That Apple FBI back door thing

by Maria on February 19, 2016

Here at CT we’re not big on posting about topics just because they’re happening. (Unless it’s the 6 Nations, obviously.) But this Apple FBI back door saga is making me feel I should post something, not because it’s topical, not because I know a lot more about it than anyone who reads a decent newspaper / tech journal etc. (because I don’t), but because it’s becoming clear that this event is morphing into something of a turning point in how governments interact with tech firms in the US and, at more of a distance, the UK.

(For a comprehensive and thought-provoking piece on governments and tech intermediaries, read Emily Taylor’s recent piece, The Privatization of Human Rights: Illusions of Consent, Automation and Neutrality, for Chatham House.)

I’m going to assume you know most of the facts and the larger repercussions, and just jot down a few observations of my own and that I’ve come across in various digital rights back channels.

First off, here is the actual order. It’s linked to in remarkably few reports, since most of them seem to be second or third hand: (Cyrus Farivar at Ars Technica is very good, though.)

The order would require Apple (US) to create firmware to be loaded onto a specific phone to make it possible to do brute force password guessing. (Among a couple of other things, it would take away the maximum number of guesses to unlock the device.)

The significant thing about this case is that the FBI, minus any enforcing legislation, has gone and found itself a judge to order a company to do something. Let’s take the second part of that first; ‘ordering a company to do something’, as there’s something arguably new in the current FBI approach.

The old late 1990s crypto wars were about governments compelling companies to provide decryption keys to their encryption services. Thankfully, the governments lost. Otherwise we would never have had the encryption-based technologies that made e-commerce (remember when we called it that?) possible. The interception and surveillance debates of the 2000’s have largely been about compelling companies to provide access to existing communications or data – albeit by forcing companies to re-engineer some business processes (e.g. billing, metadata retention) and technologies (‘black boxes’ for realtime intercepts). The current FBI order is an attempt to make a tech firm a) create entirely new firmware that is wholly designed to b) undermine the security of a core product, the iOS.

(Kieran has a great post on Apple’s interest in maintaining its hardware manufacturing business by protecting the walled garden of locked-in services that depend on it.)

A lot of the debate hinges – or would hinge, if there were to be a legislative process that tried to weigh up the competing interests and goals – on what ‘reasonable technical assistance’ to law enforcement is. The Apple case is remarkable in that it couches reasonable assistance as basically breaking your own products. (Something telcos have done for years, but that’s another day’s work.) Apple has quite rightly made the point that not only does this break company security and therefore customer privacy, but that if they create an exploit for the FBI, the vulnerability will be used by the likes of Putin and various repressive regimes.

Less obvious is that the public fact of Apple having done this for US law enforcement would put its employees in other countries at risk. ‘You helped them, why don’t you help us; we know where your daughter goes to school’ kind of thing. (This isn’t hypothetical. I know someone this happened to. If it’s a choice between turning off a chunk of the Internet or facing down the rather fidgety men who have arrived in your kitchen in the middle of the night wielding semi-automatic weapons, well, it’s not really a choice, is it?) So when Apple says it has designed and encrypted its OS “so it’s not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running iOS 8,” the audience for Apple’s stance isn’t wholly or perhaps even largely American.

This is why Apple has been publicly backed by other US-born but global tech firms Google, Twitter and Facebook. (And here I disagree somewhat with Kieran’s take – I think the support of other tech firms has been quite strong, though there’s also a slightly relieved flavour of ‘We’re right behind you….’ in it.) The FBI’s resorting to a court order is a rare enough instance of the USG suffering because of American dominance in Internet businesses. If the big tech firms were national champions and not much more, they would be far more amenable to the inter-personal backdoors that used to sort this kind of thing out without recourse to laws or court orders. But the very success of these companies means they have outgrown the bounds of a single state, even one as powerful as the USG. They simply cannot run a global business if they are seen to do too many special favours for one government.

Of course, this prompts the question why was a court order necessary?Presumably because Apple had not cooperated informally and behind closed doors. Why did they not cooperate informally and secretly? Either a) they sincerely wished to force a public row and expose the unconstitutionality of the order, or b) it is simply an elaborate branding exercise that will be quietly abandoned once the point is made, a private accommodation come to with law enforcement, and the media has moved on to something else. Exhibit A: Google. State Department. China.

I think there is a little more good faith on Apple’s side than option b allows for, but that principles that seem clear one moment get muddied as events move on.

