Author Archives: Mark Draughn

IBD Discovers the Earth’s Temperature Changes

Since I’ve been picking on climate change activists for their legal policies, I figure I should take a turn picking on global warming deniers for their misstatements about climate science. Case in point, an unsigned editorial in Investor’s Business Daily titled “Father of Global Warming Admits: It Used to Be Hotter Than It Is Now.” I’m by no means an expert on climate science, but I think I can see a few flaws here.

To listen to the climate change alarmist community, one would think that Earth has never been so warm as it is now.

There are enough climate activists in the world that I’m sure someone somewhere must have said something like that, but that’s not actually part of the theory of anthropogenic climate change.

But it’s been warmer, and sea levels have been higher, facts that the leader of the movement acknowledges.

I would hope he does, since it’s pretty well scientifically established.

James Hansen, the famed NASA scientist who stirred the climate scare when in 1988 he told a Senate committee that “global warming” — yes, he used those words

— What the heck is going on with global warming deniers who think the shift in terminology from “global warming” to “climate change” is a trick of some kind? What’s that about? I’ve got to look that one up someday. Anyway…

— “is already happening now,” has never backed off his claims, despite the fact that he’s been demonstrably wrong.

I know almost nothing about Hansen, or how his specific claims have held up, but the editorial sure seems to get important things wrong.

The narrative since that day in 1988 is that Earth is entering a dangerous warm era created by man’s carbon dioxide emissions. Every heat wave, cold snap, drought, hurricane, heavy snow, torrential rain, and change in sea level has been supposedly caused by man. And all are allegedly unprecedented events.

Um…no. The theory of anthropogenic climate change makes claims about worldwide climate trends over periods of decades or longer. One of those claims is that global warming will increase the frequency and intensity of some local weather events, but as far as I know, there’s no way to trace these kinds of specific instances of extreme weather to global warming. Each time we break a temperature record is another bit of evidence that warming is occurring, but no single hot day or intense hurricane proves global warming. Even a hot year is just a data point. (Of course, no single cold day or year refutes global warming either.)

It’s been warmer, and extreme weather has visited us before, all in a time long before man began to drive cars and operate power plants that helped move him from an almost primitive existence to a modern one.

Hansen has even admitted this.

I would hope so, since much of climate science is based on historic data from those periods. Lots of things have affected our climate over the life of the planet — variations in output from the sun, cycles in the Earth’s orbit around the sun, volcanoes, changes in vegetation, changes in ocean currents, meteor strikes, drifting continents… A lot can happen to a planet in four and a half billion years. The geological record of those ancient times is one of the reasons we have some idea of what the Earth would be like with more CO2 and higher temperatures, because both of those things have happened before and left evidence for scientists to analyze.

“The last interglacial period, 120,000 years ago, that’s the last time it was warmer than today, sea level was 6 to 9 meters higher,” he said in an interview with online magazine Yale Environment 360.

So it has been warmer, and sea levels have been higher. And those conditions were entirely natural. Yet the alarmists want us to believe that the predicted warmth of today — which has yet to occur — is man-caused. How do they know?

That’s a huge topic, but the short answer is that we can see that our civilization is dumping massive amounts of CO2 into the atmosphere, and we can see evidence that this is causing the atmosphere to retain more heat, but when we look at all the other known possible causes of global warming, none of them seem to be responsible for the current warming.

The Watts Up With That blog points out another hole in the narrative: While implying that we’re headed for another 6-to-9-meters increase in sea level […] “Hansen failed to say” that “paleoclimatological studies have indicated that it took a number of millennia for sea levels to rise those 6 to 9 meters when temperatures were warmer than today.”

Maybe Hansen failed to say it, but climate scientists aren’t predicting an overnight deluge. They believe it will take centuries for the world’s glaciers to melt away.

Yet we’ve been told until the alarmists have no more hot air to exhale that we are running out of time to act, and maybe already have.

Contrary to what the IBD editors are saying, there’s nothing inconsistent about having to act quickly now to prevent a catastrophic sea level rise in the future. The way it works is that CO2 levels rise as fast as we can dump CO2 into the atmosphere, but then it takes decades for the greenhouse effect to warm the Earth, and even longer for the warmer climate to melt glacial ice to raise the sea level. Nevertheless, the final height to which the sea rises, hundreds or thousands of years in the future, is a function of the level of CO2 in the atmosphere, and we are increasing that level right now. The sooner we stop producing massive amounts of CO2, the smaller the eventual sea rise will be.

The only thing Hansen is “admitting” is what climate scientists have been saying for years.

