Examining a Leaked Criminal Warrant for Apple iCloud Data in a High Profile Case – Part 3

July 5, 2022

Inadvertently Disclosed Warrant Application Against Apple in a Criminal Investigation Against Retired Marine General Reveals Latest DOJ Search Procedures, the Dangers of Pacer and Too Much Court Record Transparency, and Much More – Part Three

This article is Part Three of the blog Examining a Leaked Criminal Warrant for Apple iCloud Data in a High Profile Case. See here for Part 1 and Part 2. This last part of this blog will conclude the Application review, focus on the dangers of too much information, the dangers of Pacer, suggestions for its reform, the complex transparency of online court records, privacy rights and speculation on how the leak to the API in this case could have happened. That’s a lot to cover, so let’s get going and move fast.

Information To Be Seized by the Government

In Attachment B to the Application, Section III, paragraph 11, entitled Information to the Seized by the Government, the DOJ describes what its search team will be permitted to seize from the three iCloud accounts. It refers back to prior Information To Be Disclosed by the Provider Section II, and states.

All information described above in Section II.10.a. that constitutes evidence, contraband, fruits, or instrumentalities of violations of the Foreign Agents Registration Act , 22 U.S.C. 611, et seq., restrictions on former officers of the Executive Branch, 18 U.S.C. 207(f), obstruction of justice , 18 U.S.C. 1512(c), aiding and abetting, 18 U.S.C. 2(a), and conspiracy, 18 U.S.C. 371, namely:

i. Information relating to who created, accessed, or used the SUBJECT ACCOUNT, including records about their identities and whereabouts.

ii. Information relating to meetings, messages, conversations, or other interactions with:

– foreign governments or any agency of a foreign government, and their officials, representatives, or agents;

– U.S. government officials or members of Congress;

– Imaad Zuberi, Richard Olson, Ahmed Al-Rumaihi, John Sandweg, or Martin Van Valkenburg; and

– employees or agents of Spark Cognition, Fifth Dimension, or any overseas business entities.

Then, just to be safe and clear, they add to the seizure list all of the items listed previously in Section II, Information to be Disclosed by the Provider.

Fifth Dimension – A Predictive Analytics Company

Although I’m rushing along here, a slight diversion is warranted. Don’t you just love the names of these businesses in the alleged bribery money flow: Spark Cognition and Fifth Dimension? I did a little digging into that last one, for the solid reason of liking the thought and sounds of the Fifth Dimension (three dimensions are so confining for explaining reality). It is an Tel Aviv, Israel, based software security company that seems interesting to me. CTech describes them as a predictive analytics company and that recently closed down.

Sound familiar? The predictive analytics part. Many of the best companies in ediscovery, very solid and honest ones indeed, would describe themselves in a similar fashion. Eh, Sherlock?

Although the Fifth Dimension website is closed, http://www.5dimension.com, and, as far as I know, has nothing to do with ediscovery, their LinkedIn description is still up and explains who they say they are, or were:

Fifth Dimension, founded by a group of former intelligence executives and data scientists, helps Law enforcement agencies to make the utmost use of their mass scale data. Leveraging advanced big data, AI and deep learning technologies, Fifth Dimension created an investigation and insight-driven platform for transforming customers’ data and challenges into true value.

With advance deep learning technologies such as text analysis, speaker recognition, computer vision, classification, pattern recognition and more, Fifth Dimension goes beyond solving specific business challenges- reaching core issues and creating game-changing value for its customers. Fifth Dimension empowers various customers across verticals including: intelligence agencies, border control organizations, law enforcement agencies and more.

Apparently these are the kind of things our defendants were hustling to Qatar and others. Would have loved to have heard our defendants’ pitch for their AI based service. According to News Net Daily’s interpretation of the facts in sworn Application by the FBI agent:

The record suggests that General Allen also sought other forms of payment. An Israeli security firm, Fifth Dimension, had agreed to pay him $10,000 a month plus a 1.5% commission on any new business he generated, and he credited himself for persuading Qatar to sign a $72 million contract with the company over the same weekend. trip – potentially earning him a fee of over a million dollars.

News Net daily

Not bad for a weekend’s work at Rick’s Cafe. A lot better pay than ediscovery and honest lawyering. Although, personally, I kind of doubt the general ever got paid. I’m sure that’s one of the key things the FBI is now using predictive analytics and other search tools to try to find out. Data trails are everywhere, not just in Apple’s cloud. There are lots of good ESI sniffing, AI-based blood hounds can help smart people to find them. Even if the trail leads to a fictional cafe in Hollywood’s version of WWII Casablanca.

Provider Procedures

The last thing we are going to look at in the Application is Section IV, Provider Procedures, set out in paragraphs 12 and 13. The provider, here Apple, is given only a ten day deadline. Ten days to deliver all of the information requested, which pretty much means forensic copies of the entire contents of these three iCloud accounts. We do not know what happened after Apple was served, whether they found anything and met the deadline.

After providing the deadline, warrant orders Apple to provide the name and contact information for all employees who conduct the search and produce the records responsive to this warrant. The Application goes on to order Apple, including of course all of these Apple employees, to keep this Application secret.

The PROVIDER shall not notify any person , including the subscriber(s) of each account identified in Attachment A, of the existence of the warrant, until further order of the Court, until written notice is provided by the United States Attorney’s Office that nondisclosure is no longer required, or until one
year from the date this warrant is signed by the magistrate judge or such later date as may be set by the Court upon application for an extension by the United States. Upon expiration of this order, at least ten business days prior to disclosing the existence of the warrant, the PROVIDER shall notify the agent identified in paragraph 12 above o f its intent to so notify .

