In the days and weeks following the following the San Bernardino shooting, the FBI became embroiled in a legal battle that they thought they would easily win in attempting to force Apple to open the iPhone belonging to gunman Syed Rizwan Farook.
But Apple fought them to a win in the court of law and a win in the court of public opinion. When the FBI failed to get a court order to access the data, they were able to hack into the iPhone on their own and access the data themselves. The result was they found nothing of significance and the whole exercise turned out to be a four-month waste of time.
For those who wish to draw a comparison between Janet Napolitano’s former job as head of the Department of Homeland Security and her current one heading up the University of California, she is giving ample ammunition.
The current battle being waged in the pages of the Sacramento Bee is bogging down, strangely in a similar fashion to how the US Department of Justice’s battle proceeded. When we spoke to Linda Katehi’s attorney Melinda Guzman, she told the Vanguard that they were not turning over the chancellor’s university-issued cell phone, iPad and laptop due to concerns about attorney-client privilege and lack of assurances from UC’s investigators about how it would be used.
UC Spokesperson Dianne Klein two weeks ago told the Vanguard, “We are disappointed that Chancellor Katehi and her counsel have repeatedly said they were unable to meet with investigators. Likewise, they have not provided investigators with access to the University owned devices — cell phones and iPads — that may well contain information germane to the investigation.”
She told the Bee recently, “This is standard in every investigation.”
But this looks more like a fishing expedition than an investigation. They already have access to emails and phone records from the university, and the need to explore text messages seemingly suggests that they have found nothing through a simple exploration of emails and phone records to incriminate the chancellor.
Melinda Guzman has used heated language such as “police state” on multiple occasions – language that is probably over-the-top, given the nature of this investigation. But the attempt to draw the link between UC tactics and FBI tactics should not be completely lost.
Spokesperson Larry Kamer, like Ms. Guzman, is claiming that the chancellor will not turn over the equipment because it could contain communications legally deemed privileged. He told the Bee, “If the Office of the President is trying to deny her right to private and confidential communications, they are in for a major fight from us.”
It is not clear how this matter would be resolved. When asked if this issue would be litigated, Ms. Guzman would not commit either way.
Ms. Katehi’s legal team told the Vanguard that the equipment would not be turned over unless UC agrees to allow her to remove emails that her team deem privileged information which could include those from her lawyer, doctor, medical provider, priest or husband.
Moreover, they have cataloged these messages in case a judge would need to review them.
What makes these claims more tricky is that, unlike the San Bernardino terrorist case where they were dealing with a personal cell phone, this is university-owned property. That means, technically speaking, the phone is owned by the University of California, not Linda Katehi. It also means that the phone should have been used in conjunction with university functions only, not private personal ones like communications with a doctor or, perhaps, even an attorney.
The Sacramento Bee this morning is reporting that Ms. Katehi and her team have asked to be able to choose who would decide which messages are privileged.
Ms. Klein told the Bee, “They would hire the person to take out what they want to take out and give it back to us, and that is not acceptable, nor is it in any way independent.” Instead, UC has asked the chancellor to pick from two vendors of their choice. “They can give email and phone numbers to the vendor that reflect privileged information, and that information would be segregated out.”
This suggests that the Bee has already fallen for the chancellor’s contention that some messages are privileged. UC is acknowledging that this is not a criminal investigation where they would go into her personal cell phone or gain a search warrant.
But the issue already exposes one problem for UC – they lack a policy on how investigations are to be conducted as well as a policy for how electronic property owned by UC would be handled in cases such as these.
In our view, this whole battle looks bad for UC. They are fighting over cell phone records, willing to allow some messages to be privileged – the whole question that has to emerge is whether UC has any evidence at all to back up their allegations. The longer this drags out, the more opinion may shift against UC.
There is also a question of how much money this is costing UC. Last week, Dianne Klein told the Vanguard they do not have an estimate on the total cost of the investigation.
They did tell the Vanguard that the investigators are billing at $595 per hour, “while those who review documents will bill substantially less.” As we have suspected previously, the cost of the investigation is not coming from state or tuition dollars. UC has an Evergreen Fund that appears to be from private sources to fund the investigation.
—David M. Greenwald reporting