A Bad Remedy For Bad Climate Speech

When I’m reading a news story, there are two words which almost guarantee I’ll be cringing by the end: Attorneys general. The position of attorney general is usually seen as a stepping stone to higher office, so it’s often occupied by some subspecies of spotlight-seeking control freak. Just one of them would be bad enough, but when a bunch of attorneys general from different states take the time to work together toward a common goal, you just know it’s going to be something awful, something like passive aggressively pressuring Google to censor search results, vilifying MySpace because the AGs didn’t follow proper procedures, or accusing Craigslist of human trafficking. I mean, Christ, thirty-five of them got together to complain that Four Loko booze comes in cans that are too big.

This time a pack of twenty AGs are attacking the free speech of climate change skeptics:

Not only do Schneiderman and his new claque climate crusaders aim to force ExxonMobil to repent (while possibly extracting some cash along the way), they also evidently intend to shut up non-profit groups to which the oil company donated funds that have questioned the notion of impending man-made climate catastrophe.

In service of this goal, the Attorney General of the U.S. Virgin Islands Claude Walker has issued a subpoena to the Washington, D.C.-based think tank the Competitive Enterprise Institute. According to CEI, the subpoena demands that the non-profit produce “a decade’s worth of communications, emails, statements, drafts, and other documents regarding CEI’s work on climate change and energy policy, including private donor information. It demands that CEI produce these materials from 20 years ago, from 1997-2007, by April 30, 2016.”

Admittedly, this is not a direct attack. The main thrust of the investigation is aimed not at CEI but ExxonMobil. The attorneys general are investigating whether ExxonMobil lied to investors about the effects of climate change on shareholder value.

For example, changing patterns of Arctic ice thawing could disrupt the company’s oceanic drilling and shipping operations, and thawing permafrost could cause upheavals that might damage buildings or pipelines, as could increasingly violent weather patterns. By playing down climate change, critics (and attorneys general) might argue, ExxonMobil is playing down the costs they will incur. Of course that applies to any business that could be affected by climate change, not just the oil companies that are the favorite targets of environmentalists.

A more specific concern is the oil in the ground. Oil companies make their money by pumping that oil out of the ground and selling it to people, and a large part of their current stock value comes from the expectation that they will be able to continue doing that for many decades into the future. The problem is that burning those enormous oil reserves will do immense damage to our planet’s climate. So it’s quite likely that world governments will at some point force the oil companies to leave most of their reserves in the ground — at least if the world is going to limit warming to the commonly cited 2°C target. In other words, because of climate change, oil companies will not be able to make nearly as much money as everybody thought they would. Therefore, by playing down climate change, companies like ExxonMobil are effectively lying about the value of their stock.

It’s an interesting economic point, and the same reasoning applies to coal and gas companies as well, but so far we haven’t seen the expected massive decline in the stock prices of companies with large fossil fuel reserves. The capital markets don’t seem to believe that we’ll be leaving all that oil, gas, and coal in the ground. That may be a realistic analysis: Current predictions are for an increase in fossil fuel consumption over the next couple of decades, likely blowing through the 2°C warming target.

There are a lot of unknowns here, and unknowns are risks, and risks are supposed to be disclosed to investors. Have the oil companies been doing it right? I haven’t got a clue, but that’s what the attorneys general are claiming to be investigating.

On the other hand, I’m pretty sure the Competitive Enterprise Institute has nothing to do with any of this. They have no obligations to investors in the fossil fuel industry. So how did they get sucked into the investigation?

It sounds like the attorneys general are pursuing some sort of conspiracy angle in which ExxonMobil was paying CEI to mislead the public as a means of influencing investors. I suppose that theory gives them plausible legal cover for harassing CEI. However, given that U.S. Virgin Islands Attorney General Claude Walker worked for eight years as an attorney for the U.S. Environmental Protection Agency, and that former Vice President Al Gore was included in a recent press conference about the investigation, it seems likely that this move is less about financial fraud and more about finding a way to strike back at ideological enemies in the climate argument.

New York Attorney General Eric Schneiderman started his investigation of ExxonMobil last year, but the subpoena to CEI didn’t come until after CEI attorney Hans Bader published an article critical of the investigation, which sounds a lot like retaliation. I can’t help thinking that some of the attorneys general are enjoying the chance to slam an enemy of environmentalists with the high cost of fighting or complying with the legal process. And if they could find a way to implicate CEI members in the conspiracy, all the better, right?

University of Tennessee law professor Glenn Reynolds argues that this is illegal:

Federal law  makes it a felony “for two or more persons to agree together to injure, threaten, or intimidate a person in any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the Unites States, (or because of his/her having exercised the same).”