Application, para 13

There is no reason to think that Apple did not fully comply with this confidentiality restriction. Instead, it looks like the DOJ itself, or the District Court Clerk for the Central District of California, did not keep the Application sealed when it was filed on April 15, 2022 in Case No. 2:22-MJ-1530. The style of this case, by the way, is:

In the Matter of the Search of: Information stored within the iCloud Account associated with DSID/Apple Account Number 1338547227 and/or email address rickscafedxb@yahoo.comat, Apple Inc., One Apple Parkway, Cupertino, CA 95014

Application at page 1 of 77

To understand this further we need to turn to the case itself, filed in the most populated United States District Court area in the country, the Central District of California.

Speculation That the Secret Application Was Disclosed Due to Limited Court Technology, Inevitable Human Error in Any Complex System, and the Novelty and Complexity of E-Filing Court Documents, Especially Criminal Warrants

The U.S. Magistrate Judge assigned to this case, In the Matter of the Search of: Information stored within the iCloud Account, Case No. 2:22-MJ-1530, is Margo A. Rocconi. She is located in Los Angeles, the Court’s Western Division of the Central District. Judge Rocconi was appointed on March 19, 2021. She previously served for over 25 years with distinction as a Deputy Federal Public Defender. First of all, let me say right away, that there is no reason to believe that Judge Rocconi, or any other judge, was in any way involved in the disclosure of this Application to API. There is nothing political about Judge Margo Rocconi at all, she is a hardworking, dedicated attorney and scholar. She has a terrific reputation. There is no reason to think that any of the judges here made any mistake at all, much less intentionally leaked the Application to the press.

Judge Rocconi’s local rules guidance, Judge’s Procedures, which are the rules that all attorneys are required to follow to the letter, including especially DOJ attorneys in criminal matters, at paragraph 17, states:

17. Law Enforcement Submissions: Federal law enforcement agents and the U.S. Attorney’s Office are encouraged to advise the CRD in advance of the anticipated submission of warrants, criminal complaints, and other applications for the Court’s review.

Honorable Margo A. Rocconi, Central District of California, official web page.

The abbreviation CRD stands for the Courtroom Deputy Clerk assigned to assist the judge. I am also not saying this rule was not followed, that an AUSA attorney or FBI did not contact the CRD. I do not know. I am noting here that this “encouragement” – not an rule exactly – is included for good reason. It is a type of quality control suggestion to try prevent mistakes, to prevent leaks of confidential information. Mistakes that may have happened in this case. Whenever humans are involved in following complex instructions, errors are possible, even among the best of us. To err is human, to forgive is divine.

What I do know is that the attorneys, clerks and other courtroom professionals, including the CRDs, Baliffs, USAs, AUSAs and Judges, all of them involved in the judicial process, are a cut far above average. They are top notch professionals, well known in the Bar for their integrity and honesty. I do not think that any of them would intentionally leak the secret warrant in this case to the API, or anyone. That would be a blatant violation of their duties.

Instead, I suspect human error is to blame, a simple, but unfortunate accident. Aside from the universal good character and honesty of these persons, consider the complexity of the combined paper and e-filing tasks. Although filing an application for a warrant is a daily occurrence in most every federal court, especially one as busy as the court in Los Angeles, it is still very complex. In any complicated system like this, especially one equipped with lowest-bid technology, far from state of the art, it is easy to happen. It is often just too complicated for people having to act fast under a lot of pressure. Mistakes happen. That is why pilots and surgeons all use checklists. Lives are at stake.

Federal court technology has always been underfunded, so has staffing. The technology has relatively few built in computer quality controls to prevent or catch mistakes like this. Mistakes can only be reduced and controlled, in any system, never eliminated entirely. Even with the best controls and unlimited budges, mistakes happen when high volumes of complex tasks are involved. Again, LA District Court is one of the busiest courts in the country.

To better understand the complexity and potential confusion, consider Paragraph 19 of Judge Rocconi’s procedures on point to this discussion, which states:

Document Duty E-Filing Requirements: In accordance with General Order 19-01, counsel, after receiving the necessary notification email from the Clerk’s office, shall inform chambers that a criminal duty matter has been filed and is ready for review by sending an email to the appropriate criminal duty email address MAR_CrimDuty@cacd.uscourts.gov (link sends e-mail), which is different from Judge Rocconi’s Chambers email address. Counsel should follow the procedures outlined below:

a. Title and Content of Counsel’s email: The title of the email should include the case number(s), and the email should also include the contact information for the AUSA and agent. If you are sending an agent with documents filed in more than one case, the title of your email must identify the case number for each case e.g., “U.S. v. Search Warrant, 99-MJ-99999 and 88-MJ-88888”. The Judge is not aware of cases that are filed unless you identify the case number assigned to those cases in the title of your email(s) to her criminal duty email address.

b. Attachments: Courtesy copies in .pdf format of all documents for the Judge’s review.

c. Timing: Do not email chambers before being notified by the Clerk’s Office that access has been granted to the sealed docket.

d. Sending the Agent: If an e-filed matter requires an agent’s signature, chambers’ staff will notify the AUSA and/or agent when the agent should come to chambers. If conformed copies are needed, the agent should bring the necessary copies. Further instructions may be obtained by downloading the Criminal Duty Matters Electronic Filing Pilot Project User Manual located on the Clerk’s Office website under E-filing.

Honorable Margo A. Rocconi, Central District of California, official web page.

Other rules apply here as well, not only Judge Rocconi’s, but also the rules of the Central District Court of California. See for instance the Court’s Rules on Sealed Documents. Consider especially this portion of the original that is in bold.

If you believe you have e-filed a document incorrectly, resulting in a confidential document being publicly filed, please contact both the Court Room Deputy and the Help Desk (213-894-0242 or ecf-helpdesk@cacd.uscourts.gov (link sends e-mail)), explaining the error.  Then, if you have not already done so, e-file an Application for Leave to File Under Seal pursuant to Local Rule 79-5.2.2.

