Tag Archive | "Islamic State"

The FBI and Apple, Inc.: National Security v. Privacy

Photo Cred: WCCF Tech

Photo Cred: WCCF Tech

In January of this year, President Obama’s top intelligence advisers met with Apple’s CEO, Tim Cook and other technology leaders to discuss their long-standing disagreement over the encryption safeguards built into their devices. The Federal Bureau of Investigation requested Apple help unlock an iPhone used by Syed Rizwan Farook, one of the San Bernardino murderers who killed 14 people on December 2, 2015. Apple refused. On February 16, 2016, the United States District Court for the District of California issued an order compelling Apple to assist the FBI by enabling the search of the Farook’s iPhone. Tim Cook called the FBI’s request “chilling” and a “dangerous precedent” to set. The FBI requested that Apple create and digitally sign a special version of iOS, which would be modified in three ways, as specified on page 8 of the court order:

  1. iOS can be set to erase its keys after 10 incorrect passcode guesses. The FBI wants software with this feature disabled.
  2. iOS imposes increasingly long delays after consecutive incorrect passcode guesses to slow down guessing (this is commonly called rate limiting). The FBI wants software that accepts an arbitrary number of guesses with no delays.
  3. iOS requires individual passcodes be typed in by hand. The FBI wants a means to electronically enter passcodes, allowing it to automatically try every possible code quickly.

At the time, Apple worried the FBI’s application of the All Writs Act of 1798 would allow the government to force Apple into taking further steps, and used the example of surveillance software that could intercept and capture all data on an iPhone.

The All Writs Act is a 227 year old, general-purpose law allowing a court to require third parties’ assistance to execute a prior order of the court when “necessary or appropriate.” Many feared that should the U.S. government prevail in this case, it could be used to justify law enforcement efforts to get around encryption technologies in other investigations far removed from national security threats. Additionally, some feared the government could ask to use this power proactively, before a suspected terrorist attack. Is this really a possibility? Perhaps, but not certainly.

Ultimately, this case pitted a strong, governmental interest in ensuring its national security against an individual’s fundamental right to privacy. Many continue to wonder whether the U.S. can claim national security concerns justify the hacking into all iPhones. However, two legal roadblocks prevent such an occurrence.

First, in the U.S., the Fourth Amendment grants a measure of privacy for “persons, houses, papers, and effects” from “unreasonable searches and seizures” while requiring that warrants be issued based only on probable cause. Second, the international human right to privacy, arguably a customary norm of international law, as codified in the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR), place limits on a State’s ability to interfere with the right to privacy.

But the courts weren’t faced with making this determination. On March 28, 2016, the Justice Department withdrew its legal effort to compel Apple to assist the U.S. government claiming it had unlocked the iphone without assistance from the tech company. Despite the U.S. government’s successful iphone hack, on April 8, 2016, the Justice Department said it would continue to try to force the tech company to help in criminal probes based on the All Writs Act justification.

Interference into an individuals’ right to privacy is illegal where it is arbitrary and not prescribed by law. As a threshold matter, the invasion must be prescribed by domestic law and have certain clear and precise safeguards. Second, and probably the limiting factor, is that the interference must not be arbitrary. The European Court of Human Rights’ jurisprudence on the subject has allowed a claim of national security threats to supersede an individuals right to privacy. However, these national security threats must be concrete, and the interference may not be “blanket and indiscriminate.” Thus, a State would not be justified in the surveillance of any and all phones absent a clearly defined threat to such State.

In sum, international law already accounts for the fear’s individuals express over a ruling in favor of the government. Should Apple fail in its “fight the good fight” attempt, individuals need not worry about the government being enabled.

Posted in 1TVFA Posts, 2Featured Articles, Philip Nickerson, Phillip NickersonComments (0)

Critical Analysis: Protecting refugees in the midst of war

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Destruction in Yarmouk. Credit: HaAretz. http://www.haaretz.co.il/st/inter/Heng/news/images/yar2.jpg

In the early days of April, the Islamic State (ISIS or ISIL) pushed closer to the center of Damascus, the Syrian capital, than they had been able to before.  They did this by seizing the majority of the Al-Yarmouk camp, a large refugee district in the southern part of the city.  The camp had once held 160,000 refugees from Palestine, but since the beginning of the Syrian Civil War, the refugees have dispersed, leaving 18,000 within the camp.

