[csandreasen]

> Law enforcement's failure to even try going through proper channels speaks loudly to how little they actually respect the law.

Why do you say they aren't going through the proper channels? Law enforcement officials have just as much right to make their viewpoints heard through the press as you and I have. If they feel the need to seek new legislation, they would need to make the argument in advance in order to gain support any bills being proposed. Unless the Supreme Court thinks otherwise, I doubt a constitutional amendment would be necessary, but that depends largely on what was being proposed. I haven't seen any evidence that any law enforcement official is disrespecting any law with regards to this issue.

[pdkl95]

Parallel construction is one huge disrespect for the law; it hides the real accusation and necessarily requires hiding evidence from the defendant. It is a blatant attempt to bypass the "fruit of the poisonous tree" doctrine and the 4th amendment. There are probably other legal problems too, depending on the specifics of the case.

I'm not really suggesting that an amendment is (or should be) necessary, because the surveillance that is going on (and being passed down[1] from the NSA to the FBI, DEA, and local departments). These activities should not be necessary at all for law enforcement, as the warrant system is easily sufficient to allow any necessary searches. Even if a specific device such as cell phone is inaccessible (despite having a valid warrant), that doesn't stop any policeman from conducting traditional (in person) surveillance or upstream wiretaps.

Yet police insist they need far broader access and we have numerous examples of the 4th Amendment warrant requirements being ignored[2]. IFF their claims have merit, the proper way to get exceptions to needing warrants would be an amendment, which has not been suggested. There could be some edge cases where "merely" a circuit court or SCOTUS ruling could "find" additional powers for police, but it doesn't matter - I don't see the the various TLAs trying to setup a test case on this matter, either. Instead we see many cases where law enforcement (and/or people in Obama's administration) have tried to prevent lawsuits from going forward.

[1] [pdf] https://s3.amazonaws.com/s3.documentcloud.org/documents/1011... Some of the training slides and request forms. Especially interesting is how often they repeat the need to keep the practice secret, including having a 24-hour hotline local police can use to get advice on how to hide the source even if they have to immediately give testimony in court. I believe (and a friend of mine who is a lawyer agrees) that these repeated statements like "To use it, we must protect it, or lose it." easily counts as mens rea.

[2] Riley v. California being a notable exception, though I know at least two friends that had their phones searched (in their presence) just a couple weeks ago in Oakland, CA; some departments haven't gotten the message yet, unfortunately.

[csandreasen]

Two points with regards to that: 1) Parallel construction has nothing to do with the iPhone encryption issue. 2) People tend to overlook a few key points from the original Reuters article[1] that introduced the concept of parallel construction:

(emphasis mine)

"...Today, the SOD offers at least three services to federal, state and local law enforcement agents: coordinating international investigations such as the Bout case; distributing tips from overseas NSA intercepts, informants, foreign law enforcement partners and domestic wiretaps; and circulating tips from a massive database known as DICE. ...

...Wiretap tips forwarded by the SOD usually come from foreign governments, U.S. intelligence agencies or court-authorized domestic phone recordings. Because warrantless eavesdropping on Americans is illegal, tips from intelligence agencies are generally not forwarded to the SOD until a caller's citizenship can be verified, according to one senior law enforcement official and one former U.S. military intelligence analyst."

[1] http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE....

[pdkl95]

Nonsense - parallel construction (and any other widespread use of the capabilities the NSA/etc is providing to other "their customers" (DEA/FBI/various-local-PD)) is likely the primary reason for this attack on Apple and encryption on the iPhone. The data covered by that kind of encryption would likely be of very limited use for national security; the NSA gets most of the data at the backbone switches anyway, and encryption doesn't do anything to prevent relationship mapping from logs of routing metadata. Also, any kind of targeted investigation could simply bypass encryption by installing custom firmware. Several of the tools in the TAO catalog were based on that style of attack.

What would be lost with local iPhone encryption keys is the ability to gather large amounts of data by strong-arming Apple (Prism, possibly). Note that most of the people freaking out over Apple's changes are not NSA. It is law enforcement who is fearing losing their access; the same law enforcement that would be using parallel construction to actually use the data that logically they didn't have a warrant to search and seize. (if they did have a warrant, they can bypass the encryption with various other ways, which apparently includes compelling passwords)

As for the Reuters article, I linked to a specific document that was a follow-up to that Reuters article, which had very little to do with foreign governments, and a lot to do with protecting access to the surveillance infrastructure. If you want the TL;DR version (understandable; it's 300 pages of slides and forms), [1] is a decent overview though it lacks some of the relevant details.

[1] https://www.techdirt.com/articles/20140203/11143926078/paral...

[csandreasen]

This issue has absolutely nothing to do with the NSA. As you point out yourself, this applies only to data stored locally on the phone. When was the last time the NSA had physical access to your phone?

Your argument seems to be that law enforcement wants to keep the phones unencrypted so that they can seize them with a warrant, hand them over to the NSA, and then the NSA can hand the data back to the police using "parallel construction" in order for the police to hide where the data came from (i.e.: acquired lawfully by the police with a warrant)