There are many other rules in the court that can apply. One in particular is instructive, E-Filing Criminal Duty Matters. E-filing is a challenge for everyone. These instructions for Criminal Duty matters is just one of many e-filing instructions. This is complex and mistakes are easy to make with even simple e-filing tasks. There are seventeen Q&As regarding technical compliance included on the court page for Criminal Matters. Here is one, for example:

Question: For a search warrant application, should the notification email include a Word cover sheet and affidavit in one attachment?

Answer: No. Under General Order No. 19-01, it is generally not necessary to attach any documents to the notice email. However, you should check your judge’s Procedures and Schedules. If your judge requires that copies be emailed, the warrant and application should be emailed to chambers as flattened, single PDF documents. First, you would send one flattened (not fillable) PDF document that includes the warrant, attachments A and B, and the affidavit, if appropriate. Second, you would send one that has the application, attachments A & B, and the affidavit. This would be done instead of sending chambers the face page as one document and the affidavit as a different one. A sealing application and proposed order must also be sent as flattened PDF documents.

This should make apparent to most anyone the complexity of the e-filing system and how easily mistakes can happen. Reform to make the system easier would, I suspect, require significant expenditures in money for improved technology and for more personnel, including the hiring of many more Assistant United States Attorneys. It would also require greater educational efforts, perhaps requirements, of training for the whole Bar. Maybe someday robots will take over these perfunctory, technical filing tasks. See: my article on Robophobia.

Pacer Is Too Transparent And Does Not Do Enough to Protect Litigants’ Privacy Rights

I conclude the Application was filed online by accident, but that still does not explain how the API got it. My guess is a chance encounter, or perhaps the result of diligent research. Someone outside of the government, maybe the API directly, happened to see a new matter popped up on Pacer, saw it was hot, and downloaded or printed it. See: PACER: How Journalists Mine Records (National Press Foundation, 3/7/22.) Also see: Data in the Court: Judicial analytics in practice (Harvard Law School, Center on the Legal Profession) (Interview with Robert Ambrogi and others).

If it was not the API themselves who found the court information, then perhaps another entity, maybe one politically motivated found it, and they told API about it. The mentioned National Press Foundation page on Pacer is filled with Pacer related information, including reference to Lexis and West, and one tool I had not heard of, Sqoop. It supposedly allows journalists to track when new suits are filed. Does not look like it to me, but that’s what the Press Foundation says.

I have personally looked for this Allen case, or a related case, on Pacer via Lexis in a number of ways. I could find no trace. But that just shows it was later removed from Pacer, not that it was never on Pacer and thereby Lexis. So unless API comes forward and volunteers this information, highly unlikely, this will probably remain a mystery.

False Claims Act Case Have Sealed Records Too – My Story With Clerk Confidentiality Errors

Although I am not a criminal lawyer, I am, in addition to ediscovery, a False Claims Act lawyer. See eg. my website, FraudIsBad.com. Government fraud whistleblower complaints are filed under seal. Sometimes, if the government intervenes on a private relator filed case, criminal subpoenas, Grand Juries and criminal indictments happen. Fraudulent billing of the government is a crime.

Like all Qui Tam lawyers, I understand the importance of secrecy to fraud investigations. That is one reason the law permits us to sue someone for fraudulent billing under the False Claims Act, and not serve the complaint against the defendants. It is kept secret so that the government can evaluate the private relator’s evidence, and gather its own, if they deem warranted, and decide to take the case over, or not. They do this without any input from the defendants or even notice to them. They do this before the fraudsters have a chance to cover it up.

I have personal experience with mistakes in sealing documents in these types of cases and with keeping them off of Pacer entirely, which they should be, at first at least. Most Qui Tam lawyers probably do. One experience is from many years ago and another this year, 2022. The first one was back in the day when all District Court clerks in Florida were not too familiar with Qui Tam actions (they are now). One clerk simply decided, quite erroneously, to unseal it. They had never seen a False Claims Act case before and still were in the paper records sealing mindset. Not bad faith or anything, but a significant mistake none the less. The judge was not involved.

Wax Sealed Official Record

I found out about it very soon thereafter, and after a few curse words yelled loudly for stress release, I immediately prepared and filed a motion to have it resealed. When the motion finally got to the judge to decide a few days later, my motion was immediately granted. No harm no fowl. My relator client’s case, and my secret complaint against a major corporation, were sealed back up again, nice and tidy. Yet for almost a week anyone who cared to snoop around Pacer, and that was much harder to do back then, could have seen it. Someone could have been a hero to the big business I had sued by telling them about it. But nobody saw it, the odds of that happening back then were very remote. Not now.

Pacer was much less transparent and harder to access just a few years ago. So I was lucky. When the complaint was later unsealed after the government intervened, this big company was unpleasantly surprised. We had the evidence we needed to get them. A few years later (these cases move slowly), my client and I were paid handsomely, a share of the government’s recovery, for reporting the fraudulent billing. That happy ending could have been crushed by the Clerk’s Pacer blooper.

Pacer as an Information Governance Challenge

Pacer is now much more accessible than ever before. There are many more people just snooping around Pacer in certain topic areas. Some for legitimate reasons, some are probably just digging for dirt, sensational stories like we see in this case against General Allen. Using the language of the EDRM standard Risk and Security Reduction Model, the current Pacer system has far too much built in risk of exposure. This is especially true for confidential, supposedly sealed, electronic documents. The system is in need of reform, both policies and procedures. The current court system needs better, less complex, quality controls.

Looking at this problem from the information governance perspective, where another excellent EDRM model applies, there is a high risk of accidental disclosures in Pacer. The security protections, again both policies (court rules and Pacer rules) and procedures, need to be improved. Pacer and the federal court system need to improve their information governance. There needs to be a fair balance between judicial disclosure and privacy. Who will make these decisions? Who is in charge? Too many cooks, I suspect.