In a world where what were individuals’ previously unremarked daily activities – walking around, taking public transport, buying things, talking to people – are now mediated through private firms, governments are as equally convinced that they must have this new information as they are frustrated by the fact that it is held by companies. The right to be let alone died long before the birth throes of the FitBit. Citizens are now just little motors chuntering around creating metadata exhaust trails. The current conflict is not an argument about our rights but rather a fight between governments and firms on how better to pin us down and hoover up the effluent. You can see why they might all be getting testy about who gets what.

Back to the earlier point about there being no legislation for the FBI to base its order on; this is really the whole point of the exercise from their point of view. They have not been able to get laws through the democratic process that will force companies to selectively break or weaken their products in this way. Hence the recourse to a court order based on a seemingly ancient writ that says if a judge orders something you must assume it is legal. This is troubling both from a political/democratic perspective and also a legal one.

Most of us in common law jurisdictions probably haven’t thought much about the different sorts of things courts can order versus what legislatures can impose, other than to fuzzily assume that what judges do must be based on specific laws. Of course, it’s actually more complicated than that. I am cheekily paraphrasing David Allen Green, here (who some of you know as @jackofkent), who says on a list I subscribe to that if you are the subject of a court order, you should typically still have recourse to some statutory scheme that allows you to challenge or comply with the order. Court orders – in the UK at least – will normally only make you hand over something you’re legally obliged to provide or stop you doing something you shouldn’t do. They really are not designed to force you to actively do something you are not already legally obliged to do, in some statute somewhere.

That is the general common law approach, and the US tech firms must be quite confident in the legal argument behind their claims that the Apple order is unconstitutional. But if the FBI can set a US legal precedent by rolling over one of the two most powerful tech firms in the country/world, then it will have less need of legislation because everyone else will just do as they are quietly asked. This, presumably, is why Apple is publicising and forcing the issue; to prevent a slippery slope of private enforcement actions by anyone with an eagle-adorned badge, to potentially force a Supreme Court case that will both clarify and constrain its obligations, and to protect its interests overseas.

Couple of final points.

This could NEVER happen in the UK. Why? Because the Investigatory Powers Bill both requires an overly broad base for ‘reasonable assistance’ and accompanies it with a gagging order. (Long experience has taught me there is always a good reason for what first appears to be sloppy drafting in a Home Office bill.) So, unlike in the US, there will be no chance here of a Vodafone executive publicly refusing to actively assist government hackers once this bill has passed. The old gag about the Snowden revelations plays out once again; it was oddly funny that wide-scale surveillance was able to happen in the US illegally, and in the UK almost wholly legally.

Finally, putting aside the various (and irrelevant in this case where the crime has been committed and the perpetrators are dead) 24-style ticking bomb arguments for the necessity of government coercion, there really is an important distinction between requiring a company or person to disclose something they already have/know, and enforcing their active assistance. Aside from Apple, encryption and the FBI, that may be the most important precedent governments are currently trying to set, whether by case law or dodgy statute.

{ 51 comments }

1

Sumana Harihareswara 02.19.16 at 3:05 pm

Less obvious is that the public fact of Apple having done this for US law enforcement would put its employees in other countries at risk. ‘You helped them, why don’t you help us; we know where your daughter goes to school’ kind of thing.

A super important point! Thank you for this post and specifically for that item.

2

Matt 02.19.16 at 3:25 pm

This case is, surprisingly, not about metadata or being watched by NSA vs. being watched by private corporations. The three letter agencies can already get all call record metadata, billing metadata, tower location metadata, etc. from the phone company. And that’s assuming they aren’t already clandestinely getting all of that in real time. The NSA and its close partner GCHQ already have bulk access to the majority of the world’s overseas telecommunications. Encrypted or not, they can see connections between two different endpoints.

This case shows the limitations of metadata* — even with vast judicial and technical powers, the metadata isn’t enough for the government to figure out the identities of overseas plotters involved in the attack (if any). It’s a backhanded reminder that people who don’t bother with encryption because “it won’t stop a motivated spy anyway” are giving up preemptively.

*Assuming that it’s not all theater from the FBI to encourage a new legislative push to outlaw secure devices.

3

Eric Hellman 02.19.16 at 3:36 pm

One tidbit from today’s New York Times article on Tim Cook:

Apple had asked the F.B.I. to issue its application for the tool under seal. But the government made it public, prompting Mr. Cook to go into bunker mode to draft a response, according to people privy to the discussions, who spoke on condition of anonymity. The result was the letter that Mr. Cook signed on Tuesday, where he argued that it set a “dangerous precedent” for a company to be forced to build tools for the government that weaken security.

