The communications involved a target of Bharara's drug investigation, but, rather than cooperate with the Irish government, his prosecutors tried to bypass the diplomatic process through a hybrid warrant-subpoena under the Stored Communications Act.
A federal judge sided with the prosecutors, but Microsoft quashed the request on appeal. The company’s president called the ruling “major victory for the protection of people's privacy rights under their own laws rather than the reach of foreign governments."
Working blocks away from Ground Zero, Bharara frequently raises the specter of a spectacular attack to argue about the need for prosecutors to “peek” into private communications.
“There are moments when reasonable people can appreciate and understand that there are people who want to slaughter all of you, and the people who are trying to protect against that are doing so in good faith,” Bharara told the Wall Street Journal in June. “They’re not trying to be Big Brother, and there should be a reasonable way for rational people to figure out what that balance is.”
For attorney Fred Jennings, a prominent privacy advocate at the firm Tor Ekeland, Bharara has embraced FBI Director James Comey's “scaremongering” theory of encryption that terrorists have been “Going Dark.”
Jennings noted that the evidence does not support law enforcement’s dire warnings.
Of the more than 4,100 state and federal wiretaps reported in 2015, only seven could not be read because of encryption, according to the most recent report.
In a study titled “Don’t Panic,” researchers at Harvard University’s Berkman Center for Internet & Society said that fighting encryption in the name of national security would be like poisoning a restaurant to catch a terrorist.
“Yes, we might get lucky and poison a terrorist before he strikes, but we’ll harm all the innocent customers in the process,” the 37-page report states. “Weakening encryption for everyone is harmful in exactly the same way.”
Echoing this argument, Jennings noted that weakening encryption — through “back doors,” as some law-enforcement officials advocate — could have repercussions for critical infrastructure that depends upon strong security. The trend in law enforcement to advocate for “backdoor” entry into electronics could have unintended repercussions, he added.
“When you talk about mandating backdoor platforms, you’re also talking about bank data, credit card transactions, things that we encrypt and communicate with everyday in a way that is largely transparent to the end user,” Jennings said.
Asked about Trump’s ability to exploit surveillance against political rivals, Jennings told an anecdote of his own human-rights work, as a lawyer observing the attempted coup last year on Turkish President Recep Tayyip Erdogan.
Seeking to protect their plans, the coup plotters turned to the chat platform WhatsApp, whose parent company Facebook had recently introduced end-to-end encryption. The military officers reportedly named their group “Yurtta sulh,” Turkish for peace at home, but the Erdogan government discovered their communications and cracked down harshly on the plotters.
“There were quite a few communication records that were pulled from a chat platform that I suspect the developers never thought of a case of someone in a repressive regime who would round up all of those contacts and do who-knows-what to them,” Jennings said.
A New Saturday Night Massacre?
https://soundcloud.com/user-202503173/former-judge-scheindlin-talks-trump-nixon-and-the-saturday-night-massacre/s-aovo9
Should Trump abuse the awesome spying powers available to him, none of the experts interviewed for this article expected Bharara would be able to be an effective check on his power — despite his record holding political heavyweights into account.
Scheindlin, the former federal judge, said that refusal to carry out the orders of Trump or Sessions could lead to a repeat of the so-called Saturday Night Massacre, the resignations that followed Nixon’s attempts to quash his criminal investigation.
After Nixon dismissed special prosecutor Archibald Cox, Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned.
“At the end of the day, Bharara reports back to the Attorney General, who we expect to be Jeff Sessions,” Scheindlin said. “If he gets too confrontational, I wouldn’t be shocked if Sessions says, ‘Shut it down.’ If at that point, Mr. Bharara doesn’t agree with that, he may say, ‘I’m not here.’
During the first presidential debate last year, Trump attacked Scheindlin for her ruling against racial profiling in the New York City Police Department’s stop-and-frisk program. Trump vowed to ratchet up street stops as president – a campaign promise Scheindlin said she found “almost humorous.”
“When I did hear it that night, it made me think once again that Mr. Trump had very little experience with criminal issues — either state or federal,” she said. “Because if he thought it through for even a moment, he’d know that the federal government can’t institute a local stop-and-frisk policy.”
Trump’s threat to deport 3 million people is one Scheindlin takes more seriously. In private practice, the former judge has been helping to partner Big-Law firms with immigrant-defense organizations to prepare what Scheindlin calls an “army of volunteers” to mobilize nationwide.
She has convened with bar associations to help secure funding for the initiative.
Over at the criminal-defense bar, Lewis has noticed fellow attorneys steeling themselves for the Trump administration. The attorney said she hopes prosecutors will decide which side they are on in the new Department of Justice.
“It’s really a critical time for Preet to distinguish himself as someone not who can just follow orders well, but as someone who can set the tone of his own office and push back when pushback is necessary,” Lewis said.
https://soundcloud.com/user-202503173/scheindlin-mobilizes-lawyers-for-upcoming-immigration-project
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