Snowden lawyer: Bill of Rights was meant to make government’s job more difficult
arstechnica.com
arstechnica.com
Thankfully the states demanded the Bill of Rights at ratification. Without it, we would have lost all of the rights listed by now, due to the rampant power-grabs of the federal government since the founding.
Although Snowden's lawyer claims the Bill of Rights was supposed to make the government's job "more difficult," he is missing a larger point: almost all of what the federal government does today is not it's job at all! Nothing in the Constitution grants the federal government power to do most of its current functions.
And that's without getting into the fights over the Elastic Clause, or the Commerce Clause, or the other bits that underlie many of the things the federal government does today.
My rights existed prior to the Bill of Rights and the government. If a local, state, federal or international government tries to diminish or deny my rights, I will fight to alter or abolish their policies and their institutions.
The FBI, NSA and DHS as a whole are enemies of human freedom and a threat to classical liberalism. There is no enumerated power that gives the federal government the authority to create a federal police force and what the NSA has done is unequivocally a crime.
Pass a Constitutional Amendment to make it legal. Abolish the FBI. And build a new organization from the ground up.
In the future, there won't be ISIS and there won't be the FBI. That is, if the future is of a better world.
But it's very hard to argue that they control, because "natural rights" mean different things to different people.
(It is also the case that purported natural rights are frequently in tension with each other; there's no "natural tiebreaker" between "natural rights", which makes it hard to rely on them to resolve controversies.)
If you want to make an argument that the Constitution must implicitly protect some particular natural right not expressed in the text, it's helpful to be specific. Often, it's straightforward to infer the intent of the framers from their actions immediately after ratification.
They had some pretty specific thoughts about what 'natural' meant.
Damn whoever put this simplistic "the framers were slavers so the lessons they taught can be ignored" notion in your head. Individual freedom is not an outdated concept!
You and others here just add ignorant poison to a good debate.
"Existed" in what sense!? Are they deducible by pure reason? Were they written on stone tablets?
Seriously though, the Constitution and the Declaration of Independence may refer to the idea of natural rights, but in my opinion this is due to the prevailing state of philosophy and political theory at the time, and doesn't bind Americans to forever understand their own rights in terms of "prior" natural rights that are "later" secured by the government.
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...."
This is my whole point! It's dissonant. There is no point in holding to the purist ideals of a document, if the authors themselves wrote it to ignore the invconvenient facts of life. Some people talk of the authors like they're some sort of demigods, and therefore any of their utterances are uncontestable. Highlighting dissonance like this is important it countering this trend.
And there are plenty of folks who believe that. If we were writing new founding documents, we'd have a pretty good idea of what 'should' be rights. Where does that come from?
It comes heavily from what you've been taught is important, which, funnily enough, is culture-dependent. A good many people would, for example, argue that a person has a right to shelter and sustenance, and to demand that from others when they can't access it - but other people will argue that people have a right to refuse to give resources to others, even up to the point of refusing taxation. One might argue that one has a right to work without discrimination or harassment - others might argue in favour of freedom of association and free speech, "if you don't like it you don't have to work for them".
To move even further away from currently implemented systems, one might argue that private property is not a right, which is actually entirely reasonable - property is solely a "right" to abridge others' rights, if we're going by the "what's a right is whatever you're allowed to do if nobody stopped you" definition. We could even argue that the ability to break a contract without retribution must be protected as a right, in some schools of thought. What rights "should" be protected - and in what circumstances - winds up being a matter of the opinion of the people who decide which rights to protect. There is no formal system of logic which starts off with no assumptions, and many of the ones which back politics start off with the goal - to protect people's rights, we must... protect people's rights.
Even the idea that a founding document should primarily enumerate rights is because of what you've been taught - why not enumerate duties as well, or instead? Why not write a manifesto with a general goal and proposed method of getting there and call that your founding document? What even is the goal of a founding document?
Why is abridging your ability to do whatever you want to any degree abhorrent - and why is abridging that ability in certain circumstances not so? Is it impossible to come up with a stable system which holds up a different ideal?
