Senator drafting bill to criminalize Apple’s refusal to aid decryption(arstechnica.com)
arstechnica.com
Senator drafting bill to criminalize Apple’s refusal to aid decryption
http://arstechnica.com/tech-policy/2016/02/senator-drafting-bill-to-criminalize-apples-refusal-to-aid-decryption/
47 comments
What the real problem is is that the TLA agencies don't have anything to lose with this.
Is there no way to go: "All right. We'll do that. HOWEVER, if we don't find anything on this phone, we want this held up as a prime example of government overreach and we want all further attempts on this judicially banned."
If the TLA agencies had a downside to losing the case, they'd drop it in a flash.
Is there no way to go: "All right. We'll do that. HOWEVER, if we don't find anything on this phone, we want this held up as a prime example of government overreach and we want all further attempts on this judicially banned."
If the TLA agencies had a downside to losing the case, they'd drop it in a flash.
Results based reasoning for things like this is a deadend.
Whether or not anything is found on the phone should not factor into deciding whether or not this is a prime example of government overreach.
Whether or not anything is found on the phone should not factor into deciding whether or not this is a prime example of government overreach.
They'll probably never agree that they didnt get anything. They'll claim they got evidence related to "suspicion to X " which could be entirely based on a conversation where someone was expressing opinions.
And yes, they might also say that the information is classified!
Yeap. "Parallel construction".
This is a positive development.
The central question in Apple's case is "what are the limits of the All Writs Act authority?" Can a court use the All Writs Act to compel any behavior that the FBI says would be helpful to an investigation?
If so, it would seem to obviate the need for legislation. No need to bother Congress--just get a warrant for any encryption back doors you want.
At least a bill submitted to Congress will follow a public, democratic process.
The central question in Apple's case is "what are the limits of the All Writs Act authority?" Can a court use the All Writs Act to compel any behavior that the FBI says would be helpful to an investigation?
If so, it would seem to obviate the need for legislation. No need to bother Congress--just get a warrant for any encryption back doors you want.
At least a bill submitted to Congress will follow a public, democratic process.
We'll likely see more developments like this from other large iPhone markets. It's a noble but ultimately untenable position for a manufacturer to take.
If the courts, the owner and let's suppose the majority of the people of a jurisdiction (in this case US law) legally make this request I don't see how a company can get from out of complying by saying "we made it impossible". The courts will say, fine, in the future make it possible and not complying will forfeit the right to sell such a device.
Either the US, the EU or China will make their case economically and Apple will capitulate or exit a market --and I don't see them exiting large markets.
There is also no historical precedent where the notion of privacy has meant "secret forever" so this is new territory and where it ends up will probably depend on how society values new notions of privacy versus providing legal access to information for the purposes of crime investigation. In the US, and China, people have typically sided with the state, so I don't see this changing.
If the courts, the owner and let's suppose the majority of the people of a jurisdiction (in this case US law) legally make this request I don't see how a company can get from out of complying by saying "we made it impossible". The courts will say, fine, in the future make it possible and not complying will forfeit the right to sell such a device.
Either the US, the EU or China will make their case economically and Apple will capitulate or exit a market --and I don't see them exiting large markets.
There is also no historical precedent where the notion of privacy has meant "secret forever" so this is new territory and where it ends up will probably depend on how society values new notions of privacy versus providing legal access to information for the purposes of crime investigation. In the US, and China, people have typically sided with the state, so I don't see this changing.
> There is also no historical precedent where the notion of privacy has meant "secret forever"
Sure there is: a private verbal conversation.
There are plenty of ways for the government to record such a conversation if they know in advance that they want to do so. But if they don't know that in advance--as they did not with the San Bernadino shooters--then the only people who will ever know what was said in that conversation are the people who held it.
Historically, privacy meaning secret forever was the norm! It is only in the last few years, with text-based electronic communications, that law enforcement has come to expect retroactive access to all conversations.
