Norman Conquest, King Edward, cyber pathogen and illegal gambling all emerge in Apple v FBI OK, we got it: Apple good, FBI bad. But seeing as the court case between these two powerful institutions is taking on ever-increasing importance, we figured it was time to actually listen to what law enforcement has to say about the case of the locked phone. And the truth is, it makes a lot of sense. Certainly enough sense …
governments where not so actively spying on all it's citizens, the same citizens would not feel the need to stop them doing it via encryption?
While most people have nothing to hide in terms of crimes, people do have things they would not like to be widely known?
Mine is not encrypted but the only even slightly embarrassing thing you going to find on myphone is what level I'm up to on candy crsuh!
IMHO, spot on Snowy. The fuzz and spooks are now reaping what they have sown. Treat all citizens as crims, and they will act like crims, ie treat all police actions as probably hostile. If surveillance was restricted to what merkins call probable cause with judicial oversight there might be some measure of acceptance that sometime privacy comes second to potential justice.
Now that we are all the enemy, everyone loses.
"... It quotes the Supreme Court (in 1895) when it said: "The basic concept that every citizen can be compelled to assist in the pursuit or apprehension of suspected criminals has ancient Saxon origins, predating the Norman Conquest..."
Does that include or exclude criminals in the Government and it's organs ?
The authors final point misses the point, cooperation requires trust, but the authorities were revealed as lawless untrustworthy thugs, so the justifications are farce! Maybe when the big criminals like the "too big to fail" banksters, a lot of thug politicians and many government thugs/voyeurs are properly prosecuted and removed, some trust may eventually return.
Encryption by people is really quite reasonable self-defence against common and state thugs, because even seemingly innocuous stored information can be used in vicious ways, especially via fake law, called statues!
Democracy is flawed at the best of times, but when combined with socialism (Communism or Facism) and political bribery by rich heads, it slides to downright evil and will eventually collapse from lack of support and finance, but will become increasingly, desperately tyrannical the closer it gets to finally expiring!
The time for Anarchism may have soon come, but is only viable with cooperation, not the evil deceptions of religion or socialism.
"But law enforcement is trying to tell anyone that will listen a hard truth: you like it now, but wait until you or your family are at the end of a crime and the person walks free because they were unable to prove their case. Thanks to that black-screened iPhone. Then you may not back Tim Cook quite so strongly."
Or maybe, you will be wise enough to see the value of upholding a right to privacy and back Apple anyway, like this victim of the shooter this is all about:
"When I first learned Apple was opposing the order I was frustrated that it would be yet another roadblock. But as I read more about their case, I have come to understand their fight is for something much bigger than one phone. They are worried that this software the government wants them to use will be used against millions of other innocent people. I share their fear.
I support Apple and the decision they have made. I don’t believe Tim Cook or any Apple employee believes in supporting terrorism any more than I do. I think the vicious attacks I’ve read in the media against one of America’s greatest companies are terrible."
-- Salihin Kondoker
There are no shades of grey here. Either you have secure data or you don't. Once you create a backdoor into a system, unlock just *one* phone, make just *one* exception for law enforcement or whoever, THAT IS IT. There will be no going back:
a) once the vulnerability is made, do you really think it will stay in the hands of "the good guys", even if they were the ones (whomsoever they may be) for whom it was specifically created?
b) once the precedent is set so that "the good guys" (whomsoever they may be) can get the information that they want, do you think that others will not seek to use whatever means necessary to avail themselves of this, whether by rule of law or commercial pressure or some other means?
It's binary, people - being referred to as "West Coast law" in some articles I've been reading.
Hmmm... What if - yes - it is a binary decision...
...but both sides are simultaneously absolutely correct?
Not just in the tiresome 'different values' sense, but in the sense of both arguments being factually and logically correct, including their contradictory conclusions.
We may have met the Schrödinger's cat of logic-based ethics.
What if - yes - it is a binary decision......but both sides are simultaneously absolutely correct?
They're not.
The FBI's position is that refusing to unlock this phone means that search warrants become worthless. This is a lie.
What it actually means is that search warrants do not afford unbounded powers to the authorities - in just the same way as they don't afford the power to strip someone naked, drag them through the streets and then beat a confession out of them. It's a limited right to search, and what they're trying to do with it is not permitted, to the point of being consitutionally prohibited.
Apple is right to fight this with everything it's got.
Vic.
That is the essence of a dilemma: both choices are simultaneously correct and incorrect. At some point, one must make a decision about which alternative to follow, knowing that regardless, it can be demonstrated to be an error. The legal system is simply a way of gathering, communicating and evaluating information. There is no "right" answer, the best we can hope for is to make an informed choice and live with the consequences. Making no decision is also a decision!
"Hmmm... What if - yes - it is a binary decision...
...but both sides are simultaneously absolutely correct?"
Then the tie goes to the runner, or in this case, Apple and personal privacy rather than the government.
I'm not out doing crimes and don't have criminal "secrets", but I do have lots of thing that I would like to keep private. In the US, we've already seen instances of police officers insisting people stopped for traffic violations hand over their phones and some evidence that the data on the phones was captured. That was a few generations of hardware ago and that sort of data gathering would be so much easier if the mobile OS vendors were required to supply "law enforcement" with the tools to lay their devices bare.
