Not a fan of the pro-gov person not seeing the connection to the first amendment and writing code a software engineer does not want to write. I do hope this case gets thrown out early or ends up SCOTUS.
Many of the pro-gov people in this debate do not believe in corporate free speech. This makes some sense, as broad approval of corporate free speech would require agreement with the Citizens United opinion, as well as a dim view of many parts of the Dodd-Frank regulations.
I've always wondered what the anti-Citizens United people thought of Michael Moore's videos. To protect himself from lawfare from the people and corporations he was exposing he in incorporated. Exactly the same process Citizens United took only their target was Hillary.
Corporations are groups of individuals. Individuals have free speech rights. They do not lose those rights by working in groups. That doesn't require Citizens United or Santa Clara County v. Southern Pacific Railroad; it takes (among many other arguments) recognizing that compelled speech from a group means compelled speech from the individuals comprising it.
There are substantial arguments that need making about whether code is speech, whether compelled production of code is compelled speech, whether compelled signing of code is compelled speech[1], and so on. But I don't see any reason why those arguments should have different answers when applied to the group of people comprising a corporation than when applied to individual people.
[1] For that one, see Wooley v. Maynard, which even in the dissent said 'For First Amendment principles to be implicated, the State must place the citizen in the position of either apparently or actually "asserting as true" the message'; that sure sounds like the function of a digital signature to me.
OK? So the court can compel Apple to write the software-- not individual employees. I don't think anyone is considering holding individual employees in contempt.
But yes Apple as a corporation can be punished financially if they refuse, if you hold that corporations don't have speech rights.
Yes, but compelling Apple the corporation boils down to compelling individual employees. If the corporation is ordered to write some code, they have to find a way to do so unless they can prove that they are literally unable to (which isn't credible in this case). That would presumably ultimately mean telling some engineers that they have to do this or leave.
> That would presumably ultimately mean telling some engineers that they have to do this or leave.
They just might. The problem is that there will always be people who will do it for a small amount of money or because of a misplaced sense of patriotism.
That was not at all my point. I'm saying that you should be able to reason naturally from "individuals have rights" to "groups of individuals have rights", without encountering some massive disconnect when the group of individuals happens to have formed a company.
If code is speech, and compelling the development and signing of code is compelled speech and thus prohibited, then it shouldn't matter whether the legal entity charged with the development and signing of that code is a company or an individual. It's wrong to compel an individual developer to develop and sign a backdoored version of a program they personally wrote and personally hold the signing keys for, and therefore it's wrong to compel a company to develop and sign a backdoored version of a program they collectively wrote and collectively hold the signing keys for.
To make an analogy with another part of the first amendment:
It's like the government saying "Look, individually you Catholics are fine. Believe what you want. But as a group we're going to need your church to collectively renounce the Pope."
These NYT reporters seem so clueless and breezy about the issues, it's scary. To the extent one of them was sort of positioned as pro-Apple, you would expect them to rebut or fill in the missing info for some of the mistakes of the other one, but no.
Maybe it's fair that their discussion totally ignored some of the key issues, such as the dangers of back doors and their impact on public safety, the opening up of abuse by other governments, and the potential negative impact on the technology industry in the US. Because they were focused just on what the court will consider.
But even then as baldajan pointed out the first amendment issues are way more than just code. They are also about the core values of the company. Apple should be able to choose what kind of dent they put in the universe.
So, basically, any two people at a bar could tape an equivalent conversation, feed it into speech-to-text software, and publish this. Probably not HN-worthy.
>Maybe it's fair that their discussion totally ignored some of the key issues, such as the dangers of back doors and their impact on public safety, the opening up of abuse by other governments, and the potential negative impact on the technology industry in the US. Because they were focused just on what the court will consider.
These are all great arguments for Congress to consider. Maybe there's a good reason to create a privilege, like doctor-patient privilege, for companies in Apple's position. As I think you acknowledge, this is a political judgment that must be made by the people's elected representatives. As an aside, you're playing the same game with the definition of backdoor that we were accusing the government of before. Hacking a phone is not creating a backdoor. Shipping phones with an intentional vulnerability is a backdoor.
>But even then as baldajan pointed out the first amendment issues are way more than just code. They are also about the core values of the company. Apple should be able to choose what kind of dent they put in the universe.
So let's assume that Apple outright had the PIN in their possession. They would be forced to hand it over. "What kind dent they want to put in the universe" notwithstanding. Again, you're asking the court to come to a political decision, not to interpret the law as it exists and has been applied repeatedly to other cases.
> you're playing the same game with the definition of backdoor that we were accusing the government of before. Hacking a phone is not creating a backdoor. Shipping phones with an intentional vulnerability is a backdoor.
