That is an understandable set of emotions but not really a rational basis for public policy.
Is already limited by the 5th Amendment and other caveats. So it's never been unlimited in the US.
Put aside for a second that 4A is not in play here, because the phone's real owners consent to the search.
4A delegates to the courts the power to determine what evidence is and isn't in-bounds in an investigation. Nowhere in 4A will you find a prohibition on imaging someone's phone. Assuming the judiciary approves of a warrant, virtually nothing is out of bounds to a warranted search. That's what we're talking about here: a search that a judge has authorized.
It's that power that we're talking about clawing back because of a loss of trust in the government. And what I'm saying is, it's pretty silly to pretend that you can claw back the power to collect evidence without calling the whole state into question.
To me, that's an obvious example of evidence the government would like to have in many cases, but we clearly decided it cannot. A judge cannot grant a warrant compelling an individual to waive their 5A rights. That seems to have direct bearing on the idea of providing individuals a right to strong personal encryption.
Admittedly, there are many edge cases (furnishing information about a third party that one has personally encrypted), but we've bounded what the government can and cannot have before.
Although from another comment I made I generally agree with your position that this is a pretty serious point of balance between the individual and the state due to the nature of encryption.
Or to turn it around, what has the government historically desired to legally do after obtaining a warrant that it has been unable to do?
We never made locks or strong doors illegal. The closest would probably be mandating log retention at telecom providers for a certain period of time.
The question of how cryptography might stymie whole classes of search entirely is germane to the question of whether we should pass laws restricting default-on cryptography (obviously, I don't think we should). It is not germane to this case, which is not about "mathematics" or even "security", but instead whether the government has the power to compel a product manufacturer to assist in a search of their products.
Richard Clark seems to think the NSA would have the capability, and they might, but the FBI apparently (and believably) doesn't.
Apple "assisting in a search" is a little overly summarizing in my opinion. I think there's a difference between "we received your warrant, here's the information we have" and "we received your warrant, we will dedicate engineers employed by our company to actively exploit the security we designed into our products."
Is there precedent for compelling lockmakers to provide technical expertise in defeating their own lock systems? I can't imagine that's never come up historically.
The question becomes whether it is within the power of the government to mandate that flaw, or whether they will need to find some other approach. There is also a question of freedom of speech, as it has historically been held that you can be forced to not express something, however you cannot be forced to express something. In regards to key signing, it could be said that that is an expression of authenticity that you endorse whatever is being signed. Can the government force you to give that endorsement? Does the government's power to collect evidence supercede your right to freedom of speech (or the abdication of speech)?
We've seen the popular media analogies gradually become more accurate in their understanding that this is a novel question. And, admittedly, hats off to Tim Cooke and Apple for getting more technically accurate descriptions out in the media.
We do seem to be having a more productive discussion socially this time around.
I think the last major rebalancing of rights due to new technology concerned copyable copywritten digital media and... we decided to make a lot of things that are technically trivial illegal. Not the best message to kids that "these things are illegal, but easy to do and unenforceable."
I agree. But it is no where stated or implied that this should be an unlimited power. In fact, clear limits are placed upon that authority.
If I invent a cypher and store all of my physical written works using that cypher, can the government compel me to decrypt those works upon discovery that they lack the ability to do so? What if I taught that cypher to my family? Can they be compelled? If so, under what authority?
>You might just as productively suggest that we can't trust the USG to be a responsible state
This suggestion is inherent within the Constitution. It is framed upon a mistrust of any Government to not become tyrannical.
>therefore it should disband
uh, what? nice leap.. did you use rocket shoes to get over the gap?
It is certainly not "mistrust government" ergo "disband government", especially when the government in question was formed near entirely upon the notion that a government should exist in a perpetual state of mistrust.
It's unclear whether you will eventually be compelled into decrypting documents. One circuit says you can't be, because of 5A. But that ruling was situational, and other courts might rule otherwise. Certainly I don't personally agree with the logic that compelled decryption is necessarily testimonial in nature, any more than opening a safe for which only you have the combination is testimony. The primary purpose of the ban on coerced self-testimony is to prevent bogus confessions elicited under torture. That's not at issue here.
I don't understand your "inherent within the Constitution" argument. The Constitution says what it says. I'm citing it.
The issue is whether a third party can be compelled to provide access to that evidence in order to make it intelligible and therefore meaningful. The combination to the lock (which apple claims they would be forced to construct, as it does not yet exist. The government seems to have accepted the veracity of this claim when they agreed to perform the labor if handed the tooling).
What is the purpose of explicitly stating 4A if we can simply trust the government to be a good actor?
It is inherent in the statement of explicit restraint that there is not trust.
Preamble to the Bill of Rights -
"The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."
I like that they use confidence.. it implies a matter of shades or degrees. Trust seems to imply something much more B&W.
(http://www.archives.gov/exhibits/charters/bill_of_rights_tra...)
If you can't trust any part of the government, the Fourth Amendment is immaterial: you can't trust the entity to whom is entrusted the power to adjudicate reasonableness.
E.g. If I was ordered to produce logs that may be evidence in a case, and I only had and only produced a 10GB+ text log with a single line the warrant was interested in. Can a warrant order me to parse the log to find the relevant information?
Furthermore, at what point does a digital space become similar to a physical space? When I can carry 3 hard drives that can contain almost as much information as the Library of Congress print collections, is it reasonable to think of them as "one thing" for legal purposes? In that if you have access to the physical container, you have access to all its contents?
[1] http://www.newyorker.com/tech/elements/how-lavabit-melted-do...
What I do think is that people who are intimately involved with new technologies will tend to believe that the complexities of their technologies must somehow swamp the Constitution.