It's common near the US borders for the Border Patrol to REQUIRE access to laptops and other devices. That suspension of the US constitution is valid up to 150 miles from the border. The legal loophole is not commonly used outside of border crossing points, but it could be legal in cities like San Diego to confiscate mobile devices for examination without a warrant. The justification is to prevent terrorism, drug trafficking and child pornography, but in reality, the agents aren't computer experts and it would take somebody leaving blatant files on the desktop for the "check" to be worth anything. There have been cases where laptops have been kept up to 6 months before being returned. I haven't seen any reports of unknown criminals being caught. A couple of known criminals were caught after being recognized (human or facial detection) and their kit taken away.
If the only evidence to convict somebody of a crime is on their locked phone, how did the police suspect them in the first place? Ok, obvious in the case of the San Berdo shooters, but they don't need anything for a case against them, they're dead. They want to root around to see if they can find some extra stuff. This makes the warrant to compel Apple to hack their own security a little iffy. There is no case that will go before a judge regarding the affair. The metadata is already know, locations are already known. What do they expect to find? A Text that reads: "We're going in, see you in paradise."?
It's binary, people - being referred to as "West Coast law" in some articles I've been reading.
Seriously?
It's only binary for nerds who don't get away from coding much And for people who are so starry eyed that they write really bad articles about "West Coast Law" (a concept which is about as stupid as "dormant cyber pathogens"), see also: xkcd.
The real world or society doesn't work that way.
Safety from unreasonable searches and seizures - yes. Not having to self-incriminate - yes. Helping the police with enquiries - also yes.
One could argue that the utter corruption of the political caste, the self-gratifying/mission-enhancing civil serpentry and law enforcement is now coming home to roost and one would be right. That would be another article though.
No, its not exactly binary. True, if you make software vulnerable then suddenly everyone's phone and tablet can be accessed, probably remotely, and with very low cost or discoverability. That will open the doors to more abuse of such powers in exactly the same way the NSA, GCHQ, etc, decide that spying on all of us "just in case" was OK.
What if the key could be accessed by physical forensics, e.g. by grinding the top off a chip and using an electron microscope to read it out? Bingo! The law can access the phone if it is important enough but the time and cost, along with the need to basically destroy the phone physically, means it can't be massively abused in the way a permanent backdoor (key escrow) or software bypass (as the FBI are currently requesting) can be.
Given that US Law Enforcement can already seize any personal property "on suspicion" of it being used in wrongdoing, *and* they have no obligation to provide care for that property, this is scarcely much of a hurdle...and our law enforcement system has already proven perfectly willing to spend $750,000 to gain a conviction that carries a $10,000 penalty.
> There are no shades of grey here. Either you have secure data or you don't.
Certainly there are shades of grey. Your house is not totally "secure" nor "insecure", neither is your car.
If a car manufacturer kept a spare key for every car they made, then they would be able to get into your car if you lost your keys. This would not be an inherent security weakness of the car (that is, one which anybody else could exploit if it existed); it would just be a copy of the token which you yourself use to get in.
Similarly, Apple *could* keep a copy of each device's individual encryption key. They could keep them offline, separated from each other, in a physically secure location, released only on lawful authority. This would not be a "backdoor" which could be exploited by criminals. To use it you would need the seized device itself, *plus* the device's individual key, released by a court order. It would not enable any sort of remote access to the device, and having one key would not help you access any other device.
Such an approach would meet the expectations of society that law enforcement would be able to search a phone in the same way that they can search a building.
If Apple are not prepared to do this today, then I would expect the law to change to compel them to do so.
The real issues are:
- given that Apple sells products in many countries around the world, how would this work with the enforcement agencies in each country? Would Apple US centrally deal with every agency in every country? Or would the keys for a product sold in a particular country have to be kept in that country?
What happens if a product is bought in country X, shipped to someone in country Y, and then a crime is committed in country Z?
- what do you do about home-made crypto devices? That cat is out of the bag.
@AC
I see it more as the FBI demanding the car manufacturers provide a master key that opens all their cars. Then they can access the cars at will - not just when the owner looses the key.
Next we'll see the FBI going after lock makers. Insist they make locks with a bypass so the FBI/Police can enter a house without having to try smashing the door open, which isn't always that easy as if police can do it, so can criminals, so people are looking for harder/stronger/more secure doors...
And after that? How about back door access to online banks, high street banks, business data, computers... give them even one inch of rope...
> I see it more as the FBI demanding the car manufacturers provide a master key that opens all their cars.
But that's not what the FBI are *actually* asking for in this case.
Anyway, there seem to be two very distinct threat models under consideration.
(1) Law enforcement, properly authorised by a court order, investigating targeted individuals who have been linked to a crime.
(2) Fishing expeditions by the secret services, where in the interests of "prevention of terrorism" or whatever, everybody's data is slurped regardless of probable cause or due process.
Absolutely, everybody needs to be protected against (2). But I think it should be possible to provide (1) without (2).
If you provide an access method which requires *physical access to the device* plus *device-specific key, individually released released by court order*, then there is no need to weaken the device against remote attack.
Perhaps we should all send our house and car keys to the FBI so that they, or their local agents, can come along any time they wish and check we aren't behaving in ways that are illegal in the US.
I seriously wonder how this case plays in international law, does the US FBI now consider itself to be the world's policeman?
If the US authorities win this case and the proposed random snooping Bill is passed here in the UK then I, for one, will be looking for some genuinely safe encryption software for my personal data.
The real issue being Apple to be compelled to give up all keys to China, India, The US, The Uk, France, Iran and who ever else.