I wonder if U.S. Virgin Islands Attorney General Claude Walker, or California Attorney General Kamala Harris, or New York Attorney General Eric Schneiderman have read this federal statute. Because what they’re doing looks like a concerted scheme to restrict the First Amendment free speech rights of people they don’t agree with.

I don’t know if Reynolds is right, but this kind of legal action seems to be part of a disturbing trend in which environmentalists have been trying to use the legal system to suppress the free speech of climate change skeptics.

I suppose it started with climate scientist Michael Mann’s lawsuit against several critics, including columnist Mark Steyn at the National Review and Rand Simberg at CEI. That’s just one guy (and he kind of had a point, even if the lawsuit is apparently stalled), but more recently 20 climate scientists signed a letter to President Obama calling for far more dangerous action:

We appreciate that you are making aggressive and imaginative use of the limited tools available to you in the face of a recalcitrant Congress. One additional tool – recently proposed by Senator Sheldon Whitehouse – is a RICO (Racketeer Influenced and Corrupt Organizations Act) investigation of corporations and other organizations that have knowingly deceived the American people about the risks of climate change, as a means to forestall America’s response to climate change.

The RICO statutes are one of the biggest loose cannons in federal law. Originally intended to help fight organized crime, RICO laws have been used to enhance penalties for things like securities fraud and teachers altering test scores or to fight marijuana legalization. Apparently, there’s been some talk in the Department of Justice about using RICO against climate skeptics, and I wouldn’t be surprised to see DOJ joining the attorneys general in their crusade against bad science.

Even Bill Nye “the science guy” is kind of okay with jailing people over climate science:

Asked about the heated rhetoric surrounding the climate change debate, such as Robert F. Kennedy Jr.’s previous comments that some climate skeptics should be prosecuted as war criminals, Mr. Nye replied, “We’ll see what happens.”

“In these cases, for me, as a taxpayer and voter, the introduction of this extreme doubt about climate change is affecting my quality of life as a public citizen,” Mr. Nye said. “So I can see where people are very concerned about this, and they’re pursuing criminal investigations as well as engaging in discussions like this.”

You know who else’s quality of life is going to be affected? Everyone involved in the fossil fuel industry, if we switch to greener energy. You don’t think they’d like to shut down climate scientists’ claims of anthropogenic global warming? If RICO actions about climate science had been available a few decades ago, oil and coal companies would have used them to suppress research into global warming by labeling it a conspiracy to destroy the energy industry and hurt the U.S. economy.

About the potential for a “chilling effect,” Mr. Nye said, “That there is a chilling effect on scientists who are in extreme doubt about climate change, I think that is good.”

But it’s not just going to be people with “extreme doubt” (whatever that means) who experience chilling effects. It’s going to be every scientist with a theory that suggests global warming isn’t as bad as we think it is — every researcher who theorizes there’s a bias in the satellite record or a natural carbon sink that’s more effective than expected. When trying to decide whether to pursue the research, they’ll have to ask themselves if it’s worth the risk of severe legal problems, and they’ll have to line up advisors, assistants, partners, and funding agencies that are also willing to face the risk. Or they could play it safe and pick a different research topic.

That’s not how science is supposed to work. That’s not how debate over public policy is supposed to work in a democracy. Environmentalists had no trouble understanding this concept back when Virginia Attorney General Ken Cuccinelli was engaged in a bogus investigation of Michael Mann and the University of Virginia for supposedly manipulating data to prove global warming.

It’s not a question of who is right and who is wrong. It’s not even about who is lying and who is telling the truth. It’s about how we as a society are going to make decisions together. It’s far better that we talk things out and let everyone be heard than that we enlist attorneys general to imprison or impoverish those with whom we disagree. The best remedy for bad speech is good speech. Not a RICO prosecution.


For several months now, I’ve kind of been planning to vote in the Republican primary here in Illinois, just so I can vote against Donald Trump. As the day finally approached, however, I gave it a little more thought and realized there was a better way to use my vote. (It may not be worth much, but I might as well maximize its impact.)

While the Presidential elections have been getting all the news coverage, a different election has been attracting attention here in Chicago. That’s the vote to replace Cook County State’s Attorney Anita Alvarez, a movement that has grown massively, ever since the video from the LaQuan McDonald shooting by a police officer was released to the public in November.

This seems to have been driven on the ground by a mostly grass roots movement (except for support from a few key criminal justice reform supporters) led by a collection of mostly black community organizations like Black Youth Project 100, Assata’s Daughters, and Black Lives Matter Chicago, although I get most of my news about if from following Prison Culture. I can’t go an hour on Twitter without seeing the #ByeAnita hashtag floating across my screen. Especially on this election day.

