Apple Gets Tech Industry Backing in iPhone Dispute, Despite Misgivings
nytimes.com
nytimes.com
I was appalled that some of the representatives want Apple to provide legislation that will make them unlock the phone under certain conditions.
The 1st and 5th amendment are what apples general counsel are arguing here. Code is protected speech so Apple is being compelled to speak by the Govt. They also argue the 5th amendment is being infringed because the FBI is using an All Writs Act which subverts due process.
It's really unfortunate Congress will most likely pass legislation requiring Apple to do this in the future (most likely for San Bernadino type cases but not the drug case mentioned in the acticle). It's gonna be up to the courts to determine whether or not it violates the constitution.
In my opinion, code in its functional capacity is not speech. The code that locks the user out after 10 tries is just the digital equivalent of a gear or valve: a functional building block of a machine. A gear in its functional capacity is not speech, but can be if used in a piece of sculpture for example.
In this particular context Apple has a stronger argument, though. The act of signing code does express an idea: Apple's trust in the code. That might well be protected speech.
More importantly, good on you for this: > In my opinion, code in its functional capacity is not speech.
This is HUGELY important for people to recognize before arguing that "Code is speech" in an absolute sense. Sure, it seems like a clear-cut position in the Civil Liberties sphere, but then you find all that same protected speech is suddenly subject to © and 35 USC §101.
That makes some sense, but I would distinguish between the use of an object and the creation of an object. Wouldn't designing a new gear or a new valve be speech? Are you arguing that there's no 1st amendment defense if the government tried to compel someone to design a new valve?
Your argument rests heavily on code that exists. It's much easier to argue that isn't speech just because it's easier to call it an object, an artifact. A gear. A knob. But before code is written, it is in the realm of thoughts.
[EDIT for downvotes] This is just the first thing that came back when googling as to when they became radicalized. The investigation isn't complete and I don't know how much has been reveled or what is actually true, but it seems likely Malik came to the US for Jihad and that wasn't something she tried hard to keep a secret.
Note also that in the debate the FBI indicated that there were another 170+ phones that they'd like to use the backdoor on. So while they may only be able get Apple to create this software for this case, once it is built they'll just use standard subpoenas to get them to deliver it for each of the hundreds of additional phones on request.
http://www.infoq.com/news/2016/03/apple-fbi-congress
[edit] in the video the FBI has the first hour and a half, then there's a half hour recess, then Apple's lawyer and technical expert step in around the 2h mark. There's a great bit from the FBI around 20 mins in where they admit resetting the password on the iCloud account was not a sensible move.
It's analysis I hadn't really considered before and you might find it interesting. That said, I agree it's a bad idea that Apple be asked to write legislation where they're compelled to comply for other reasons.
Excerpt:
"But on the other hand, and critically, there are many things that humans will do with code that will have nothing to do with the First Amendment (e.g., launching denial of service attacks and writing computer viruses). Code = Speech is a fallacy because it would needlessly treat writing the code for a malicious virus as equivalent to writing an editorial in the New York Times. Similarly, if companies use algorithms to discriminate on the basis of race or sex, wrapping those algorithms with the same constitutional protection we give to political novels would needlessly complicate civil rights law in the digital age.
It’s easy to argue that Code = Speech, but accepting that argument would create a mess, and an avoidable one at that. It’s harder to look at what the government is trying to do, and harder to figure out whether this is in conflict with the values the First Amendment protects, but that’s the way the law works. The hard way is also far more preferable to giving tech companies whose businesses run on code a free pass from the kinds of meaningful regulation we’ve imposed upon other companies since the New Deal."
I don't see that that is the case. Not all speech is treated "equivalent to writing an editorial in the New York Times", to start with; not all speech is treated equally, and harmful speech, particularly deliberately harmful speech, and particularly deliberately harmful speech that isn't communicating ideas about a matter of public concern, is not universally protected.
Going back to software, the freedom of expression is important, because software, functioning like an extension of us, of our intellect, probably more than any other human occupation except for art, happens to be very opinionated, to expose values and to incite both hope and despair for our future. It's not without reason that software development gets compared with making art.
It's not a wonder that Apple is taking a stand now. Any company worth its salt has values declared long ago and breaking those values is betraying your customers, not to mention that it can also hurt your bottom line. And the people at such companies are more than just cogs in the machine. Many of them work for their paychecks, sure, but many also have gotten in this industry to make a difference and now they risk being coerced in doing something they probably don't believe in.
Take Apple. They promised security and privacy to their customers and I'm sure many people at Apple worked hard to deliver that. How would you feel if you considered this to be your life's work, only to be forced later to aid in doing the exact opposite? Now that's an issue of freedom of expression ;-)
All of these large tech companies have massive government compliance programs. They regularly comply with government subpoenas for account information that they can access. They most certainly have developed custom software and workflows to make their compliance easier. I don't see how this request is a greater burden than that.
>How would you feel if you considered this to be your life's work, only to be forced later to aid in doing the exact opposite? Now that's an issue of freedom of expression ;-)
I'd feel pretty silly for thinking that I couldn't be compelled by the government to produce secrets I possess. If want to protect my customers from the government, I have to protect them from myself as well. You'd need some kind of multi-party trust system that allows people to require multiple third-party signatures before any code is loaded by the device. Free expression doesn't mean that the government has to refrain from exercise its legitimate authority, just avoid raining reality onto your premature parade.