The second issue being that Apple would be the instant target of any hacker worth his salt to get these keys. And yes someone will succeed. So say goodbye to your social security number, bankaccount number, CC number etc.
The real issue is that we might to some extend trust western law enforcement, but that weakening encryption will give the same opportunities to any bad guy, be it the government of some rogue state or some cracker-collective.
First of all, the calls made by iPhone owners have been traced at the metadata level by the NSA. There is no need to crack the phone to establish a web of contactees.
Second, e-transactions are recorded by the credit card banks who can and will pony up records at the drop of a hat, sometimes even to people who are not from countries once behind the Iron Curtain.
As for these Sherrifs, have them return poroperty pirated under the amazingly loose "booty" confiscation laws before giving them any more freecom to act unilaterally.
Nope. I'm. Law-abiding bloke whose e-comms have been raped in the interests of "national security" and enough is enough. If the FBI needs data owned by the NSA, have the DHS go get it - that's why the god-damned agency was created in the first place.
It occurs to me to ask why, on a work phone not actually the said terrorist's property, this is even a thing. How could the owners be locked out of their own hardware? Notwithstanding the FBI uckfup that put them in the courtroom with their collective thumbs up their asses in the first place, of course.
"[..] it's fair to say that the majority of law-abiding citizens would want prosecutors to be able to access evidence that could help convict someone of a serious crime, regardless of how strongly they feel about their own personal privacy."
That is a very large assumption - I'm sure there is a legal expression for using such a tactic to try to sway an audience.
The public are getting wise to the agencies crying wolf - and then using their new powers to go after law-abiding citizens for what might not even constitute minor offences. They are easy targets to boost the agencies' statistics.
An underlying principle of English law is that it is better for nine offenders to go free - than one innocent person be unjustly convicted. We live with the risk - and that is an essence of democracy. No one would wish to live in a world where law-abiding citizens were automatically regarded as guilty unless they could prove their innocence.
The Edward I "hue and cry" was very unpopular with the general populace. It often meant a community being forced to hunt down one of their own for a "crime" against the unequal power of the elite. The punishment for failing to take part in the "hue and cry" was draconian. Citing some governments who have done that would invoke Godwin's Law.
"An underlying principle of English law is that it is better for nine offenders to go free - than one innocent person be unjustly convicted."
Unfortunately this is not how the FBI and other American law enforcement agencies view the situation. It appears that to them there is no cost too high. They must "win". That society looses is of no consequence to them.
Aaron Sorkin had his hero state that the first person to be cross examined by Macarthy gave in to him and that had he been born with the gumption of (Eugene Debs for example but I forget the name of the first traitor called) the whole red menace threat would have been stillborn.
"Apple's argument falls back on an ancient document" because there wasn't one in the 1950's other than that early amendment to the constitution. We now wait to see, in the final countdown how many apples are not rotten at the core.
The author states: "Taking a step back, it's fair to say that the majority of law-abiding citizens would want prosecutors to be able to access evidence that could help convict someone of a serious crime, regardless of how strongly they feel about their own personal privacy."
I disagree. I don't think the majority of citizens - "law abiding" or not - want the police to have any more power than they already do. A vocal minority of people trust the police. Most don't. And the police, spooks, governments and so forth haven't been doing anything to regain the trust they have lost. They can't be trusted with the power they already have. There is no reason whatsoever they should be allowed access to the treasure trove of information on our phones.
Why, you might ask? Because of the silliness of the concept of "law abiding" (shall we play No True Scotsman?). Nobody is law abiding. NOBODY. Every single one of us commits multiple infractions of the law every day. The laws are designed like this. Not only can no one person know all the laws to which they are supposed to be beholden, but many of those laws are contradictory or criminalize ordinary everyday activities.
Phones and computers contain us. Our lives in all aspects. If there were some means by which it could be assured that law enforcement agencies - from the NSA down to the local bylaw cops - were only allowed to search phones when they had a damned good reason to believe that level of privacy invasion was warranted, they had a judge signing off on it and there was layer upon layer of oversight...maybe - just maybe - we could all meet in the middle and talk about this like adults.
Unfortunately, no such means of restraining the police exists. They are too powerful, politically, for anyone to rein them in. We've see that over and over and over again, in all western nations. Cope in the US roll on out of a cruiser in response to a call and in one fluid motion murder a 12 year old boy in cold blood. No calls for him to surrender. Nothing. Why? He was playing with a toy gun in a park. They get away with it. And then the city sends the family of the murdered child a bill for $500 for the ambulance.
If police have the capability to pwn a phone they will use it to go fishing. They will use it without oversight. They will use it without warrants. They will use it to investigate every tiny crime and misdemeanor in an attempt to fine evidence - any evidence - of further things they can nail someone with.
And they will! Every single one of us, as stated above, is guilty of something. And our phones probably know what. How can we, as a society, justify handing over that level of power to an unaccountable, unrestrained and massively corrupt group of law enforcement agencies who have every interest in ruling their communities and absolutely zero interest in serving their communities?
In addition to the above, there is a quote from Generic Corrupt Cop #42: "If Apple can refuse lawful court orders to reasonably assist law enforcement, public safety will suffer. Crimes will go unsolved and criminals will go free"
So his argument - and that of authoritarians everywhere - is that it is perfectly fine to remove the presumption of innocence in order to catch the guilty. This is wrong.
It is, in fact, better that a thousand guilty men go free than one innocent man be punished for a crime he did not commit.
