Audio of this week’s oral arguments before CAAF is available at the following links:

United States v. Mitchell, No. 17-0153/AR (CAAFlog case page): Oral argument audio

United States v. Herrmann, No. 16-0599/AR (CAAFlog case page): Oral argument audio

7 Responses to “CAAF Argument Audio: Mitchell & Herrmann”

  1. Tami a/k/a Princess Leia says:

    I think the defense wins both cases, though in Herrmann’s, I think it’s “likely” going to be a split decision, “probably” 3-2.
     
    As far as analogizing the phone to something, I think it’s better to make an analogy to a state of the art safe (think The Italian Job).  I have a warrant to get the contents in your safe.  I can legally get into your safe the easy way (you give me the combination), or I can legally get into your safe the hard way (I break into it).  You give me your safe but refuse to give me the combination.  Fine.  I can take your safe and try to break into myself, or reach out to Charlize Theron to hack into it for me.  The second option is more expensive and time consuming, but if higher-ups say it’s worth the time and expense, then I hire her to do the job.
     
    MPI sought the easy way of doing things, and in doing so, crossed the line into 5th Amendment and Article 31 violations.

  2. DCGoneGalt says:

    I may not be the smartest man in the world but I would always choose the option that involves reaching out to Charlize Theron.

  3. Zachary D Spilman says:

    There’s a reason this legal issue is still unresolved, Tami a/k/a Princess Leia, and it has a lot to do with the fact that encryption will one day (soon, perhaps) be unbreakable.

  4. stewie says:

    Well Zach I don’t think the answer to that hypothetical quandary is to force folks to incriminate themselves.

  5. Zachary D Spilman says:

    I think you’re right stewie, but the possibility that there will be no other way to get the evidence provokes the convoluted argument that it’s not self-incrimination. 

  6. stewie says:

    Then folks will just move to password only based encryption and refuse to give the password. Unless we decide to make a law that makes refusal such a serious crime that it’s smarter to confess, and I doubt that happens. 

  7. Tami a/k/a Princess Leia says:

    Zach,
     
    Let’s look at what happened with Apple v. FBI.  The pass code was set on the iPhone.  Apple didn’t want to be forced to be an arm of the FBI, being forced to hack into iPhone, even though a judge “ordered” them to help under the All Writs Act.  So FBI paid another company over $1 million to hack into the phone.  And what did they find?  Nothing.
     
    You may be right that some day, encryption may be “unbreakable, but I don’t think that will justify a constitutional or statutory change.  Congress considered passing a law making phones hackable by the government after Apple v. FBI.  Enough people threw the BS flag on that.  Not going to happen.  Also look at the Customs folks snooping through people’s phones upon entry into the US.  People value their privacy too much and don’t trust the government.  And allowing the government to hack into your phone is too much of an invasion of privacy.

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