I don't really expect all these questions to be answered, as the exact answers are nearly entirely pointless - the point is that these questions can all be asked and different answers can be reached, many of which make sense.
For example, an argument that nobody has a duty to feed and shelter somebody on the edge of starvation, as that harms the person doing so, entirely ignores the harm that this protected right has on the person about to die of starvation - although of course to bring that up requires that the goal of your system of protected rights is to reduce harm, which may not be the case. However, the only way "we must protect all these listed rights at all costs, ignoring all other input" makes sense is if the goal of your system is solely to protect those rights. I don't personally feel that's a very useful thing to do, as it's tautological. A good many people will disagree.
If 'right' is to mean anything, it has to basically be seen as a natural-law restatement of "If you infringe these freedoms (restrict food, etc) then the victim will try to kill you and we'll be on his side."
In that case, a right is anything you'll fight to provide to others. (That being the only long-term effective way to guarantee it for yourself as well.)
What documents? The Constitution says nothing of the sort.
> If we were writing new founding documents, we'd have a pretty good idea of what 'should' be rights. Where does that come from?
To the extent that people would share common preferences as to what rights should be protected, its a matter of shared cultural norms shaped by our political/legal history; there'd also be considerable disagreement, too.
Sure you can.
> The most basic question in any government is "who has the right to rule"?
I don't think that's true. I think that you are assuming a framework of natural rights to make this statement, which is a circular argument.
> The very first line of the Constitution establishes that it is the people who hold that right in the U.S., which means they have some sort of natural rights.
Alternatively, the first line of the Constitution acknowledges the empirical fact that government is simply that which people treat as legitimate authority, and therefore, independent of any notion of right, the people have an inherent power to govern and choose their government, as any government that the people do not choose to treat as such cannot government, and anything that the people choose to treat as a government can govern, whether or not one assumes any mystical notion of pre-legal "rights".
Now, I suppose you could call this inherent, immutable power a "natural right" -- it is a real thing that really exists -- but, if so, its fundamentally different than all the other things that people hold out as "natural rights", which are not inherent, immutable powers, but instead are simply preferences for the conduct of relations between persons (including persons acting through or on behalf of "governments"), rendering the whole field a morass of equivocation.
Not true! For thousands of years, in hundreds of nations, the right to rule was divinely conferred and hereditary. The concept of natural rights was the legal invention that conferred similar rights upon everyday regular folks, so that they could self-organize to form their own sovereign government.
Sure people had done that before, but the concept of "natural rights" formalized an existing cultural convention--which is what all law does.
> independent of any notion of right, the people have an inherent power to govern
I mean, how can you have power without rights? Slaves in the American south are examples of people who did not have rights. Not coincidentally, they also had no power.
Quite easily. "Rights" are the moral (in the case of idealized views of rights, including natural rights) or legal (in the case of legal rights) authority to make a decision and expect it to be respected by others. "Power" is the practical ability to make a decision and have it take effect (whether or not others respect it, though others respecting it may be part of why you have that ability.)
Power can be a result of legal rights which may be the result of a cultural agreement on moral views of rights, but its possible for any or all of those three to vary from the others rather than reflecting them.
Sure, a slave can physically harm his master even though the slave has no legal rights. But the legal authority of his society will then fall upon him, and he will have no redress to process--like a presumption of innocence or evidentiary rules. He is property, and property can be destroyed by its owner.
Likewise, in a society in which the right to rule is conferred divinely, a king's subjects do not have the legal right to challenge the king's rulings. From a practical perspective, a populace can depose a king, but then what? If they install a new king, then that king assumes the same right to rule. If they choose to set up a republic, then they need a new basis for right to rule.
Natural rights are like the legal equivalent of a logical axiom. Legal reasoning must have a place from which to start; by asserting a small set of permanent, self-evident rights, the law has a foundation upon which to build a government of equals. Then the conversation can shift from "how does a government of equals grant the right to live" to "what are the few circumstances in which the law can impinge the right to live?"
