Crime in the Suites: An Analyis of Current Issues in White Collar Defense
Posts Tagged ‘David Yellin’
Jun 08
2016

This Man Is Dodging Wall St.

Rather than confront accusations of baseless zeal and prosecutorial overreach, New York federal prosecutor Preet Bharara would rather spend his energy dodging accountability.

In 2010, Bharara launched a crusade against Wall Street, prosecuting several hedge funds he suspected of insider trading. Highly publicized raids followed. In the wake of the financial meltdown, Bharara was hailed as a hero. A Time cover story proclaimed, “This Man Is Busting Wall St.”

But many of those prosecutions went nowhere. A federal appellate court rejected the legal theory that the prosecutions were built on, and many cases were simply dropped. The SEC even agreed to return some of the money it had seized from several hedge funds.

This was cold comfort to people like David Ganek, the manager of Level Global—one of several hedge funds shut down by Bharara’s inquisition. Even while the case was pending, Bharara all but acknowledged that he meant to shutter Level Global, without regard for the presumption of innocence.

Sadly, even when defendants are harmed by prosecutorial overreach, broad immunity doctrines make it nearly impossible for the wrongly prosecuted to get justice.

But Ganek’s case involved more than just excessive zeal: the warrant used to raid Level Global depended on a false statement. A former employee of Level Global had told federal agents that Ganek did not know he was using information from corporate insiders, but the warrant application falsely said that Ganek did know. That gave Ganek a rare opportunity: federal agents can be shielded for overreaching, but there is no protection for lying.

Ganek sued officials from both the U.S. Attorney’s Office and the FBI (Ganek v. Leibowitz), claiming that the use of the false statement to prosecute him had violated his constitutional right against unreasonable searches and his due process rights. In March, a federal judge ruled that Ganek’s claim could go forward, rejecting claims of governmental immunity.

In most civil cases, overcoming this initial step is a big deal. It would allow Ganek to conduct discovery—that is, to investigate the facts behind his case by methods that can include obtaining documents from prosecutors and the FBI and depositions of federal officials under oath. This process can be extremely onerous—the cost of document production and the risks of laying bare a defendant’s inner workings to a hostile adversary have forced many defendants into settling dubious lawsuits. In addition to uncovering misrepresentations tied to his own case, Ganek also could investigate the conduct of federal officials more generally and, perhaps, even the supervisory practices of prosecutors and the FBI.

In a typical case, there would be no way to avoid this except by an expensive settlement—likely including a premium for avoiding discovery. But this is no typical case, and Preet Bharara is no typical litigant. Although most of us in Bharara’s position would have to wait until the end of a federal case before filing a single, final appeal, Bharara has relied on a narrow legal doctrine that allows him to appeal the court’s decision immediately, based on his claims of immunity. As a result, the court has delayed discovery and other proceedings indefinitely. Instead of accepting the need for transparency and letting Ganek be made whole for his wrongful prosecution, Bharara’s office will get a second bite at the apple by rearguing the issue of immunity in front of the U.S. Court of Appeals for the Second Circuit.

It is hard to imagine that Bharara will prevail on appeal—immunity does not cover outright lies by federal agents. Yet by belaboring a weak immunity argument, Bharara can postpone having to answer for the actions of his office for months, if not longer, while creating additional costs and burdens for Ganek.

This case goes beyond Ganek’s personal quest for justice. Civil suits like this are important for holding public officials accountable and can provide a window into how they operate. Bharara’s resistance sends a discomforting message: however merciless he may be towards his suspects, he should bear no consequences for his actions.

We’ll see if Ganek can prove him wrong.

Feb 26
2016

Police Make iPhone Public Enemy No. 1

AAEAAQAAAAAAAAQvAAAAJDc0MDUzNDFlLTMyMTMtNGQ5MS04ZjMxLWYzZWQ4NjNiYWM1ZA

FBI Director James Comey took a rare break from the posturing typical of investigators and prosecutors in the current showdown between Apple and the FBI.  While prosecutors argue that Apple’s privacy concerns are a smokescreen to avoid “assist[ing] the effort to fully investigate a deadly terrorist attack,” Comey posted a statement over the weekend in which he took the position that the tension between security and privacy “should not be resolved by corporations that sell stuff for a living.  It also should not be resolved by the FBI, which investigates for a living.  It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before.”

Comey’s statement highlights a crucial problem with the development of privacy law: it often is developed in the context of important criminal cases.  This comes at a real cost.  We all know that Syed Farook committed a horrific crime, and any rights he once had against government searches are now forfeit.  But though Apple may have chosen to serve as a limited proxy for its consumers in the San Bernardino case, often the interests of private citizens are wholly absent from the courtroom (or, often, judge’s chambers) when issues of fundamental privacy are debated.