Like many law firms today, I have several standing searches where Lexis alerts me whenever certain kinds of cases are filed, or even whenever certain word patterns are used in any Pacer filing. See eg. LexisNexis, Search Court Dockets Online With Lexis Courtlink. That’s how I found out about the Seinfeld case. Many firms use this kind of Pacer watch service to compete with other firms for new cases when one of their past or current clients are sued. Kind of old hat marketing by now, since everybody does it. But it was once quite flashy and effective.

By accident in the past year I came across two new Qui Tam cases that had not been properly sealed. Had they been against one of my firm’s clients, I am not so sure what I would have done. (That’s not why I was searching. I just wanted to stay current on the latest developments in False Claims Act law.) If that did find an oops like that, involving a secret suit against a firm client, that would raise some challenging ethics questions. I will research that if and when the time ever comes (I hope never). In the two cases I’ve seen so far, which I talked to Lexis about, no clients were involved, and I did virtually nothing. All I did was look again later and see that the mistakes were quickly corrected, as I had hoped they would. If not, I probably would have informed the listed attorneys of the error. It’s the right thing to do.

That kind of ad hoc, random, review by individual attorneys and researchers is obviously an inadequate privacy risk protection system under any model of information governance. It is the opposite of governance. Can we afford that kind of chaos in online court filings and disclosures?

Pacer Needs to Be Tightened up To Protect Legitimate Privacy Rights

I can easily imagine that something like what happened to me in False Claims cases is what happened here in this criminal case. Maybe it was a chance discovery, or maybe it was discovered by some news corporation digging for a story. They and other organizations, some nefarious, perhaps foreign intelligence, must also have all kinds of standing searches of Pacer. Spies have always been digging for dirt against enemies to use against them or disrupt their society. Perhaps that is what happened here? Who knows, for instance, what portfolios Putin has on world leaders. You can bet the KGB has multiple standing searches on Pacer. They are other intelligence services are happy to exploit our open society, something not possible under totalitarian regimes.

Conclusion

I know this goes against the grain, but this case suggests that we should tighten up and reform Pacer. We should, at least, impose more quality controls with confidential documents. We should also give more leeway, more time, for the quality controls and correction of human errors to kick in before Pacer publication. Otherwise, as this case shows, unexpected, harmful consequences can all too easily follow. But see: Lynn Lopucki, Court System Transparency (Sept. 2007 Iowa Law Review 94(2)). This is out of balance right now and should be corrected. I am all for Pacer and judicial transparency, but this needs to be balanced against privacy rights. We need to guard the legitimate privacy rights of all litigants, including alleged criminals and fraud investigators, both public and private.

Pacer leaks can cause real damage. For instance, if the retired general, ex-President of Brookings is found innocent, or worse, is found to have been framed, then this error and Pacer openness could have ruined his life. Any person’s honor and integrity is priceless, especially that of a Four Star Marine General hero, one who put his life on the line for all of us many times. We need military heroes right now to defend our Constitution. In the United States of America we don’t swear an oath to an individual or a political party. General Allen swore an oath to “defend the Constitution against all enemies, foreign and domestic.” In our country, alone among all others, we swear an oath to a document, one guaranteeing our freedom, our life, liberty and justice. For me and the vast majority of Americans, that includes the right to government by the people, not despots, and privacy rights of all kinds.

All lawyers who are members of the Bar, and, of course, all judges too, make a similar, solemn oath of allegiance to uphold and protect the Constitution. We all take that seriously, well, almost all. Sometimes this means we have to keep our technology under control to protect our waning privacy rights. Even Superman needed privacy to change outfits. For us today, where there are no phone booths, no wax seals, and where so much is online, this means reform and better controls of online information, including Pacer, to protect our rights.

To bring this full circle, back to the Casablanca movie theme of nefarious government agents and allegiances, check out this stamp and recall the famous line, “Here’s looking at you, kid.” Pacer is a gold mine of public information, but litigants have privacy rights too, including the right to obtain lawful criminal warrants and do so, as the law provides, in secret. Criminal investigations have to start in private, so long as they are transparent when concluded. Then, they need to be looked at. The prosecution has strict disclosure duties at that time. Many other litigants have legitimate privacy rights that should be protected too. For example, this includes the rights of corporations to sue each other for trade secrecy violations without losing those secrets. They should be able to file trade secret information under seal to prove their case with confidence that foreign agents, or others, won’t be able to look at them. This means outside of the watchful eyes of Pacer. Don’t kid yourself Pacer. The bad guys, foreign governments and others with nefarious intent, are looking at you. Let’s do the right thing here and tighten up Pacer.



Examining a Leaked Criminal Warrant for Apple iCloud Data in a High Profile Case – Part One

June 21, 2022

Inadvertently Disclosed Warrant Application Against Apple in a Criminal Investigation Against Retired Marine General Reveals Latest DOJ Search Procedures, the Dangers of Pacer and Too Much Court Record Transparency, and Much More- Part One

According to a June 7, 2022, New York Times report:

John R. Allen

Federal prosecutors have obtained records indicating that John R. Allen, the retired four-star Marine general who commanded all American troops in Afghanistan and now heads a venerable Washington think tank, secretly lobbied for the government of Qatar, lied to investigators about his role and tried to withhold evidence sought by a federal subpoena, according to court documents.

The court records are the latest evidence of a broad investigation by the Justice Department and F.B.I. into the influence that wealthy Arab nations like Qatar, the United Arab Emirates and Saudi Arabia wield in Washington.

The records about General Allen were filed in April in Federal District Court in Central California in an application for a warrant to search General Allen’s electronic communications.

NYT 6/07/22, Mark Mazzetti and David D. Kirkpatrick

I do not know what records federal prosecutors have obtained, and have no opinion regarding the guilt or innocence of the accused, aside to note that all persons must be presumed innocent, until proven guilty in a court of law, and that I personally hope John Allen is not guilty. There has been no judgment by a judge or jury, but there has been significant evidence presented against the retired General.