It's a very dangerous concept that should require careful consideration and votes to create. Instead it got created by default because no one knew how to do info security well 10 years ago.
Sure there is: a private verbal conversation.
There are plenty of ways for the government to record such a conversation if they know in advance that they want to do so. But if they don't know that in advance--as they did not with the San Bernadino shooters--then the only people who will ever know what was said in that conversation are the people who held it.
Historically, privacy meaning secret forever was the norm! It is only in the last few years, with text-based electronic communications, that law enforcement has come to expect retroactive access to all conversations.
It's a very dangerous concept that should require careful consideration and votes to create. Instead it got created by default because no one knew how to do info security well 10 years ago.
Historically the world was gossip and telling "secrets" people lived in close quarters so keeping secrets was generally pretty difficult. With written communication, secrets ended with the death of the recipient where upon people would read letters and such --not that with most people illiterate there would be many people writing secret things.
I don't think the courts, the electorate or congress would allow or condone wholesale warrantless access to "private messages", however, I think what will happen is people will decide discrete, lawful access for investigative purposes with oversight will be tolerated. Most people are not binary about this issue. Most people are more nuanced about the topic and most people, I believe, will decide that there are circumstances where they believe "the government" has valid reason to have access to that kind of data from specific kinds of people who conduct specific kinds of acts.
I don't think the courts, the electorate or congress would allow or condone wholesale warrantless access to "private messages", however, I think what will happen is people will decide discrete, lawful access for investigative purposes with oversight will be tolerated. Most people are not binary about this issue. Most people are more nuanced about the topic and most people, I believe, will decide that there are circumstances where they believe "the government" has valid reason to have access to that kind of data from specific kinds of people who conduct specific kinds of acts.
So all of Apple will go to jail? Or just the shareholders?
They will just move all business and all assets out of the country.
Having quite a big impact on US economy.
Or: Govt will seize control of Apple ... and destroy it within six month. Throwing technology back by 10-15 years.
Having quite a big impact on US economy.
Or: Govt will seize control of Apple ... and destroy it within six month. Throwing technology back by 10-15 years.
Legally, corporations are people so I'd assume they have some sort of secret squirrel digital prison for imaginary people. /s
No, they're not "legally people," they're "legal persons," and that was true before Citizens United.
They are capable of suing and being sued, and capable of committing crimes. Under the doctrine of respondeat superior, a corporation may be held criminally liable for the illegal acts of its directors, officers, employees, and agents.
They are capable of suing and being sued, and capable of committing crimes. Under the doctrine of respondeat superior, a corporation may be held criminally liable for the illegal acts of its directors, officers, employees, and agents.
I believe you are correct:
The legal doctrine of respondeat superior is recognized in both common law and civil law...it translates, from the Latin, as "let the master answer"...
https://en.wikipedia.org/wiki/Respondeat_superior
The legal doctrine of respondeat superior is recognized in both common law and civil law...it translates, from the Latin, as "let the master answer"...
https://en.wikipedia.org/wiki/Respondeat_superior
In the hierarchy of unsubstantiveness, "announcement of an announcement" definitely comes first, but "drafting a bill" could well be second. Most proposed bills go nowhere, let alone bills that haven't been written yet.
If anything comes of this, we can discuss it then.
If anything comes of this, we can discuss it then.
This concept of retroactive back doors seems a new awareness.
Actual, non-retroactive, backdoors are built into a design.
The idea you can take an existing design and insert a backdoor that works retroactively really is not a backdoor but is a complete security failure and a bug in the original design.
"My design is completely secure as long as no one issues a retroactive backdoor." means the design is not secure at all.
Actual, non-retroactive, backdoors are built into a design.
The idea you can take an existing design and insert a backdoor that works retroactively really is not a backdoor but is a complete security failure and a bug in the original design.
"My design is completely secure as long as no one issues a retroactive backdoor." means the design is not secure at all.
For certain notions of secure.
Let's use the analogy of a house to describe the OS.
