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Comment by berkeleynerd | Hacker News Reader

A friend of mine at Apple reported multiple Black Vehicles (Lincoln Town Cars and Escalades) with at least one having MD License Plates at the Apple Executive Briefing Center this morning between 11AM and Noon. Occupants had ear pieces and sun glasses and were accompanied by a CHP (California Highway Patrol) cruiser and three motorcycle escorts. I suppose it's possible this was a quick (less than 1 hour) VIP stop but given Tim's message last night, as well as the reaction of folks on campus who were bandying about comments like "I don't want to work on this or because I don't want to be deposed" the impression certainly was it was not a friendly visit. Given Tim's very public push-back I'd think delivery of an NSL with accompanying intimidation is at least possible. I submitted this HN and updated in real-time. There's a bit more discussion here:

https://news.ycombinator.com/item?id=11120365

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Save people like me a trip to the Google: NSL = A national security letter (NSL) is an administrative subpoena issued by the United States federal government to gather information for national security purposes. NSLs do not require prior approval from a judge.

Not only do NSLs not require approval from a judge, they also include a very intimidating gag order that prevents you from discussing the issue with anyone else (including even your own family).

One of the big problems with NSLs is that you can't let anyone know that you've received or acted on one, so there's very little accountability.

Hence the recent trend of some companies including a warrant canary on their websites, under the assumption that a NSL can't prevent you from _not_ saying something (e.g. deleting the canary).

I think deleting something would be considered an active action. The trick with a canary is that you're choosing not to do something, so it can't compel you to act (as compared to, for example, telling you you can't delete the canary).

So for it to work, you need to issue a statement every month that says you haven't been issued a NSL, and then simply not issue a statement the month you finally were issued a NSL. That would then require the government to actually compel speech (compel you to post a new notice saying you didn't receive a canary).

Of course, the above should make it blatantly obvious how absolutely absurd the blanket gag order on NSLs are.

It's not necessarily deleting anything. Reddit states in its transparency reports that it has not received any NSLs. The idea is that if they ever received one they would simply omit that clause from the next report (not remove it from prior ones).

Interestingly, if you accept that code can be copyrighted, and that only things that are expressions (speech) are eligible for copyright ("A copyrighted work must be an original work of authorship which is fixed in a tangible medium of expression"), then code == speech.

So, by compelling Apple to code something that doesn't exist, the government would indeed actually be compelling speech.

Court processes involve compelled speech all the time. Heck, compelling witness testimony, which is one of the most well-established parts of the court process, is nothing but compelling speech.

So, I'm not sure what the value is of a clever argument that compelling Apple to comply with the order here is "compelling speech" is supposed to be (likewise, the upthread one about NSL canaries.)

Fair points that I concede. I'll note I also forgot the nuance mentioned by morsch (that a canary is compelling a lie, which is potentially different).

On a separate note though, I've always thought it would be interesting to see a member of Congress be issued a NSL and then have them read it on the floor of the House/Senate (since they have parliamentary immunity for anything they say on the floor of the House or Senate).

Compelling speech is a thing that happens under certain circumstances. E.g. subpoenas, witnesses in court. Though those are clearly different from a canary, not least because producing such a canary would not just be compelling speech, but compelling a lie.

That's not how canaries work. You don't delete them, you fail to update them.

IANAL, but how is it a subpoena if it doesn't originate from the judiciary?

Nicholas Merrill famously fought a 11 year legal battle (and finally won) the right to reveal all aspects of a National Security Letter (NSL) served to him. Almost all such letters are accompanied by a complete gag order.

https://www.calyxinstitute.org/news/federal-court-invalidate...

EDITED / CORRECTIONS - Thanks commenters - The battle was won by Nicholas Merrill not Ladar Levison of Lavabit fame as I originally posted.)

It was Nicholas Merrill from a little ISP called Calyx Internet Access that famously challenged the NSL process.

LavaBit's Lamar Levinson is assumed to be under a gag order from some request he was given by the US government, of which he declined by way of folding his company and claiming that he could not comply moving forward if he was no longer the middleman of some form of communications.

As a further correction, the Lavabit founder's name is spelled Ladar Levison.

Rather than making assumptions, you can read about the specific kinds of legal process involved in the Lavabit case at

https://en.wikipedia.org/wiki/Lavabit

You can also read the Fourth Circuit decision on his appeal, among other things.

I guess you can argue semantics, but it's an order accompanied by a credible threat of violence if the order is not obeyed.

I know it requires Tim Cook to be willing to martyr himself, but do we really see Obama whisking the CEO of Apple Computer off to Guantanamo or some supermax prison?

I'd maybe call the bluff, and take my political stand.

Cook wouldn't have to go that far. The court order specified Apple, not Tim Cook personally. He can simply resign instead of following the court order. For that matter, so can the engineers that Apple would need to work on this project.

That's interesting.

IANAL but seems like you're missing something.

Apple can simply let Employee B take Employee A's place after A quits. When the authorities come for B, B can quit, and Apple can re-hire A.

Apple never has to comply.

Employee A doesn't have to actually quit, they just have to credibly threaten to. Say, by signing an open letter that says that they'd quit before helping backdoor the iPhone. Apple can then claim that they cannot bring together a team that is willing and able to backdoor that iPhone.

When you break down the process of having a private company comply with an order to create a particular piece of software, there's many failure points.

The counter from the governmental side is "we will give your company massive fines until and unless your company complies".

As a note, the actual text of the court order (https://www.documentcloud.org/documents/2714001-SB-Shooter-O...) explicitly says that Apple can appeal it on grounds that it is an unreasonable request. Uncooperative engineers can make it an unreasonable request, and have the legal right to be as uncooperative as they want to be in this case. And, they're on the same side as the CEO of Apple ethically, so it isn't career suicide.