Application For Warrant To Seize Digital Evidence From Apple

The evidence was presented to the Central District Court in California, as part of the government’s seventy seven page application for a warrant. The Court Clerk, for some reason, did not keep have this Application under seal, did not keep the Application secret. Somehow the Associated Press International found out about it being in clear and open view on Pacer, downloaded it and quickly published it. This disclosure is, we understand, alleged to have been a mistake. That is suspicious in view of the current political climate and fact that retried General Allen was, until the release of this warrant, the President of the Brookings Institution, which is generally considered a liberal organization. More on that later.

That application for warrant, formally entitled APPLICATION FOR A WARRANT BY TELEPHONE OR OTHER RELIABLE ELECTRONIC MEANS (“Application”), will be discussed here as part of the discussion of the ESI discovery procedures, especially the search procedure laid out in the Application. The facts of the case and questions surrounding the disclosure of this secret Application are secondary, but will not be ignored. Both are disturbing, especially the content of the FBI agent’s sworn affidavit that supported the Application. This bite of the Apple may very well be sour. I hope not.

Basic Introduction to Criminal eDiscovery by Tom O’Conner

The Application reveals the procedures now used by the DOJ to obtain a person’s private communications from a provider, in this case Apple, as part of a criminal investigation. For excellent background on ediscovery in criminal cases, see the five-part article by Tom O’Connor published by Cloud Nine: part one, part two, part three, part four and part five. Also see: David Horrigan’s good article, At the Border and Beyond: e-Discovery Aspects of Criminal Matters and Investigations (Relativity Blog, 2/16/17).

Tom O’Connor

By the way, I seem to recall from socializing with Tom O’Connor at a CLE someplace, many years ago, that Tom, a huge Rolling Stones fan by the way, got his start in e-discovery as a technical advisor in criminal matters. He told me about one case in particular where he helped the public defenders in Seattle on ediscovery issues in a notorious motorcycle gang case. Tom may look like Santa now, but he is tough and has been around eDiscovery longer than most. About the only lawyer I know with as much criminal e-discovery experience, including from the other side of the bench, is another good friend, retired judge Ron Hedges. See eg. Ron’s recent criminal law articles, Despite Rulings, 4th Amendment Battles over GeoFence Warrants are Far from Over, Legaltech news, May 2022; and Hot Topics for ESI in Criminal Matters, Criminal Justice 43 (ABA Crim. Section: Fall 2016).

In part three of Tom O’Connor’s mentioned article, he explains the basics of applications a/k/a affidavits like this for an ESI criminal warrant.

The government will usually get its ESI by consent or warrant. Typically, when the federal government seeks data in criminal cases (and most states have a similar procedure), it requests a search and seizure warrant by filing an application or affidavit sworn before a judge. The application, as provided in Rule 41, identifies the location of the property to be searched and seized, and includes facts that support probable cause (a reasonable belief that a crime has been committed and evidence of such may be at the site) as to why the government needs (and should get) the property. . . .

F.R. Crim. P. Rule 41 then establishes a two-step process when ESI is involved. The first step is the seizure and then a subsequent review of the ESI which must be consistent with the warrant. There is no time frame established for this review since it may take a substantial amount of time, especially with encrypted drives. . . .

Regarding third parties, the court may issue a subpoena under F. R. Crim. P. Rule 17 for a third party to produce records at trial or at another time and place.  This is typically a bank or cell phone carrier but can be any non-party thought to be in possession of relevant information. The court may then allow the defense to inspect all or part of the ESI.

Tom O’Connor

FBI’s Affidavit Is Detailed

I am relieved to see that the government’s warrant Application, and I presume all other similar warrant applications of the DOJ, whether of famous public figures or not, was supported by very detailed allegations of fact. The Application was made by an FBI agent. I did not, however, see the agent’s signature at page 77, and so wonder about that. How can it be a sworn affidavit without a signature? (Answer, it can’t!) This, along with the accidental disclosure itself, appears to be another sloppy error by the DOJ. Also, the final paragraph of the FBI factual affidavit, numbered 154, is blank. Another mere scrivener’s error? I assume that was all corrected later. But who knows? The court file was resealed again after the API leak. Aside from the clerical errors, the actual contents of the FBI’s statement, sworn to or not, was compelling. I have to assume the Warrant was granted and John Allen’s iCloud account was collected and turned over by Apple to the FBI.

Accused Is a Marine Hero President of the Brookings Institution

John Allen is a retired Marine, a Four Star General, who, among other things, served as the commander of the NATO International Security Assistance Force and U.S. Forces – Afghanistan and Chairman of the Joint Chiefs of Staff. He retired in 2013 and joined the prestigious Brookings Institution. In 2017 he was named the President of Bookings and served in this position until put on leave on June 8, 2022. He was put on leave when this Application was published and allegations revealed concerning illegal lobbying efforts that he supposedly made on behalf of the Persian Gulf nation of Qatar. By the way, Qatar was a major donor of Brookings.

I will not go into the facts of the FBI agents sworn statement in detail in this blog article, but will not attempt to cover them up either. Some mention of them is necessary to discuss the ESI discovery points, which are the focus of this article. But I will not do so with glee. Just the contrary. The fact that these allegations are made against John Allen, one of the most decorated Marines in history, saddens me very much. It has nothing to do with the Brookings Institution, which does not seem all that liberal to me.

My dear brother-in-law was a Marine, always a Marine, and my father was a Naval Officer in two wars. My Dad’s ships, where he was the communications officer, used to shuttle Marines around in the Pacific. They were both exemplary models of integrity, honesty and courage for which I am very grateful. May they rest in peace. These allegations against John Allen, if true, and we must presume innocence, are contrary to the Marine and Navy Codes of honor and our American way for life. Personally, I hope retired General Allen is innocent and did not, as alleged, lie for financial gain.