Bye Anita Selfie

To be honest, I don’t think Anita Alvarez is the sole reason police in Cook County seem to be getting away with murder. It’s a nationwide issue, and I doubt Alvarez is much worse in that respect than many other chief prosecutors. But the folks running the #ByeAnita campaign decided to make sure that she faces the consequences nonetheless.

And she will.

Even Trump Has Freedom of Speech

I was disappointed that the Trump rally on Friday here in Chicago was cancelled. It’s not that I was planning to go, but it was disappointing the way it happened. And I’m disappointed that folks on the left are applauding it or taking credit for it.

To be sure, Trump brought it on himself. The aphorisms are plentiful: You reap what you sow. Live by the sword, die by the sword. What goes around, comes around. Trump applauded and even encouraged violence at his rallies. He set the rules of the contest, and now he’s complaining that his opponents are playing by them.

It’s actually kind of a law of nature: Trump’s embrace of violence unsurprisingly drives away the peaceful protesters, which leaves behind the kinds of protesters who aren’t afraid to mix it up, and probably even attracts protesters who look forward to busting some Trumpkin heads. So it’s not surprising that things eventually blew up. Trump and his supporters got the response that they created. Thugs begat thugs.


Even Donald Trump has the right to free speech. I’m not talking about the legal First Amendment right, which doesn’t really apply to private action. I’m talking about the basic moral premise that underlies the First Amendment: Within some very broad limits, people have a right to say what they want. Whatever they want. Even if other people don’t like it. Even if they themselves have no respect for freedom of speech.

And perhaps even more important than Donald Trump’s right to speak is the right of other people to hear what he has to say. People who come to his rallies ought to be allowed to hear him speak, and the rest of us should respect that right. That doesn’t mean opponents can’t protest his speech. There’s a difference between speaking out against Trump and blocking Trump from speaking. When Donald Trump is speaking to cheering supporters and crowds of protesters are shouting in the streets and the police are keeping the peace rather than taking sides, that’s American free speech at, well…perhaps not at its finest, but certainly at its most exuberant.

On the other hand, if anyone violently attacked Trump supporters, I fully support arresting them for it. (And vice versa, of course.) Similarly, if protesters disrupt Trump’s speech, I have no problem with them being escorted from the premises. They have a right to speak, but they don’t have the right to prevent Trump from speaking in a forum assembled for that purpose, nor do they have the right to prevent others from hearing what he’s saying.

Granted, I’m not entirely convinced that anyone other than Donald Trump was responsible for shutting down the Donald Trump rally. At the time he called it off, there hadn’t been any injuries or arrests in Chicago. I think it’s possible he saw a chance to skip a rally and blame it on the opposition, and so he took it, and now he’s using it to play the victim card. But as Donald Trump might have said, I like Presidential candidates who don’t cancel their rallies. Who’s the pussy now, Donald?


When the cancellation of the rally was announced, the only proper response from any protest organizers who really respect free speech should have been either (1) an apology for letting things get out of hand, (2) criticism of the rally organizers for not providing enough security for Trump to feel safe, or (3) calling Trump out for cancelling his own rally and blaming it on the free speech of others. Depending on what you believe caused the rally to be cancelled, any one of these might be appropriate.

Some of the protesting organizations, however, are taking credit for stopping Trump from speaking. That’s nothing to be proud of. Even if he quit for reasons of his own, claiming credit shows they have little respect for free speech. And if they actually did shut him down from fear of violence, that’s even worse.

In our open society, the remedy for bad speech is supposed to be good speech, not violence. Trump doesn’t understand that. “Freedom of speech” is just a buzz phrase he uses when he senses it might help him. The rest of us should try to be better than that.

FBI vs. Apple: Might Is Not So Right

If Manhattan DA Cy Vance’s New York Times op-ed supporting the FBI’s attempt to force Apple to unlock an iPhone was annoying, then prosecutor Andrew King’s blog post at Fault Lines is infuriating. Starting with the title, “Uncle Sam can Compel Apple — Whether You Like It Or Not,” King’s argument about the FBI’s demand on Apple seems to boil down to a simple message: Fuck you, do as you’re told.

Persons and things can be examined and seized under the Fourth Amendment. Parties in court cases can compel witnesses to attend trials. Non-parties to civil and criminal cases can be forced to produce documents and other items on behalf of private parties.