If true, it was the government, not Apple, that wanted the public fight.

4

Mr Art 02.19.16 at 3:45 pm

Very good point about the gagging orders in the UK. Disappointed that more fuss hasn’t been made about them by any of the parliamentary committee reports. I emailed my MP about it and she responded with an irrelevant copy-pasted letter about judicial warrants.

Last chance for democratic debate, in the UK at least.

5

Corey 02.19.16 at 4:02 pm

There are also some wholly-American downsides to Apple admitting it’s possible.

Even if the terms of this order stayed for subsequent ones (the firmware doesn’t leave Apple’s hands and is tied to the specific phone), Apple would need to staff up an office full of people as subsequent requests come in (first for other terrorism-suspicion cases, then for pedos, then drug mules, etc. until we’re down to people who deface rocks in national parks).

Also, there’s the possibility that once it’s shown to be possible, out comes the National Security Letter requiring Apple to provide the FBI with a version not tied to specific phones, and not tell anybody. Then it permeates law enforcement agencies, gets stolen from them and into the hands of other governments and phone thieves, etc.

6

Sebastian H 02.19.16 at 4:29 pm

This is such a big deal because it is essentially the FBI trying to win in the courts the Clipper chip issue that they lost in the legislature. This has interesting parallels with the recent Supreme Court discussions, because going to court to get what you get through the legislatures has arguably been the defining US political tactic of the last 50 years.

7

reason 02.19.16 at 4:33 pm

Sebastian H
Unfortunately, it is also true that for a lot of that time, the legislature has been so dysfunctional, that it was also the only way to get anything done at all.

8

Ted Lemon 02.19.16 at 5:20 pm

You appear to very much know what you are talking about. Great analysis–thanks for writing it.

9

Maria 02.19.16 at 6:11 pm

Thanks, Sumana and Ted.

Eric, good point. I’d forgotten that angle. Understanding how these things drop into the public realm is central to figuring out (ok, guessing at) the objectives of the various players.

Matt, yes, I’ve started to wonder if we’ve not over-egged the meta data pudding. Your comment “Assuming that it’s not all theater from the FBI to encourage a new legislative push to outlaw secure devices” is interesting in the light of Eric’s point. http://arstechnica.com/tech-policy/2016/02/senator-drafting-bill-to-criminalize-apples-refusal-to-aid-decryption/

Corey, I reckon it’s your second possibility that really gives Apple the heebie jeebies. 1) that the currently demanded software would get into the wild, and 2) that hardware manufacturers would be required to develop and install exploit-ready versions of their OS’s.

10

CaptainBringdown 02.19.16 at 6:11 pm

Less obvious is that the public fact of Apple having done this for US law enforcement would put its employees in other countries at risk. ‘You helped them, why don’t you help us; we know where your daughter goes to school’ kind of thing.

It isn’t clear to me why the precedent set by Apple helping US law enforcement would make this kind of blackmail any more likely. If someone is willing to resort to making a threat like this, what difference does the “you helped them, why don’t you help us” part make? The “help us, or kiss your daughter goodbye” part seems to be plenty persuasive on its own. Not sure what I’m missing here.

11

Maria 02.19.16 at 6:22 pm

It shows what they are asking for is possible, but those being asked are apparently choosing not to do it. Hence the incentive to use coercion which would be pointless if what was being asked for was impossible.

12

carol 02.19.16 at 6:29 pm

Discussions of this issue have been quite misleading. For a better discussion of the details, please read this.

Please do not refer to the thing that the FBI has asked for as a backdoor to Apple iPhones. The software they have asked Apple to provide is a replacement for the BIOS of the (older) iPhone used by the dead perpetrators in the San Bernardino shootings. To install this BIOS would require the phone to be connected via a USB cable attached to another computer on which the update resided. The update could not be performed over the phone’s network connections, and the FBI has not asked that the update be applied to any other phone. The FBI has stated that Apple could install the requested update on their own premises. The update would then allow the FBI to brute force the pin that forms a part of the encryption key for data on the phone. They have not asked Apple to decrypt the phone data.

As for the need for tech companies to have staff devoted to handling this type of request, web companies already do, as well as having automated infrastructure to comply with subpoenas for user data. Typically the staff that deals with such requests is a part of the legal department.

13

CaptainBringdown 02.19.16 at 6:30 pm

Maria,

Yes, I get that. But in this instance hasn’t Apple already revealed that it is possible?