The handy thing about the latter architecture is that the law becomes self-referential--the Constitution describes the powers and limits of the government rather than trying to comprehensively list all powers and rights of the people in all situations--which would be a much longer and more complicated list.
That's not a "right to rule" - that's being able to avoid being assassinated.
> The concept of natural rights was the legal invention that conferred similar rights upon everyday regular folks [...]
No, natural rights are more closely coupled with the invention of the crossbow.
When you exercise your equality with your rulers and choose your government you can then codify what you consider rights.
What we have now in the US is basically a guess from circa 1783, based on the prior centuries of British-American Common Law, plus a few hotfixes in the form of subsequent amendments.
This iteration has only run for 2.33 centuries, and hasn't entirely collapsed yet, but a preliminary analysis seems to indicate that the interstate commerce clause, self-reinforcing redistricting procedures, and the currency clause should have undergone a bit more scrutiny the first time around.
As for "natural rights", so long as "might makes right" is the dominant political paradigm on Earth, the natural rights are pretty much everything that people might threaten some form of rebellion over, if they were to be infringed. So there is no universal set. Different people would go to war over different principles.
If you love Taco Tuesday, and enough people share that sentiment that you would collectively present a legitimate threat to your current government if you were to actively oppose it, then you have a natural right to eat tacos on Tuesdays. Any government infringes upon that right at its own peril. That natural right is "secured" by the government only in the sense that its officers don't want to be fired (or guillotined) over a handful of cilantro. It does not secure and defend natural rights on behalf of the people, but avoids attacking them--actually just avoids presenting the appearance of attacking them--because the people will defend them if they are threatened.
So your rights did not exist before you were born. They didn't even exist as you were a baby. What you may have thought in retrospect was your right to live was actually your parents' right to not have their children killed. You didn't get any of your own natural rights until you acquired the ability to inflict some form of pain--or at least inconvenience--upon potential adversaries. Your right to yummy dessert after yucky vegetables was not defended by any government, but by the threat of the wailing, flailing temper-tantrum.
You decide what your "natural" rights are. If the government can't find some way to slot them into its existing laws, then you will eventually have a problem with each other.
Going back to the declaration of independence, the US had no more right to be independent than the Confederate States did. "After the Americans declared their independence, they had to win it by force." Similarly, the Confederate States had to do the same.
I think most of us have a strangely complacent thought process when it comes to individual rights. We think that rights are eternal and they will just exist forever. However, it seems that if we don't defend the rights they will morph or even go away if they are inconvenient to someone in power.
They proposed and created a government that helped to protect the rights they had already decided to die protecting.
The second does, the first does not.
What are you, Locke? It's poetic, but it also doesn't have much meaning without society and governments that recognize your rights.
> the Commerce Clause
was certainly, definitely, absolutely not understood by any notable thinker at the time of the drafting of the constitution to mean what it has been interpreted to mean today (ie, Raich v. Ashcroft etc).
I think there is basically unanimity among legal scholars on this point.
As to your final point: while education or healthcare may arguably be outside the scope of the federal government's jurisdiction, national security and suppression of internal rebellion was one of the motivations for creating a strong federal government. Surveillance may be unconstitutional for other reasons, but it's definitely not outside the federal government's enumerated powers.
If my state decides to do something demented, I can move to another state. If the thing they are doing is sufficiently demented that enough people move, it will have a material effect on the state. This creates a dynamic that disincentivizes stupidity.
The barrier is substantially less for the federal government. It usually takes quite a bit of abuse before people start moving to another country. That makes the state vs federal argument relevant.
> As to your final point: while education or healthcare may arguably be outside the scope of the federal government's jurisdiction, national security and suppression of internal rebellion was one of the motivations for creating a strong federal government.
Okay ... is the FBI/DEA/TSA/etc. there to suppress internal rebellion? I think you can make a pretty good argument that that's true, but they certainly don't advertise themselves that way.
Among all voting methods it is uniquely effective and accessible - you get a large roster of fifty 'candidates', and the cost of moving to another state is much lower than the cost of buying an election.
