The FBI has been embroiled in a fierce legal battle with tech giant Apple over whether the company needs to include a security backdoor to allow the FBI access a smartphone. However, this was not just any smartphone. This was the phone of one of the deceased perpetrators of the San Bernardino shootings, a violent attack that left 14 dead and 22 injured.
With the owner of the phone dead and unable to provide a password, the FBI sought and received a court order demanding that Apple write software allowing them to bypass the phone’s “auto-destruct” feature. This is a feature on iPhones which wipes information on the phone after ten failed attempts. Normally, with only a four-digit password, there are a fairly limited number of password possibilities and the FBI could just brute force the phone open.
Apple refused the FBI, pointing out the archaic nature of the law that the order was granted under, the concerning precedent if law enforcement is allowed to force companies to write software against their will, as well as the privacy implications of creating a security backdoor would render the phones of all their users vulnerable.
After a wildly publicized battle in the courts between the FBI and Apple over this issue, the FBI suddenly dropped the case. They announced that they had unlocked the iPhone on their own—with the help of a private hacking business.
The FBI Has Ways of Making Your Phone Talk
Unable to hack the phone themselves, or easily make Apple comply with their wishes, the FBI turned to the open market to solve their problem. While it was originally reported that the FBI turned to an Israeli company to fix their phone headaches, it is now known that the FBI turned to a domestic company of “grey-hat” hackers.
Many have compared the world of computer hacking to the Wild West, and the lingo has reflected this. “White-hat” hackers search for security vulnerabilities on behalf of tech companies to allow the companies to fix the problem before it’s exploited. “Black-hat” hackers are just in it for malicious fun and profit. “Grey-hat” hackers are in between, hacking software and hardware without permission but with the intent of selling the vulnerability back to the victim—or in this case selling to the government.
The grey-hat hackers hired by the FBI used what is known as a “zero-day” hack to exploit a vulnerability in either the iPhone 5c or iOS 9 to bypass the “auto-destruct” feature. A “zero-day” is called such because normally hackers exploit the vulnerability repeatedly in one day before it is discovered and patched. However, Apple can’t stop that zero-day from coming because now that the FBI knows the vulnerability they refuse to spill the beans.
The Vulnerabilities Equities Process
Apple has asked the FBI to reveal the hack to them so they can fix it but the FBI has not been forthcoming. So the question is, does the FBI need to reveal Apple’s vulnerability to them?
The government finding and using security vulnerabilities is a common practice--so much so that there is policy in place to deal with whether the government should disclose. This policy is called the Vulnerabilities Equities Process (VEP).
The unredacted version of the VEP reveals the process by which the government decides whether to disclose the hacks and vulnerabilities it discovers. When the U.S. Government or somebody working with the government finds a security vulnerability in any government or commercial software or hardware, they report it. The National Security Agency (NSA) is then notified of the vulnerability and must report it to a (heavily redacted) list of government agencies and officials by the end of the day they are notified.
Once notified, these groups are then called upon to produce experts to argue whether the vulnerability should either be revealed or concealed. These recommendations are given to an interagency Equities Review Board (ERB) to consider. While the permanent members of the ERB are redacted, interested government agencies may appoint a representative to the ERB for any single decision.
Should the FBI Have to Disclose the Hack?
The VEP is not a legal obligation to disclose and totally up to the discretion of the government. Normally, the very existence of a vulnerability existing can be classified under the VEP. In this case, the case is so publicized that everybody knows about Apple’s vulnerability.
It’s unclear how serious of a vulnerability exists, a vulnerability requiring a physical phone is much less exploitable than one that can be implemented remotely. There is also a legal tension between the government revealing trade secret security vulnerabilities that they learn from hacking companies trying to sell these vulnerabilities and the dangers concealing those vulnerabilities creates. A world where the government can force companies to reveal trade secrets that they are trying to sell has its own disturbing implications.
While the simplest solution seems to be the FBI privately disclosing the hack to Apple, this has its own issues. If the FBI discloses the hack, it loses all value, damaging the hackers the FBI worked with. This may affect the willingness of hackers to work with law enforcement in the future. However, this difficulty seems minor when compared to allowing a security vulnerability to exist which has the potential to compromise the privacy and financial security of millions of iPhone users.