Those examples are a little different from what the FBI is demanding of Apple. The court order isn’t for Apple employees to testify in a trial or turn over evidence in Apple’s possession. The FBI is demanding that Apple use its resources to develop a piece of software for the FBI.

To see why that’s a problem, let’s consider a few thought experiments. Suppose the FBI wins all its legal maneuvers and gets a solid ruling that Apple must develop the iPhone-cracking software for the FBI or else (for values of or else that include lengthy contempt sentences for Apple’s corporate officers). Now suppose that on the very day of that ruling, every single Apple software engineer quits their job. What could the FBI do then?

It’s not the Apple corporate officers’ fault that all the engineers quit — Apple has no way to prevent employees from leaving. And in any case, threatening the corporate officers with jail won’t get the software written, because they don’t know how. So what alternatives does the FBI have? Force the engineers to come back to work at Apple? Get court orders against individual software engineers, forcing them to write code for the FBI?

If that scenario is too fanciful for you, let’s try something a little more realistic. Suppose Apple unlocks the phone, and the FBI agents discover that the owner used a third-party iPhone app to store encrypted notes. The FBI now has yet another layer of encryption to get through, so now they need to get another court order to force the app developer to help them. But what if instead of a behemoth like Apple, the app developer is a tiny one-man software shop? Would the FBI actually force an innocent software developer to spend months writing software for them?

Would we want them to have that power? I don’t think so, at least not since the ratification of the Thirteenth Amendment. Because forcing people to work for your benefit is pretty much the definition of slavery.

Don’t get me wrong, I’m not saying that forcing Apple or their developers to write software for the FBI is exactly the same thing as historic American chattel slavery. What I am saying, however, is that both kinds of involuntary labor are bad for the same reasons. If you made a map of all the evils in the world, plantation slavery would be out at the extreme edge, but they’d both be in the same direction. And that’s a similarity we should take notice of.

You may think I’m being over-the-top by comparing FBI vs. Apple to slavery, but Andrew King goes there himself:

And it’s not just the judicial branch, law enforcement has historically had the power to force local citizens to join a posse. So too was the interment of people based solely on their ancestry found to be legitimate. Of course there’s still selective service—soon to include the other half of the population.

None of that is to say that the government always uses that power wisely. For example, the Fugitive Slave Act compelled Northerners to aid in the capture of fleeing slaves and likely hastened the onset of war.

I honestly don’t know what to make of this. To bolster his argument that the government has the authority to compel Apple to write software, King is invoking conscription, the Japanese internment, and slavery? Those are not exactly our government’s most admired accomplishments. Slavery and internment are widely regarded as evil, and conscription has been kicked to the curb.

Is he trolling us? I mean, it sounds like something a troll would say to piss people off: Of course we can force Apple programmers to write code. After all, we forced the Negroes to pick cotton, right? And calling the Fugitive Slave Act “unwise” is letting it off pretty easy. Slavery isn’t just a bad idea, it’s a crime against humanity.

Or am I missing the sarcasm? Perhaps he’s linking the Apple court order to the evils of conscription, internment, and slavery as a way to ironically point out what a bad idea it is. “Yeah, forcing people to work against their will, that never turns out badly…”

I think he means it, though, because of statements like this:

But the wisdom of the government exercising authority is not the same thing as whether the government has the authority.

King’s definition of authority seems to be nothing more than the capacity and will to use violence. In that sense, of course, he’s right about the Apple situation. The government certainly could send SWAT teams to seize Apple facilities by force of arms and compel its software developers to write code for the FBI. If authority doesn’t need to have limits or legitimacy, then the government has the authority to do whatever it wants.

[The] assertion that the government can coerce private citizens to act in certain ways is both mundane and incontestable.

You know what else is both mundane and incontestable? That private citizens can use violence to coerce other private citizens. It happens all the time. If might makes right, and there’s no need for moral authority or limits to power, then how does the thug have any less authority than the police officer? And why should we assume there is a difference between them? It’s certainly not an argument that leads to respect for the criminal justice system. It’s Fuck you, do as you’re told.

Don’t Make History

Today is Super Tuesday, which is a pretty big day in the primary election season. And if you’re in one of the states where people are voting today, you have a chance to make history. And I don’t mean that in a good way.

I think we’ve seen a lot more noise than usual from the alt-right, including the misogynist wings of the men’s rights movement and GamerGate, neoreactionaries who don’t like democracy because it’s not going their way, those white-supremacy-lite folks who say “cuck” all the time, resurgent anti-immigrant bigots, “racial realists” worried about the white man, and whatever the hell it was that happened to the Hugos last year.