This leads to a serious imbalance: Apple is talking about the diffuse privacy rights of its consumers and the risks of potential incursions by more restrictive, less democratic governments such as China.  On the other hand, Manhattan District Attorney Cyrus Vance can point to 175 Apple devices that he cannot physically access even though those devices may contain evidence helpful to the government.

New York Police Commissioner Bill Bratton and one of his deputies put an even finer point on it in an Op-Ed in The New York Times, citing a specific case of a murder victim in Louisiana (more than one thousand miles outside of Mr. Bratton’s jurisdiction) whose murder is unsolved because officers cannot unlock her iPhone, which is believed to contain her killer’s identity. “How is not solving a murder, or not finding the message that might stop the next terrorist attack, protecting anyone?” asks Bratton.

But in assuming that private citizens have no greater fear than whether the police can investigate and prevent crimes, Bratton begs the question.  In reality, citizens may see law enforcement as a threat of itself.  Learning that the NSA was engaging in comprehensive warrantless surveillance likely has given many law-abiding Americans a greater incentive to protect their data from being accessed by the government.  Indeed, in light of the NYPD’s record over the last few years—including a finding by a federal judge that they were systematically violating the rights of black New Yorkers and a lawsuit over religion-based spying on Muslims—it is not hard to see why citizens might want protection against Bratton’s police force.

But even if the police were the angels they purport to be, opening a door for a white hat can easily allow access to a black one.  Less than a year ago, hackers used a “brute force” approach to exploit a flaw in iCloud’s security, and dozens of celebrities had their private photos shared with the world.  These sex crimes are all but forgotten in the context of the San Bernardino shootings, even though the security weakness the FBI wants installed in Farook’s iPhone is markedly similar to that exploited with respect to iCloud.

Nor do those who wish for privacy need to invoke hackers or criminals.  A private, intimate moment with a spouse or loved one; a half-finished poem, story, or work of art; or even a professional relationship with a doctor or mental health professional cannot exist unless they can remain private.  Once these interactions took place in spoken, unrecorded conversations or on easily discarded paper; now many of our daily activities are carried out on our mobile devices.  Even if one has nothing to hide, many citizens might balk at the prospect of having to preserve their private conversations in a format readily accessible by the police.

But if Mr. Comey has shown unusual insight, Mr. Bratton’s one-sided, myopic question illustrates the importance of Apple’s position and the inability of law enforcement officials to be objective about the interests at stake.  Police and prosecutors are not always your friends or your defenders.  Their goals are—and always will be—investigating and solving crimes and convicting suspected criminals.  The less an officer knows, the harder it will be to investigate a case.  As a result, privacy rights—even when asserted by innocent, law-abiding citizens—make their job more difficult, and many officers see those rights as simply standing in their way.

This is hardly news.  Nearly sixty years ago the Supreme Court observed that officers, “engaged in the often competitive enterprise of ferreting out crime,” are simply not capable of being neutral in criminal investigations.  For precisely that reason, the Fourth Amendment requires them to seek approval from a “neutral and detached magistrate” before a search warrant may issue.

That is why Mr. Comey’s acknowledgement that the FBI is not a disinterested party is so refreshing.  Pro-law-enforcement voices have been clamoring to require Apple to compromise the security it built into the iPhone, invoking their role as public servants to buttress their credibility.  But when it comes to privacy, the police do not—and cannot—represent the public interest.  As Comey acknowledged, they are “investigators,” and privacy rights will always stand as an obstacle to investigation.

Feb 19
2016

FBI Recruits Apple to Help Unlock Your iPhone

Alushta, Russia - October 27, 2015: Woman with headphones holding in the hand iPhone6S Rose Gold. iPhone 6S Rose Gold was created and developed by the Apple inc.

It is a well-known maxim that “bad facts make bad law.”  And as anybody even casually browsing social media this week likely has seen, the incredibly tragic facts surrounding the San Bernadino attacks last December have led to a ruling that jeopardizes the privacy rights of all law-abiding Americans.

First, it is important to clearly understand the ruling.  After the horrific attack in San Bernadino on December 2, 2015, the FBI seized and searched many possessions of shooters Syed Rizwan Farook and Tashfeen Malik in their investigation of the attack.  One item seized was Farook’s Apple iPhone5C.  The iPhone itself was locked and passcode-protected, but the FBI was able to obtain backups from Farook’s iCloud account.  These backups stopped nearly six weeks before the shootings, suggesting that Farook had disabled the automatic feature and that his phone may contain additional information helpful to the investigation.

Under past versions of iOS, the iPhone’s operating system, Apple had been able to pull information off of a locked phone in similar situations.  However, Farook’s iPhone—like all newer models—contains security features that make that impossible.  First, the data on the phone is encrypted with a complex key that is hardwired into the device itself.  This prevents the data from being transferred to another computer (a common step in computer forensics known as “imaging”) in a usable format.  Second, the iPhone itself will not run any software that does not contain a digital “signature” from Apple.  This prevents the FBI from loading its own forensic software onto Farook’s iPhone.  And third, to operate the iPhone requires a numeric passcode; each incorrect passcode will lock out a user for an increasing length of time, and the tenth consecutive incorrect passcode entry will delete all data on the phone irretrievably.  This prevents the FBI from trying to unlock the iPhone without a real risk of losing all of its contents.