Even before this ISIS invasion, al-Yarmouk was “a humanitarian nightmare.”  The camp was “ruled” by various factions and armed groups, siphoning scarce food away from the refugees and towards the fighters and their families.  For the last two years, the camp has been subject to a siege that has made the food situation even more grave.  Recently, al-Yarmouk had falled under the control of the Syrian rebel group Nusra Front, whom some eyewitnesses say were fighting alongside ISIS, but who has claimed neutrality in the struggle since. Now, the festering humanitarian crisis in al-Yarmouk has somehow gotten worse.  Mere days after this incursion began, reports of killings and beheadings had already circulated.  The Syrian government has dropped several barrel bombs on the camp. Just as deadly, United Nations Relief and Works Agency (UNRWA) has been unable to send its usual food or convoys into the camp since the fighting started.  This means that the 18,000 residents of the camp have no food, no water, and very little medicine.  Moreover, only 93 people have been evacuated, leaving the rest stuck in this deadly zone. If nothing is done, “Yarmouk shall remain a testament to the collective human failure of protecting civilians in times of war.” (Saeb Erekat, as quoted in the New York Times.)

The al-Yarmouk situation sheds light not only on the dangers of ISIS and the plight of Palestinian refugees, but also the inadequacy of international humanitarian law in dealing with such situations.  There is an international obligation to protect refugees (1951 Convention relating to the Status of Refugees; 1967 Protocol relating to the Status of Refugees) as well as an obligation to protect civilians in times of war (The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949); Additional Protocol I (1977)).  And yet, no one is protecting the 18,000 people trapped in al-Yarmouk.  No one, it seems, is even considered responsible for the 18,000 refugees there.

Perhaps the problem is ISIS itself.  The Geneva Convention is designed to deal with states.  Neither ISIS nor Nusra Front is a state.  Therefore, neither feels bound to protect the civilians in al-Yarmouk.  It is doubtful whether either would even be held responsible for the harm done to civilians in the course of their battle.  While the Syrian government may be held responsible, their attitude (particularly in dropping barrel bombs on the camp) indicates that they feel the refugees are a secondary concern.  So when the state who should be responsible refuses to act to protect the civilians and the non-state actors concerned refuse to “stop the fighting” or let others in to evacuate citizens, who under international law is responsible?

This situation highlights perfectly the need to officially implement a Responsibility to Protect.  Ideally, the United Nations should be able to send in a force to evacuate the refugees, by force if necessary.  If the United Nations cannot or will not act quickly enough, anyone else should have not only the right, but the obligation to do so to protect those 18,000 lives.  But while that reformulation of the law is easy—and indeed, already in progress—the next question is both unsettled in law and difficult practically: where would that nation evacuate those refugees to?  If al-Yarmouk was already a humanitarian mess before the ISIS invasion, what good would relocating those people to another shabby, hastily constructed camp, with minimal food convoyed to them on a daily basis?  Is it as easy to obligate a state to take in 18,000—or 160,000—refugees as to march in and save them from certain death?  Is this not a grave oversight in our conception of both a Responsibility to Protect and our refugee law?

I have no good answers to this, but unfortunately, the refugees of al-Yarmouk do not have the luxury to wait for good answers.  Our international humanitarian law is not equipped to handle this—so we must use the law that we have and create the rest after, based on our victories or mistakes from this situation.  If we do not, al-Yarmouk, as Mr. Erekat has said, “shall remain a testament to the collective human failure of protecting civilians in times of war.”

Samantha Peaslee is a 3L at the University of Denver Sturm College of Law.  She is the Senior Managing Editor for the Denver Journal of International Law and Policy.

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Loss of Culture: Can laws prevent the destruction of antiquities?  

