Kennedy: The FBI is not above court orders and the law

Sean Kennedy

I think that most people would agree that everyone deserves equal treatment from government and that no one person should be above the law. But what about agencies of the government itself?

Recently, news broke that the FBI refused a court order to reveal malware code it used to hack suspected users of a child porn site. While seemingly only significant to that particular case, this refusal to comply with a legal order is only part of a larger pattern of illegal court practices by the agency.

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Just a few months before, the FBI also refused a court order to reveal the code it used to hack Tor, a web browser, in its investigation of possible pedophiles. A few months before that, the FBI refused to comply with a court-ordered inquiry into Hillary Clinton’s private email server. The pattern should be becoming apparent by now.

Now some proponents of national security might argue that these acts of refusal were not over any issue of consequence, or that they were conducted for a greater good of some sort. However, regardless of the details of these cases, I believe that continued insubordination on the part of the FBI is concerning because of the precedent it sets. Court orders are just that, orders, and allowing a federal agency to decide the conditions under which it will follow legal rule only strengthens the notion of these agencies being above the law itself, despite being a creation of it. What if the FBI tried to act outside the law on something of real significance to the public?

The problem with apologist-like arguments like these is that the FBI has manipulated the courts on cases of major significance, even recently. In their legal battle against Apple in which they sought to force the company to give them a means to hack the iPhone of the San Bernardino shooter, the FBI lied repeatedly in court in an attempt to convince the public that there were no alternative methods with which to hack into the killer’s phone. Sure enough, two weeks into the case, the FBI found another way to hack into the phone and dropped the case, despite their testimony in court that no such alternative means existed.

This particular example is significant (beyond the whole ‘lying in court’ thing) because an FBI win would have established the legal precedent for tech companies to have to assist federal surveillance agencies in hacking into any American’s phone, provided they obtain a warrant. Given that the court that grants those warrants approves 100% of the appeals it receives, I think it’s fair to say that the Apple case would have given federal surveillance agencies the legal green light to hack the phone of anyone it wanted, which, you know, is kind of a big deal for anyone who enjoys their 4th amendment rights.

If that particular case isn’t significant enough to hammer in the idea that the FBI has lied and abused the courts on important issues, consider that the FBI admitted to giving flawed testimony in court (i.e. lying) for two decades. For twenty years, our perhaps most recognizable federal surveillance agency has an admitted record of lying and manipulating the legal system in order to get what it wants. If the gravity of this matter is not apparent by now, it may never be.

The federal government needs to take action to bring its agencies in line with the orders of the courts and reaffirm that no person, business or agency is above law in our country, regardless of what function they serve. If the FBI or any other agency thinks themselves above federal law or chooses to operate outside the Constitution to achieve their goals, then they should have their budgets frozen or be shut down until they comply with the law. Furthermore, the leaders of federal agencies should be held legally responsible for any violations of law (like perjury) that their organizations commit in a premeditated manner. The rule of law is only as strong as it is applied fairly and equally, and government action needs to be taken to affirm this standard across their agencies. Why should American citizens be compelled to follow the laws of government if their own leaders refuse to follow their own rules? If an agency refuses accountability, than they should be refused funding.

Collegian Senior Columnist Sean Kennedy can be reached at letters@collegian.com or on Twitter @seanskenn.