Where Will Apple Go From Here
As it stands, Apple is forced to play a game of wait and see. Apple has stated that they won’t sue the government to reveal the flaw. However, it’s questionable whether they have legal recourse allowing them to sue in the first place.
White House cybersecurity coordinator Michael Daniels says the VEP has a bias towards disclosure. However, statements from the FBI sound like they’re dragging their feet. FBI Director James Conway was quoted saying that “if the government shares data on the flaws with Apple, “they’re going to fix it and then we’re back where we started.”
Daniels later stated the FBI was considering whether to disclose. However, this still isn’t encouraging. A security vulnerability in millions of iPhones could be up for sale to whoever is willing to pay the price and Apple won’t be able to even begin patching the hole until the FBI decides they’re done with it.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law
The Massachusetts Supreme Judicial Court heard the appeal of a lower court judge’s refusal to dismiss Michelle Carter’s manslaughter charges from her boyfriend’s 2014 death.
Carter exchanged several text messages with her boyfriend, Conrad Roy, in the days leading up to his death, which prosecutors believe directly led to his decision to kill himself by carbon monoxide poisoning. Prosecutors say Carter, who was 17 at the time, encouraged Roy to commit suicide by instructing him several times to “just do it”.
While 39 states have laws against encouraging or assisting suicide, Massachusetts is not one of them. Prosecutors ultimately charged Carter with involuntary manslaughter.
Carter’s indictment reads, “Carter assisted Conrad’s suicide by counseling him to overcome his doubts…Her counsel took the form of positive direction, where she told him he was ‘strong’ enough to execute the suicide plan and would be happy once he was dead.” In addition to urging Roy not to delay the act any longer, Carter even provided her boyfriend with alternative methods of producing carbon monoxide when it became clear that his truck’s diesel engine alone would not work in his plan to commit suicide.
Carter’s defense attorney asked the court to dismiss the manslaughter charges on the basis that Carter didn’t commit an actual act and that her text messages were protected under the First Amendment right to freedom of speech. The state argued otherwise and the lower court agreed. You can read the State’s response here, which includes several detailed text messages between Carter and Roy that are definitely worth reading if you want to know the details of the case.
What Qualifies As Assisting Suicide?
There isn’t one specific definition, as laws vary from state to state. Generally, assisted suicide is committed with the aide of another person and is normally defined as knowingly or intentionally providing a person with the knowledge or means, or both, required to commit suicide. It gets a lot trickier when it comes to defining what constitutes encouragement.
In State of Minnesota v. Melchert-Dinkel, the defendant created a false Internet identity, claiming to be a female nurse who intended to kill herself, and actively encouraged 2 depressed and suicidal people to kill themselves in front of a webcam, presumably so the defendant could watch the deaths. The Minnesota Supreme Court invalidated the State’s law, in part, ruling that “advising” or “encouraging” suicide was protected by the First Amendment freedom of speech.
Encouraging may mean something different than assisting suicide. Take physician-assisted suicide, or death by dignity laws, for example. While a physician may assist an ill patient in committing suicide, that doesn’t necessarily mean they were encouraging the patient to commit suicide.
Where Do You Draw the Line?
Should all speech be protected under the First Amendment? Certainly not. Precedent tells us speech such as obscenity, child pornography, and “fighting words” are not protected speech, but that’s not enough to define a clear-cut answer to the question of whether text messages encouraging suicide are enough for manslaughter.
Prosecutors in Carter’s case reasoned that, “Where a defendant is charged with threatening a victim, she is not charged with ‘merely using offensive speech,’ but for ‘conduct that placed the victim in reasonable apprehension of imminent serious physical harm.” Just as fighting words are not protected when they provoke a violation reaction, Carter’s insistent instruction and encouragement crossed a line.
Further, the State urges Carter engaged in a course of wanton or reckless conduct that caused Roy to commit suicide. After getting scared and hesitant on his decision to commit suicide, Roy got out of the car under the effects of carbon monoxide poisoning, and, according to prosecutors, Carter instructed Roy to “get back in the car.” It was this action the State considers a “verbal act instrumental in the commission of the crime of manslaughter.”