> The counter from the governmental side is "we will give your company massive fines until and unless your company complies".

At which point is becomes worth it for Apple to pay an engineer to do the job. I doubt it wouldn't take much of a bonus to get someone to do it.

> > The counter from the governmental side is "we will give your company massive fines until and unless your company complies".

> At which point is becomes worth it for Apple to pay an engineer to do the job. I doubt it wouldn't take much of a bonus to get someone to do it.

What happens if Apple says they aren't paying these unjust fines? Theoretically, court order, law, or what-have-you, Apple can just straight refuse to participate (and hopefully other big tech companies would follow suit).

Sure the gov't can make arrests, threats, seize assets -- but in the end, the gov't still don't get what they want (but they do get a ton of very, very bad PR in the process). At a point, the gov't would have to stop -- destroying the world's most valuable company, and one of America's sweetheart companies, all over this... wouldn't play out well.

> What happens if Apple says they aren't paying these unjust fines?

Then they'll be subject to additional penalties, seizure of property, etc., and quite possibly shareholder lawsuits stemming from the decision to incur those losses.

> Sure the gov't can make arrests, threats, seize assets -- but in the end, the gov't still don't get what they want

Maybe, given the recent discussion of mandatory limits on encrypted communication services without up-front backdoors, what the government wants is a clear demonstration that the operation of those services interferes with evidence and intelligence gathering in terrorism cases to build the case for new laws restricting the operations of such services.

Yeah, I mean it seems like the other commenter is implying that, at the end of the day, the government can't actually do anything to a big company. Clearly that's not true. The Us government has completely broken up companies, which is a heck of a lot more intrusive than forcing them to decrypt phones.

> implying that, at the end of the day, the government can't actually do anything to a big company

I wasn't trying to imply this at all - of course the government can destroy companies.

What I was implying is that, given the past few years of heightened public awareness of domestic government programs and efforts, perhaps this time public pressure would be exerted on the government to lay off the issue. Apple is one of the most loved companies in the country, people would be very interested in knowing why it's suddenly being torn down.

I think he's arguing that government's power to destroy big companies is only as strong as the popular distaste for those companies.

A company like Apple, which is practically an icon of "everything America still gets right," would be a very politically dangerous target to go after.

It would be quite unfair for anyone to expect martyrdom of Tim Cook, however, the action taken could send a very powerful message. Apple is one of the most loved companies in the US, if Cook and gang put the foot down firmly, surely the public struggle would generate immense discussion.

People would want to know why their favorite company was drawing a hard line, hopefully lead to a more educated debate.

We couldn't possibly expect this to take place as it would imply huge fallout for Apple. The only real course of action is to keep up the public debate in a loud way.

If an order is directed to Apple, and Apple fails to comply, the court can order sanctions against Apple for contempt.

The authorities don't have to "come for" any person (they might follow up with orders directed at particular persons, in which case those persons would be at risk of personal sanctions, as well.)

I presume it would just be significant fines, or perhaps some FCC or FTC regulations that would harm Apple's business.

https://en.wikipedia.org/wiki/Administrative_subpoena

This is all very standard for a VIP visit and the president of Indonesia was at Facebook and Twitter today. So there's probably a simpler, less exciting explanation here.

FYI the DOJ/FBI does not utilize Lincoln Town Cars or Escalades for ops. You'll want to keep an eye out for Chevy Impala, Ford Crown Victoria, Chevy Suburban, and in rarer cases Dodge Charger (no spoiler) and GMC Denali. Typically they're darker colors, but the easiest indicator is a massive amount of tint on all windows. Remember, official vehicles will have the default state license plates without any sort of bumper stickers or license plate holders. In Maryland, unmarked LE vehicles typically use an older license plate instead of the newer design.

Many Apple employees are not allowed to refuse. I suggest that any employee, especially those on any sort of work visa or with any connection to the military/intel community, seek legal advice prior to signing or saying anything. There are big forces involved here that will not hesitate to squash/fire/blacklist little people.

Weirdly enough, I saw a blacked out SUV with Virginia plates and a CHP SUV in front of our office at 2nd and Harrison that looked extremely out of place. Among other things, it's a no stop area on our block and there isn't really much here to begin with.

It hung out for a few minutes and then made off taking a left on Harrison (101 South, FWIW). This was around 12:30p.

> at least one having MD License Plates

Don't vehicles used by federal agencies typically bear U.S. Government license plates?

According to @HillRat in the other thread : "Based on open sources, NSA has a fleet of about 100 vehicles at most in CONUS, so they would be more likely to fly vehicles cross-country if DIRNSA needed to use a fleet vehicle. Having said that, NSA doesn't just arbitrarily get involved in domestic law enforcement cases, even ones involving crypto, so let's wait to see if there's more evidence than a random HN post to support this allegation." Good information and an entirely fair statement. I'm hoping someone from Apple can chime in directly.

The majority of federal government travel is done with commercially available rental cars.

The likelihood of the federal government driving a GSA-plate vehicle from Maryland to California to meet with Apple is about zero.

Commercially available rental vehicles seem an extraordinarily bad idea for the NSA to drive to and from sensitive meetings in.

What? They just drive silently to and from the meeting or listen to the radio?

"I don't want to be deposed"

I'm not familiar with that phrase. What does it mean in this context?

A deposition in the American judicial system is a legal proceeding in which a witness provides testimony to the courts. The witness may be examined by members of either sides legal team. This is a routine proceeding in civil cases. [0]

Interestingly, people usually don't want to be deposed when they have something to hide.

[0] http://litigation.findlaw.com/filing-a-lawsuit/what-is-a-dep...