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> It's not "exceptional."

The problem here is... well, I'll make an analogy.

I have a safe. The government gets a warrant to search that safe, and since I refuse to help, they get a professional locksmith to open the safe for them.

Now, let's say I have a safe that the government can't figure out how to open without destroying its contents. In response, the government tells the safe manufacturer to start making different safes that the government can open.

Hopefully you see the problem with the second case.

Isn't that already covered by spoilage of evidence, or something along those lines? If i have a magic safe that destroys its contents, I'd be on the hook for maybe Obstruction of Justice? That may or may not be better than losing the contents, but it's not like i could just walk away.

I think this would come down to the purpose of the safe.

If the sole point of the safe can be demonstrated to be defeating law enforcement access then the judge won't look very kindly on you.

If you can make a reasonable argument that the safe was there to prevent thieves and crooks and safe crackers from getting their hands on the contents, you have a stronger case.

Judges don't take lightly to people trying to skirt the law in "clever" ways.

This is easy; you market the safe for the storage of trade secret documents. Getting back to the original issue, Apple can (and does) claim it offers encryption with no backdoors because a backdoor would give hackers a way to get in.

This has always seemed like a moot point to me when the government can demand that they install a backdoor at any point in the future under a gag order. Though this is true for any company anywhere basically.

I think OP meant opening up a safe with some explosives. But let us say it is a magic safe that incinerates the contents if it detects excessive tampering - I am assuming the purpose of which is to protect sensitive documents in case if the entire safe is stolen. Then the safe maker is not liable for obstructing justice any more then a paper shredding manufacturer.

For a more concrete instance, we have the case of a friend of the Boston marathon bombers deleting his search history and getting charge with obstruction of justice[1]. However, that doesn't mean the DOJ can use the Sarbanes-Oxley Act to prevent browsers from allowing the user to delete history.

[1]: http://www.cbc.ca/news/trending/clearing-your-browser-histor...

The safe maker wouldn't be liable, the owner of the safe would be. If there's a warrant for the contents of the safe, but the owner refuses to open it up, then the owner is guilty of whatever law requires you to cooperate with the warrant. Isn't that enough?

Punishing the owner for not giving the government access to the contents of the safe doesn't change the fact that the government doesn't have the contents of the safe, so I guess they might not consider it enough.

My take is as long as said self-destruct feature exists prior and independent of it being used with evidence related to a crime, then spoilage of evidence should not apply. Apple created this feature in their phones for many many uses, just like a knife can be used for many many uses, legal and illegal.

At the end of the day, the evidence need not be destroyed either. It can just sit there concealed in an uninspectable form.

At the end of the day, they may or may not have the evidence they want in their possession. They just can't inspect that evidence.

> so the government can't force Toyota to push a firmware update to fix faulty electronic throttles?

You're kidding, right? So, we're now ok not only with the government tellin us what we can't do (which is a good thing - e.g., murder, robbery, etc.), but also with them telling us what we have to do (other than taxes, license, etc.)?

This is what fines and criminal charges are for. That's how our legal system works, and how it works in most of the civilized world. If Toyota wants to not fix the cars, that should be their prerogative. What if they want to instead buy the victims new cars instead? If they do nothing to remedy the situation and people die, they risk criminal negligence charges, etc. That's how things work, and they work quite well this way. The last thing I want is for the government t to come into my place of business and actually force me to do something.

>but also with them telling us what we have to do (other than taxes, license, etc.)?

The "fixing faulty firmware" sounds like it would fall under some minimum warranty law. Not "the government can arbitrarily force firmware updates", but "the government can demand firmware updates in the context of enforcing a specific law"

Any warranty can be satisfied by simply refunding the purchase price.

Surely not. The example given was a faulty throttle on a car. If that breach of warranty results in serious injury or damage to others, I suspect you'd want more than a refund.

Then that is what lawsuits are for, not preventative law that can be super abused.

> So the government can't force Toyota to push a firmware update to fix faulty electronic throttles?

No, of course they can't (or, rather, should not be able to). Nor can they compel the production of such a firmware update in the first place, let alone pushing it. For the particular case of vehicles, since the government controls licensing of cars on roads, they can deny or withdraw such licensing entirely on safety grounds, and since the manufacturer doesn't want any of that to happen they'll produce and push firmware updates instead. That's the government saying something you can't do again: you can't drive an unsafe vehicle on public roads where you could potentially hurt people, which seems perfectly reasonable.

> the compromise is that the government can get at nearly any place that might contain evidence, so long as it has a warrant.

Encryption and electronic access controls aren't a "place"; the analogy does not hold. If they serve up a warrant, they can take the locked device, and they can have all the encrypted bits they want. I would argue that attempting to force decryption or backdoors would represent an expansion of warrant powers, or "moving the goal line"; preventing that simply keeps the goal line in place.

Note that the term "exceptional access" was originally devised in the CRISIS report from NAS, back in 1996.

> Third-party access has many twists and turns. When it is necessary for clarity of exposition or meaning, this report uses the phrase "exceptional access" to stress that the situation is not one that was included within the intended bounds of the original transaction, but is an unusual subsequent event. Exceptional access refers to situations in which an authorized party needs and can obtain the plaintext of encrypted data (for storage or communications). The word "exceptional" is used in contrast to the word "routine" and connotes something unusual about the circumstances under which access is required.

The report didn't intend to suggest that "exceptional" implied "legally improper" (in fact a subsequent paragraph from the same chapter assumes that government normally has appropriate legal justification for seeking exceptional access).

I'm not sure how that affects your criticism, but I'd just like to point out that we didn't make up this phrase and that we may well be using it correctly in its original sense here. :-)

It was apparently also always true in American history that people could use secrecy technologies to try to obscure their communications from any unintended recipients.

http://vjolt.net/vol2/issue/vol2_art2.html

So one could also argue that surveillance proponents are trying to expand government power in unprecedented ways by questioning people's right to use technical means to protect the confidentiality of their communications. (Both things could be true at the same time!)

"Since the founding, the compromise is that the government can get at nearly any place that might contain evidence, so long as it has a warrant."

I don't believe that with regards to the 5th amendment and some rulings, e.g. [1], have held this to be the case. I would like to think my phone applies and workarounds should not even be legal regardless of whether they can.

1 - https://en.wikipedia.org/wiki/United_States_v._Hubbell

Since the founding common people have not had access to mathematically unbreakable encryption. This is a new era and new legal doctrines will have to be developed. Privacy activists are trying to influence this process, if they were just trying to overturn established case law the courts would be throwing out all these cases.

> So the government can't force Toyota to push a firmware update to fix faulty electronic throttles?

No the government should not be allowed to force such things. Civil liability lawsuits should be enough to get Toyota to willingly act in its own self interest by making a good faith effort to remedy a mistake it made.