Property To Be Searched

The Application in paragraph three identifies the property to be searched under the warrant as three Apple iCloud accounts:

a. . . . identified as iCloud associated with DSID / Apple Account Number 1338547227 and / or email address rickscafedxb@yahoo.com that is within the possession, custody, or control of Apple , Inc., a company that accepts service of legal process at One Apple Park Way, M / S 169-5CLP, Cupertino, California 95014, regardless of where such information is stored held, or maintained. . . .

b. iCloud Account associated with DSID/Apple Account number 120757353 and/or email address imaad.zuberi@mindspring.com. . . .

c. iCloud Account associated with DSID/Apple Account Number 270847771 and/or email address j.rutherford.allen@gmail.com. . . .

Application, paragraph 3
Richard Olson

Paragraph 14 of the Application identifies the account holder for rickscafedxb@yahoo.com:

Richard Gustave Olson, Jr. (“Olson”), the user of SUBJECT ACCOUNT 2, served as U.S. Ambassador to the United Arab Emirates (“UAE”) from October 2008 through May 2011 and U.S. Ambassador to Pakistan from October 2012 through November 2015. From November 2015 through November 2016, Olson held the position of U.S. Special Representative for Afghanistan and Pakistan.

I understand that Olson was a career U.S. diplomat and his wife is also a U.S. diplomat.

Paragraph 12 of the Application identifies the account holder for imaad.zuberi@mindspring.com:

Imaad Shah Zuberi (“Zuberi”), the user of SUBJECT ACCOUNT 1, is an American businessman who operated a business entity named Avenue Ventures. Zuberi’s business largely consisted of receiving funds from foreign clients, using those funds to make political campaign contributions, parlaying those contributions into political influence, and using that influence to change U.S. government policy for his foreign clients.

Disgusting to me, but not yet illegal. The Application goes on to describe some of the illegal fraud that both Zuberi has been convicted of, but note, Zuberi’s conviction has been appealed. Here is a copy of the indictment of Zuberi, if you want to learn more about this charming guy, who donated to Republicans and Democrats alike.

Imaad Shah Zuberi

13. On November 22, 2019, in United States v. Zuberi, CR 19-642-VAP, Zuberi pleaded guilty to a FARA offense in violation of 22 U.S.C. §§ 612, 618(a)(2), Federal Election Campaign Act offenses in violation of 52 U.S.C. §§ 30116, 30118, 30121, 30122, 30109(d)(1), and tax evasion in violation of 26 U.S.C. 7201. All the aforementioned charges were unrelated to the instant investigation. On June 30, 2020, in United States v. Zuberi, CR 20-155-VAP, Zuberi also pleaded guilty to obstruction of justice (witness tampering) in violation of 18 U.S.C. §1512(c) related to an investigation conducted out of the Southern District of New York. On February 23, 2021, in a consolidated sentencing, the court determined that Zuberi’s obstruction extended beyond the single incident charged and that it included his deletion of four email accounts under the domain avenueventures.com exclusively under his control as well as paying several witnesses millions of dollars to silence them in connection with the government’s investigation. The court sentenced Zuberi to 12 years’ imprisonment.

More about Diplomat Olson. The Application alleges in paragraph 17:

17. On January 14, 2022, Olson entered into a plea agreement with the government that requires him to enter pleas of guilty to Making a False Writing in violation of 18 U.S.C. §1018 (related to his filing a false financial disclosure form in 2016) and Aiding and Advising a Foreign Government with Intent to Influence Decisions of United States Officers in violation of 18 U.S.C. §§ 207(f)(1)(B), 216(a)(1) (relating to his work in support of Qatar).

Paragraph 92 of the Application explains why they are searching the iCloud for these emails, in short, because they had all been deleted by the parties, once they learned of the DOJ investigation. That’s not just bad faith spoliation, that’s destruction of evidence in a criminal investigation, which is itself a crime. You know the common criminal law wisdom, the cover-up is worse than the crime.

92. In his interview subject to a limited use immunity agreement, Olson informed the government that in the spring of 2019, after he became aware of the government’s investigation of Zuberi, Zuberi asked him to delete emails pertaining to Allen from his rickscafedxb@yahoo.com account to protect Allen from government investigators. Olson admitted that he indeed deleted emails in response to Zuberi’s request. Search warrants for Olson’s rickscafedxb@yahoo.com account and Allen’s j.rutherford.allen@gmail.com account reveal that the emails Allen and Olson did not produce no longer exist on the providers’ servers.

The DOJ is going after the Apple iCloud accounts in the hope they will find a backup of deleted emails, or other incriminating evidence, to try to prove their case against the remaining defendant, General Allen. All kinds of ESI can be stored in an iCloud account. Of course, this discovery may fail. Apple may respond to the warrant after service by saying that these iCould accounts no longer exist, and there is no backup at this late date. We do not know who will be yelling at the cloud, but someone is likely to be angry. Isn’t that usually the way it is in ediscovery?

Related Lobbying Fraud Cases

The Washington Post recently reported that Imaad Zuberi had also been working with billionaire Thomas J. Barrack, Jr., Trump’s longtime friend and presidential inaugural committee chairman. Ex-U.S. diplomat pleads guilty in Qatar lobbying plot, names general (Allen) (Washington Post, 6/3/22). Barrack, who sold Trump The Plaza hotel in NYC, has also been criminally charged with obstructing justice and acting as an unregistered agent for the UAE. To Quote the Washington Post article:

Tom Barrack

Barrack, one of his Trump’s closet associates on his road to the White House, pleaded not guilty last summer and was freed on $250 million bond pending trial on charges of conspiring to secretly lobby for the UAE, which invested significantly in his investment firm, Colony Capital.

In October 2020, Elliott Broidy, a Trump fundraiser and former Republican National Committee deputy finance chairman who also received a $200 million security contract with the UAE, pleaded guilty to acting as an unregistered foreign agent and accepting millions of dollars to secretly lobby the Trump administration for Malaysian and Chinese interests.

