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Comment by jpgvm | Hacker News Reader

It's pretty clear that the laws need to be different for a device that goes with you everywhere and for all intents and purposes records your entire life.

I like the "extension of the brain" analogy. Where by searching your phone should be tantamount to thought policing.

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I don't think that's pretty clear at all. Back when people wrote down their daily activities and most intimate thoughts in their journals, one might have argued those were an "extension of the brain." Yet, peoples' desk drawers have always been subject to search with a warrant.

No, it's more like mandating that those journals have to be written in english instead of sanskrit. The government has the authority to reasonable search and seizure, but they don't have the authority to mandate how we express ourselves in written word or data.

I'm referring to this part of OP's comment: "Where by searching your phone should be tantamount to thought policing."

But they have access to the phone. It's like if you wrote the diary in a language that no one understood. What would the gov't do then?

Having a warrant for a desk drawer doesn't put every person on the planet at risk for possible access of intimate personal life details.

Neither does an encryption standard that allows for the unlocking of a device in one's physical possession.

It's highly unlikely a fully physical key could be developed for a digital system that would have sufficient security not to be exploited by bad actors that have physical access to the device.

Given that it's likely that fully physical access is unlikely to be a necessity to make use of the backdoor. Thus it's fair to assume it could also be exploited (or used "legitimately" by law enforcement) remotely - even if it is primary intended to unlock the device they have seized it physically.

Backdoors of any description are simply impossible to implement securely.

> Thus it's fair to assume it could also be exploited remotely

When the data in question only resides on the physical device that is not a fair assumption at all.

An alternate OS that allows all 10,000 4-digit codes to be rapidly tried isn't a piece of magic that allows you to do anything you want. It has a very limited use.

Someone already covered the goes with you everywhere part but it's worth noting that a diary though very personal is something you consciously populate with thoughts that you know one day could very well be read by someone else.

A lot of the things people do on a phone they may not even be aware is leaving history and other information on the device as they use it.

You could argue they they should be better informed, but should they really? Should we expect to forever limit ourselves to only our brain for storing secret information as it's the only place held sacrosanct in the eyes of the law?

I think not. The law should change with the times. The mind/brain is expanding into the electronic world and the protections afforded to our biological brain should be extended in concert.

The law should change with the times only when technological change implicates the rationale of a rule. The rationale of the 5th amendment isn't to have a place for storing secret information. It's the uniquely pursuasive nature of confessions and the incentive to coerce them. Note that when there is no such threat, even being in your brain doesn't stop courts from getting at information. A court can compel a witness to testify, for example, so long as the testimony isn't incriminating.

Phones don't implicate the threat of coerced confessions regardless of what is on them.

But the reason for the police being able to search you in the first place is to investigate crime because of the harm it causes to society. That needs to be balanced against the harm such searches cause.

If the harm caused by searches goes up, what changes to balance that?

You're taking the law as a given and saying that society must bend because the law has been constant for many hundred years.

But that's a bug. Yes, the systems for change are rusty and those in power would rather inflict the wrong laws than allow them to change, but the point in this discussion is more than what can Apple get away with now, but what should they strive for. In that sense, what should the law be to best serve people who feel that Apple is right in creating "unhackable" phones?

You did read the part about the differences right. Did you carry that desk drawer with you everywhere? Did it record your location?

The point is about what the law should be to be useful. Not about what the law says, or can be taken to say.

The FBI plays it as if the law binds the people, but the law is the people's, and binds the FBI. We don't have to care what they like. It isn't a two-way street, or a conversation. They're employees. So's Obama.

> The point is about what the law should be to be useful.

The law creates a perfectly useful distinction. What's in your mind is in your mind. What's on inanimate objects, whether they be desk drawers or iPhones, is subject to search.

That is the current law. I'm arguing that it should be changed . Inanimate objects got a lot more advanced in the last 20 years, the law hasn't become nuanced enough to deal with this.

What does it matter that inanimate objects got more advanced? Was the original distinction ever due to the fact that inanimate objects weren't advanced?

Because they now perform functions inconceivable in the past - such as inadvertently logging everything you do.

> The law creates a [...] distinction

Fixed that. Citation needed for the elided segment.

Here's a physical iPhone that is not subject to search.

Legally, it's not at all clear. But morally it is. Which is why secure crypto needs to be adopted far and wide. Man-made laws follow physics, not vice-versa.

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