When power is ceded from state to federal level, diminishing the diversity of candidate states, an important form of democracy is curtailed.
Most people can't pick up and move their lives so casually. They're certainly not going to do so en masse if a state guv breaks into a criminal's phone. Hardly a disincentive.
Police in certain areas in the US have shot innocent people in the back, yet those states aren't seeing huge exfluxes of population due to that. If the public aren't going to move state due to an innocent being shot by a macho cop, they're sure as hell not going to move because a phone got examined.
And in any case, if you really want to change this stuff, don't vote with your feet, vote with your vote. A politician doesn't care if a detractor goes elsewhere. It doesn't hurt. A politician does care if detractors vote against them - they can lose their fat-cat job. A small percentage of outraged citizens leaving the state is actually better for the politician than that same percentage creating a swing against them in the election.
Voting with your feet also doesn't help if all states are going down the same path (eg: current concealed carry laws are spreading like a virus)
Yes, you can "factor in a state's laws", but you're missing my point that no significant demographic of migrants will bother with "oh noes, that state broke into a criminal's iphone". The "invisible hand of the market as applied to the electoral system" does not apply in the OP's given context.
That's quite unlikely to be true for most people in the state, and especially unlikely to be true if they are the target of the demented thing.
Among the "demented" things that government might do that might offend your sense of rights and make you want to leave is detaining you based on based either on evidence seized (e.g., by covert surveillance) in a way you view as offensive to your rights or for violation of a newly-adopted emergency law you feel violates your rights.
By the time you become aware of the "demented" action that motivates you to leave, you may no longer be free to do so, as a direct consequence of that action.
This completely depends upon the given state's constitution.
EDIT: I forgot about selective incorporation... I have some reading to do.
http://www.thenation.com/article/charged-crime-filming-slaug...
http://www.theblaze.com/stories/2014/12/05/iowa-judge-rules-...
And that is just the 1st amendment recently.
Digital systems, however, are programmed deterministically and do not have such problems:
>"The only way to ensure the human rights of citizens around the world are being respected in the digital realm is to enforce them through systems and standards rather than policies and procedures."
https://www.reddit.com/r/IAmA/comments/2wwdep/we_are_edward_...
Algorithmic systems can be internally deterministic and consistent, but always always the problem is ascribing significance to symbols. Rights and laws try to solve fundamentally ill-posed problems. Rights and laws inevitably conflict with each other and the baroque complexity of law is the result of top-down systems attempting to resolve such inconsistencies as they arise.
I for one do not welcome our algorithmic overlords. It sounds like the revenge of Han Feizi and the Legalists, who wanted to bind all human behavior to a systematic, all-pervading set of rules and thus bring human subjects into perfect harmony with the state. I do not see why systems and standards are better than policies and procedures.
Policies and procedures are paper based sets of instructions. I.e. the 4th amendment.
Systems and standards are electrically programmed. I.e. encryption.
It is the difference between saying "this should not be done" and actually designing a system in which it cannot be done.
>"The mere existence of the "police state" anywhere is the sure sign of old arrangements being propped up by newer forms that have already rendered the older forms irrelevant."
-Marshall McLuhan, Take Today: The Executive as Dropout
The Ninth Amendment has sometimes been used as a partial basis of modern sexual privacy law (see penumbras and emanations) and inasmuch as those doctrines also apply to the state I guess you could say that the Ninth has kind-of, sort-of been (partially?) incorporated. It wouldn't make any sense to try to incorporate the Tenth Amendment.
- Lysander Spooner
Surveillance isn't any more okay because it's at the state level instead of federal.
In fact, I'd argue the more local the surveillance, the worse it is, because in federal government databases you are just a number, while your town/village government is more likely personally know you, your friends, and your family and have opinions about your lifestyle that they might share with those people.
I don't think he's missing the point. I think he is making the point that, even to the extent that government is serving legitimate purposes through powers that are unquestionably delegated to it in the Constitution, the Bill of Rights is intended to constrain the power of the government in ways which make it take more effort, because the alternative which leaves the governments job easier when it is well motivated also makes the government more dangerous when it has poor motives, both by endangering the innocent as targets of government action and by making it easier for the government to seem to be taking appropriate action while it neglects the real needs of the populace.