Most organizations may trust Apple to provide the service of updating their OS when new bugs (some security) are discovered, that is, they are comfortable giving Apple "maintenance door" access to the non-sensitive parts of their iOS device, to perform janitorial and construction services, and plugging holes in the house; and only Apple has the keys through the maintenance door.
Let's use the analogy of a house to describe the OS.
Most organizations may trust Apple to provide the service of updating their OS when new bugs (some security) are discovered, that is, they are comfortable giving Apple "maintenance door" access to the non-sensitive parts of their iOS device, to perform janitorial and construction services, and plugging holes in the house; and only Apple has the keys through the maintenance door.
Just goes to show you can't legislate morality, but a crooked politician can try to make scruples illegal.
(I so hope Bernie wins and has the DoJ investigate folks for corruption and racketeering, starting with Cheney.)
(I so hope Bernie wins and has the DoJ investigate folks for corruption and racketeering, starting with Cheney.)
Ah, the GOP.
Keep this in mind when they carry on about being the party of personal liberty.
Keep this in mind when they carry on about being the party of personal liberty.
Please, Dianne Feinstein is equally supportive. This doesn't align well with the parties -- hawks in both parties are bad about it, while each party has factions that are pro-liberty on this issue. Ted Cruz, for example, took a lot of heat from Rubio and Christie over his pro-encryption stance. Hillary is pretty weak on the issue.
> Please, Dianne Feinstein is equally supportive.
She's an anomaly among Democrats. She may as well caucus with the Republicans, given her abysmal record in this area.
She's an anomaly among Democrats. She may as well caucus with the Republicans, given her abysmal record in this area.
Taken narrowly, there is no personal liberty at stake in this situation. Searching this phone is clearly permissible under the 4th amendment.
I guess making Apple--a huge corporation--assist is somewhat against liberty, but I wouldn't call it personal liberty. They get compensated for it.
The slippery slope argument everyone seems to be pushing doesn't quite make sense to me. How is forcing Apple to help get past security after a valid court order going to hurt third parties privacy? Nobody is asking for Apple to introduce a backdoor into their products for sale. Only to exploit a backdoor into one specific phone.
I guess making Apple--a huge corporation--assist is somewhat against liberty, but I wouldn't call it personal liberty. They get compensated for it.
The slippery slope argument everyone seems to be pushing doesn't quite make sense to me. How is forcing Apple to help get past security after a valid court order going to hurt third parties privacy? Nobody is asking for Apple to introduce a backdoor into their products for sale. Only to exploit a backdoor into one specific phone.
The backdoor does not currently exist. Creating it leads to a slippery slope because the FBI will not only ask Apple to unlock phones from known dead terrorists who killed multiple people, but it will cascade to suspected terrorists, and then families of suspected terrorists, and then drug dealers and drug users and then speeders and loiterers and people of the wrong color, just like every other police abuse of power.
And then if Apple gives into the FBI, it'll have to give into the UK and France and Germany and China and Russia and anywhere else they want to sell their phones. And once the capability is created and exists, it can leak, and then no one's phone is safe anymore.
That's the slippery slope.
And then if Apple gives into the FBI, it'll have to give into the UK and France and Germany and China and Russia and anywhere else they want to sell their phones. And once the capability is created and exists, it can leak, and then no one's phone is safe anymore.
That's the slippery slope.
And unlike many of the "slippery slope" arguments that seem to involve hand-wavy-ness and no-reasonable-person-ness, this one is straight, slick, steep and you can see right to the bottom.
Don't get in the tube and push off if you don't want to ride this one all the way down.
Don't get in the tube and push off if you don't want to ride this one all the way down.
Note that the purpose of this case is not to get the data, the FBI have other options for this specific example. The purpose is to set a precedent, and to get the backdoors they want created. This isn't some haphazard accidental "oops, we didn't mean to go so far" situation, this is the FBI getting out the hose and the slip-n-slide and pointing a gun at Apple to get on.
>The backdoor does not currently exist.