“Without memory, there is no culture. Without memory, there would be no civilization, no society, no future.” – Elie Wiesel

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ISIS fighters destroy antiquities in Iraq. Courtesy of Chicago Tonight. hicagotonight.wttw.com/2015/03/10/destruction-antiquities-iraq

Over the course of human history, great and mighty civilizations have emerged, such as the Romans and Aztecs,
only to fall to plague, pestilence or conquest. However, the lasting effects of these civilizations are the archaeological sites and artifacts left behind. Artifacts, like the Rosetta Stone, the Terra Cotta Army, and the David, and ancient ruins, like Machu Picchu, the Coliseum, and the Great Wall of China, give the world insight into how ancient civilizations lived, and contribute to the future development of the human race. Through the discovery and preservation of artifacts such as these, the human race can continue to preserve ancient cultures and ensure that they may help shape the future of humanity.

Recent world events show a lack of regard for preserving these jewels of the past in the 21st century.  For example, the world was recently shocked by Islamic State’s destruction of ancient artifacts and archaeological sites in Syria and Iraq. This is not unprecedented, however, as this type of destruction happens all over the world; not just in the Middle East, but in South America, and China, and is attributable to numerous causes, including urban development and war.

The international community has attempted to ensure the integrity of the world’s cultural sites through the creation of the United Nations Educational, Scientific, and Cultural Organization and two international treaties: the Convention Concerning the Protection of the World Cultural and Natural Heritage and the Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Convention Concerning the Protection of the World Culture and Natural Heritage, also knows the 1972 World Heritage Convention, created the World Heritage List allowing for archeological sites of “outstanding universal value” to be placed on a list that tries to keep the sites protected. For example, the Statute of Liberty, the Tower of London, and the city of Venice are just some of the sites on the World Heritage List. The World Heritage List also includes cites that are in danger, such as the Old City of Jerusalem and its Walls.

Although these safe guards ensure archaeological sites and artifacts are recognized, and the conventions include sanctions which deter member States from breaching the conventions, it is the sovereign duty of each State to ensure that its archeological sites are protected. It is also the duty of each State to bring charges against parties that destroy or harm archaeological sites. In some cases, when a State does nothing to protect a site, or does not punish parties who destroy artifacts, the archeological artifact can be lost forever. Even though state parties to the above-mentioned treaties agree to protect their antiquities, the international community does not enforce its sanctions provisions against states who fail to protect. As of yet, no State has been brought before the International Court of Justice for a lack of protection. For example, China did little to protect artifacts when construction for an IKEA store unearthed an ancient tomb. Although China imposes a fine on companies who destroying ancient tombs, it does not enforce these law strongly, and as a result, an irreplaceable piece of history has been lost. The larger issue is that China was not brought before the ICJ for failure to protect in this case.

The larger issue is that state sovereignty protects most state decisions regarding antiquities. Also, under the treaty, only a State Party may bring a suit against another State Party for violation of a treaty or convention provision. Thus, the principally affected shareholders, like the existing Mayan populations in Belize whose ancestor’s pyramids were destroyed, have no avenue by which to make the State answer for its lack of protection. In most cases, States are able to pressure principally affected stakeholders into forgoing a public fight, likely due to lack of enforcement by the international community. For example, the 1972 World Heritage Convention only asks Party States to “endeavor, in so far as possible” to protect the culture of the State. These archeological sites and artifacts are the backbone of ancient civilizations, and in essence are owned by the people of the State and the existing decedents of those civilizations. Yet, principally affected stakeholder have no recourse to stop the destruction.

So what can be done?

A model that States can follow to ensure preservation of archeological sites and artifacts is that of the United States. The United States strives to ensure the rights to cultural sites and artifacts are given to decedents of the creating civilization. The Native American Graves Protection and Repatriation Act of November 16, 1990 gives the right of ownership over human remains and sacred objects to Native American tribes, after certain requirements are met, such as showing a relationship of lineal descent. Likewise, the Archaeological Resources Protection Act of 1979 protects the archaeological sites and resources of Native American lands. If other States follow a similar model as that of the United States, then the archeological sites and artifacts have a better chance of survival. Even if a State does everything to try and curb the destruction of archeological sites and artifacts, once destruction has occurred, the history, the memory, the civilizations are lost forever.

Teresa Milligan is a 2L law student at the University of Denver Sturm College of Law and is Editor in Chief for the Denver Journal of International Law and Policy.

Posted in 1TVFA Posts, 2Featured Articles, DJILP Staff, Teresa MilliganComments (0)


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