"We cannot trust you to use this power responsibly and therefore refuse to delegate it to you" might be the most rational basis for public policy there is.
The power to collect evidence to resolve criminal cases is one of the most fundamental powers of the state. You might just as productively suggest that we can't trust the USG to be a responsible state, and therefore it should disband.
The argument has the exact same form as the advice "don't talk to the police without a lawyer", and for the laws that support this protocol (right to silence/counsel). That is,
"I don't trust you to be an impartial seeker of the truth who's 'only' concerned with solving this murder rather than railroading me on random charges, therefore I will not answer even simple questions that you deem necessary to conduct your investigation."
(With that said, I really, really don't like the whole "don't talk to police" circlej---, like how it gets overapplied or dangerously applied ... but within a very narrow interpretation it's correct and well accepted enough to carry the implications over here.)
Edit: Correspondingly, the advice would carry a lot less weight in counties with a much better government that actually could be trusted not to look for petty reasons to arrest people. And so a government that prices itself a better steward of privacy could be trusted with key escrow.
You mean the 4th Amendment (the 5th guarantees due process and prohibits coerced self-testimony).
Put aside for a second that 4A is not in play here, because the phone's real owners consent to the search.
4A delegates to the courts the power to determine what evidence is and isn't in-bounds in an investigation. Nowhere in 4A will you find a prohibition on imaging someone's phone. Assuming the judiciary approves of a warrant, virtually nothing is out of bounds to a warranted search. That's what we're talking about here: a search that a judge has authorized.
It's that power that we're talking about clawing back because of a loss of trust in the government. And what I'm saying is, it's pretty silly to pretend that you can claw back the power to collect evidence without calling the whole state into question.
No, I meant the 5th amendment and coerced self-testimomy.
To me, that's an obvious example of evidence the government would like to have in many cases, but we clearly decided it cannot. A judge cannot grant a warrant compelling an individual to waive their 5A rights. That seems to have direct bearing on the idea of providing individuals a right to strong personal encryption.
Admittedly, there are many edge cases (furnishing information about a third party that one has personally encrypted), but we've bounded what the government can and cannot have before.
Although from another comment I made I generally agree with your position that this is a pretty serious point of balance between the individual and the state due to the nature of encryption.
That's the exception that proves the rule. So concerned were we about torture that we constitutionally prohibited coerced self-testimony. What other form of search does the constitution bar from judges? You can't say "the unreasonable kind!", because the constitutional definition of "reasonable" is "whatever the Supreme Court says it is".
I don't think limiting searches categorically has ever been a problem to this extent before (big statement, but maybe?). Because there's never been a broadly-used impediment to the types of searches the government typically conducts that simultaneously requires a sacrice on the part of individuals if it is not available.
Or to turn it around, what has the government historically desired to legally do after obtaining a warrant that it has been unable to do?
We never made locks or strong doors illegal. The closest would probably be mandating log retention at telecom providers for a certain period of time.
I'm not sure we're talking about the same case. The government is capable of conducting the search it demands in this case. Because of the way Apple designed this particular phone, it can in fact assist the government with the search.
The question of how cryptography might stymie whole classes of search entirely is germane to the question of whether we should pass laws restricting default-on cryptography (obviously, I don't think we should). It is not germane to this case, which is not about "mathematics" or even "security", but instead whether the government has the power to compel a product manufacturer to assist in a search of their products.
The government is not capable of conducting the search on its own in the sense of "access the contents of this particular iPhone at this point in time." Unless you have read some very different material than I have or are using different definitions?
Richard Clark seems to think the NSA would have the capability, and they might, but the FBI apparently (and believably) doesn't.
Apple "assisting in a search" is a little overly summarizing in my opinion. I think there's a difference between "we received your warrant, here's the information we have" and "we received your warrant, we will dedicate engineers employed by our company to actively exploit the security we designed into our products."
Is there precedent for compelling lockmakers to provide technical expertise in defeating their own lock systems? I can't imagine that's never come up historically.
Correct, however we're entering into an entirely different area of argument here. Historically, physical safeguards have been utilized, and any physical safeguard can be overcome give a moderate amount of funding and/or time. I'm not aware of any period where a safeguard would need to be intentionally fundamentally flawed in order to allow the government to proceed with their collection of evidence.