Due process protections make the government demonstrate that it is taking action against the right parties when it takes certain actions.
Philosophically, I probably agree with you: I'd like more individual rights, local rights, state's rights. But, if things had turned out differently, I'm pretty sure that our small fraction of the world's population would not control such a large portion of the world's wealth, and we wouldn't be living such comfortable lives. And, I'm sure that democracies would not be as wide spread as they are today.
The constitution lists and army and a navy. It doesn't say anything about an air force.
Assuming there was a problem, I have no issue going through the amendment process to modify Article 1, Section 8 to include an Air Force.
I'm surprised that of all the things the federal government does, this one merits a comment.
By a strict textual reading, without amendment, the Air Force has been unconstitutional since September 16, 1947, and so should be immediately remanded to several states, because there's no strict authority spawning from the 18th century for establishing an air force.
The second amendment, also talks about bearing arms in the explicit context of "a well regulated [state] militia" and nothing else, but that gets washed over because, "I like my hobby."
We the people have an inalienable right to liberty. Which means
We the people have a right to knowledge. Which means
We the people have a right to algorithms. Which means
We the people have a right strong crypto. Which means
We the people have a right to work with others who have strong crypto. Which means
We the people have a right to work with companies who provide us strong crypto.
None of this means the government has a right to anything except their own strong crypto.
Grr. This poll was completely biased and it's being cited all over the place as if it were a good gauge of public opinion.
The question is framed as if Apple only needs to unlock the phone. It does not mention that Apple would need to write new software and alter its product. [1]
The real question is, should the DOJ be allowed to force Apple to create new software that enables the phone to be unlocked. That is the question that is being put to the courts, and that is the question that needs to be asked of the American people if this is to become an election issue.
The poll question:
"As you may know, the FBI has said that accessing the iPhone is an important part of their ongoing investigation into the San Bernardino attacks while Apple has said that unlocking the iPhone could compromise the security of other users’ information. Do you think Apple"
* Should unlock the iPhone (51) * Should NOT unlock the iPhone (38) * Don’t know/Refused (11)
[1] http://www.people-press.org/files/2016/02/2-22-2016-iPhone-r...
Another question asks the respondents to judge their own expertise on the subject:
> How much if anything, have you heard about a federal court ordering Apple to help the FBI unlock an iPhone used by one of the suspects in the San Bernardino terrorist attacks? Have you heard
* A lot (39) * A little (36) * Nothing at all (24) * Don’t know/Refused (1)
>The problem I have is with stuff like their answer to the question "Could Apple build this operating system just once, for this iPhone, and never use it again?", which essentially is outright lying: the "master key" in question is their signing key, not some piece of trivial software they develop (and then sign) in order to automate this process for the FBI. Apple already has the only master key of relevance: that key already exists; the idea that the master key is something that they need to "build" and then would have to "protect" is them trying to divert attention from what is actually important.
>The world isn't somehow different once that software exists
It's to Apple's benefit to be able to merely sign something, so it's a bad argument to complain about forced speech.
Weakened firmware would be a master key. The only hope is that a device-ID check could be baked in well enough to prevent it from being repurposed, etc. In my experience, a hastily designed security feature in a rushed firmware update will always have bugs.
There is a ton of risk to the innocent owners of iPhones, and to everyone from this precedent, and most-importantly, very little benefit from cracking this specific work phone of a dead killer.
The government has failed to make a convincing case.
Even better, when Snowden buys a smartphone, we'll know which one is truly securable by the user.
From an above commenter,
"Handing over the key is worse than being compelled to use it; that's perpetual compelled speech, where the government would be able to declare software trusted-by-Apple forever. Eroding public trust in digital signatures is an attack on the entire 21-century economy."
You need to understand that once you commit a crime, you lose many rights you previously had (e.g. to vote). Not to mention that once you're dead (as in the San Bernardino case), you arguably lose all of your rights.