14

Ted Lemon 02.19.16 at 6:40 pm

Carol, of course the FBI’s request is technically feasible. That’s not the point! If they want to hack the phone, they should have a forensics team that can do that. It’s not rocket science. Making a piece of firmware that can be cheaply injected into the phone and used to brute force the key would certainly be easier for them, but it would be easier for non-state actors who want to access phones too, and for foreign governments who we would prefer not to have easy access to phones.

Do you not remember the days when cops and border agents would casually suck all the data out of phones without court approval using malware? That same malware was available to anyone who wanted it, not just to the police. Whether you support unconstitutional searches or not, the availability of that sort of malware is clearly not in the public interest, and for a court to order Apple to write the malware themselves is a massive overreach.

15

David 02.19.16 at 6:55 pm

I’ve never really understood why this kind of controversy exists in the first place, given how much money Silicon Valley has, and how cheaply the average American politician sells themselves. Why don’t Apple, Google etc just pay the whole US Senate $1M each, or whatever to pass a law making this kind of approach illegal, and telling the government to STFU. If $1M isn’t enough, surely $2M would be enough …..

16

Maria 02.19.16 at 6:56 pm

Carol, I don’t refer to it as a back door as I understand perfectly well it is not a back door – unless you didn’t understand the gentle sarcasm in the title of this post?

Captain – it was ‘possible’ in that doing so probably wouldn’t break the laws of physics, but there’s a difference between that sort of ‘possible’ and something that has actually been done for one government and is being refused to another.

17

carol 02.19.16 at 6:56 pm

This is a slippery slope argument. No one has asked that the circumvention be released publicly. The phone’s owner is the dead perpetrator’s employer, who has given permission for the phone to be analyzed. The FBI got a court to issue the request that Apple provide this circumvention, and they haven’t demanded that it leave Apple’s premises … they have not broken into the headquarters in Cupertino and held someone hostage until the software was loaded on the phone. The argument about whether the “All Writs” law should be used may have some merit, but if Congress passed a narrowly tailored law to be used by the judge to issue an equivalent writ, I do not see how this differs from subpoenas to obtain user generated content in a variety of legal settings that are submitted to and honored every day by companies offering web services.

18

carol 02.19.16 at 7:02 pm

Maria, you may have intended to be sarcastic in your use of the term “back door”, however many articles I have read are using this term seriously, and stating or implying that what has been requested would result in an immediate exposure of encrypted data on Apple iPhones. Your sarcasm certainly escaped me.

19

Marshall Peace 02.19.16 at 7:08 pm

I can’t think why the NSA wouldn’t have the technical chops to do this for themselves … reverse engineering the firmware is non trivial but mostly tedious work, like other code breaking. The specificity in the order suggests they just want Apple to own the method.

Given that I can indulge my paranoia and assume this is about media impact. Suppose that having cracked the phone, they saw a smoking gun of some sort. Then having dragged it into the open over Apple’s bleeding body, they can cry Going Dark has consequences!!1!! and maybe move some legislation.

But this use of all-writs is bullshit. Presumption of common-sense validity is one thing; if you have to do whatever the Captains tell you regardless, that’s actual tyranny.

20

Maria 02.19.16 at 7:13 pm

Yes, ‘That Back Door Thing’ and ‘the back door saga’ were not in fact used as technical terms of art. Glad to clear that up for you.

“if Congress passed a narrowly tailored law to be used by the judge to issue an equivalent writ, I do not see how this differs from subpoenas to obtain user generated content in a variety of legal settings that are submitted to and honored every day by companies offering web services.” The important part of this sentence was already over in the first word; “if”. The whole POINT of the current saga is that there is no such legislation.

Look, Carol. I get that you don’t care about the precedents being set here and seem naive or simply uninterested in the politics of it. Fine. We can happily disagree on these things. But if you are going to come into a comments section and expect to be engaged, then 1) read the actual OP, not the other articles you disagreed with, and 2) attempt a basic understanding of the case being made before you try to rebut it.

21

Marshall Peace 02.19.16 at 7:14 pm

… meant to point out that this method only works because reloading th firmware doesn’t require a password on this down level model, a bug I believe is fixed on current phones? So this exact exploit is not likely to live long, absent that previously mentioned legislation.

22

ZedBlank 02.19.16 at 7:50 pm

Thanks, this piece was good and informative, and brought me up to speed on something I had lazily been avoiding learning more about.