This is pretty much semantics. Apple can load a modified firmware without the password. That is a backdoor.
>Creating it leads to a slippery slope because the FBI will not only ask Apple to unlock phones from known dead terrorists who killed multiple people, but it will cascade to suspected terrorists, and then families of suspected terrorists, and then drug dealers and drug users and then speeders and loiterers and people of the wrong color, just like every other police abuse of power.
The fact is that each time this tool would be used would require a federal district court to specifically order it. That eliminates the slippery slope risk. The courts would absolutely allow it for murder cases. In fact, any federal crime. But that's what is supposed to happen.
And if you really think that a district court would let the FBI search a phone because they are the wrong color (or any other blatantly illegal purpose), well that court would also force apple to help them. So it ordering this now doesn't increase the likelihood of it happening.
>And then if Apple gives into the FBI, it'll have to give into the UK and France and Germany and China and Russia and anywhere else they want to sell their phones.
I am not arguing that Apple should give the FBI the power to do it independently. The FBI isn't asking for it. And the court didn't order Apple to do that.
Apple already has the capability to do this.
This is pretty much semantics. Apple can load a modified firmware without the password. That is a backdoor.
>Creating it leads to a slippery slope because the FBI will not only ask Apple to unlock phones from known dead terrorists who killed multiple people, but it will cascade to suspected terrorists, and then families of suspected terrorists, and then drug dealers and drug users and then speeders and loiterers and people of the wrong color, just like every other police abuse of power.
The fact is that each time this tool would be used would require a federal district court to specifically order it. That eliminates the slippery slope risk. The courts would absolutely allow it for murder cases. In fact, any federal crime. But that's what is supposed to happen.
And if you really think that a district court would let the FBI search a phone because they are the wrong color (or any other blatantly illegal purpose), well that court would also force apple to help them. So it ordering this now doesn't increase the likelihood of it happening.
>And then if Apple gives into the FBI, it'll have to give into the UK and France and Germany and China and Russia and anywhere else they want to sell their phones.
I am not arguing that Apple should give the FBI the power to do it independently. The FBI isn't asking for it. And the court didn't order Apple to do that.
Apple already has the capability to do this.
Would you agree that having a device to torture someone, and using a device to torture someone are different things?
Apple doesn't want to build a device to torture people. They're worried that if they build a device to torture people, that they will be told to torture people all the time, and will be barred from disclosing the fact that they're torturing people.
> The fact is that each time this tool would be used would require a federal district court to specifically order it. That eliminates the slippery slope risk.
I can't imagine why you think this. Getting a wire tap used to take a warrant. Then it took a warrant in a secret court. Then it took a warrant in a secret court, which could be granted after the fact. Then blanket permission to wire tap every overseas phone call was taken. Then blanket permission to wire tap every domestic email. I just don't see how you think you've ELIMINATED a slippery slope, by starting at requiring a federal district court order.
Congressmen are already gearing up to write laws. McAfee is already volunteering to do it for free.
> or any other blatantly illegal purpose
Torture is blatantly illegal. Waterboarding is torture. So is forced anal feeding. I haven't seen any prosecutions, under military code, or otherwise, of people who admit to authorizing torture. If the courts aren't punishing blatantly illegal government action, what's to stop the government from more blatantly illegal actions?
> Apple already has the capability to do this.
I have the capability to torture someone. I don't care if the courts order me to do it.
Apple doesn't want to build a device to torture people. They're worried that if they build a device to torture people, that they will be told to torture people all the time, and will be barred from disclosing the fact that they're torturing people.
> The fact is that each time this tool would be used would require a federal district court to specifically order it. That eliminates the slippery slope risk.
I can't imagine why you think this. Getting a wire tap used to take a warrant. Then it took a warrant in a secret court. Then it took a warrant in a secret court, which could be granted after the fact. Then blanket permission to wire tap every overseas phone call was taken. Then blanket permission to wire tap every domestic email. I just don't see how you think you've ELIMINATED a slippery slope, by starting at requiring a federal district court order.