No, its not the technologists who don't get it.
Anyway to the point: we need to clarify if searching my house, and searching my person, and searching my laptop, and searching my cloud-based email history are in the same class. Hell, even searching my breath or blood isn't protected like they should be. Its a long way from clear, what Constitutional protections are extended to modern situation and which aren't. Technology has challenged everything we thought we knew.
The court is compelling a third party to perform an act that really isn't part of a search and seizure of items.
Search and Seizure as defined by 4A is over and done with. The Prosecution has searched the "places to be searched" and is in possession of the "persons or things to be seized."
Now can it compel Apple to make them useful? (Potentially useful, as even the State has argued there likely isn't really any useful evidence there anyway.. sorta makes this whole thing look like a dog and pony show.)
Either way, Congress isn't a check on the Supreme Court. It's typically rather the other way around.
The Supreme Court isn't a factor at this stage.
"Typically" you are correct. The formal method for checking the power of the Judiciary is for Congress to remove Judges from the bench.
Apple is arguing that All Writs doesn't grant the authority that is being used. If that authority is to be sought then it will have to come from Congress. At least one Judge agrees.
Creation of new works is just such a limit.
If there is not a limit, then what the courts may compel as "assistance" becomes absurd.
This is the argument Apple is making and it is the foundation of the opinion of at least one Judge that has ruled against use of the AWA to compel the unlocking of a phone.
"I don't trust you to be an impartial seeker of the truth who's 'only' concerned with solving this murder rather than railroading me on random charges, therefore I will not answer even simple questions that you deem necessary to conduct your investigation."
(With that said, I really, really don't like the whole "don't talk to police" circlej---, like how it gets overapplied or dangerously applied ... but within a very narrow interpretation it's correct and well accepted enough to carry the implications over here.)
Edit: Correspondingly, the advice would carry a lot less weight in counties with a much better government that actually could be trusted not to look for petty reasons to arrest people. And so a government that prices itself a better steward of privacy could be trusted with key escrow.
Not being able to collect evidence precludes legal enforcement, which precludes laws, which precludes the existence of a state in the modern definition. Which is the same line of reasoning that most of the "pro-legally breakable encryption" follow, even if they don't carry it out to conclusion explicitly.
I think it's fair to say a state in which everyone uses strong encryption (that cannot be penetrated by the state in any circumstance) in every digital facet of their lives does look very different from the one we currently have (at least in technologically advanced states).
Years ago I wrote software for supply chain loss prevention, every so often there would be a crisis (like a hijacking) that put the department into investigation mode - where there was no room for long term strategic thought. But the course was always corrected when the department director would remind everybody that the job was "loss prevention" and not "loss apprehension". So while criminal investigation is currently a big part of law enforcement, it isn't the primary objective. If that concept sounds strange, check out Bruce Schneier's work.
> ...which precludes the existence of a state in the modern definition.
Is that true, have we redefined the state to only include governments with laws? What do we call the entities formerly known as states that no longer fit the new definition? I wonder how long until we redefine law. I'm really hoping that when you say "modern definition" you actually mean "the definition Jay Leno would get while grabbing people off the street who previously gave the matter no thought".
I do agree with your point thought, I think that those who are predicting catastrophe are more concerned with maintaining the status quo - and when they say the world will end, they mean their estimate of the way the world works. The mental crisis is so great for some that they will craft incredibly convoluted justification, and may go so far was to start redefining words :)
Honestly curious, how else would you or anyone define it? And are we talking philosophical or real world examples?
I'm sure there must be others, I just can't think of any offhand.
A geographic location where there exists a monopoly on violence. For example: the USG gets to decide who is allowed to kill who and under what circumstances, exclusively, for a specific location. That monopoly can be made clear through laws, but it isn't necessary - consider monarchies with no legislative bodies. Also consider the fact that laws cannot be established without a monopoly on violence, which a lot of people seem to get confused about - thinking the authority over violence is somehow derived from law...
> And are we talking philosophical or real world examples?
I'm really tempted to launch into a rant about cognitive dissonance here, but I'll just save time and say that is a distinction without a difference. As far as examples, like I said, pick any monarchy without a legislative body - Native American history has plenty of that.
I would say that "a geographic location where there exists a monopoly on violence (such as a monarchy without legislature)" nonetheless has implicit laws that guide its hand. And by which it is judged! Indeed, transgressing unwritten social contracts has led to the downfall of most monarchies throughout history. Or to put it another way, co-opted power structures are necessary for the governance of any sufficiently large group, above and beyond sheer force. And power-structures require some sort of bargaining and negotiation even if it's rather one-sided.
Laws as instruments to communicate expectations are what makes scalable organization possible past a certain point, whether they're explicit or implicit.
That's why you don't see any long-lived civilizations with true violent anarchy as a form of government.
Philosophy is a pretty huge domain, where one end of the spectrum is navel gazing Platonic forms and the other is the propositional logic that informs compiler design. It sounds like you describing the trap that medieval scholars fell into, where they would recursively construct syllogisms until they found themselves talking about how many angles could dance on the head of a pin. This is what happens when you fail to check your premise, you end up with a logically consistent delusion. So the "self-coherent but completely impractical" philosophy you've condemned is just a condemnation of poor logic - which doesn't do your utilitarian argument much good.
As far as the the rest, you've now changed the topic from "what defines a state" to "what defines a well judged, scalable, long-lived civilization".
> ...anarchy as a form of government...
One of those words doesn't mean what you think it means :)
But this doesn't mean that the state gets to do that however it wants. There have to be limits on such power.
Any state that cannot be trusted to be responsible should be disbanded. See the US Declaration of Independence.