So what prevents the FBI from asking Apple to have a team visit the Apple offices, get access to all code that runs on the iPhone and the docs and signing keys?
The team will then unlock the phone and leave with nothing but the unlocked phone.
All of this, get Apple to appear as a third party witness already exists in the law.
> So what prevents the FBI from asking Apple to have a team visit the Apple offices, get access to all code that runs on the iPhone and the docs and signing keys?
I believe the DOJ would like to set a precedent here of having Apple weaken its own security. If the US wins this case and Apple is compelled to write special software, then Apple may be expected to provide a back door to any other of its present or future devices. That is much more powerful than having the FBI grab source code and hack the system themselves. They'll simply expect Apple to do it for them.
However, Apple is a neutral third party that holds information needed in an investigation. And there are ways to use this information securely. And the phone is clearly connected to a crime.
So it should be easy for the government to formulate a request that Apple cannot refuse under the law.
Why the FBI asked for something else, I don't know.
What Apple should do now is as soon as possible to roll out a firmware upgrade that locks them out of all phones that are currently in use. Then next time, it will be impossible for Apple to help.
No, they may have the technical ability to weaken a product they made, which may hold information needed in the investigation. They already provided the information they actually have access to (the iCloud backups).
If they are indeed forced to do this, I expect the market cap of AAPL will drop significantly (billions of dollars, most likely) to reflect the weakened security of their product. Is that a reasonable thing for the government to require of a neutral third party?
The situation is more nuanced than the loudest voices would want us to believe.
By Apple giving itself the ability to unlock the phone (through a new firmware push) they now have to justify why they shouldn't use that ability. If Apple never had that ability, they could simply say "It isn't possible" and could never (legitimately) be accused of obstruction of justice. Apple put itself in this position.
As for storage lockers, like safe-deposit boxes, it's only reasonable for the government to ask the provider to open the locker/box because the business has the means for this. Non-payment results in eviction and probably "every day" they have a maintenance person sawing locks off. On the other extreme, Apple doesn't need to have a way to decrypt and evict your data for their general business so it's unreasonable to expect them to be able to provide this.
If the government wants this lock sawed off, it needs to do it itself. (Or pay a hardware-reverse engineering company do it for them.)
It seems this fundamental aspect is lost on people and everyone gets caught up in a flurry of arguing over who to trust. The entire point in decentralization of power is trusting any one entity (or group with aligned incentives) as little as possible.
The simple, easy, and wrong answer is to try to optimize certain groups of people with aligned incentives by removing barriers to what they want. Those barriers, if at the service of the rest of the system are the very reason the system works.
The problem with direct democracy is that people end up voting on things that don't affect them, which they don't have enough time or incentive to fully consider, but that severely harm other people.
Representative democracy (in sufficiently small communities) works because a representative can then afford to take the time to hear members of the community out before making a decision. And when the communities are small, individuals actually have the capacity to make their grievances heard and can potentially personally sway enough other voters to change an election outcome.
At the end of the day the representative democracy has similar problems, where the representatives represent those people funding them. Don't even bother reading the legislation they are passing. and so on.
The place where direct democracy works great is to give the public the ability to repeal laws.
That would mean the vast majority of initiatives would be statutes, which could in principle be subsequently amended or overridden by the legislature. Of course, the legislature would presumably be reluctant to modify a popular initiative without a very good reason, as there would be a political cost to doing so, but at least it would be possible.
No, they couldn't. The power of the legislature to legislate is a delegated power from the citizenry, and, based on that principle, initiative statutes cannot be repealed or modified by the legislature (the legislature can send a measure to the voters amending them), unless the initiative statue itself expressly waives this protection.
Glamorizing historical figures is ridiculous and if you look at the replies, no one thinks the current system is perfect or even close. Even so, the amount of decentralization and the relative success of that structure in government was an enormous leap from the state of governments at the time.
The anti-federalists (those opposed to the new constitution) made all kinds of arguments about the things that would happen. The federal government would take over most of the power. There would be a standing army. Language would be stretched to take the government far beyond the bounds that were initially established.