Congressmen are already gearing up to write laws. McAfee is already volunteering to do it for free.
> or any other blatantly illegal purpose
Torture is blatantly illegal. Waterboarding is torture. So is forced anal feeding. I haven't seen any prosecutions, under military code, or otherwise, of people who admit to authorizing torture. If the courts aren't punishing blatantly illegal government action, what's to stop the government from more blatantly illegal actions?
> Apple already has the capability to do this.
I have the capability to torture someone. I don't care if the courts order me to do it.
Sorry, but you greatly overestimate the ability of the courts to restrain the FBI. There are many examples of the FBI submitting false declarations to the courts, accessing password-protected files without a warrant, using improperly obtained evidence, and more. [1]
Intelligence tools are pitched as counter-terrorism, and then used in whatever cases they feel like it. For example, the Stingray phone surveillance device, which the FBI loans out to be used by local police departments, without warrants. [2]. Or pretty much the entire Patriot Act.
Of course the FBI wants the power to do this independently. And this is exactly how they go about obtaining this power.
[1] https://www.eff.org/wp/patterns-misconduct-fbi-intelligence-...
[2] https://www.eff.org/deeplinks/2013/02/secretive-stingray-sur...
Intelligence tools are pitched as counter-terrorism, and then used in whatever cases they feel like it. For example, the Stingray phone surveillance device, which the FBI loans out to be used by local police departments, without warrants. [2]. Or pretty much the entire Patriot Act.
Of course the FBI wants the power to do this independently. And this is exactly how they go about obtaining this power.
[1] https://www.eff.org/wp/patterns-misconduct-fbi-intelligence-...
[2] https://www.eff.org/deeplinks/2013/02/secretive-stingray-sur...
That you consider it a fact that law enforcement obeys its judicial constraints undercuts any argument you might make
I'm not considering it a fact. I consider it a fact that the FBI would not physically be able to use this tactic without an explicit court order.
You don't have to trust the FBI at all.
You don't have to trust the FBI at all.
I'm not sure what physical restraints you believe would be in place. Please explain that.
They ask apple to code the firmware so it only works on that specific iphone. And it would be signed so they cannot edit the firmware.
Finally, the FBI even said they'd agree to do this on Apple campus and then actually give the iphone to apple after they copied data off it.
There is zero chance they could reuse it.
Finally, the FBI even said they'd agree to do this on Apple campus and then actually give the iphone to apple after they copied data off it.
There is zero chance they could reuse it.
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I like to think it's about the 3rd amendment. The backdoor is a digital soldier.
Frankly though, I hope Apple loses this one. I'd like to see it spur them into developing a device that they do not have the ability to compromise, because it gives the end user the freedom to modify all the way down to the firmware. Like how you can theoretically flash your own signed coreboot into a chromebook.
Frankly though, I hope Apple loses this one. I'd like to see it spur them into developing a device that they do not have the ability to compromise, because it gives the end user the freedom to modify all the way down to the firmware. Like how you can theoretically flash your own signed coreboot into a chromebook.
Interesting thought, though I'd imagine that if Apple loses the kind of device you're talking about might be by extension criminalized depending on the breadth of the ruling - or explicitly criminalized by congress.
I'd actually like to think of encryption as a 2nd amendment issue - protection against an unruly and intrusive government. Encryption being necessary to the security of a free state...or something.
I'd actually like to think of encryption as a 2nd amendment issue - protection against an unruly and intrusive government. Encryption being necessary to the security of a free state...or something.
To your point, remember that the US government has long classed encryption as a munition, and subjects it to arms control and export regulations. It is a Federal felony (though, aside, what isn't anymore?) to travel with crypto of a certain strength to dozens of countries — many of which don't even require a visa or do visa-on-arrival.
You weren't thinking of bringing your US-purchased laptop or smartphone along with you when you went abroad, were you?
EDIT: phrasing.
You weren't thinking of bringing your US-purchased laptop or smartphone along with you when you went abroad, were you?