What Steps Should Massachusetts Take Going Forward?
The Supreme Judicial Court heard arguments for both sides and has a tough decision, currently under advisement, in front of them. After being asked by Justice Robert J. Cordy where the line was between speech and manslaughter, prosecuting attorney Shoshana Stern cited the phone call where Carter told Roy, who was hesitant and scared, to get back in the truck and finish the job.
While speech should be protected, it shouldn’t necessarily be a hard-lined rule when it comes to the topic of encouraging or assisting suicide. Maybe the answer is to look to the actual words that were spoken on a case-by-case basis. Remember Justice Potter Stewart’s famous line when trying to define pornography? “I know it when I see it…”
Consider someone saying, “I think you should commit suicide” versus someone merely discussing their moral acceptance to someone’s wish to end their life. Carter had1,000 opportunities to talk Roy out of committing suicide or getting him some help; instead, she gave him alternatives and talked him out of his hesitations—she essentially handed him a loaded a gun and all but pulled the trigger.
While some have ruled on this issue and some already have laws on the books, it’s not an area that’s been widely litigated, which means Massachusetts decision could spark others to follow suit.
If you know someone with suicidal thoughts, visit the National Suicide Prevention Lifeline or call 1 (800) 273-8255.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
The Supreme Court just ruled the government cannot freeze assets necessary to pay for a criminal defense attorney if those assets haven’t been linked to a crime.
Sila Luis brought her case before the 8 Justices on charges of Medicare fraud for $45 million worth of nonexistent services, including kickbacks paid to patients who enrolled with her home healthcare companies. Nearly all the profits Luis made from the fraud were spent, so the government asked the court to freeze $2 million worth of Luis’ assets unconnected to the suspected fraud.
Luis argued the request would keep her from obtaining an attorney of her choice, while the government argued the money was needed to ensure she couldn’t dissipate any further assets so that funds were available for payment of any fines or restitution if ultimately convicted.
The judge granted the State’s request. In a plurality opinion though, the Supreme Court vacated the lower court’s decision, ruling the order violated Luis 6th Amendment right to the assistance of counsel. Although the government was not denying Luis’ right to counsel, restricting assets needed to hire an attorney of her choosing undermined the value of that fundamental right.
The Dissent Had It Right
The 6th Amendment grants defendants the right to assistance of counsel for his or her defense. In 1932, the Supreme Court took the 6th Amendment a step further and ruled that defendants have “a fair opportunity to secure counsel of his own choice.”
While the plurality opinion reasoned the government could only freeze tainted assets or property connected to a crime, the dissent argues the ruling rewards criminals by allowing them to spend or conceal the stolen property all the while hoarding their own untainted assets to hire an all star, and perhaps the most expensive, defense team.
According to Justice Kennedy, restraining the untainted assets needed to make a property-crime victim whole does not prevent a defendant from hiring counsel. Just because it may be more difficult to hire an attorney of the defendant’s choosing does not result in a violation of the 6th Amendment. The best example Justice Kennedy gave to compare an equivalent situation is that defendants are not exempt from federal, state, or local taxes simply because paying those may deprive them of the ability to hire a high-priced attorney.
As the Supreme Court previously reasoned in Caplin & Drysdale, Charted v. United States, the government has a right to detain a defendant to ensure presence at trial, the government has an interest in ensuring availability of assets that may be needed to pay court costs, fines, and restitution.
The Decision Raises Potential Problems for Prosecutors
Let’s take a look at Kennedy’s example: "A defendant steals $1 million and deposits the money into an account that already has $1 million of untainted assets."
Once a defendant begins to spend commingled funds, it becomes nearly impossible to ascertain with certainty which funds were which. The plurality decision argues this is not an issue because money is fungible and the government can easily trace money.
That very well seems like an easy solution, but it’s not always going to be that simple. Imagine how long it would take the government to trace funds when the numbers are in the millions, in multiple different bank accounts, or when multiple cash advances are taken.
The purpose of freezing a defendant’s assets is to ensure they can’t further dissipate those assets. The plurality decision does nothing to prevent the defendant from spending all available assets to hire a high-priced defense team, all before the government has an opportunity to prove those dollars were derived from a crime.