There are two especially interesting things about this. First, the anti-federalists, like libertarians recently, were considered the tin foil hats of the day. Who could believe such silliness would ever happen here? Yet, like our recent example, they were proven right.
The second thing that's interesting is the depth of conversation and debate that was going on almost 250 years ago. The debaters understood which structural flaws the government might or might not have and were arguing about weaknesses that in some cases took many decades to eventually show up. I seriously wonder if such a well-reasoned and supported by history discussion could happen today.
The "inefficiency" caused by the system of checks and balances is by design... sort of like a delay after the entry of an incorrect password.
I think that shows an important insight: The FBI believes that both the Constitution and the "PIN delay" are "making its job more difficult", because it would rather not have to follow any laws and just do whatever it wants every time, anytime.
Both rise from the same type of thinking that's happening at the FBI and most other intelligence and law enforcement bodies in the US = the laws don't apply to us.
Our system depends on many lies to keep lurching along for the benefit of the elite and anything that causes those lies to be uncovered for more and more people is best avoided, according to the status quo.
Most law enforcement officers actually hate the law and just want "privacy APIs" for everything so they don't have to think about how searches/seizures/privacy all works together.
Wanting Apple not to be able to comply doesn't mean they shouldn't comply when they can. They should comply, and make sure they can't comply on newer models (i.e. make secure enclave nonupdatable without wiping keys or unlocking first).
Plus, compliance now may reveal some of their trade secrets which may hurt other elements of their future products' security. I trust Cook on this
Doesn't your argument imply nobody should ever obey the law?
And Apple has the option to do everything on their own facilities, so no trade secrets need to be revealed.
No..
> And Apple has the option to do everything on their own facilities, so no trade secrets need to be revealed.
Serving DOJ requests within Apple's facility does not mean the newly created software will not get out into the wild. We know the DOJ wants to unlock hundreds or thousands of phones. Apple will need to hire more staff to handle such requests, come up with a procedure for doing it securely, etc. None of this is without risk, and it is much more risky than not doing it at all.
There are bad actors, foreign entities, who would love a copy of the software that the DOJ is asking Apple to produce. They will try their hardest to get their hands on it. Furthermore, if the US successfully forces Apple to unlock iPhones, China will ask for the unlock feature as well. We do not want this tool in the hands of oppressive regimes. We do not want to internationally set a precedent that it is okay to install backdoors on phones or computers.
This still seems like a general argument for never complying with warrants. After all, then the government will get more warrants, we'll need to hire people to comply with the warrants, and that's a security risk!
Every large company has people employed solely to respond to requests from law enforcement.
>We do not want to internationally set a precedent that it is okay to install backdoors on phones or computers.
Then pass a law that bans backdoors like the one Apple has on all its devices, if you think backdoors are not ok. As is, Apple has a backdoor, and the FBI is effectively asking for the key.
>There are bad actors, foreign entities, who would love a copy of the software that the DOJ is asking Apple to produce. They will try their hardest to get their hands on it.
Remember, the only piece that's difficult to get is Apple's key. Once you have that, the software is easy to create. That's something that already exists, and making the software doesn't make it any easier for someone to steal the key.
That's not even on the table. Congress passes laws and this case is in court.
I support Apple in standing up to the DOJ. They should not be forced to write software that weakens their device's security. The semantics of whether we say a backdoor already exists or not do not matter. The fact is Apple will have to create something that does not yet exist in order to fulfill this request, and there is a risk that that can get out into the wild. Nobody understands the risk of that possibility better than Apple. I stand by them because I feel the time to support them is now. There may not be a later. You're free to disagree.
That's exactly my point. If you don't want companies to have the ability to put in backdoors, that's something you need to get Congress to pass. Not wanting backdoors is not relevant to the legal question here.
>The fact is Apple will have to create something that does not yet exist in order to fulfill this request, and there is a risk that that can get out into the wild.
As I and others have said, the risk is not increased by the software being created. That's not too hard to do. The only thing that can't be done is sign the update to install it on the device. There's no risk being added by that signing, because Apple anyway signs every new iOS release.