That's just not true. The government is not asking Apple to release this to anyone.
Does it make a difference that it's a company instead? Should it?
Well, the model of phone in that case (5C) is 2.5 years old using a 3.5 year old version of their CPUs lacking some of the modern hardware necessary (Secure Enclave.)
High-level details here: https://www.apple.com/business/docs/iOS_Security_Guide.pdf
>In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession.
This line has been quoted a lot and Apple has not redacted or clarified it. If newer iPhones were not vulnerable to these types of attacks, Apple wouldn't say that they are. Especially since they've openly said that one of their big concerns is damage to Apple's reputation for security and privacy.
The 5th amendment guarantees that you can't be forced to incriminate yourself. As an example that courts are perfectly capable of drawing lines, you can be compelled to hand over encryption keys for a third-party's data, but not for your own.
It does, and my example was hyperbolic to my detriment by bringing in the 5th. The point I was trying to make was that the act you described (a manual signature to enable a search) was equally transgressive in my eyes.
The 1st Amendment does prohibit government-compelled speech, of which the act of digitally signing is (by analogy to signing) expressive conduct that merits protection. That alone should be sufficient to stop this case.
Your example doesn't apply here. For one, as far as I can tell, being forced to reveal one's own encryption key remains an unsettled matter (I would argue 5th Amendment protections apply, were I before the court). Apple is not being asked to supply something that they possess, they are being asked to use something that they possess, to create something that doesn't exist, to give to the government in order to enable a search. The government hasn't established if they have exhausted their own resources, they haven't (to my knowledge) proposed payment for Apple's services (which would as I see it constitute taking), and they haven't established the probative value of what might be on the phone (probably zip). And, if the product of this search were to come up in court, Apple would have to testify to their methods and be subject to cross-examination.
This whole situation is a tire fire.
Compelled speech in private is still compelled speech.
The SF/SV perspective is not universal.
"Communication does not lose constitutional protection as “speech” simply because it is expressed in the language of computer code."
Well duh. I can express a book as a C program and that is obviously protected speech. You can't take a shortcut like "is it code" to determining whether something is protected speech. Just because something is expressed in the "language of computer code", doesn't mean it gains constitutional protection as speech. You have to do a substantive evaluation.
If the government can get a warrant to force you to ship a patch, regardless of the scope, you are giving the government control over every aspect of how you write code, and the next logical step is a CALEA style requirements that ensures that your build process has lawful code injection capabilities.
I can't even begin to say how awful that would be for the entire industry.
As an anecdote, I know that Steve Jobs used to hang out a lot with Bill Gates and Eric Schmidt, and I also know a few Microsoft employees who are really good friends with Apple and Google employees.
Lucky for USA citizens they are not Chinese.
Why does Apple find privacy okay in USA and not okay in China? I don't quite get the consistency in the position.
* Apple has virtually no ability to shape policy in China (at least, in comparison to western democracies) * China (the government, not the people) is not subject to the same limitations as the US government * Apple depends on China for a great deal of things, including manufacturing, and a market for products * If Apple can't manufacture and market it's products in China, it's products become more expensive and less available all over the world. * China passed laws and regulations that demand access to source code
Apple choosing to fight this battle is undoubtedly motivated by the potential business impact of supplying the software that the US government has demanded, and there is no doubt in my mind that if it was a better long term move for Apple, then it's leadership team would concede, and ship the code they were asked for (see: http://www.computerworld.com/article/2472002/endpoint-securi... among other instances).
Apple is using the polarizing nature of the technical details at hand in light of modern concerns about the surveillance state to frame it's argument against what would be a very bad legal precedent that would be disastrous for Apple, and for the tech sector in general.
I don't quite understand where your perceived lack of consistency is - are you implying that Apple didn't try to use every tool at it's disposal to do the best thing for it's investors?
I am just accepting the fact the Apple has a very variable concern about freedom of speech and privacy when their business is concerned.
Like when workers are prevented from exercising their freedom to choose a new job and make competition works their way and Apple take part into a no poaching agreement.
Then I look at IT's budget, their contribution to the world taxes and I clearly think that they do not really care about the laws of the common people.
And then I am concerned by companies that are richer than most governments in the world and how they behave when they have enough power.
Should we accept that big power without control and just hope for the better?
Remember UK and France used to have bad experiences with such huge companies and that it did not ended well for anyone. https://en.wikipedia.org/wiki/East_India_Company
What is missing from most of the discussion is that strongly secure phones are good for the government. If the US government can ask Apple in the US to open a phone, then the Chinese government can ask Apple in China to open a phone. That means that every phone is vulnerable to theft and transport to a jurisdiction that agrees to the 'lawful' access to the contents.
The difference is, Apple can't do anything about the Communist dictatorship in China. They don't ask nicely, they don't debate you on liberty or policy, they tell you how things are. Apple can try to resist what the FBI is asking for in the US. They could similarly try to resist such moves in most of Europe. That's the benefit of democracy / representative government in the US / Europe / elsewhere vs what China has. If the Chinese people dislike it so much, they are the ones that will have to do something about it, nobody else can do it for them.
I don't see any reason for them to mix additional opinion into their news coverage.
I believe expectations of what constitutes an opinion piece have changed with the advent of blogs/talk radio etc. At the Times, that style is reserved for columnists while the opinion pieces that express the opinion of the institution itself are more measured. In this case, they're just basically endorsing the judge's position.