And just in the last year we’ve seen the rise of Donald Trump, a lying, narcissistic, nationalist who preaches isolationism and blames foreigners and immigrants for everything he thinks is wrong with this country. He’s a thin-skinned bully who picks fights with everyone but can’t take criticism and threatens the press. He puts down minorities, insults women, and seems to sincerely believe that he is so awesome he’s the solution to every problem.

Or at least he thinks people will believe that he’s the solution to every problem, just because he tells them they’re great and that he hates the same people they do. The worst part is, it seems to be working, especially with the alt-right. For some reason, this asshole is on the brink of being on the ballot for President.

I realize I’m exaggerating. Not all GamerGaters are misogynists, and not everyone who opposes free trade and immigration is a bigot. And unlike traditional populist demagogues, Trump hasn’t gone after academics all that hard, and he seems to have Muslims playing the role usually reserved for the Jews. A lot of much, much worse people have been given power in crises. But…

This kind of situation — rough economy, warfare, lots of disgruntled folks flocking to a charismatic strong man for leadership — this is the kind of thing you read about in history books, usually in a sections titled “Why the Republic Fell” or “Causes Of the Civil War.”

So please don’t vote for Donald Trump. Trust me, you don’t want to live through a time that will get a big section in the history books.

A Brief Response to Cy Vance About Apple and the FBI

I was going to write an overview of the technical issues involved in the FBI’s demand that Apple help them break into the iPhone 5C that was being used by San Bernardino shooter Syed Farook, but it soon became apparent that the issues were too complex for easy summary, and the story keeps changing as more details leak out.

On the other hand, I would like to respond to a recent op-ed by Manhattan district attorney Cyrus Vance (brought to our attention by Scott Greenfield) arguing for a government exception to securely encrypted phones:

iPhones are the first warrant-proof consumer products in American history. They compel law enforcement to deploy extraordinarily creative prosecutorial strategies – and obtain state-of-the-art tools – to carry out even the most basic steps of a criminal investigation. I applaud our federal colleagues for their commitment to justice for the 14 killed in San Bernardino and their families.

The magistrate judge’s order rests firmly on centuries of jurisprudence holding that no item – not a home, not a file cabinet and not a smartphone – lies beyond the reach of a judicial search warrant. It affirms the principle that decisions about who can access key evidence in criminal investigations should be made by courts and legislatures, not by Apple and Google. And it provides the highest-profile example to date of how Silicon Valley’s decisions inhibit real investigations of real crimes, with real victims and real consequences for public safety.

I can certainly see what he’s getting at. Up until now, when a court ordered some evidence seized, the government’s ability to carry out that seizure was never in question. The agents of law enforcement have been able to kick open every door, tear down every wall, and break every box. But strong encryption now challenges that idea, and people like Cy Vance don’t like it.

I have a few responses to Vance, starting with “So what?”

Law enforcement agents used to be able to get any evidence they wanted, but now some new technology means they can’t. So what? Things change, the world moves on, the organizing principles of society evolve. Slavery, the divine right of kings, Papal inquisitions — all have fallen. Now maybe it’s the end for the principle that courts have “a right to every man’s evidence.” That’s kind of an open-ended argument, but then Vance’s argument is basically little more than “It’s always been that way.” I think it’s quite reasonable to respond that just because it’s always been that way doesn’t mean that it always should be.

On the other hand, I could also argue that the rule doesn’t really go where Vance wants it to because (1) the current situation is already in complete compliance with the rule, and (2) there is nothing to which the rule could apply.

I need to go into a bit of technical detail. The FBI’s problem is that sensitive data files on an iPhone are strongly encrypted in such a way that reading the unencrypted contents requires one of a handful of “class keys,” which are in turn encrypted using the user’s passcode. So to get an iPhone to read its data, you have to provide the passcode to decrypt the class key it needs to decrypt the file containing the data.

(I’ve simplified this description of iPhone security quite a bit. If you want more details, Dan Guido has a mildly technical overview and you can get more background technical information from the Apple iOS security whitepaper, especially the “System Security” and “Encryption and Data Protection” sections. It’s absolutely fascinating, if you’re into that kind of thing.)

If you have a modern iPhone with a passcode set, you can see all this for yourself. Call your iPhone from another phone that is in your contacts list. When your phone rings, it should display the name of the other phone’s owner, which it got by searching your contacts list for someone with a number matching the calling phone. Now turn your iPhone all the way off by holding down the power button for a few seconds to display the slider you can use to power it off. Then turn your phone back on by pressing the power button for a few seconds, but don’t enter the passcode. Now try calling your phone again from the other phone. This time the phone should only display the calling number, but not the name from the contacts list. Your phone won’t be able to display contact names until you enter the passcode again.