As Apple CEO Tim Cook has explained, this system was created deliberately to ensure the security of its users’ personal data against all threats.  Indeed, even Apple itself cannot access its customers’ encrypted data.  This creates a unique problem for the FBI.  It is well-settled that, pursuant to a valid search warrant, a court can order a third party to assist law enforcement agents with a search by providing physical access to equipment, unlocking a door, providing camera footage, or even giving technical assistance with unlocking or accessing software or devices.  And, as the government has acknowledged, Apple has “routinely” provided such assistance when it has had the ability to access the data on an iPhone.

But while courts have required third parties to unlock doors, they have never required them to reverse-engineer a key.  That is what sets this case apart: to assist the government, Apple would have to create something that not only does not exist, but that it deliberately declined to create in the first instance.

On February 16, Assistant U.S. Attorneys in Los Angeles filed an ex parte motion (that is, without providing Apple with notice or a chance to respond) in federal court seeking to require Apple to create a new piece of software that would (1) disable the auto-erase feature triggered by too many failed passcode attempts and (2) eliminate the delays between failed passcode attempts.  In theory, this software is to work only on Farook’s iPhone and no other.  This would allow the FBI to use a computer to simply try all of the possible passcodes in rapid succession in a “brute force” attack on the phone.  That same day, Magistrate Judge Sheri Pym signed what appears to be an unmodified version of the order proposed by the government, ordering Apple to comply or to respond within five business days.

Though Apple has not filed a formal response, CEO Tim Cook already has made waves by publicly stating that Apple will oppose the order.  In a clear and well-written open letter, Cook explains that Apple made the deliberate choice not to build a backdoor into the iPhone because to do so would fatally undermine the encryption measures built in.  He explains that the notion that Apple could create specialized software for Farook’s iPhone only is a myth, and that “[o]nce created, this technique could be used over and over again, on any number of devices.  In the physical world, it would be the equivalent of a master key . . . .”

This has re-ignited the long-standing debate over the proper balance between individual privacy and security (and the debate over whether the two principles truly are opposed to one another).  This is all to the good, but misses a key point: Judge Pym’s order, if it stands, has not only short-circuited this debate, it ignores the resolution that Congress already reached on the issue.

Indeed, a 1994 law known as the Communications Assistance for Law Enforcement Act (“CALEA”) appears to prohibit exactly what the government requested here.  Though CALEA preserved the ability of law enforcement to execute wiretaps after changing technology made that more complicated than physically “tapping” a telephone line, it expressly does not require that information service providers or equipment manufacturers do anything to open their consumers to government searches.  But instead of addressing whether that purpose-built law permits the type of onerous and far-reaching order that was granted here, both the government and the court relied only on the All Writs Act—the two-century-old catch-all statute that judges rely on when ordering parties to unlock doors or turn over security footage.

Though judges frequently must weigh in and issue binding decisions on fiercely contested matters of great importance, they rarely do so with so little explanation, or after such short consideration of the matter.  Indeed, when the government sought an identical order this past October in federal court in Brooklyn, N.Y., Magistrate Judge James Orenstein asked for briefs from Apple, the government, and a group of privacy rights organizations and, four months later, has yet to issue an opinion.  Yet Judge Pym granted a similar order, without any stated justification, the same day that it was sought.

An order that is so far-reaching, so under-explained, and so clearly legally incorrect is deeply concerning.  And yet, but for Apple’s choice to publicize its opposition, this unjustified erosion of our privacy could have happened under the radar and without any way to un-ring the bell.  Fortunately, we appear to have avoided that outcome, and we can hope that Apple’s briefing will give the court the additional legal authority—and the additional time—that it will need to revisit its ruling.

Connect with Us Share

About Ifrah Law

Crime in the Suites is authored by the Ifrah Law Firm, a Washington DC-based law firm specializing in the defense of government investigations and litigation. Our client base spans many regulated industries, particularly e-business, e-commerce, government contracts, gaming and healthcare.

Ifrah Law focuses on federal criminal defense, government contract defense and procurement, health care, and financial services litigation and fraud defense. Further, the firm's E-Commerce attorneys and internet marketing attorneys are leaders in internet advertising, data privacy, online fraud and abuse law, iGaming law.

The commentary and cases included in this blog are contributed by founding partner Jeff Ifrah, partners Michelle Cohen and George Calhoun, counsels Jeff Hamlin and Drew Barnholtz, and associates Rachel Hirsch, Nicole Kardell, Steven Eichorn, David Yellin, and Jessica Feil. These posts are edited by Jeff Ifrah. We look forward to hearing your thoughts and comments!

Visit the Ifrah Law Firm website