The question becomes whether it is within the power of the government to mandate that flaw, or whether they will need to find some other approach. There is also a question of freedom of speech, as it has historically been held that you can be forced to not express something, however you cannot be forced to express something. In regards to key signing, it could be said that that is an expression of authenticity that you endorse whatever is being signed. Can the government force you to give that endorsement? Does the government's power to collect evidence supercede your right to freedom of speech (or the abdication of speech)?
The physical vs virtual component is the most fascinating part of the issue for me. And the fact that "make a virtual thing that behaves like the previous physical thing" is impossible / extremely ill-advised.
We've seen the popular media analogies gradually become more accurate in their understanding that this is a novel question. And, admittedly, hats off to Tim Cooke and Apple for getting more technically accurate descriptions out in the media.
We do seem to be having a more productive discussion socially this time around.
I think the last major rebalancing of rights due to new technology concerned copyable copywritten digital media and... we decided to make a lot of things that are technically trivial illegal. Not the best message to kids that "these things are illegal, but easy to do and unenforceable."
>The power to collect evidence to resolve criminal cases is one of the most fundamental powers of the state.
I agree. But it is no where stated or implied that this should be an unlimited power. In fact, clear limits are placed upon that authority.
If I invent a cypher and store all of my physical written works using that cypher, can the government compel me to decrypt those works upon discovery that they lack the ability to do so? What if I taught that cypher to my family? Can they be compelled? If so, under what authority?
>You might just as productively suggest that we can't trust the USG to be a responsible state
This suggestion is inherent within the Constitution. It is framed upon a mistrust of any Government to not become tyrannical.
>therefore it should disband
uh, what? nice leap.. did you use rocket shoes to get over the gap?
What "clear limits" are you referring to? Remember, this case is about the limits judges have in compelling the production of evidence. What are the limits on that authority?
It's unclear whether you will eventually be compelled into decrypting documents. One circuit says you can't be, because of 5A. But that ruling was situational, and other courts might rule otherwise. Certainly I don't personally agree with the logic that compelled decryption is necessarily testimonial in nature, any more than opening a safe for which only you have the combination is testimony. The primary purpose of the ban on coerced self-testimony is to prevent bogus confessions elicited under torture. That's not at issue here.
I don't understand your "inherent within the Constitution" argument. The Constitution says what it says. I'm citing it.
It is my understanding that the central issue is not the judges authority to compel evidence be turned over to the state. The State is already in possession of the evidence, it is simply in a format that is unintelligible. Apple is not in possession of any evidence.
The issue is whether a third party can be compelled to provide access to that evidence in order to make it intelligible and therefore meaningful. The combination to the lock (which apple claims they would be forced to construct, as it does not yet exist. The government seems to have accepted the veracity of this claim when they agreed to perform the labor if handed the tooling).
What is the purpose of explicitly stating 4A if we can simply trust the government to be a good actor?
It is inherent in the statement of explicit restraint that there is not trust.
Preamble to the Bill of Rights -
"The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."
I like that they use confidence.. it implies a matter of shades or degrees. Trust seems to imply something much more B&W.
I'm sorry, but this still isn't a coherent argument. The Fourth Amendment delegates to the court the decision over whether a search is or isn't reasonable. It is a court that has ordered this particular search. The court is part of the government.
If you can't trust any part of the government, the Fourth Amendment is immaterial: you can't trust the entity to whom is entrusted the power to adjudicate reasonableness.
The power of the courts is kept in check by the Legislature. They are not above elements of mistrust.
The court is compelling a third party to perform an act that really isn't part of a search and seizure of items.
Search and Seizure as defined by 4A is over and done with. The Prosecution has searched the "places to be searched" and is in possession of the "persons or things to be seized."
Now can it compel Apple to make them useful? (Potentially useful, as even the State has argued there likely isn't really any useful evidence there anyway.. sorta makes this whole thing look like a dog and pony show.)
I don't think the legislature helps you here, because one of the very first things the legislature did, when it was populated with the framers and signers of the Constitution, was to delegate to the courts the power to compel third parties to assist investigations.
