America's plans for its police state accelerate

In George Orwell's 1984 a dystopian vision of the future was painted in which the mindless majority was duped into a nationalistic fervor by a series of never-ending global conflicts.  Meanwhile a single totalitarian regime, the "Inner Party" rules with supreme authority, oppressing the public's freedoms of everything of politics to sexuality.  Enforcement is carried out by a complex government spying network that both relies on human informants and digital surveillance.  The nation was gripped by a "police state" in which police had supreme authority to monitor their citizens' digital presences, as epitomized by the slogan "Big Brother is watching you."

I. All Your Androids are Belong to U.S. 

Today America is seeing alarming movement towards that fictional vision of the future.  Top political candidates are supporting state-sponsored sexual oppression of the population [1][2].  Police have been granted blanket powers of surveillance -- many of which require no warrant. The latest effort to step up surveillance is to try to bully operating system and device manufacturers into removing software that protects users' privacy.

The issue has come into the spotlight after an affidavit [PDF] filed by the U.S. Federal of Bureau of Investigations in court-received publicity.

The court filing pertains to the case of Dante Dears, an alleged Californian drug dealer and pimp.  Mr. Dears is an ex-convict who served time for his actions with the street gang PHD ("Pimpin Hoes Daily").  Upon release, police believe he reconvened with his former associates and went back to his lifestyle of crime.

Their monitoring indicated that he was using a smartphone to place calls with drug dealers and prostitutes.  Mr. Dears' parole officer requested that the man surrender his phone for inspection.  At that point Mr. Dears allegedly denied owning the phone.  However, during a search of his house, the parole officer seized the device.

The phone was given to the FBI, who attempted to access it to search for evidence.  However, they were foiled by the device's grid-based gesture unlock, a feature found in Google Inc.'s (GOOG) Android operating system.  After exceeding the maximum number of attempts, the phone password locked itself, giving the agents a big headache.

Grid unlock
The FBI is upset that Google's grid unlock prevents them from unencumbered searches of users' devices.  They want to be able to force, via court order, Google to hand over user passwords in order to circumvent the system. [Image Source: BGR]

So they crafted a novel solution -- get a judge to issue a court order forcing Google to:

provide law enforcement with any and all means of gaining access, including login and password information, password reset, and/or manufacturer default code ("PUK"), in order to obtain the complete contents of the memory of cellular telephone.

As ArsTechnica's Nate Anderson notes, Mr. Dears has "signed away" his fourth amendment rights, in exchange for being granted a second parole (he violated his first parole).  That said, the quesiton of whether it's a Constitutionally valid practice to allow people to "sign away" their Constitutional rights to the government is exchange for freedom is a questionable one.

In other words, despite the fact that he has been charged with no crime and that federal agents don't know exactly what they're looking for on Mr. Dears' smartphone, they want to be able to force Google -- a private-sector company -- to pay to allow their agents to freely invade Mr. Dears' privacy in an open-ended search.

The FBI requested that the court not inform Mr. Dears of the request.  Unfortunately, they forgot to seal the court order [PDF], so news of the request hit the media.

II. "Police State" Works to Erode the Fourth Amendment

Recently law enforcement agencies have been frustrated by users' device encryption and password protection hindering their wish for unhindered surveillance.  While the Fourth Amendment to America's most important government document, the Constitution, guarantees:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

However, many in the law enforcement community feel that "probable cause" or at least its strictest interpretations are inconvenient.  So they've moved to try to circumvent those protections.

The "Fourth Amendment" waiver did not apply to Mr. Dears' digital property, thus the Fourth Amendment is still applicable.  However, Mr. Dears parole stated that any efforts to protect his digital presence were tantamout to a violation of parole.  This, however, is yet another questionable legal stance and possibly unconstitutional.
U.S. police trooper
Many police officers find "probable cause" an inconvenience and are seeking court permission to force companies to compromise citizens' privacy, without knowing what they're looking for exactly. [Image Source: Reuters]

Unlike in the case of GPS tracking, where officers faced little resistance at first to tracking without a warrant, this case the warrant is virtually mandatory due to the fact that business would be eager to resist efforts to compromise their customers' privacy.  Future laws could be passed to allow the enforcement of warrantless requests.

The U.S. Supreme Court recently ruled that warrantless GPS tracking was illegal.  In its ruling, the court indicated that a key reason for the illegality was the invasion of the person's property to plant the device.

This case may be similar, as the police invaded Mr. Dears' residence to collect his smartphone.  In this case they did have a warrant, however, the validity of that warrant -- specifically, whether there was sufficient probable cause to seize and search the device -- is certainly debatable.  This could get interesting, should Google, Mr. Dears, or consumer privacy groups challenge the request in court.

These developments should concern even law abiding citizens, as granting the police power to invade your private devices and email accounts with or without warrant opens the door both to petty abuse and to concerted harassment efforts against political adversaries.

III. Headed to the Supreme Court? 

The issue also bears some relation to recent cases in which police have seized suspects’ laptops and ordered that they surrender their passwords to access the laptop and to decrypt onboard data.  Some federal courts have ruled that this practice is illegal, as it amounts to self-incrimination (hence violating the Fifth Amendment) and fails the test of probable cause (violating the Fourth Amendment).  Other courts, however, have ruled that it's perfectly legal and that if a suspect does not hand over the passwords; they can be found in contempt of court and imprisoned indefinitely.

The issue is likely destined to be taken up eventually be the Supreme Court, given the divergent rulings.

Likewise given the increasing number of requests for blanket invasions of citizens' private email and web accounts, both in civil and criminal cases, this may be fodder for another Supreme Court case.  In one recent famous incident Sony Corp. (TYO:6758) received permission of the court to invade the internet hosting, Twitter, Facebook, and Gmail accounts of hacker George "GeoHot" Hotz in an apparent court-sanctioned harassment attempt.

Sources: FBI [PDF], Threat Post

“So far we have not seen a single Android device that does not infringe on our patents." -- Microsoft General Counsel Brad Smith

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