Ruling will Affect Forfeiture Cases
The ruling probably won't affect civil forfeiture when it comes to real property, as title to property used in connection with a crime instantly passes to the government, or even tangible stolen goods. However, it will effect when the government can take your cash. As the decision stands, the government must leave a defendant with enough money to pay for a defense attorney of their choosing.
The question becomes, to what extent? The ruling is clear that the government can’t freeze untainted assets needed to hire an attorney, but the decision made no distinction as to what amount is reasonable or how that number could be calculated. In Luis’ case, the government was asking to freeze $2 million worth of assets; that seems like a pretty excessive number when you’re thinking that money only goes towards attorney’s fees.
Giving defendants this kind of leeway with their cash could potentially open a floodgate of cases where the defendants are claiming more and more funds are needed to hire a defense team. Essentially, the decision favors criminal forfeiture, which means prosecutors will have to prove guilt beyond a reasonable doubt before holding up any of your cash.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
After giving his niece the gun that fatally shot Endia Martin, Donnell Flora has been sentenced to 100 years in prison for her murder. Martin, a 14-year-old girl, was shot in the back in a fight over a boy.
The schoolgirl dispute heated up when Martin’s best friend, Lanekia Reynolds, posted death threats towards Flora’s niece on Facebook. Although Reynolds later testified she was never planning on following through with her death threat, the Facebook post stated, “I’m going to kill you. I’m going to put you in the ground next to your dad.”
That’s pretty harsh—but what happened next is even worse. The girls agreed to settle their differences at a Chicago home. Since his brother’s death, Flora had been a father-like figure to his niece. Instead of trying to diffuse the situation though, when the teen came to a then 25-year-old Flora to tell him she was going over to Martin’s house for the fight, he grabbed his .38 caliber handgun and accompanied his niece.
On April 28, 2014, Flora’s niece showed up to a Chicago home with a group of at least 40 other people to fight Martin. Flora claimed he brought the gun to protect himself and his niece, but ultimately ended up handing the gun over to his niece.
Flora was sentenced to 65 years in prison for the murder of Martin, plus an additional 35 years for the attempted murder of the other Reynolds. Flora’s niece is currently awaiting trial in Cook County Juvenile Court.
Is a 100-year sentence Too Harsh For a Man Who Didn’t Pull the Trigger?
At first glance, it seems a bit harsh to sentence someone who didn’t pull the trigger to 100 years in prison. Is supplying the gun enough to be charged with murder even though Flora was essentially just an accomplice to the crime? The prosecution argued Flora knew exactly what he was doing when he handed over the gun and knew exactly what the teen was planning on doing with it.
Let’s take a look at Illinois’ 1st degree murder law that’s relevant to this case:
Now, let’s see what accomplice liability means in Illinois:
Under Illinois law, it doesn’t matter whether Flora pulled the trigger. Flora was legally accountable for the criminal actions of his niece the minute he handed her the gun knowing she intended to fight Martin with it.
Flora’s attorney argued that the 100-year sentence was excessive because Flora “didn’t intend that anybody be killed or hurt.” Flora testified that he handed the gun to his niece and told her to give the gun to his cousin, Vandetta Redwood. However, Redwood stated Flora encouraged the violent act by telling his niece to “Shoot the bitch.”
Not only had Flora been previously shot and paralyzed from the waist down, but his brother had been shot and killed in the past. It seems hard to fathom that a person affected so heavily by gun violence in his family, at the very least, didn’t know what would happen by bringing a gun to a fight.
What Contributed to the Long Sentence?
The sentencing range for 1st degree murder is 20-60 years. However, 25 years can be added onto the sentence for discharging a firearm and, if convicted of actually pulling the trigger and killing a victim, the defendant can get life in prison. Attempted murder sentencing ranges are between 6 to 30 years, but the sentence can increase if a firearm is used.
Flora received an additional 10 years because the murder involved a firearm. At Flora’s sentencing hearing, Judge Thaddeus Wilson told him, “There is no excuse or rationalization for giving a child a gun to take to a ridiculous fight about a boy – none.”