The same cited Washington Post article reports that Olson plead guilty on June 3, 2022, to charges in connection with a secret lobbying campaign on behalf of Qatar to influence the Trump White House and Congress in 2017. Ex-U.S. diplomat pleads guilty in Qatar lobbying plot, names general (Allen).

Rick’s Cafe

Finally, to conclude Part One of this long blog on a cute movie note, consider the name of the personal email account of the once illustrious U.S. Ambassador, Richard (“Rick”) Gustave Olson, Jr.: rickscafedxb@yahoo.com. The former ambassador’s personal email name is a reference to Casablanca, the WWII cloak and dagger film starring Humphrey Bogart and Ingrid Bergman. The restaurant nightclub in the movie was called Rick’s Cafe. The lead character, Rick Blaine, played by Bogart, owned the cafe and was a cynical neutral serving for profit both sides in Morocco until the end of the movie, when he choose against the Nazis. The best scenes were in Rick’s Cafe where many Nazis would party. See: ‘Play It Again, Issam’: The Real ‘Rick’s Cafe’ Story. The abbreviation of the Dubai airport in Saudi Arabia, where Rick Olson was the U.S. Ambassador, is DXB. Add it all up and you get the Ambassador’s personal email handle, ricks cafe dxb. Yahoo!

Play it again Sam (referring to the jazz song, As Time Goes By, played below by Dooley Wilson). I wonder how many times Rick Olson will play that movie in prison? Maybe none, because it’s possible that he may, somewhat like some banks, be too big to jail. Time will tell. Apparently his sentencing may depend on how helpful he is in the government’s case against General Allen.

Play It Again, Sam (Dooley Wilson)

________________

To be continued. . . The next parts to the blog will go over: Section I of the Application, Search Procedures; Section II, Information to be Disclosed by Provider, Section III, Information to be Seized by the Government and Section IV, Provider Procedures.

The question of the supposedly inadvertent disclosure of the Application from court sealed to the API will also be considered. All speculation of course. It could be on purpose, to embarrass or prejudice John Allen, but it could also very well be an accident. All too easy to happen when humans are involved.

I have some personal experience with a case that was accidentally unsealed. I’ll talk about that case from over ten years ago in Part III. It was an exception to today’s rule that, where confidential ESI is concerned, once the genie is out of the bottle, it can’t be put back in. In the early days of Pacer it could. But these days, with ever more complex e-filing rules and Pacer services everywhere, once a mistake is made, and confidential information goes online, the genie is gone.

Feel free to leave any comments below.


Robophobia: Great New Law Review Article – Part 3

June 14, 2022
Professor Andrew Woods

This article is the conclusion to my three-part review of Robophobia by Professor Andrew Woods. Robophobia, 93 U. Colo. L. Rev. 51  (Winter, 2022). See here for Part 1 and Part 2 of my review. This may seem like a long review, but remember Professor Woods article has 24,614 words, not that I’m counting, including 308 footnotes. It is a groundbreaking work and deserves our attention.

Part 2 ended with a review of Part V of Andrew’s article. There he laid out his key argument, The Case Against Robophobia. Now my review moves on to Part VI of the article, his proposed solutions, and the Conclusion, his and mine.

Part VI. Fighting Robophobia

So what do we do? Here is Andrew Woods overview of the solution.

The costs of robophobia are considerable and they are likely to increase as machines become more capable. The greater the difference between human and robot performance, the greater the costs of preferring a human. Unfortunately, the problem of robophobia is itself a barrier to reform. It has been shown in several settings that people do not want government rules mandating robot use.[272] And policymakers in democratic political systems must navigate around—and resist the urge to pander to—people’s robophobic intuitions. So, what can be done?

Robophobia is a decision-making bias⎯a judgment error.[273] Fortunately, we have well-known tools for addressing judgment errors. These include framing effects, exposure, education and training, and, finally, more radical measures like designing situations so that biased decision-makers—human or machine—are kept out of the loop entirely.

If you don’t know what all of these “well-known” list of tools are, don’t feel too bad, I don’t either. Hey, we’re only human. And you’d rather read my all-too-human review of this article then one written by a computer, which is all too common these days. You would, right? Well, ok, I do know what exposure, education and training mean. I’ve certainly sat through more than my fair share of anti-prejudice training, often very boring training at that. Now we add robots to the list of sensitivity training. Still, what the hell are “framing effects”?

More on that in a second, but also what does the professor mean by keeping biased decision makers out of the loop? As a long time promoter of “Hybrid” Multimodal Predictive Coding, where hybrid means humans and AI working together, my defenses are up when there is talk of making it a default to exclude humans entirely. Yes, I suppose my prejudices are now showing. But when it comes to my experience in working with robots in evidence search, I like to delegate, but have the final say. That’s what I mean by balanced. More on this later.

Professor Woods tries to explain “framing effects” so that even a non-PhD lawyer can understand it. It turns out that framing effects have to do with design, like how you frame a question often impacts the answers. Objection, leading! It includes such things as what lawyers commonly call “putting lipstick one a pig.” Make the robots act more human-like (but not too much so that you enter the “uncanny valley”). For example, have them pause for a second or two, which is like an hour at their speeds, before they make a recommendation. Maybe even say “hmm” and stroke their chin. How about showing some good robot paintings and poems. Non creepy Anthropomorphic design strategies appear to work, so too do strategies of making “use of a robot” the default action, instead of an alternate elective. This requires you to make an affirmative effort to opt-out and use a human, instead of a robot. We are so lazy, we might just go with the process, especially if we are repeatedly told how it will save us money and provide better results; i.e. – Predictive coding, TAR, is better than sliced bread!

Now to the threatening idea, to me at least, and possibly you, to just keep humans out of the loop entirely. Robot knows best. Big Brother as a robot. Does this thing even have a plug?

