere to his own morality, then he is empty. Reifman’s vision of right and wrong is situational and self-serving. I hope this isn’t reflective of what’s become of geekdom.

      2. se

        This geek bashing in American culture must stop. It is getting out of hand lately. First prominent geeks speak against this kind of thing regularly, just read Bruce Schneier, Matthew Green, Citizens Lab and whoever else wrote. Law enforcement using malware is criticized whenever they come across that.

        There is mini crypto-war going on right now and geeks might just miss the above incident. it is about whether phones should have mandatory backdoors or not. I guess they would welcome lawyers help in that front actually.

        More importantly, real geeks are busy developing tor and other similar tools, arguing about how to make encryption more usable (did you tried to encrypt something ever?) and so on and so forth.

        1. SHG Post author

          If geeks don’t want to be bashed for being naïve douches, then why let someone espousing the evisceration of rights because he’s all emotionally compromised get away with it, no less give him a tummy rub?

          I’m a big fan, and friend, of geeks. But that doesn’t mean they don’t get smacked when they deserve it, and taught a bit of law when they need it before they go and screw things up because of their excessive belief in their brilliance in all things. As for a backdoor for the government, where do you think Reifman would come out on that? Deal with your own before whining that not enough lawyers are speaking out for geek interests.

  3. John Barleycorn

    It’s not over Jeff has a summation as well.

    Jeff also does some consulting and has a consulting web page where he put up a post to highlight some of the Q’s and A’s he got via the all the twits rolling in he which you post about.

    He even agreed with your “binary thinking” twit tweet esteemed one. I am not sure he has landed but who knows?

    I should uncork the scotch that remains and see if there were any beers that were overlooked in the pantry from my attempt see if I could slip in a full three set rampage on this matter in the back pages of SJ the other day. Then skip lunch, go out to the garage put on some Joes Garage and get busy with the next three sets but that might not work out too well.

    So have some aggregated for whatever aggravation you drunk too while drinking readers of the SJ back pages. Jeff has a summation.

    From Jeff’s Consulting web page:

    One of his readers chimes in with:

    –The type of case doesn’t matter. Impersonating the press, clergy or doctors should be off limits to the government.–

    Jeff doesn’t live in a binary world of black and white though. And there are BAD guys and all or something and answered with this following because I guess he is a good guy and the GoV’ment would never opp an opps with him because he is a good guy.

    –I’m not going to accept black/white thinking on the issues of press, clergy or medical impersonation.–

    He watched TV too..and had a cherry for his point with…

    –Remember in the Soprano’s when Tony would go to his doctor’s to talk to his mob family to avoid surveillance? I’m not willing to draw a black/white line on this either.–

    As well as

    –I think this is the kind of smart police work we want to see. I think it’s well understood by the public that catching bad guys requires cleverness and some level of subterfuge.–

    He is sure the agents didn’t do the bad part of the do but is he really? So another of his readers try’s a new approach with:

    –Did the FBI agent impersonate the media in some other way?–

    Jeff is not sure about this and rolls with:

    –The FBI can’t reveal anything else about undercover agent who sent the email or the details of the operation.

    Personally, I think it’s most likely that the agent posed as another MySpace user who emailed the article link. I think it’s less likely the agent posed as a journalist.–

    Nothing to see here Jeff has some consulting to do.

    And it is most likely Joe and I should really skip lunch but then I might miss the six o’clock news…but I am expecting a package today.

    Joe and I could have some fun asking the UPS driver for three forms of identification and his wife’s phone number in order to make sure he is who he says he is, when he rolls up though.

    Who knows, maybe he will like Joe and have a scotch or two too after I call his wife and secure him a permission slip. I could even invite that judge that lives just up the road over to join us but he might be too busy preparing a list of questions to ask the agents about a warrant he will be signing tomorrow afternoon to play hookie.

    Oh well…

      1. John Barleycorn

        I can’t rightly speak to the comprehensives of the three set rant from the other day as I can’t comprehend what followed the Fugs. But it looks like I was mumbling something about headphones so my guess it was not consice.

        One of these days I will catch your in the right mood. Then again maybe not.

        Glad to see Sex Mob made it though.

        Back to the cogent and concise wagon for a while it is.

  4. Long Time Lurker

    Would like to point out several factual inaccuracies with your post. First, the FBI spoofed not the Seattle Times but the Associated Press. There is confusion because the revealed documents provide a template of a fake story in the style of a Seattle Times story. But the actual fake story used was an AP story.

    Additionally, the FBI did receive a warrant in this case, from federal magistrate judge James Donahue

    1. SHG Post author

      The warrant did not authorize the FBI to impersonate either the AP, the Seattle Times, or any other media entity. A warrant authorizes a seizure, but does not provide authority to usurp the identity of a media outlet in the process.