Giving the cops unrestrained access to our personal lives gives them the power to go fishing to invent things to crucify us with. They can - and they will - use that power injudiciously, to further prejudice and as a means of punishment against dissidents and dissenters.
Unless and until we can solve the problems inherent in the schism between the people and those who are supposed to serve them we should absolutely and emphatically not be granting our self-styled masters yet more power over us.
Fix the system first. Then we can talk about letting that system see everything we've ever done, or ever will do.
Of all the arguments I've heard, both for Apple and for the FBI's case, you've said it best. Governments by nature are corrupted by the power they hold. Originally, in some countries, this power was granted with restrictions by the citizens. But as always, the power corrupts.
>refuse lawful court orders to reasonably assist law enforcement
Here are found two critical--even pivotal--qualifiers: "lawful" and "reasonable". I take it that Apple questions the applicability of both to the current situation. As they should.
If the idea is not to aid or abet criminals, directly or indirectly, why would anyone willingly oblige any agency, in any country, that colluded with its peers and created a planet-spanning, indiscriminate and omnivorous digital dragnet, in secret, and without specific authority, specific need, or evident oversight?
"For too long, we have been a passively tolerant society, saying to our citizens 'as long as you obey the law, we will leave you alone'.”
--David Cameron
The concept of "if you keep your nose clean, you'll be left alone" is nothing more than a lie told to (and only believed by) the incredibly naive. The rest of us have to live in (and try to shape our society to compensate for) a world in which even the smallest power corrupts absolutely.
Anyone who believes that criminals should not be protected by the same laws as the rest of us is on a slippery slope to torture, barbarism, totalitarianism. It's something the far right in the US say. I'm pretty sure most UK citizens would not be terribly keen on waterboarding shoplifters, or ramming bamboo shoots under the fingernails of speeding motorists - no matter how affected our families had been by motorists and light fingered miscreants.
it's fair to say that the majority of law-abiding citizens would want prosecutors to be able to access evidence that could help convict someone of a serious crime, regardless of how strongly they feel about their own personal privacy.
No, it's not fair at all. If the government said it should go house to house searching any they fancied on the basis that there may be smuggled goods or persons of interest within then there may be a bit of an outcry, a revolution one might even say: https://en.wikipedia.org/wiki/Writ_of_assistance
the court order breaks the Thirteenth Amendment (1865) – that's right, the one abolishing slavery. How does that work exactly?
Is the author so dull that he can't see the argument, bogus or not, that forcing a company (and its staff) to work and create something against their will and under threat of punishment is a pretty good example of "involuntary servitude"?
It is worth noting, however, that Lavabit does not actually exist any more
Yes it is, but not for the reasons the author thinks! Lavabit was ordered to hand over all its private keys so the government could see not only Snowden's emails, but also everyone else's.
Was this written by a government shill?
The basic issue is trust. To often the local, state, and various feral Stasis have destroyed any trust large segments of the population might have had in them. Competently managed companies such as Apple realize that the prerequisite for customer loyalty is trust. If one trusts an organization and its word, one is more willing to listen to them.
For myself, I am very wary of the various Stasis, too many are nothing more than criminal gangs with a badge (Chicago PD is a good example). However, in spite of my dislike of their privacy policies, I have more trust in Slurp to at least follow their stated policies. The fact I have a level of trust in Slurp does not mean I am a loyal customer.
One of the fundamental problems I see here is that the FBI, and many people who argue in favor of the FBI's case, don't really get that math is math. Math does not distinguish between bad guys and good guys. Math doesn't know about due process or judicial oversight. Math is math.
Encryption is math. If there's a way to break or circumvent an encryption system, that's math. Because math is math and knows nothing of good guys and bad guys, any system that allows bypassing or otherwise circumventing encryption is an equal-opportunity tool. (Do we assume that China doesn't have mathematicians? Russia? Organized crime?)
In the past, it has been possible, at least to some extent, to partition law enforcement abilities by making--to greater or lesser extent--the tools they use available only to the "right" people. You can't do that with math. Math is just...math.
Then most of this data was inaccessible... people didn't keep paper receipts or incriminating contact lists, they bartered and remembered. If you wanted to record a conversation, you needed a spy present (and holding a quill?).
Of course, even of the FBI win, they aren't going to get the access they want - if the knowledge that Apple phones are unbreakable means that all the criminals move to Apple, then an FBI win will push the criminals onto a more secure platform - pick any cheap smartphone from China. Even if the phone has a communist backdoor, a criminal in the US doesn't care because it's more difficult for the FBI to get into.
Putting on my tinfoil hat - it's all an elaborate charade, Apple wins, iPhone sales rocket, and the FBI still uses the secret backdoor.
How about the Quartering Acts of 1765 and 1774? Those acts passed by Britain were among the factors that led to revolution in the US. It seems the colonists didn't like being forced to put up British soldiers in their home.
The idea that it is some sort of settled law that US citizens have a duty to help police investigations wouldn't go very far with those who wrote the Declaration of Independence and the 3rd amendment of the Constitution! Especially once they reveal it is based on English law from before the first white man (or rather first white man who had a decent publicist) set foot on American soil.
It is a matter of record that Thomas Jefferson was involved with the creation of encryption devices (the"Jefferson Wheel"), and that a number of the Founders, including Washington, Jefferson, and Franklin, routinely used encryption to protect their correspondence.
Did they give the FBI back-door access? Or did they try to forbid that in the Constitution they wrote?
