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.
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.