If Apple doesn't want to create new software, I'm sure the FBI will be happy for them to hand over the key, and the FBI can create the software themself.
(1) I don't want that and (2) it wouldn't be constitutional. Congress shall make no law abridging free speech. Code has been ruled free speech.
> the risk is not increased by the software being created
That's fine if you don't believe what Tim Cook says about his product. I do. Regardless, whether or not the DOJ can compel a company to weaken its product is the question being asked. Handing over software or a signing key are both trade secrets Apple has a right to protect. Handing over the signing key certainly increases risk.
Note that the creator of cydia, the software that pretty much every jailbroken iPhone runs to install packages, has said that Cook is lying in the letter. He's also said that many people, including him, could create the software in less than a week, and all they need is the signing key.
You can trust Cook, but perhaps educate yourself to the point you don't need to trust anyone. Read https://en.wikipedia.org/wiki/SHSH_blob and https://www.theiphonewiki.com/wiki/SHSH, and you'll see how there's no additional risk by creating the software, as long as the key is not released.
Regardless of the semantics, the question is should Apple be forced to weaken the security of its product which is used globally. It doesn't matter if you think Apple only needs to hand over a signing key. The result is the same. Anyway, neither the DOJ nor Apple are saying what you or the cydia creator are saying.
https://news.ycombinator.com/item?id=11158036
Yes, the OS does not exist. But to claim that creating the software means it can somehow get "out there" and be used without Apple's control is false.
It sounds like you believe that Apple can service these requests from the DOJ without any increased risk of either a "signing key" or the OS being released into the wild. I disagree and that's okay
For the record, I made this claim before I saw anything from saurik. The changes are very minor, just disable erasure and the delay, plus something to allow remote password attempts.
Re "OS being released" that's not something that matters, because the OS is useless without the key. The only risk is compromise of the signing key, and that's the same as any iOS update.
Do you have any other justification for your belief other than trusting Tim Cook?
I'm not claiming he's more knowledgeable, but that Cook lied. This may just be poor phrasing or dumbing down on Cook's part, but the implication is wrong.
I disagree. If the DOJ gets a signed copy of the software, that's a very different level of risk. There are all kinds of issues with software development we often underestimate. The issues aren't always technical matters. Sometimes they are human.
This court case isn't just about software development. It's also about what the DOJ can demand, and how that impacts software development. The DOJ could very well demand that Apple hand over a signed version of the customized OS. After that, how can Apple be expected to secure their product? They can't.
The last relevant case using AWA was USA vs. New York Telephone. Have you read OK's review of that case as it pertains to a potential USA vs. Apple? [1]
This is from the judges' concluding remarks, which help define the AWA as it will be used today and in the future:
"We agree that the power of federal courts to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed"
"The order provided that the Company be fully reimbursed at prevailing rates, and compliance with it required minimal effort on the part of the Company and no disruption to its operations."
n.b. compliance with it required minimal effort on the part of the Company
Consider the burden Tim Cook and Apply will bear when he compels his software engineers to remove password-entry safeguards and release the signing key that they have guarded so carefully. Employee morale will tank.
> Do you have any other justification for your belief other than trusting Tim Cook?
I trust Tim and stand behind him when he says it's time to stand up to the DOJ. These cases have been heard behind closed doors for years, decades, have hurt business such as Yahoo, Skype etc. and have never been shown the spotlight that this case has. Everyone knows what an iPhone is, from the US to Cambodia, and they will all be following this case closely. It's time to share what we know as techies about the inner workings of the devices in people's pockets and the unchecked surveillance systems of our government.
[1] https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
> Don’t we want Apple to be able to say that they can’t help China track the communications of dissidents or other repressive regimes?
People are more worried about the US' being the "repressive regime".
The poll released is telling of how power is kept in the US. You don't have to have 100% support, just over 50%. Here we see that the FBI is far more sophisticated than they let on, and supported by a more cohesive program considering support for them is just north of 50%.