This shows that your passcode is more than just a locking mechanism, it’s a decryption key: Without it, your phone literally cannot even read its own contacts list. It also can’t read any of the other sensitive files that are also encrypted to require the passcode. An iPhone for which the passcode has not been entered doesn’t just refuse to give you access to its data. In a fundamental way, it can’t even read the data.

That’s the FBI’s problem. The passcode is not stored on the device, and the copy of the passcode in Farook’s brain is no longer accessible because he’s dead, so the FBI has no way to get his iPhone to decrypt any of his files without a code-breaking effort.

That brings me to the first part of my answer to Vance: The FBI already has all the evidence on Syed Farook’s iPhone. They have physical possession of the phone itself, including the internal flash drive that contains all the data. It’s a relatively minor technical task to remove the drive from the iPhone and attach it to another computer so they can read every bit of it. Of course, the files they read will still be encrypted, so they won’t be able to make sense of the data, but they do have all the data on the phone. No one, including Apple, is keeping it from them.

This may sound like some kind of philosophical hair splitting, but it’s the ground truth of the situation at the technical level. It’s confusing because we often speak of encryption using the metaphor of a container. We describe encrypted messages as being like envelopes with plaintext messages inside, and we talk of using keys to unlock stored data. In reality — the reality of the hardware and software — the relationship between encrypted and unencrypted data is not one of containment but of transformation: Plaintext data is transformed into encrypted data using an encryption algorithm and a key, and encrypted data can only be transformed into plaintext data using a related algorithm and the right key. If the key is lost, transformation of encrypted data into plaintext may not be possible.

When Vance asserts that “no item – not a home, not a file cabinet […] – lies beyond the reach of a judicial search warrant” he’s not speaking about merely metaphorical containment. If the court orders a home searched for drugs, that search will be successful if there are actually drugs in the home. If the court issues a warrant that includes searching a file cabinet for financial records, it’s because there’s reason to believe the file cabinet contains the records. More fundamentally, it makes sense to require the production of evidence because the evidence might exist.

That’s my second point of argument: No matter how much the FBI or the judge may want to seize this data, there’s simply nothing to seize. The data existed at one point, but now it’s all been transformed into unreadable gibberish, and the original data is gone. What the government wants — an unencrypted copy of the data on Syed Farook’s iPhone — doesn’t actually exist anywhere in the world.

As a practical matter, this isn’t a get-out-of-jail card. Don’t go trying to convince a judge that you don’t have to turn over financial records on your computer because your hard drive is encrypted and you haven’t entered the key to unlock it. That’s probably not going to work when you routinely decrypt files every day. (But I’m not a lawyer and this isn’t legal advice, so if you actually find yourself in that situation, talk to your lawyer.)

On the other hand, if you truly don’t have the decryption key, then the unencrypted files on your computer actually are beyond the reach of the court. Of course, you might be in for a really bad time if the judge doesn’t believe you, or simply doesn’t care about what you think is possible.

Pretrial Detention and Why It’s Like That

I’ve been blogging about criminal justice issues for a long time now, and I like to think I know a few things (for an amateur observer) but every once in a while I am amazed to discover that some seemingly normal part of the criminal justice system is, on further examination, inexplicably perverse.

This time it started with Ken Womble’s post at Fault Lines about risks faced by criminal defendants who are stuck in jail awaiting trial when they call their friends and family. Jail phones are tapped, and everything the inmates say on them is recorded. There’s an exception for legally privileged conversations between defendants and their lawyers (mostly), but other than that, anything inmates say to their friends and families is fair game for the prosecution. Womble gives a few examples of the kind of trouble that can lead to:

Yes, sometimes, the jailed party unburdens himself and confesses to his mom or brother.  But then there are the conversations about the case that a prosecutor, hearing things only through his finely tuned ears of justice, will try to convince a judge are relevant admissions of something bad.  […]

Beyond the realm of possible confessions, though, there can be hours of conversations that can let the prosecutor know who the defendant’s closest friends and family are. She can find out immense amounts of background information that might come in handy on cross examination.  This system of surveillance allows the government to detain someone and then sit back and simply gather information on them.  All because the defendant could not afford bail.

These calls also allow the prosecution to hear the defendant relay to his friends and family all the great tactics and evidence that his attorney has explained will help out his case.

Except for some details, most of this was not news to me. I’ve heard lawyers’ stories of charges filed and cases lost because inmates said something incriminating over the jail phones. Every criminal lawyer will tell their clients not to talk to cops, but inmates desperate for contact with the outside can easily forget that talking on the jail phone is talking to the cops.

