Apple’s dangerous game, part 3: Where do you draw the line?
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The Fourth Amendment reads "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." There's no exception in there that can be read as "unless it makes the job of the government really hard."
No individual criminals or groups of terrorists pose the kind of threat that an overreaching government does. Encrypt it all.
(I disagree with Kerr's argument, and obviously strongly support encryption, but his Fourth Amendment argument from what I can tell squares easily with the design of the Bill of Rights.)
Law is not like code, an algorithm that is followed literally and logically. The U.S. Constitution's First Amendment is equally clear, but you can't yell fire in a dark, crowded movie theater. The Second Amendment does not differentiate cruise missiles from handguns, but you cannot own a cruise missile. I would not want it otherwise.
The laws never will be written perfectly, so we need a system to deal with those flaws. Another way to think of it is that there are edge cases, many of which were not anticipated by people who wrote the code, some over 200 years ago.
EDIT: Another way to think about it: If the law permits something horrible (e.g., 'sale of first-born children') because it was written poorly or unclearly, should the courts allow first-borns to be sold until Congress fixes it? What if the law explicitly allows something, such as denial of voting rights to an ethnic group?
We could do these things without disregarding the constitution. For instance, we could hold a constitutional convention and ban private ownership of cruise missiles, grenades, rocket launchers, SAMs, nuclear weapons, most 9mm handgun magazines used by police ("High capacity magazines"), and rifles that look scary but kill almost nobody. We could also repeal the 5th amendment. Instead of doing these things, we make them policy in contradiction of the law.
I agree with the principle ... but: Imagine if updates to your software project required consensus of over 300 million people, sometimes about very heated questions. I think you would only do updates in extremis and otherwise use other mechanisms to resolve issues.
Practically, how do we address this problem?
Whatever you're doing is probably illegal if the government wants it to be illegal, and legal if the government wants it to be legal.
As most lawyers say, don't talk to the police, so I assume the best advice would be to encrypt your documents to the maximum extent possible, and have your lawyer sort it out in court.
One of those powers is compelling cooperation from 3rd parties. Before telecommunications, the government could use a warrant to force a bank to open a person's safe deposit box (for example). Unbreakable encryption would be like an unopenable safe deposit box--it would prevent the execution of even the most obviously lawful and justified search. That would be a shift in the practical balance between government powers and individual rights.
You might applaud that shift, but I hope you would agree that it potentially exists.
Add to this that many people now treat their digital devices as extensions of their mind which leads in to fifth amendment territory, and there is absolutely no reason anyone but the person to whom the data is most dangerous should be allowed access.
The government, like IT departments, should not exist to serve itself: it is there to serve others, and so called "thinking of the children" or any other reason cannot excuse the invasions of privacy that occur on a regular basis. I'm no fan of Apple, but if they've made it so that even they can't unlock an iPhone due to court order, they are doing something right.
The government also gets many advantages from technology, and still has the advantages of extremely powerful and time tested techniques that have not become outdated merely due to advances in technology. Just because some LEO agents want to take shortcuts to be "tough on crime" doesn't justify harming innocent bystanders in the process, otherwise we'd allow them to shoot first and ask questions later.
On one side you have multiple publicly funded organizations attempting to get warrants (police, local da, federal da, fbi, etc) and on the other side you have individual defense attorneys plus generally woefully underfunded public defenders. You can get some notion of what one side would do without oversight -- ie the fisa court, which essentially never turns down a warrant. Relying on individual attorneys, who are after all advocating for their clients, not for what is best for the legal system or people as a whole, to set case law opposing warrants means they will basically be outmatched.
We can also get some sense, again, of how little you can trust any of these people by remembering that the fbi is supposed to be tracking officer involved shootings.
In 1994, Congress passed the Violent Crime Control and Law Enforcement Act.
Among its provisions was the order that “the Attorney General shall, through
appropriate means, acquire data about the use of excessive force by law
enforcement officers.” The Justice Department was also required to publish
an annual report on the data collected.
And…that’s pretty much the last anyone heard of that. The work of collecting
the data was shuffled off to the International Association for Chiefs of
Police, which made a few efforts at collecting data and put together a
report in 2001, but has produced nothing since. [1:2]
[1] http://www.popehat.com/2014/08/25/government-priorities-comp...
[2] https://www.techdirt.com/articles/20140822/07034228290/feder...
[3] http://www.nytimes.com/2013/06/19/us/in-150-shootings-the-fb...
In a security-centric view, if the door is unlocked, you are inviting people in. Or at least should not be suprised by it.
This concept Kerr puts forward that criminals will become unstoppable given too powerful crypto is so laughable to anyone who understands cryptography as to be a complete waste of time. For a government built on balance of power and a long history of pushing the limits of that balance, the need for strong crypto is inherently obvious.
You can't issue a warrant for someone's private thoughts, no more than you can issue a warrant for my encrypted diary. It's not actually a 4th amendment issue, it's really an issue for the 5th.
What Apple has done, is take themselves out of the legal loop, where they shouldn't have been in the loop in the first place. Proper crypto is a win-win where I don't have to trust Apple, and Apple doesn't have to trust me. I doubt Apple is actually 100% there, but maybe close enough to stop the government from co-opting them into their investigatory responsibility.
It's perfectly obvious and reasonable that the manufacturer of a diary, e.g. Moleskin, should not be on-the-hook to reveal to authorities everything you write using their product. Similarly, before the Internet and cloud-era, it was perfectly reasonable that the manufacturer of a computer was not on-the-hook to reveal everything produced with that machine.
It's just a quirk of technology that these systems are easier to implement in a 'centralized clear-text' manor, exposing the data to 3rd parties, and therefore government warrants against those 3rd party copies. They never used to be centrally accessible, we've seen the damage a clear-text central store inflicts, and if we've learned anything from it, we won't ever return to this broken model again. Over time crypto will enable many of the 'easier to do centrally' type of services, performed over ciphertext, and without compromising individual privacy.