One clarification – is this court order tantamount to a warrant? It seems to me there’s a legit case for the FBI (or, maybe, the local PD?) wanting the data in that phone, even though it’s after the fact. Generally, is the controversy that what the FBI is doing goes above and beyond a fairly standard warrant for search and seizure, regarding evidence for a terrible crime? Seems to me there’s still some gray area here, and although I’m as suspicious as the next freedom-loving patriot when it comes to the FBI, I think there’s at least a potential legitimacy to getting access to that phone. In short – it seems as if it’s not the substance of what the FBI claims they want, but how they are asking (demanding) it, that has got civil liberties defenders (and corporate powers) on the defensive.

23

Collin Street 02.19.16 at 8:20 pm

Carol: oddly enough, what I was reading literally just before I clicked on this thread.

http://www.theguardian.com/lifeandstyle/2016/feb/19/how-to-pick-and-stop-an-argument-oliver-burkeman

There’s no such thing as “just saying”.
a. Every statement is motivated.
b. these motivations are largely visible to those you engage with. [and for particularly non-reflective people it’s perfectly possible for the motivations that drive a statement to be more visible to the listeners than the speakers]
c. those you engage with are free to criticise your statements not only on account of internal factual error but also on account of wrong/inappropriate motivations

24

roger 02.19.16 at 8:46 pm

If I am an ordinary citizen in 1980, do I own *anything* that the FBI can’t look at with a court order ?
My safety deposit box, my diary, my photographs and negatives, my bank records, telephone records; afaik, there is nothing the FBI cant look at with , afaik, two exceptions: sealed court orders (juvenile court) and CIA type gov’t secret stuff.

Yet suddenly, out of whole cloth, we have created a new thing the FBI can’t look at.
Why is my smartphone different from my safety deposit box ?
Why is my smartphone different from my telephone records or my phone conversations which can be recorded by a wiretap ?

I guess in theory in 1980 I could have created by hand an encrypted record, but the practical technology available to me personally in 1980 wouldn’t allow a high degree of encryption – and said encryption would probably be very cumbersome to use.

25

js. 02.19.16 at 10:18 pm

This is a brilliant piece, thanks. I haven’t really been following this story; now I think I should.

26

commenterbyday 02.19.16 at 11:44 pm

whole thing confuses me. its not clear tgat its even possible, but if it is possible then not clear that iphone is secure from others.

27

The Temporary Name 02.20.16 at 12:37 am

The court order should have compelled the FBI to get its shit together, or compelled the FBI to send a guy to the NSA to ask them nicely if they could do it.

28

Ebenezer Scrooge 02.20.16 at 12:56 am

Roger@24:
There is a difference between the governmental power to seize stuff, and the governmental power to compel people to do things. Lawyers call the first power “in rem”, and the second “in personam.” In rem seizures are the classic power of warrants. Until the FBI’s order, I thought that the only in personam powers of law enforcement were incarceration and testimony.

29

A H 02.20.16 at 2:19 am

Not really sure why Carol is being dismissed so flippantly. The reporting on this case has been awful all around and she brings up good points.

The basic outline of the case is this:

1. The FBI wants to get into the phone.
2. The phone’s owner has given the FBI permission to get into the phone.
3. The phone cannot be opened without a key from apple.
4. Apple is refusing to use the key.

Hard to see how Apple is the victim here.

30

bianca steele 02.20.16 at 2:36 am

Great post, Maria. You allude to this, and other commenters do too, but this case marks a huge difference from the last time this came up, when it surfaced that companies were handing over customers’ data in response to requests with no formal backing whatever. They paid for that in reputation, and IIRC in some cases had to appear before Congress to answer for it. It’s certainly very dangerous to have people feeling they have to break the rules because everyone else supposedly knows what the person being pressured doesn’t. It’s not as if, if this had been done secretly and what the FBI found and how they found it was made public, Apple would escape condemnation for breaking their promise to customers in who knows how many cases.

Of course, if they lose and are compelled to comply, as you point out, other customers might wonder whether their data is as safe as promised.

31

A H 02.20.16 at 2:48 am

32

Greg A. Woods 02.20.16 at 3:28 am

I think the best answers to roger’s question (about why a modern smartphone needs to be far more than his 1980’s safety deposit box) can be found in Bruce Schneier’s book “Secrets & Lies”. In the context of Schneir’s arguments Ted’s earlier comment about the routine use of ubiquitous malware for “stealing” copies of all the information held on insecure personal devices is a good concrete example of why such devices need to be more secure than any safety deposit box.

