Friday, October 21, 2016

Prosecutorial deception in the Harold Martin case

The government has released its arguments for pretrial confinement for Harold Martin.  Most of the arguments in the document are sound, but one section is nothing short of deceitful.  Unfortunately it makes me question other elements of the government's case.  Even if the rest of the case is solid (and it appears to be) the prosecutor here should be disbarred for attempting to deceive the judge in the case through misrepresenting facts.

Martin engaged in encrypted communications. So what? If you are reading this blog, chances are you are also "engaging in encrypted communications."  Martin had remote data storage accounts.  Again, so what?  This statement could be true of anyone with a Gmail address or an Office 365 account.  I'm not impressed.  Martin had encrypted communication and cloud storage apps installed on his mobile device.  Cloud storage apps?  If he's an iOS user, that's iCloud.  If he's an Android user, he has Google Drive installed by default.  Encrypted communication apps could refer to iMessage, Gmail chat, or even Skype.

Taken at face value, the government's case against Martin seems strong.  So why then does the government reduce its arguments to sweeping generalities?  I can see three probable explanations.

  1. The prosecutor doesn't know any better.
  2. The prosecutor thinks the judge doesn't know any better.
  3. The DoJ is setting precedent so these circumstances can be used later to get pretrial confinement for a suspect.

The pessimist in me thinks it's probably the latter of these.  I hope the EFF and other civil liberties groups weigh in on this, the precedent is highly disturbing.  Trying to obtain pretrial confinement by arguing that the defaults on a user's phone are somehow malicious is a gross misrepresentation.  I hope the government amends its filing to more clearly represent the facts.

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