And Apple is arguing that the "All Writs Act" to which you refer is not authority to demand whatever you damn well please, from anyone, at any time. They are arguing that there are well established limits to that authority and that the judiciary is overstepping its bounds here and need defer judgement to elected representatives (the legislature).
I don't think this is accurate. To wit: I don't think Apple's argument is that the limits they're seeking are well established (they are not), only that they are important and sound.
Either way, Congress isn't a check on the Supreme Court. It's typically rather the other way around.
Application of the All Writs Act in this manner is unprecedented. The conditions under which it may be applied are well defined and are not met for this application.
The Supreme Court isn't a factor at this stage.
"Typically" you are correct. The formal method for checking the power of the Judiciary is for Congress to remove Judges from the bench.
Apple is arguing that All Writs doesn't grant the authority that is being used. If that authority is to be sought then it will have to come from Congress. At least one Judge agrees.
That's the nature of the AWA; it's a catch-all. Every new technology or social institution that appears is going to create a new "unprecedented" use of the AWA. But the underlying principle of the AWA is so simple that it was one of the first things that came before Congress: the people are entitled to every person's evidence, and if a third party stands in the way of that, the courts have the right to compel their assistance.
And there are limits to the assistance the court may request.
Creation of new works is just such a limit.
If there is not a limit, then what the courts may compel as "assistance" becomes absurd.
This is the argument Apple is making and it is the foundation of the opinion of at least one Judge that has ruled against use of the AWA to compel the unlocking of a phone.
Its an electronic search of a device in the FBI's possession. Clearly this is a modern issue that exceeds the language of the Constitution etc. Its a fair question - how much extra work can a manufacturer be compelled to do for the FBI, to enable them to understand the device/information they have already seized? The word 'search' is being stretched to the breaking point here.
I do not concede the point that "electronics" somehow bring controversies outside the scope of the Constitution. The Constitution didn't foresee electrical power, automobiles, or telephony either. Human air travel was a fantasy when the Constitution was drafted, and we didn't have to amend it to deal with airspace controversies.
What I do think is that people who are intimately involved with new technologies will tend to believe that the complexities of their technologies must somehow swamp the Constitution.
I wish that wasn't true. But govt seems to think that way. Personally I think searching my laptop ought to be covered under freedom of the press, but it isn't. Email should get the same protections as snail mail, but no love there.
No, its not the technologists who don't get it.
Anyway to the point: we need to clarify if searching my house, and searching my person, and searching my laptop, and searching my cloud-based email history are in the same class. Hell, even searching my breath or blood isn't protected like they should be. Its a long way from clear, what Constitutional protections are extended to modern situation and which aren't. Technology has challenged everything we thought we knew.
Fair point. What are the laws on producing evidence, whereby the evidence constitutes a challenge to review?
E.g. If I was ordered to produce logs that may be evidence in a case, and I only had and only produced a 10GB+ text log with a single line the warrant was interested in. Can a warrant order me to parse the log to find the relevant information?
Furthermore, at what point does a digital space become similar to a physical space? When I can carry 3 hard drives that can contain almost as much information as the Library of Congress print collections, is it reasonable to think of them as "one thing" for legal purposes? In that if you have access to the physical container, you have access to all its contents?
If I remember, Lavabit attempted just such a "Big Sky" tactic with the logs (or a similar set of files) in their case and it was deemed a transparent attempt to obfuscate.
That was the SSL key delivered on 11 pages of printout in 4pt type. A bit less arguable than compelling someone to find the needle in their haystack for you.
I didn't intend to be inflammatory (at least any more so than the parent), merely point out that a logical leap had been taken that was not entirely faithful (imho) on the part of the writer.
It is certainly not "mistrust government" ergo "disband government", especially when the government in question was formed near entirely upon the notion that a government should exist in a perpetual state of mistrust.
A monopoly on violence is the fundamental power of the state, which isn't being challenged here. What is being challenged is the state's methods of evidence collection, which determines an attribute of the state - not its existence. Put more simply: you haven't leapt in your logic, you've presented a false equivalence.
The collection of evidence (more broadly: the investigation of crimes) is one of the core purposes to which the state's monopoly on violence is applied, so the issues are the same.