On the topic of whether the requested firmware is a “backdoor” or not: Of course it’s a backdoor. The goal of the FBI is to entirely circumvent the main mechanisms that turn a notoriously insecure PIN into something clearly secure enough to be used as a form of authentication on such a device. A backdoor rarely ever leads directly to the inner sanctum, except perhaps in the most trivial of systems, and clearly an iphone is not the equivalent of a one-room house. In Schneier’s book a “back door” in a crypto system is described as something that gives “some form of access to encrypted data aside from the normal process of decryption“. Brute-force decryption of the phone’s data directly would be a “normal process of decryption”. Turning off the protections against the (potentially) much simpler task of brute-force attempts on the PIN requires a back-door to the system which is not as strong as the front-door where ten unsuccessful attempts will wipe the data, and ideally one which is also significantly faster than manually inputting PINs on the front.

33

Ecrasez l'Infame 02.20.16 at 10:18 am

Finally, putting aside the various (and irrelevant in this case where the crime has been committed and the perpetrators are dead) 24-style ticking bomb arguments for the necessity of government coercion, there really is an important distinction between requiring a company or person to disclose something they already have/know, and enforcing their active assistance. Aside from Apple, encryption and the FBI, that may be the most important precedent governments are currently trying to set, whether by case law or dodgy statute.

This is a great statement of the standard position of liberal-academia on these issues, i.e. a transparent and deeply confused defence of tech autarchy.

(1) The problem’s assumed away, we of course don’t know if the perps are dead until we look at the phone, there may be co-conspirators still off conspiring.

(2) Nice try on conflating companies and people there, it’s obvious to anyone who cares what you’re doing though.

(3) The idea this is government “coercion” is ridiculous. Companies are legal fictions, the only reason they have any legal power to do anything is because of courts and governments. Instructing them to unlock a phone is no more coercion than instructing them to hold an AGM or follow their articles or do what their boards say. The issue is whether this power is delegated to further the interests of tech autarchs or actually used for the good of the public on occasion. What’s happening is the courts are challenging corporates elites autonomy over companies and getting pushback. This is upsetting those who naively presume that the autarchs should be able to do whatever the hell they want, but it’s no more coercion than the courts telling companies to do what the autarchs say.

(4) Courts of course order people to do stuff. The most obvious example is the equitable remedy of specific performance. Why’s this always ignored? Well if you don’t like the idea that people who ruin a woodland should be ordered to clean up the woodland, you’ll want everything run by law and contract. That would certainly be convenient for certain industries.

34

ZM 02.20.16 at 10:55 am

I don’t really see the fuss, apart from criminals, what does it matter if law enforcement agencies can look at your phone?

At the moment electronic devices are not much regulated, I don’t really see what is wrong with greater regulation including some sort of software so law enforcement agencies can access data.

The OPs list of things like walking around and buying things and talking to people etc you have police who patrol the streets a bit and cameras and other people walking around which is called passive surveillance, and buying things is regulated quite a lot too although more for businesses selling things than consumers buying things I suppose but there is a lot of regulation and paperwork in shops, and if someone says something illegal to someone they can report your conversation to the police as well.

None of these things are free from law enforcement, so I don’t see why phones should be?

35

Yankee 02.20.16 at 6:51 pm

Security issues don’t merely apply to life in idealized liberal democracies, of which we don’t have any regardless. Being able to actually live your life in public is quite the privilege, isn’t it.

36

Ze K 02.20.16 at 8:07 pm

Imperfect surveillance is not the root cause of terrorism; injustice is. Sophisticated mass-surveillance allows to overcome resistance, to maintain security, and to continue and intensify injustices. It’s a vicious circle.

Well, it’s not exactly this simple, of course, but something like that.

37

John Smith 02.20.16 at 11:07 pm

The All Writs Act comes from the same year as the US Constitution, which makes it equally ancient and I guess you want us to think also obsolete. Oh wait, that was just gentle sarcasm too.

38

Tom West 02.20.16 at 11:26 pm

Okay, I’m probably missing something here, but I’m a bit surprised at the sentiment here.

Given that given the phone’s owner has consented to all of this, there are few privacy issues here. As a statist, I have very few reservations against the government being given power the compel a private company to perform a service that it deems necessary.

The nature of the service is pretty much immaterial, as is the nature of the government. Either a legitimate government should have the power to compel private companies or it shouldn’t.

And if I have to choose between who calls the ultimate shots – I’ll choose the people’s representatives over private companies.

39

Chuck Karish 02.21.16 at 7:48 am

Since 2001 law enforcement agencies in the US have been able to say “because terrorism!” and gain new powers to infringe on supposedly-guaranteed civil rights that they then use, by the FBI’s own accounting, ten times more often for other purposes than to pursue terrorists.