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
A California doctor convicted of murder has been sentenced 30 years to life in prison. The first doctor to ever be convicted of murder for recklessly prescribing drugs, Hsiu-Ying Tseng will spend the remainder of her life in prison for the death of three men. Although only charged with the deaths of Joey Rovero, Steven Ogle, and Vu Nguyen, a total of 8 of Tseng’s “patients” died from overdosing on drugs she prescribed.
Tseng became notorious for an easy fix to addictive drugs. She regularly prescribed drugs like methadone, Xanax, and oxycodone, among others, for cash to patients who would travel hundreds of miles to see her, often only briefly examining them.
Rovero drove 360 miles from Arizona State University to Tseng’s clinic where she quickly prescribed him more than 200 pills. Of those 200, Tseng gave Rovero a hefty script for 100 30-milligran doses of Roxicodone, a highly addictive painkiller used to treat serious pain. To some practitioners, a pain management specialist should be the only one prescribing that level of Roxicodone.
It was only after the Medical Board of California contacted Tseng, that she fabricated charts to make it appear she had been keeping thorough medical records of the patients and their diagnoses. Tseng wrote over 27,000 prescriptions in a three-year period. That equates to about 25 prescriptions per day.
She had been warned over a dozen times that her patients were dying from the drugs she was prescribing. Tseng brushed off those warnings, treating them as “just FYI,” according to her husband’s testimony and referred to her patients only as “druggies.”
According to Tseng and her husband’s tax returns, Tseng’s clinic made close to $5 million between 2007 and 2010. Her husband, a doctor, still runs the clinic today.
Why Was Tseng a Defendant In a Criminal Murder Case Instead of a Civil Lawsuit?
A defendant can be charged with both criminal and civil medical malpractice. Remember OJ Simpson? He was found civilly liable for wrongful death even though criminally he was found not guilty of murder.
Medical malpractice suits are generally brought on a civil level by alleged victims as opposed to criminal cases brought against the defendant by the state. The purpose of civil malpractice suits is to remedy damages via monetary compensation whereas criminal is punitive. State’s laws vary, but a plaintiff in a civil medical malpractice suit would generally have to prove:
Criminal negligence results when the negligence was a “gross or flagrant deviation from the standard of care.” The decision to file for criminal medical malpractice ultimately rests entirely upon the prosecuting attorney and the state would need to prove a criminally culpable state of mind (or mens rea). It’s a lot harder to prove someone’s state of mind than it is to meet the civil malpractice standards.
However, in Tseng’s case, the prosecuting attorney apparently felt there was more than enough evidence to charge her with murder rather than just criminal negligence. However, a criminal charge won’t prevent the families of Tseng’s patients from filing civil lawsuits as well.
What Does This Mean For Practicing Practitioners?
This kind of case will lead to a chilling effect on painkiller prescriptions, leading to less prescriptions to patients that actually need them. With a rise over 300% in prescription overdose deaths between 1999 and 2011, more and more charges are being filed against practitioners. Adding murder to the list of possible consequences for treating patients is a scary deterrent.
Some believe civil malpractice is the route to take because the process to punish a practitioner criminally can be unfair. Describing an objective medical standard of care can be troublesome for lay jury members to comprehend. According to Dr. James A. Filkin, author of With No Evil Intent: The Criminal Prosecutor of Physicians for Medical Negligence, jurors tend to come up with their own “internal or subjective standard” when they cannot comprehend the medical standard of care.
It can be difficult to determine who is an addict and who is not. Judging a physician on whether you believed they made the correct decision based on what you think is the standard of care, rather than what is the actual standard of care, could result in unwarranted guilty verdicts.
Tseng herself admitted she was not properly trained in addiction medicine or pain management. Had she been following the proper protocols, guidelines, and medical standards of care when it comes to prescribing painkillers, Tseng likely would never have been in the situation she is in. Instead, she chose a get rich method and cashed in on the addictions of many.
Regardless of your stance on the issue, when you look at the facts in Tseng’s case, there was such an egregious abuse of her license, that it’s hard to imagine she wasn’t criminally responsible. Honest and ethical practitioners who follow guidelines shouldn’t fear punishment for prescribing narcotics to patients who truly need them.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law