EDIT: phrasing.
This is an astute point. Encryption is a modern, defensive technology against an overreaching State intent on total control over its populace. In the 21st Century, guns are a relatively weak counterbalance to State power. Even in Saddam's Iraq, people had guns.
I think you make an excellent point...
>>if Apple loses the kind of device you're talking about might be by extension criminalized depending on the breadth of the ruling - or explicitly criminalized by congress.<<
I can easily see this going in that direction...
>>if Apple loses the kind of device you're talking about might be by extension criminalized depending on the breadth of the ruling - or explicitly criminalized by congress.<<
I can easily see this going in that direction...
I love this point tying it to the Second Amendment. Originalists won't. Someday we'll remember our history and not just recite the words.
Which reminds me, this brings another lens with which to examine the next Supreme Court appointee, as they'll likely see this case.
Which reminds me, this brings another lens with which to examine the next Supreme Court appointee, as they'll likely see this case.
>I like to think it's about the 3rd amendment. The backdoor is a digital soldier.
I do like the creativity. However, we are arguably at war with ISIS. Congress could probably pass a law quartering soldiers in our houses.
Plus this court order isn't putting the backdoor in any phone other than the one the FBI already possess.
I do like the creativity. However, we are arguably at war with ISIS. Congress could probably pass a law quartering soldiers in our houses.
Plus this court order isn't putting the backdoor in any phone other than the one the FBI already possess.
No, we are not at war with ISIS. Only congress can declare war, and I don't recall such a vote.
Lol, happened ages ago man.
We actually are at war with ISIS. Surprise!
You see, way back in 2001 just after 9/11 Congress passed a "Authorization for Use of Military Force" (or AUMF) which is constitutionally a declaration of war. That AUMF authorized the use of the armed forces in going after "terrorists" and terrorist organizations who played a role in the attacks or who harbored or aided the groups or individuals who did. In practice it is a sweeping authorization of power which effectively makes most of the world an active battleground and is the legal basis for the US military's use of drones and bombing campaigns in areas from Pakistan and Afghanistan to Iraq, Yemen, and Somalia. It has been modified, updated, and re-authorized by congresses over time but it is still in effect. We are still at war with "al qaeda" and its cousins and compatriots, which includes ISIS (the organization previously known as "al-qaeda in Iraq").
So there you go. We have actually been at war with ISIS since its inception (which was after 2001).
We actually are at war with ISIS. Surprise!
You see, way back in 2001 just after 9/11 Congress passed a "Authorization for Use of Military Force" (or AUMF) which is constitutionally a declaration of war. That AUMF authorized the use of the armed forces in going after "terrorists" and terrorist organizations who played a role in the attacks or who harbored or aided the groups or individuals who did. In practice it is a sweeping authorization of power which effectively makes most of the world an active battleground and is the legal basis for the US military's use of drones and bombing campaigns in areas from Pakistan and Afghanistan to Iraq, Yemen, and Somalia. It has been modified, updated, and re-authorized by congresses over time but it is still in effect. We are still at war with "al qaeda" and its cousins and compatriots, which includes ISIS (the organization previously known as "al-qaeda in Iraq").
So there you go. We have actually been at war with ISIS since its inception (which was after 2001).
Declaring war and being at war aren't necessarily the same thing.
Do you remember the last war that the US declared?
Free hint: my parents weren't even born yet, and I'm at the early end of Generation X.
And just making up your own definitions for everything isn't necessarily the most useful way to engage in a conversation.
I'm being totally serious. I'm not at all convinced that the only way the United States is at war is when Congress declares it.
Declarations of war are diplomatic in nature. There is even a theory that declarations of war are unnecessary after an act of war has already been undertaken.
Like the USA running a bombing campaign on ISIS.
Declarations of war are diplomatic in nature. There is even a theory that declarations of war are unnecessary after an act of war has already been undertaken.
Like the USA running a bombing campaign on ISIS.
Kafka would be proud.