Well, those aren't entirely separate things. In the instant case, Apple is being asked to create a tool to open an existing phone. That clearly falls under the umbrella of "hacking a phone".
If they were to continue selling phones (that is, after all, what they do) after creating the tool, though, they'd be intentionally shipping phones with a known vulnerability[1]. So it's perfectly sensible to describe the request as being "to create a back door".
[1] I am given to understand that the phones Apple currently manufactures would not be vulnerable to the tool they're being asked to create. I don't feel that changes the issues I mention, but it does mean they don't apply perfectly to this case.
They wouldn't be creating the backdoor. The door exists, they're being asked to use their key and walk through it. The exact mechanics of accomplishing that don't matter. The fact that they can do it means that the door already exists. That they publicly insinuated in marketing that this wasn't the case isn't anyone's problem but Apple's. Sounds like a lesson in not making stronger claims than you can justify.
Also, I'm not sure newer phones are unaffected, here's a line from Apple's public letter:
>Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation. In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession.
They're not even debating, they're just stating the major arguments. It could just as easily be an article stating the facts of the case, and might well be more valuable if it was.
Some of the arguments. If this is experimental journalism where they say "hey we recorded this conversation over coffee, wouldn't it be fun to share it on the site and see what happens?" then that's kind of cool, but if they consider it a full debate of the issues or even only the issues before the court, it's pretty weak.
I closed the tab almost immediately after opening it. There's nothing there that the HN crowd doesn't already know. In fact, NYT reporters could improve their reporting about this issue if they stopped by the HN comments section every once in a while.
I'm looking for an article that commented on Obama's comments at south by southwest. Wondering if anyone saved a link.
The article talked about two Obama's, one with his legal hat on and the other with his just-been-briefed-on-terrorists hat on.
The article claimed that All Writs only applies when there is a gap in the law and then listed some other law that showed there was no gap. Seemed compelling to me but I'm not a lawyer so wanted to post it here and see what HN thought.
If someone knows of the article, please post a link. I'll keep looking.
There's no down-side for the FBI here. Even if they lose in courts, all the way to the Supreme Court, they're going to lobby in Congress for anti-crypto-in-phones (and probably all devices).
And they won't stop doing that. (It sucks that we're the ones paying for that lobbying, but that's kind of beside the point).
If Crypto Wars II goes in favor of privacy versus surveillance, expect Crypto Wars III. And IV. That's the thing about bad actors who are embedded in the state, they can afford to just keep trying. And at some point there will be some Big Event that will result in very bad knee-jerk legislation, or someone will slip in a ban on consumer crypto right next to something unrelated like waterways legislation, and we'll be back on the road to the Supremes again at best. The most secure "enclave" doesn't help you if you can't legally make the product.
I don't have a solution other than to change the makeup of the FBI and other actors, somehow.
Part of the surveillance side's strategy is to keep it a relatively obscure footnote until it's a done deal.
Apple is making it into something a lot more mainstream. Hopefully other participants in the privacy side hopefully can capitalize on this to push it even further into the mainstream.
That woman is so clueless. Her ideas are easy to debunk. She thinks tech companies like Apple must have access to encrypted data since they sell targeted ads. She mentions this when she questions Lynch on the DOJ budget hearing [1]. She fails to see the difference between iPhone data on disk and Facebook posts.
Obama, meanwhile, doesn't have much better understanding of the tech world. He characterizes Facebook posts as "public" [2]. While I agree it is better that citizens think of online data as public, FB is most definitely not all public. It just isn't set up with the protections being put in place on the iPhone.
Feinstein was prominently anti-crypto in the Clipper Chip / Crypto Wars I. She's been doing this for over 20 years. I don't think she's clueless. What she knows and what she says are probably very different. Political power has little to do with displays of technical competence.
Perhaps I overstated it. I have only seen a few videos of her recently and I got the impression other senators in the room don't really take her seriously anymore. Maybe she was knowledgeable during CW I but her argument makes no sense in this particular case. Plus, I do believe you can be an influential person without really knowing what you're talking about. That's politics.
32 comments
[ 2.3 ms ] story [ 74.1 ms ] threadThere are substantial arguments that need making about whether code is speech, whether compelled production of code is compelled speech, whether compelled signing of code is compelled speech[1], and so on. But I don't see any reason why those arguments should have different answers when applied to the group of people comprising a corporation than when applied to individual people.
[1] For that one, see Wooley v. Maynard, which even in the dissent said 'For First Amendment principles to be implicated, the State must place the citizen in the position of either apparently or actually "asserting as true" the message'; that sure sounds like the function of a digital signature to me.
But yes Apple as a corporation can be punished financially if they refuse, if you hold that corporations don't have speech rights.