Another issue is the definition of "court". Is it federal courts, state, county, town? IRS,? Public opinion? FISA? Or in the case of you Brits, the bin police?
Furthermore, this is an issue that the United States Congress to debate and decide what needs to be done. Followd by the inevitable Supreme Court decision. Not local and all to often correct or grudge bearing law enforcement who may want revenge because your BBQ sauce won the Blue Ribbon at the State Fair.
> but it would be nice to hear a legal opinion that stemmed from events where people weren't still using bows and arrows and Charles Babbage's Difference Engine has been invented
Perhaps, but a precedent[1] is a precedent so referring to it is appropriate, no matter how old.
[1] If indeed it is one, which is an entirely different question
"But as records of courts of justice are admissible, it can easily be proved that powerful and malevolent magicians once existed and were a scourge to mankind. The evidence (including confession) upon which certain women were convicted of witchcraft and executed was without a flaw; it is still unimpeachable. The judges' decisions based on it were sound in logic and in law. Nothing in any existing court was ever more thoroughly proved than the charges of witchcraft and sorcery for which so many suffered death. If there were no witches, human testimony and human reason are alike destitute of value." -- Ambrose Bierce
Time for a clear-out of irrelevant precedents, perhaps?
The FBI has already shat all over their bed with borderline illegal use of stingray cell towers which by design hijack the infrastructure hundreds of ordinary citizens are using.
Give anyone this power it will be abused.
Until the pendulum swings the other way and law enforcement officials are immediately jailed for their abuse of technology the only protection we have is to deny them that technology because it WILL be abused on a scale all out of proportion to the problems it solves,
It's rather like giving them guns training and culture that emphasises their personal power over the rule of law and then being surprised that a minority think it's ok to blow away demographics that they look down upon or are frightened of.
i'm an old and hardly leave the house anymore so i guess i'm not even unintentionally breaking the law with any frequency any more . . . i have a dumb phone, the only things in memory are phone numbers of family and (too many) physicians . . . my life is so dull it has been threatened with classification as an opiate.
however, i care about your phones and your data . . . they shouldn't be accessible to anybody but you!
i may revise this opinion when law enforcement begins policing their own more vigorously than they police the rest of us . . . when they stop giving free passes to the well connected . . . and most importantly - when they disarm!
[ i don't think i'll live long enough to have to change my opinion ]
The author's rather feeble effort to trivialize the First Amendment issues disgusted me... until it dawned on me that the Kieren McCarthy probably wrote that piece under duress from the US Department of Justice.
OK, so maybe not... but if Apple can be compelled to spend 10 man months or more using highly skilled individuals to create software (which, Kieren, is speech, as a matter of law, regardless of what you think), why can't some hack be compelled to spend 10 minutes or so banging out that article, and then attaching the by-line?
The cops are full of BS. Their argument is no different from arguing that cars should be limited to the speed of a galloping horse, so the cops can catch them. And it ignores the reality that unbreakable encoding has existed since the beginning of time: what does "Tora! Tora! Tora!" mean, anyway? (coding != ciphering, of course).
Yes, we understand it's convenient for cops to be able to mine all sorts of things for evidence, and we understand they've been able to achieve great things with the fruits of those mining expeditions, but fundamentally the cops (and Kieren) are arguing that everyone should be implanted with a GPS tracker / camera / recorder, because it would be jolly useful to have that evidence.
which, Kieren, is speech, as a matter of law, regardless of what you think
You may want to point to a legal precedent instead of making stuff up.
It would be nice to have code considered as "speech" but there is a truckton of legal discourse behind such a concept that is unlikely to be very likely to go that way. Interestingly, it would imply that DNA is speech, so I could wire up any pathogen in my basement when I get the DNA desktop combinator in about 10 years, then?
Apple compelled to spend 10 man months or more using highly skilled individuals to create software
Drop the "my poor Apple Corp" arguments, please. I feel like i'm reading a novel by Victor Hugo.
but fundamentally the cops (and Kieren) are arguing that everyone should be implanted with a GPS
I looked it up for you: Appeal to Extremes
"You may want to point to a legal precedent instead of making stuff up"
In case he can't be bothered with your somewhat rude reply, I looked it up for you: Bernstein v Dept. of Justice
Early on in this fiasco, I seem to recall that Apple have assisted in the recovery of data from hundreds of iPhones, their quote, for properly presented warrants for law enforcement. The requirement being that you have *not* reset the iCloud password associated with the iPhone.
Did not San Bernardino Police thank the FBI for helping them reset the password on the iPhones iCloud account or do I remember this incorrectly?
If that is the case then why are the FBI beasting Apple over the FBI, who should have known better, having screwed up recovery options? Recovery options that they cannot deny knowing about having used them before with properly issued warrants.
I don't use any Apple products, I don't actually like the way they work, but I'm with Apple over this one. The FBI screwed up the ability to recover the data. They are now scabbing about in the depths of the law system trying to find a way out without shouldering any blame.
Apple is quite right to give them the legally approved method of the Long bowmen two finger salute.
That's because the FBI are incompetent bottom feeders who only seem to exist to drawn down federal funds and spy on peacenik groups, but that's another problem. Or is it?
They might very well be incompetent in this case. However, instead of stupidity, let's consider "forethought".
It's been mentioned that one of the conditions is that the iCloud password NOT be reset for Apple to be able to help. Suddenly we have a phone in a well-publicized case that had it's iCloud password reset. No real answers but fingers pointed at different people... the FBI, the County office where he worked, and the local cops have all had the finger pointed at them for resetting the password. This is perfect case (due to publicity and well... terrorism) for them to push the envelope.