The US Constitution makes guarantees of private rights that are the reverse of what was said in #38. The government is the wrong guarantor for freedom from prying by the government. Private companies are in a more appropriate position to stand up for the rights of their customers.

My understanding as someone without legal training is that the difference between a subpoena and a court order is that a subpoena is based on a specific legal responsibility to produce information. To obtain the court order we’re discussing the FBI used an ancient law that authorizes judges to fill in the gaps between laws with common-law solutions. Apple is entirely correct to question whether there are, in fact, gaps in the law that require this sort of invention.

40

Collin Street 02.21.16 at 9:00 am

> Given that given the phone’s owner has consented to all of this, there are few privacy issues here.

Oh FFS.

“I chose to ignore the issues that others raise” does not mean “there are no issues”. It does mean “there are no issues I care about”, but that… well, that boils down to “I agree with myself”, which is a remarkably wanky and pointless thing to say.

[you can dismiss the arguments of others, but that dismissal doesn’t actually provide you with anything to build the next step of a deductive chain on; if you want to convince other people, you need to do so based on beliefs they hold. Which when you put it like that is obvious, I hope, but when you’re working deep in a logic chain sometimes you lose the high-level perspective of exactly who believes what, and you can find yourself reaching for one of your beliefs as a link rather than something those you’re trying to convince believe. Something to watch for, this.]

41

Tom West 02.21.16 at 5:47 pm

Collin, let me rephrase. The privacy issue is not ‘solved’ – it is immaterial to whether private businesses have the right to disregard the government. I have no trouble with people disagreeing with the FBI’s decision. That’s the privacy issue. I *do* have a problem with people cheering Apple’s decision to ignore the government’s demand.)

People can certainly have differing opinions on whether the government _should_ be asking for this information. However, once the government, as agent of the governed, has made its decision known, allowing private companies to choose which decisions it will choose to follow is, to it mildly, fraught.

Our responsibility as the governed is to ensure that our representatives make the best decision possible. If we claim that companies and individuals should be able ignore the decisions that we personally disagree with, then we give implicit permission for anyone to do so for any reason. (Unless one believes the basis for society should be “follow what I happen to personally believe”.)

I am, of course, not claiming that government doesn’t make bad decisions. However, I am claiming that when the government *does* make a decision, claiming the right to ignore it veers dangerously close to Libertarianism.

(Personally, I believe the FBI’s decision is not a good one, but that’s immaterial to my central point.)

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Paul Davis 02.21.16 at 7:14 pm

If you haven’t read the link posted in @31, or something extremely similar, you probably shouldn’t be commenting about this issue.

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Matt 02.21.16 at 7:32 pm

People can certainly have differing opinions on whether the government _should_ be asking for this information. However, once the government, as agent of the governed, has made its decision known, allowing private companies to choose which decisions it will choose to follow is, to it mildly, fraught.

Once a judge has ordered a company to do something, it shouldn’t be allowed to appeal that order to a higher court? That seems ridiculous. If Apple runs out of avenues to appeal and they still refuse to implement the solution, then I’ll agree that they have refused to follow a legal order. And that’s when Apple employees will start being jailed for contempt.

I’d prefer to live in a world where every individual had the same high quality legal council and maneuvering ability of behemoths like the FBI and Apple. Since that’s not the world we live in, I am at least somewhat relieved that this case revolves around compelling one of the world’s wealthiest and most visible companies, as opposed to (e.g.) a one-person operation with no name recognition and little money.

I do not trust the security/surveillance/subversion apparatus of this country, and I do not particularly regard them as appendages of my elected representatives. They can exercise too much power, too quietly, as it is. The silence is what bothers me even more than the power. If this case sets a precedent that companies must aid with the compromise of their own security measures, that would be tolerable if I knew that every instance would be publicized. But if the FBI can start serial production of these assistance orders, and accompany them with gag orders, then the narrow tailored solution becomes a security hole wide enough to drive a truck through.

Remember how the FISA court started out approving warrants against specific threats from foreign spies, and ended up approving warrants for every call detail record of every Verizon customer in the country? Elected senator Ron Wyden could warn the public “I don’t know of any other legal system or court that really doesn’t highlight anything except one point of view”, but he couldn’t be specific about the FISA problems because it’s illegal to share troubling secrets he’s learned with the public that elected him. So much for it being “agent of the governed.” Without Edward Snowden we’d still be in the dark about the amazing creeping scope of FISA powers. Trust is inversely proportional to transparency, and there is sadly less transparency with these “public” agencies than with the “private” companies pushing back against their orders.