Your point is not consistent.
They just might. The problem is that there will always be people who will do it for a small amount of money or because of a misplaced sense of patriotism.
If code is speech, and compelling the development and signing of code is compelled speech and thus prohibited, then it shouldn't matter whether the legal entity charged with the development and signing of that code is a company or an individual. It's wrong to compel an individual developer to develop and sign a backdoored version of a program they personally wrote and personally hold the signing keys for, and therefore it's wrong to compel a company to develop and sign a backdoored version of a program they collectively wrote and collectively hold the signing keys for.
It's like the government saying "Look, individually you Catholics are fine. Believe what you want. But as a group we're going to need your church to collectively renounce the Pope."
Maybe it's fair that their discussion totally ignored some of the key issues, such as the dangers of back doors and their impact on public safety, the opening up of abuse by other governments, and the potential negative impact on the technology industry in the US. Because they were focused just on what the court will consider.
But even then as baldajan pointed out the first amendment issues are way more than just code. They are also about the core values of the company. Apple should be able to choose what kind of dent they put in the universe.
These are all great arguments for Congress to consider. Maybe there's a good reason to create a privilege, like doctor-patient privilege, for companies in Apple's position. As I think you acknowledge, this is a political judgment that must be made by the people's elected representatives. As an aside, you're playing the same game with the definition of backdoor that we were accusing the government of before. Hacking a phone is not creating a backdoor. Shipping phones with an intentional vulnerability is a backdoor.
>But even then as baldajan pointed out the first amendment issues are way more than just code. They are also about the core values of the company. Apple should be able to choose what kind of dent they put in the universe.
So let's assume that Apple outright had the PIN in their possession. They would be forced to hand it over. "What kind dent they want to put in the universe" notwithstanding. Again, you're asking the court to come to a political decision, not to interpret the law as it exists and has been applied repeatedly to other cases.
The court is not the third house of Congress.
Well, those aren't entirely separate things. In the instant case, Apple is being asked to create a tool to open an existing phone. That clearly falls under the umbrella of "hacking a phone".
If they were to continue selling phones (that is, after all, what they do) after creating the tool, though, they'd be intentionally shipping phones with a known vulnerability[1]. So it's perfectly sensible to describe the request as being "to create a back door".
[1] I am given to understand that the phones Apple currently manufactures would not be vulnerable to the tool they're being asked to create. I don't feel that changes the issues I mention, but it does mean they don't apply perfectly to this case.
Also, I'm not sure newer phones are unaffected, here's a line from Apple's public letter:
>Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation. In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession.
Emphasis on "any iPhone".
This is a report on two reporters debating the case. Unfortunately, the title does not say that.
I gather it's an attempt to make the issue more relatable to a layperson. Probably pretty boring to the HN crowd.
Oh, and how many (non gun related) rights we should give up.
Interesting society.
The article talked about two Obama's, one with his legal hat on and the other with his just-been-briefed-on-terrorists hat on.
The article claimed that All Writs only applies when there is a gap in the law and then listed some other law that showed there was no gap. Seemed compelling to me but I'm not a lawyer so wanted to post it here and see what HN thought.
If someone knows of the article, please post a link. I'll keep looking.
Edit: this is close but not the article I was looking for https://cyberlaw.stanford.edu/blog/2016/02/calea-limits-all-...
Nevermind, here it is:
https://backchannel.com/the-law-is-clear-the-fbi-cannot-make...
So what do people make of that article, is it as cut and dried as the law professor says?
And they won't stop doing that. (It sucks that we're the ones paying for that lobbying, but that's kind of beside the point).
If Crypto Wars II goes in favor of privacy versus surveillance, expect Crypto Wars III. And IV. That's the thing about bad actors who are embedded in the state, they can afford to just keep trying. And at some point there will be some Big Event that will result in very bad knee-jerk legislation, or someone will slip in a ban on consumer crypto right next to something unrelated like waterways legislation, and we'll be back on the road to the Supremes again at best. The most secure "enclave" doesn't help you if you can't legally make the product.
I don't have a solution other than to change the makeup of the FBI and other actors, somehow.
Apple is making it into something a lot more mainstream. Hopefully other participants in the privacy side hopefully can capitalize on this to push it even further into the mainstream.
http://www.reuters.com/article/us-apple-encryption-legislati...
Obama, meanwhile, doesn't have much better understanding of the tech world. He characterizes Facebook posts as "public" [2]. While I agree it is better that citizens think of online data as public, FB is most definitely not all public. It just isn't set up with the protections being put in place on the iPhone.
[1] http://www.c-span.org/video/?406201-1/attorney-general-loret... (seek to 51:00)
[2] http://www.snappytv.com/tc/1159970