      As for whether they ultimately used the Seattle Times or AP, meh. It’s irrelevant for the purpose of the underlying impropriety, as either would be similarly wrong.

      1. Long Time Lurker

        That is true. The affidavit does not detail the use of deception in executing the warrant. But my understanding is other authorities provide this: that the use of a ruse in the execution of a warrant doesn’t render it unreasonable. Moreover, doesn’t other cases say that the use of subterfuge is ok in law enforcement? Like an undercover agent lying about his/her identity and even appropriating the identity of others? Of course here we are talking about impersonating an entity, the AP, but I don’t think that changes the analysis all that much.

        For instance, the law enforcement is allowed to put up false fronts in terms of actual physical locations. Like a fake store. In this case they created a fake website. True it’s a media organization, but I don’t see how that changes the analysis all that much

        1. SHG Post author

          You’re missing the significance of the Seattle Times/AP issue. It’s not because the target of the warrant has cause to complain. It’s that the Seattle Times/AP have cause to complain. They aren’t the targets of the warrant. They didn’t agree to become complicit with the FBI in the execution of the warrant, or allow the FBI to adopt their identities to execute the warrant. While the FBI can use a ruse against the target, and the target has no cause to complain, they can’t usurp third-party entities’ existence in the process. That’s the issue, not that the FBI used a ruse.

          1. Long Time Lurker

            So to clarify, your point is that law enforcement’s ability to use a ruse is limited to fake/non-existent identities? That is, law enforcement can never assume a real identity (such as a real person or entity like the AP) but can only make up identities? Since any usurpation of a real identity is usurpation of a third parties identity. If that’s your point, I think that’s likely incorrect. I know the DOJ’s undercover manual allows for such usurpation of real identities and i doubt they would put something that isn’t supported by caselaw in their manual

            1. SHG Post author

              My point is what I said, not your clarification of it. I do not appreciate someone recharacterizing my point in terms of what they want it to be. It’s disingenuous.

              And as far as I know (and I tend to keep a close watch on such things), there is no caselaw that allows the government to impersonate an extant third party entity without their knowledge or approval. If you have a case that proves me wrong, then let me know and I will be happy to change my view.

          2. Long Time Lurker

            I actually wasn’t trying to mischaracterize your position at all. I was legitimately confused by the point you were making and took a stab at what your position was. I still fail to see how your position is different than my clarification.

            You stated that nontargets of the warrant have cause to complain because they didn’t agree to be complicit with the execution of the warrant or let the FBI appropriate their identities. You also say the FBI can’t usurp third party entities existence. Doesn’t that lead to the conclusion the only ruses the FBI are allowed to use are ruses involving fictional people or entities? By definition, any real person or entity that the FBI impersonates w/o permission is a third party. Therefore, the logical extension of your position is that the FBI can only make ruses involving fictional entities. Because otherwise, there is always a third party.

            That is my clarification, I don’t see how that is dishonest to your position.
            Take a look at US v. Alejandro 368 F.3d 130. There, officers impersonated employees of the Rochester Gas & Electric Corporation. The case doesn’t explicitly state whether the officers had permission. But a strong inference is that they didn’t because they apparently came up with the ruse while on the way to the apartment. It also bears noting that one of your other points was that the search warrant approved didn’t mention the use of any deception. In this case, the defendant’s counsel made the same point in his brief (that the arrest warrant didn’t mention the use of deception) but that obviously didn’t fly.

            1. SHG Post author

              Doesn’t that lead to the conclusion the only ruses the FBI are allowed to use are ruses involving fictional people or entities?

              No. Ruses aren’t limited to using identities, and rarely are identities involved. In some instances, companies have a history of allowing their names/personnel to be used by police. In some instances, companies can object, but choose not to. In some instances, companies are threatened if they don’t cooperate. There are many scenarios that could happen, and my statement contains the qualifications I included, which you’ve managed to ignore in your attempt to recharacterize it. Your attempt at logic fails.

              As for US v. Alejandro, I assume you’re not a lawyer and therefore don’t understand why it has nothing to do with the point made here. In Alejandro, the defendant objected to the ruse. Again, the defendant has no standing to complain about impersonating Rochester G&E employees, as he’a not Rochester G&E. Rochester G&E would have cause to complain, but it wasn’t a party to the criminal action, and that wouldn’t be the forum where it would complain in any event. The 2d Cir. properly held that the ruse didn’t violate the defendant’s 4th Amendment rights because he’s not Rochester G&E. For the same reason, it didn’t help the defendant here either. None of this, however, alters the point here, which has utterly eluded you.

              This is really basic law stuff. Sorry that it’s over your head, but I can only explain it to you. I can’t understand it for you.

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