I'm guessing they know full well that there's nothing of value on that phone and that this is a test case to see how far they can push the envelope.
"[...] was opened and copied at the Post Office [...]"
Correspondents used coded messages, not necessarily encryption, to avoid spooking the Royal Mail interceptors into suspicions of treasonable behaviour. One imagines everyone who had to use the mail service soon learned to be very careful about the way innocent words or phrases could be construed by a biased, or ambitious, mind.
This 'Post Office' mind game has gone too far.
Before cheap, powerful computers and storage were invented it was uneconomical to spy on everyone unless the authorities had good reason to mistrust everyone. Now it is affordable and any bureaucracy will adopt useful equipment and practices if it fits into the budget. The problem is not the bureaucracies it is the law.
The FBI needs to know where the law stands. We need to have the laws that suit us.
Obviously we must all do our best to help law enforcement in solving a crime that has been committed. I do not understand why that is even being discussed. However ...
Given the encrypted state of the phone they are trying to access, Apple should immediately assist the police in setting up a system that can be used to brute force the encryption. That is the best that can be done given the state of the phone. If the bad guy has chosen a good password this might take a long time.
We should not confuse assisting law enforcement with the different matter that is if we should setup our security beforehand so that law enforcement has a backdoor access.
"Given the encrypted state of the phone they are trying to access, Apple should immediately assist the police in setting up a system that can be used to brute force the encryption. That is the best that can be done given the state of the phone. If the bad guy has chosen a good password this might take a long time." -- Steen Larsen
Let us enjoy the full majesty of your uninformed ad hoc reckon
Which is followed by "In this digital age, data stored on mobile devices has proven time and again to be critical in assisting law enforcement officers to do their jobs."
That may be the case, but it is *NOT* a justification for fishing expeditions, nor widespread surveillance, ID cards, snooping on everyone based on the principle of "if you have nothing to hide..."
And, of course, it doesn't mention all those many more other cases which have been solved *without* accessing such information with that thing called "old fashioned police work".
> society accepts that the people that break its rules and laws should not be able to rely on those same laws to prevent them from being punished.
Did this one come from the Daily Mail's pages or maybe David Cameron (who thinks that "as long as you obey the law, we will leave you alone" is no longer acceptable)?
We have things called Human Rights Laws which say that *everyone* is entitled to the same liberties and protections, not just for people who believe the "right" things or come from the "right" places" or worship the "right" gods or have the "right" skin colour.
Clearly Sir William Blackstone's words: “It is better that ten guilty persons escape, than that one innocent suffer” are also no longer applicable.
> wait until you or your family are at the end of a crime and the person walks free because they were unable to prove their case. Thanks to that black-screened iPhone. Then you may not back Tim Cook quite so strongly
Seriously?!
This is the same argument I've heard from the pro-gun lobby in the USA: "You may be anti-gun now, but wait until someone's pointing one at you or your family is killed by a criminal because they couldn't defend themselves, then let's see how strong your principles are!"
This is the sort of thing which tests those principles. Do we cave in to the "Terrorists and Paedophiles and Criminals Oh My" demands or do we stand up for what we believe in and say "No, we are not going to let you fool us into giving up our rights and liberties wholesale because you can't get your way in this case"?
PS I have to wonder whether this entire article was written as some sort of massive troll...
But law enforcement is trying to tell anyone that will listen a hard truth: you like it now, but wait until you or your family are at the end of a crime and the person walks free because they were unable to prove their case. Thanks to that black-screened iPhone. Then you may not back Tim Cook quite so strongly.
It's true that at first I might not, but I'd like to think that my initial visceral reaction would then be tempered by my more rational mind
In earlier decades I might have wished that the cops were allowed to beat a confession out of the bastard who harmed my family, but I've long since learned that it's better for society as a whole not to allow such things. So law enforcement can go stick their emotive, fear-mongering and fallacious 'hard truth' up their collective behinds.
It's rather trite to say that everyone should assist in the pursuit of lawbreakers etc. But we also have to remember there's supposed to be - and I'd like to think still is - a concept of presumption of innocence.
The FBI appear to have chosen the case on which to raise their demand with considerable care. There is nobody charged and very likely nobody ever to be charged as a result of this. The user of the phone, whilst neither charged nor convicted, has any outstanding human rights to be contradicted, moreover it's likely that when a coroners court sits on the murders it's likely to pronounce that he committed them. Also the phone wasn't his property, it belonged to the local government body who are agreed to the phone being hacked. So, apart from the fact that the FBI and the owners between them made a cock-up by changing the password and the dubious arguments for the phone's likely evidential value over and above any information the FBI might already have, the case for doing this is about as persuasive as it gets.
However, the precedent it would set, practically if not legally, would extend well beyond these circumstances. Even if a decision in favour of the FBI were limited to the particular circumstances I outlined above it would still be a dangerous precedent. On the one hand it would undoubtedly be just the first slice in a campaign of salami tactics to make the decision universal. On the other, if the circumstances were limited to those in which the user were dead that might be an irresistible temptation that shouldn't be on offer.
The argument's been made that those who break the law shouldn't be entitled to call on the law to protect them. That argument fails to take account of the presumption of innocence. Until proven guilty the alleged lawbreaker is as entitled to the protection of the law as anyone - it's one of the final lines of defence we all share against a false allegation. So the risk of such a precedent being widened to overrule that presumption is not a trivial one.