You are doubling down on a logical fallacy. By your logic a state that has no law enforcement investigations is not a state, regardless of military strength and the sovereignty that enables. Now you may say that you would not want to live in such a place, but you can't with a straight face deny that it is still a state. As far as lumping potential precursor activities (evidence collection) in with the eventual excising of violence (arrest), and a challenge to the former is a challenge to the latter... by that logic the US isn't a state - because there are already plenty of restrictions in place.
tptacek's argument, as I understand it, is that evidence collection is the beginning of the chain that allows enforcing laws.
Not being able to collect evidence precludes legal enforcement, which precludes laws, which precludes the existence of a state in the modern definition. Which is the same line of reasoning that most of the "pro-legally breakable encryption" follow, even if they don't carry it out to conclusion explicitly.
I think it's fair to say a state in which everyone uses strong encryption (that cannot be penetrated by the state in any circumstance) in every digital facet of their lives does look very different from the one we currently have (at least in technologically advanced states).
> ...the beginning of the chain that allows enforcing laws.
Years ago I wrote software for supply chain loss prevention, every so often there would be a crisis (like a hijacking) that put the department into investigation mode - where there was no room for long term strategic thought. But the course was always corrected when the department director would remind everybody that the job was "loss prevention" and not "loss apprehension". So while criminal investigation is currently a big part of law enforcement, it isn't the primary objective. If that concept sounds strange, check out Bruce Schneier's work.
> ...which precludes the existence of a state in the modern definition.
Is that true, have we redefined the state to only include governments with laws? What do we call the entities formerly known as states that no longer fit the new definition? I wonder how long until we redefine law. I'm really hoping that when you say "modern definition" you actually mean "the definition Jay Leno would get while grabbing people off the street who previously gave the matter no thought".
I do agree with your point thought, I think that those who are predicting catastrophe are more concerned with maintaining the status quo - and when they say the world will end, they mean their estimate of the way the world works. The mental crisis is so great for some that they will craft incredibly convoluted justification, and may go so far was to start redefining words :)
A geographic location where there exists a monopoly on violence. For example: the USG gets to decide who is allowed to kill who and under what circumstances, exclusively, for a specific location. That monopoly can be made clear through laws, but it isn't necessary - consider monarchies with no legislative bodies. Also consider the fact that laws cannot be established without a monopoly on violence, which a lot of people seem to get confused about - thinking the authority over violence is somehow derived from law...
> And are we talking philosophical or real world examples?
I'm really tempted to launch into a rant about cognitive dissonance here, but I'll just save time and say that is a distinction without a difference. As far as examples, like I said, pick any monarchy without a legislative body - Native American history has plenty of that.
To me, the difference between philosophical positions and ones which can survive the tests of the real world are pretty important. But I suppose that's my opinion as an engineer. I've studied a lot of philosophy that's logically self-coherent but completely impractical to let anywhere near physical matter.
I would say that "a geographic location where there exists a monopoly on violence (such as a monarchy without legislature)" nonetheless has implicit laws that guide its hand. And by which it is judged! Indeed, transgressing unwritten social contracts has led to the downfall of most monarchies throughout history. Or to put it another way, co-opted power structures are necessary for the governance of any sufficiently large group, above and beyond sheer force. And power-structures require some sort of bargaining and negotiation even if it's rather one-sided.
Laws as instruments to communicate expectations are what makes scalable organization possible past a certain point, whether they're explicit or implicit.
That's why you don't see any long-lived civilizations with true violent anarchy as a form of government.
> ...difference between philosophical positions and...
Philosophy is a pretty huge domain, where one end of the spectrum is navel gazing Platonic forms and the other is the propositional logic that informs compiler design. It sounds like you describing the trap that medieval scholars fell into, where they would recursively construct syllogisms until they found themselves talking about how many angles could dance on the head of a pin. This is what happens when you fail to check your premise, you end up with a logically consistent delusion. So the "self-coherent but completely impractical" philosophy you've condemned is just a condemnation of poor logic - which doesn't do your utilitarian argument much good.
As far as the the rest, you've now changed the topic from "what defines a state" to "what defines a well judged, scalable, long-lived civilization".
> ...anarchy as a form of government...
One of those words doesn't mean what you think it means :)
"We got burned giving these people too much power" is absolutely a rational basis for public policy. The biggest threat to your life and liberty comes from the government, not some shady group out of the Middle East.