At this point I think Kerr is just trolling for the page views, since he doesn't seem to have learned anything from the extensive and thoughtful comments his first post elicited.
For many of us, these mobile computers record all of our thoughts, intentions and actions. They're really extensions of our minds. And our minds belong to us, not the government.
The government can build their cases as they've always done, without forcing us, or our extensions, to testify against ourselves.
But in speaking of thought crime, I'm merely speaking of crimes which are entirely inevident (which admittedly is a term I just made up) save for self-incrimination. Likewise, if it is evident that a crime has been committed, then by definition it is not a thought crime.
If there is evidence beyond self-incrimination, by all means find it and produce it at trial. For example, bitcoin theft by definition must effect an unwilling 3rd party, therefore there's at least a human who can testify their coins were stolen. It's evident in victim testimony, on the blockchain, in access logs and source code of the central service that was hacked, or in malware left behind on the victim's computer, etc.
The idea that the digital world is so sancrosanct that it's totally exempt from existing law is enticing, I'll grant you. But not necessarily convincing.
http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_S...
However legally, I believe it should have the same net effect, because using technology to augment our increasingly limited biological memory shouldn't eliminate the protection against the government accessing that memory to use against us.
Maybe I'm 10-100 years early on this, but I think time will tell.
The 5th Amendment grants you the right not to incriminate yourself in legal proceedings. Diaries found with a proper warrant can totally be used against you.
Does the 5th actually protect the accused in your particular example? I think it does, and I'm glad it does, because I think a 5th amendment which failed to protect the accused from this sort of self-incrimination, would fail overall.
How much can a defendant be forced to aid in their own prosecution? You cannot ask them "did you do it" and use their refusal to answer as evidence against them.
Now I have a device which constantly records the audio, video, GPS, temperature, barometric pressure, heart rate, breathing rate, etc. Maybe in a few years time it records not just everything it hears and sees, but literally everything its owner hears and sees. These devices have become, and will increasingly become, true and pure extensions of our own consciousness.
Today you have two choices; you can leave it all open and available for the government to "collect" and use against you, or you can quite literally keep it locked in your head using encryption.
The Bill of Rights was written in 1789. Seventeen-fucking Eighty Nine. In another 200 years, I hope its protections continue to be as meaningful.
> Maybe the crime is child molestation offenses involving child pornography, or maybe it’s a conspiracy to commit murder or to inflict violence.
First, I think that situation is terrible and should definitely be investigated lawfully. The challenge is that if a person molests a child and there is evidence in a car, the Authorities do not serve the auto manufacturers with a warrant saying "Give me a copy of the key to this persons vehicle so we can inspect it." The Authorities serve the individual. That is the point of crypto in this case. The consumer of the property owns the product instead of giving ownership to the corporation who makes the product.
Automobile manufactures don't give authorities back door keys to your cars. Lock manufactures don't give authorities back door keys to your home. So why should Apple give them back door keys to your phone?
Also, it is a bit late to suddenly notice the existence of this stuff. To suddenly want to rewrite the US constitution because iphones change how their key gets stored seems a little bit mental.
The Constitution is there for a reason, and it seems to me law enforcement have found this "cloud computing" loophole, where they can say that the data you host on other people's servers is not yours, and therefore they can get access to it.
The user seems to have much weaker protection in this case, and it's also very easy for law enforcement to just go to a one-stop shop. So they've gotten very used to that. And they'd very much like that to continue. I bet if there were no more warrants for say a decade, they'd be getting used to that, too, and they'd fight tooth and nail against reinstating the warrants.
Part 1: https://news.ycombinator.com/item?id=8349006
Part 2: https://news.ycombinator.com/item?id=8349568
Kerr asks two questions in this latest post:
> [1] In your view, can there ever a point when there can be too much encryption — and if so, what is that point? In other words, do you think there could ever be a point at which crypto is so widely used in so many contexts to protect so much data so strongly, that you would think that the marginal costs of more and better crypto begin to cause more harm than good?
It seems to me that in general any given person is much more likely to suffer a digital crime than to commit a crime. And it seems to me that it is generally better to prevent crime than to solve a crime already committed. Therefore better consumer data encryption should tend to have a net positive effect.
And I think that as long as there is a court mechanism to compel decryption--via a warrant, for example--then many "bad guys" can still be kept off the streets. They won't decrypt their data? Cite for contempt and lock them up.
Will this make it harder for police to solve some crimes? Of course, but we accept those trade-offs all the time. It's inherent in our culture and system of government. The cops could solve a lot more crime if they had cameras in all our houses too. Doesn't mean that is a good idea or net positive.
> [2] If the government can’t get access to contents, even with a warrant, and that ends up substantially shifting the privacy-security balance, the Supreme Court will respond by expanding government power in other ways to counteract that shift and restore the prior balance of power. We’ll get more privacy in some ways from more technological protection, but less privacy in other ways from having less constitutional protection. So here’s the question: What privacy tradeoffs might the Supreme Court make in response to strong encryption that would more-or-less restore the prior balance of constitutional protection?
In this question, I think Kerr is not thinking through the implications of what Snowden revealed. It appears to me that we have already suffered a dramatic reduction in our legal protections of privacy, due to laws, executive orders, secret court authorizations, NSA/GCHQ overseas hacks, etc. since 9/11.
From this perspective, Apple's encryption change is actually adjusting the equilibrium back toward where it should be, not knocking it out of balance.
edit: formatting
Given the number of people killed by gov't vs private action in the 20th century, I'm not overly concerned about the crimes of people as a first course of action to reduce human suffering.