If we are to be called on to assist against lawbreakers we need to be able to trust those who make such calls. As things stand various agencies in both the US and the UK have forfeited a great deal of public trust. ISTM that one of the most important things now, for the FBI and for the others, is to rebuild that trust. In the circumstances, whatever new evidence might be gleaned from the phone the wisest step the FBI could take right now would be away from their request. It could be the first step towards that rebuilding.
As the FBI and their supporters have chosen to invoke the rulings of Edward I we should remember that the presumption of innocence was reintroduced into European law in his time and also that he not only reaffirmed Magna Carta, he made it part of English statute law. From Magna Carta we have the concept of due process of law. These days I fear the concept of due process is being stretched to breaking point if not beyond.
Finally I should reiterate that I spend a good many years as a forensic scientist in the midst of a terrorist campaign. I carry no brief for terrorism or any other form of criminality. I understand from my own experience the desire to investigate cases as fully as possible. But the thing I dreaded for all those years was the possibility that, however inadvertently, I might end up making a mistake that could help convict someone who was, and would know themselves to be, innocent. I wish I could see evidence of that dread in the decision makers of law enforcement agencies today.
As Franklin pointed out, anyone who is willing to give up a bit of freedom for increased safety deserves (and will achieve) neither. The fundamental philosophy of American law has always been that it is better that a few guilty go free rather than a single innocent be punished unjustly. Finally, the fact that today's law enforcement can use tactics that East Germany STASI would only dream about in silence and darkness, while the STASI had to do it in public, does not make it justified to hold every citizen as guilty until proven innocent. I don't have an ideal answer, but giving government authoritarians Carter Blanche certainly is not the right answer. And depending on a present government's good graces and protestations of virtue is a foolish conceit, as has been demonstrated throughout history.
"While Apple has been listing the briefs filed with the court on its website, we note one missing: the 18-page argument in favor of the FBI's position..."
Of course Apple doesn't list this brief. What Apple lists is, to quote:
"Amicus Briefs in Support of Apple".
The critical phrase is 'in Support of'.
Pointing out quotes from New York District Attorney Cyrus Vance is incoherent, seeing as he just lost a court case demanding Apple help crack an iPhone in a drug crime case. Or didn't you know that?
You state: "The crux of the law enforcement argument is pretty simple: in order to do their jobs they need to be able to get at relevant evidence." NO. In order to do their jobs they have to protect and defend both the law, including the US Constitution, and the citizens of the USA. That includes defending The Fourth Amendment to the US Constitution. Breaking the US Constitution is NOT their job. Subverting US citizen's rights to privacy, including as much and any encryption they choose to use, is NOT their job.
Immediately, this article comes off as a hit piece with no adherence to facts, little understanding of the subject and meagre background in US law, including the US Constitution. Did you expect this issue to be a mud puddle you could splash about in? You've drowned yourself.
Why did you bother to write this cognitive dissonance diatribe and why did The Register publish it? Try again, without attempting to enable, excuse or support totalitarianism.
Speaking of which, don't UK citizens have their own more offensive problems with governmental totalitarianism to route out and end?
Reminder: When we nations of the world subvert citizen's rights in response to terrorism, the terrorists WIN.
... if there had been less videos of Usanian law enforcement officers shooting at people, then walking free, without even a trial. So, how can evidence locked inside a phone matter than much when that on Youtube does not?
Anyway, the crime rates in the USA are overall going *down*, not *up*. So that new technology is not ushering in an age of anarchy and lawlessness.
"...the citizenry may be called upon to enforce the justice of the state, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand."
Drop the reference to Edward. It seems a reasonable statement.
When it is the state that is breaking the laws (privacy, illegal search and seizure, torture) however...
(Which the writer of this article appears to be endorsing)
Unless you give up some of your rights, criminals will get away with it.
Of course, (replacing criminals with 'enemies of the state') totalitarian states have used this argument for decades. Conversely if you do give up your rights - for any reason whatsoever - you WILL get a totalitarian state. Police and governments can't help themselves.
This is the best they've got...
Some 950-year-old laws imposed on England by the Norman conquerors.
Some 700-year-old decrees of Edward I, a notorious tyrant.
And some unconstitutional 20th-century government excesses which gave law enforcement access to private financial transaction records and similar paperwork, which, they argue, should also apply to electronic devices that are constantly recording the minutiae of our lives (often out of context).
It is true that a mobile device has an abundance of data and possible evidence on it. However, much data is also sent to could services. The metadata can be a rich source of evidence and leads to other actors/information. Right now, I side with apple because the government demonstrated unambiguously that they are unworthy of trust. This is technology taketh away what the government should should never have been given. The government will need to work hard to regain the lost trust. Unfortunately, they seem to be more interested in "justice" for Edward Snowden's alleged crimes than rebuilding trust with the citizenry.
"... society accepts that the people that break its rules and laws should not be able to rely on those same laws to prevent them from being punished..."
What the author refers to is the original meaning of the term "outlaw": one who was outwith the law and the law *would not protect*. Being an outlaw was tantamount to walking around with a target on one's chest: anyone could do anything to you with no comeback.
As a result, being declared an outlaw was considered a very harsh penalty indeed. Not a default position taken before guilt has even been established!
"you like it now, but wait until you or your family are at the end of a crime and the person walks free because they were unable to prove their case. Thanks to that black-screened iPhone."