From the famous Apple Commercial in 1984

Let’s see what Professor Woods has to say about this just let the machines do it idea. I agree with much of what he says here, especially about automated driving, but still want to know how to turn the robots off and stop the surveillance.

[T]here is considerable evidence in a number of scenarios that keeping humans in the loop eliminates the advantages of having an automated system in the first place and, in some instances, actually makes things worse. . . . The National Highway Traffic Safety Administration recognizes six levels of automotive autonomy, ranging from 0 (no automation) to 3 (conditional automation) to 5 (full automation).[302] Some people believe that a fully autonomous system is safer than a human driver, but that a semi-autonomous system—where a human driver works with the autonomous system—is actually less safe than a system that is purely human driven.[303] That is, autonomy can increase safety, but the increase in safety is not linear; introducing some forms of autonomy can introduce new risks.[304] . . .

If algorithms can, at times, make better decisions than humans, but human use of those algorithms eliminates those gains, what should be done? One answer is to ban semi-autonomous systems altogether; human-robot interaction effects are no longer a problem if humans and robots are not allowed to interact. Another possibility would be to ban humans from some decision-making processes; a purely robotic system would not have the same negative human-robot interaction effects. This might mean fewer automated systems but would only leave those with full autonomy.

If humans misjudge algorithms—by both over- and underrelying on them—can they safely coexist? Take again the example of self-driving cars. If robot-driven cars are safer than human-driven cars but human-driven cars become less safe around robot cars, what should be done? Robots can simultaneously make the problem of road safety better and worse. They might shift the distribution of road harms from one set of drivers to another. Or it might be that having some number of robot drivers in a sea of human drivers is actually less safe for all drivers than a system with no robot drivers. The problem is the interaction effect. In response, we might aim to improve robots to work better with humans or improve humans to work better with robots. Alternatively, we might simply decide there are places where human-robot combinations are too risky and instead opt for purely human or purely machine decision-making.

Conclusion

So solution to this problem is a work in progress. What did you expect for an article that first recognizes robophobia? These solutions will take time for us to work out. I predict this will be the first of many articles on this topic, an iterative process, like most things robotic, including law’s favorite, predictive coding. Something I have been teaching and talking about since 2012 when I first began working with these robots and made this snazzy video.

Ralph Losey’s Predictive Discovery Ver. 2.0

Even though it worries me, I understand what Andrew means about the problems of humans in the loop. I have seen far too many lawyers, usually dilettantes with predictive coding, screw everything up royally by not knowing what they are doing, by mistakes. That is one reason that I developed and taught my method of semi-automated document review for years.

Ralph at NIST’s Trec in 2015

I have tried to dumb it down as much as possible to reduce human error and make it as accessible as possible, but it is still fairly complex. The latest version is called Predictive Coding 4.0, a Hybrid Multimodal IST method, where Hybrid means both man and machine, Multimodal means all types of search algorithms are used, and IST stands for Intelligently Spaced Training. IST means you keep training until first pass relevance review is completed, a type of Continuous Active Learning, which Grossman, Cormack, and then others, called CAL. I have had a chance to test out and prove this type of robot many times, including at NIST, with Maura and Gordon. After much hands on experience, I have overcome many of my robophobias, but not all. See: WHY I LOVE PREDICTIVE CODING: Making Document Review Fun Again with Mr. EDR and Predictive Coding 4.0.

I recognize the dangers of keeping humans in the loop that Professor Woods points out. That is one reason my teaching has always emphasized quality controls. That’s Step Seven in my semi-automated process of document review, where ZEN stands for Zero Error Numerics (explained in ZEN website here). Note this quality control step uses both robots (algorithms) and humans (lawyers).

Moreover, as I have discussed in my articles, with human lawyers as the subject matter experts in the machine training (step four), the old “garbage in, garbage out” problem remains. It is even worse if the human is unethical and intentionally games the machine training by calling black white, iw, intentionally calling a relevant document irrelevant. That’s a danger of any hybrid process of machine training and that’s one reason we have quality controls.

But eventually, the machines will get smart enough to see through intentionally bad training, weed out the treasure from the trash, find all of the highly relevant ESI we need. Our law robots can already do this, to a certain extent. They have been correcting my unintentional errors on relevance calls for years. That is part of the iterative process of active machine learning (steps four, five and six in my hybrid process). Such corrections are expected, and once your ego gets over it, you grow to like it. After all, its nice having a helper that can read at the speed of light, well, speed of electrons anyway, and has perfect recall.

Still, as of today at least, expert lawyers know more about the substantive law than Robots do. When the day comes that a computer is the best overall SME for the job, and it surely will, maybe humans can be taken out of the loop. Perhaps just serve as an appeal if certain circumstances are met, much like trying to appeal an arbitration award (my new area of study and practice).

Andrew Woods

My conclusion is that you should read the whole article by Professor Andrew Woods and share it with your friends and colleagues. It deserves the attention. Robophobia, 93 U. Colo. L. Rev. 51  (Winter, 2022). I end with a quote of the last paragraph of Andrew’s article. For still more, look for webinars in the future where Andrew and I grapple with these questions. (We met for the first time after I began publishing this series.) I for one would like to know more about his debiasing and design strategies. Now for Andrew’s last word.

In this Article, I explored relatively standard approaches to what is essentially a judgment error. If our policymaking is biased, the first step is to remove the bias from existing rules and policies. The second step might be to inoculate society against the bias—through education and other debiasing strategies. A third and even stronger step might be to design situations so that the bias is not allowed to operate. For example, if people tend to choose poorer performing human doctors over better performing robot alternatives, a strong regulatory response would be to simply eliminate the choice. Should humans simply be banned from some kinds of jobs? Should robots be required? These are serious questions. If they sound absurd, it is because our conversation about the appropriate role for machines in society is inflected with a fear of and bias against machines.



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