What got my attention was Womble’s introduction of this issue in an earlier paragraph:

Maybe in reality they did commit a crime, but as far as the government and our law is concerned, they are as innocent as you or I. So if we actually give a damn about the presumption of innocence, why do we allow something done to unconvicted inmates that we would never tolerate for ourselves? We rarely think about some of the more mundane casualties of freedom that so many jail inmates must face.

I couldn’t get that idea out of my head, so I was still thinking of it when I got to this:

Do you know who does not have to worry about having their phone calls recorded as they await trial? People who can afford bail. How can we allow the government to record the phone calls of legally innocent people based solely upon their financial circumstances (or lack thereof)?

If you’re in jail because you can’t make bail, the government can listen in on every one of your phone calls. But if you’re out on bail, law enforcement authorities need to get a warrant to listen to your phone calls, just like they do with anyone else. What’s the legal justification for that distinction?

My guess is that authorities are allowed to listen in on inmate phone calls because inmates have essentially no right to privacy. Guards can search their cells and their bodies any time the want, so why not their phone calls too? But that just begs the question: What’s the legal justification for giving pretrial detainees so little privacy?

In other areas of law, infringements of rights must be limited to what is necessary to serve a constitutionally permissible purpose. E.g. when the government limits freedom of speech to prevent fraud, that limitation is supposed to be narrowly tailored to only limit rights as necessary to prevent fraud.

So if we accept that the government has a legitimate interest in making sure that defendants show up for their trials, then detaining them in jail may reasonably serve that purpose, and it makes sense to impose restrictions on detainees to prevent them from escaping. However, skimming over the New York City Department of Corrections inmate rule book and visitor’s rules, I was able to hastily put together a short list of restrictions that seem unrelated to that purpose:

  • Inmates can only receive gifts from visitors if the gifts are on a list of 24 categories of items that may be brought in.
  • Inmates are not allowed to have personal shoes. They have to wear jail-provided footware, and that doesn’t include shower shoes like thongs.
  • There are limits to the jewelry they can wear — small wedding rings and religious items.
  • They can’t have clothing that is red, yellow, or light blue, nor can they have camouflage patterns or spandex leggings.
  • They can’t have tobacco products or alcohol.
  • Inmates cannot receive toiletry or food items.
  • They’re not allowed to have telecommunications equipment such as a phone, text messaging device, camera, or tape recorder.
  • Inmates can’t have photographs that include pictures of themselves, and Polaroid photographs are prohibited.
  • They aren’t allowed to have money, checks, or credit cards.
  • They aren’t allowed to have unauthorized art supplies or writing instruments.
  • No sex, even if it’s consensual.
  • No buying or selling of goods or services.
  • Inmates are subject to drug and alcohol testing.
  • Visiting hours are limited and visits are controlled.

It’s possible I’m misunderstanding some of the rules — I read through them pretty quickly and I don’t know much about life in jail — but it’s hard to see how these rules are related to preventing escapes. Perhaps I’m missing a few things — maybe large jewelry could be used as a weapon to threaten a guard, and then once the inmate makes it to the treeline the camouflage would help him hide. Nevertheless, most of these restrictions seem to have little bearing on the goal of ensuring that inmates stand trial.

I understand that there may be good reasons for some of these rules — preventing inmate-on-inmate violence, preserving a sense of order, and making the guards’ jobs easier — but those don’t sound like good reasons to deny legally innocent people their rights, especially since we have rejected those same restrictions for all the innocent people living outside the jail walls.

(I’m pretty sure there are some unsavory motives at work as well: Forcing inmates to buy consumer goods from the jail commissary, forcing them to use over-priced jail phone services, and encouraging them to take a plea deal to get out of jail.)

I realize this is old news to people who know the criminal justice system better than I do. I wonder, however, why this isn’t a more contentious issue? Perhaps I’m just not reading the right news sources. Changes to jail rules might affect thousands of inmates and their families, but they rarely make the news. Or maybe this is settled law, and there’s not much to be gained by litigating.

I’m not sure what reform in this area would look like, but it’s not hard to envision a jail system that prevents inmates from escaping without imposing so many unrelated restrictions. I imagine something resembling a high-security secured college dorm or SRO residence, with private rooms, personal property, phones and internet, pets, and unlimited visitation from family, including overnight stays.

I realize that this vision of comfortable confinement may not be achievable, but that usually isn’t enough to stop reform movements. I’m surprised I haven’t stumbled them somewhere. And nobody said respecting people’s rights was easy.