.. May as well have just done the cliched "think of the children" instead of same intent, just reworded.
"it's fair to say that the majority of law-abiding citizens would want prosecutors to be able to access evidence that could help convict someone of a serious crime, regardless of how strongly they feel about their own personal privacy."
No it is not fair to say that. It would be fair to say that citizens object strongly to innocent citizens having their rights violated, whether by criminals or by the criminal justice system. It would also be fair to say that citizens expect investigators to follow a trail of evidence to its logical conclusions, remembering at all times that all citizens are innocent until proven otherwise. If, and only if sufficient evidence warrants it, should prosecutors consider bringing criminal charges. Does this mean that some criminals will get away with it? Yes. That is one of the prices to be paid for living in a fair and honest civilization. The alternative approach, which is to assume that everyone (you included) is a criminal, has been tried many times, and has failed every time.
The FBI treats this as if it was an inexhaustible resource. Crime committed - just break the phone and crime solved. Not so. A few big cases and people stop using phones in a way that leaves evidence around.
However, once you put a back door into phones, phones as safe repositories of personal data that could lead to ID theft are gone. If people get hacked because their phones are hacked and we are soon back to land lines (I actually only have a land line, so that would not bother me).
The FBI/police were able to solve most cases before phones and the incriminating information that they claim is in those phones. They relied on physical evidence and that physical evidence still exists.
Do phones create crime. Do people become crazed and decide to kidnap a child because they have a phone? Does the phone allow them to hide the other evidence of the kidnapping?
The US is spending billions on security every year. That should allow far better crime solving than ever before even without cracking phones.
Or, is all the money spent on show with no real results?
All calls made by the number can be retreved through the service provider via already established legal means. If the data is in the apps e.g social apps then that data can be accessed via normal data requests to the app companies and is already in practise.
While it appears its Apple vs FBI but if Apple is forced into making a backdoor for iOS, then Android, Windows, Linux and all other operating suites will have to do the same.
Q - So how do we stop foreign companies from making bloatware and snooping on people in other countries??.
Q - Why switch to manufacturing unsafe hardware just because political mistakes have created situations where the world is overan by mercenaries created by the same forces ?? Should'nt we solve those political problems rather than build virtual guantanamo bays on mobile devices?
Q - Should the world have to pay for foreign mistakes?. How will US manufacturers present this in foreign markets?. Example if you live in Italy should you be JulianAssange/EdwardSnowden worried that you are being snooped on by the US?.
...but it would be nice to hear a legal opinion that stemmed from events where people weren't still using bows and arrows...
It's an admission that they KNOW that based on established LAW, they've already LOST the case, but for POLITICAL reasons, they want the COURTS to VOTE against the LAW.
In term of privacy, what is the difference between searching a home and searching a phone? Both are invasion of legal forces into one's individual sphere.
If we consider it is legitimate for the police to snoop into one's house if a judge says it is legal to do so, then we should have the same consideration when the police with the authorization of a judge wants to dig into a suspect's phone.
"This is the quote from Justice Cardozo in the 1928 New York case of Babington vs Yellow Taxi Corp:
As in the days of Edward I, the citizenry may be called upon to enforce the justice of the state, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand."
Surely a key point for Apple is that the implements the FBI wants are neither "convenient" nor "at hand"?
The 13th Amendment abolished involuntary servitude. The author, Kieren McCarthy, wonders how that could be applicable.
"...argues that the court order breaks the Thirteenth Amendment (1865) – that's right, the one abolishing slavery. How does that work exactly? We don't yet know because the proposed brief has yet to arrive."
But isn't it clear that compelling a company (which is composed of individuals) to perform a task against their will amounts to involuntary servitude?
The government must be limited in its powers. Even if you can find instances where a good government would be aided with additional powers, the real government must be limited.
Frighteningly, most discussion of this case is being discussed in a national frame. But you can be sure as eggs that if they don't already, once the FBI has such a tool then the NSA, CIA and any other acronym, will also have it and use it with impunity within and without US borders.
While a lot of privacy discussion at the moment focusses on matters internal to the US, it's intelligence gathering agencies that operate outside of its borders have to date demonstrated **much** less restriction or moral qualms about foreign citizens information sovereignty.
As a US citizen you might say "Well that's because we need to know what those dangerous muslims/torrorists/Iraqis/Afghanis/commies/Chinese/Japs/North Koreans/zombies (take your pick of the new Hollywood bad guys) are at for our own safety!". But then also imagine that is just as likely that the same argument may be made in other countries. As the US is often held up as a shining example of democracy, then if the argument wins there surely other countries wanting to emulate such great governance will also follow suit - indeed how could one hold them to blame?
Furthermore, in this age of global intelligence community it is likely that such a tool would be willingly shared or bartered with other nation's police and intelligence agencies making such a scenario extremely likely. Once beyond the marvellously stringently laws of use of US jurisdiction who's to say that it wouldn't just be used for this, at best, morally gray area of policing and intelligence? The Us and its allies have often allied with countries that have since gone on to become near totalitarian, using every tool in their arsenal, including invasion of their own citizens privacy and free speech, to control their people, Egypt, Afghanistan, Libya - the list goes on. In such a case the US - self-appointed purveyor of democracy, equality and justice across the globe thus provides the means to oppress the same 3 qualities just mentioned.
"Our intelligence agencies would never share such a tool with foreign powers!" you cry. To which I laugh my arse off.
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