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Tom West 02.21.16 at 10:37 pm

Once a judge has ordered a company to do something, it shouldn’t be allowed to appeal that order to a higher court? That seems ridiculous.

I fully expect Apple to appeal, delay, and take whatever legal measures it can to avoid compliance. That is its legal right.

However, I was not expecting to find widespread approval of such measures. I suppose I would be less disturbed if I though people would be equally willing to accept (not approve, but at least accept) when companies pursued their full legal right to avoid compliance to other government orders.

Getting a bit rambly here…

We live in a highly diverse process-oriented society. If we approve of a process used in context that we favour, it’s somewhat hypocritical of us to then condemn that same process used in way that we disapprove of.

With regards to transparency – this is an interesting point. I approve of transparency wholeheartedly. I would say it is incumbent upon all of us to fight for that transparency. But if I fail because I cannot rally my fellow citizens to care enough, then I can either claim:

– The government does not represent the people or has breached certain fundamental rights, and thus is essentially illegitimate and has no right to govern my actions (the revolutionary position),
– It does not have the right to govern my actions (the Libertarian position), or
– Live with the fact that most of the time, in a democracy, the government will not align with my positions, and this is the price of living in a democracy.

(I suppose that that there’s the “the legitimacy of the government rests on how close it aligns with my particular beliefs”, but I’m assuming no-one here is on that band-wagon.)

Since I am neither a revolutionary or a Libertarian, I must accept the price (and having lived with Rob Ford as my mayor and Stephen Harper as my Prime Minister, I’m aware that price can be pretty high) of living in a democracy where my beliefs may be the minority.

Anyone who is a fan of democracy only when their side is ascendant is not a fan of democracy.

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Matt 02.21.16 at 11:21 pm

Anyone who is a fan of democracy only when their side is ascendant is not a fan of democracy.

Do the voters of a Bible Belt state and their democratically elected representatives want to force pregnant women to give birth? Are the un-elected, privately funded lawyers of the American Civil Liberties Union stymying that elected government to keep abortion clinics open? Good.

I suspect that most self-proclaimed fans of democracy, like myself, can imagine actions that they consider illegitimate regardless of democratic approval. I consider it illegitimate to exclude women and/or ethnic minorities from voting and public office. I consider it illegitimate to have an official state religion that all citizens must pay respect to. I consider it illegitimate for a government to outlaw conception, contraception, or any sexual behavior between consenting adults. I consider it illegitimate to enforce indentured servitude or slavery. I consider it illegitimate for a state to start a war with another.

Maybe that makes me a left-libertarian. I’m not a right-libertarian. None of my “line in the sand” issues involve tax rates, the freedom to contract oneself free of worker health/safety/environmental regulations, or the protection of private wealth accumulation.

I would/did consider it illegitimate for the USA to invade and occupy Iraq in 2003 regardless of how broadly popular it was with the voting public at the time. That’s the issue that really drove me to the left, accelerating a drift that started after this country went insane on 9/11/2001. The time I’m most tempted to agree with the anarchists/right-libertarians who want a government small enough to drown in a bathtub is when I’m contemplating the US government’s history of violence against its people and those of other states. But the fever breaks with a few minutes’ reading about the history of private wealth’s use of violence. I want certain forms of control off-limits to private power and elected power alike, and I want all elected power accountable democratically and directly to the voting public. Until that happens — probably never — there are going to be times that I will back the victory of un-elected forces against elected ones, if I perceive that the un-elected ones are doing a better job of upholding my values.

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bianca steele 02.21.16 at 11:39 pm

I’m not sure I agree that limited government–limiting the power government agencies and those representing them have in specified situations–can be supported only by libertarians. I don’t see that someone who supports the idea of a state must argue against limitations on government. The question of the correct stance of a statist to a state that has such limitations explicitly in its constitution is an interesting one.

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bianca steele 02.21.16 at 11:40 pm

Since that seems to be sidetracking into a discussion of theoretical questions outside the scope of the OP, I’ll just say that I also don’t see how supporting the idea and authority of states in general requires a specific response in any given case.

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Tom West 02.22.16 at 7:00 am

I suspect that most self-proclaimed fans of democracy, like myself, can imagine actions that they consider illegitimate regardless of democratic approval.

Indeed, there are certain fundamental rights which, if breached, remove the legitimacy of the government, and with that loss of legitimacy, allow for its destruction, along with those defending it.

However, for obvious reasons, I put a fairly high bar on what pushes a government into the realm of no longer having any legal standing. Disenfranchisement of a significant segment of the population is among those things.

However, below that bar I feel that I am morally compelled to use only legal means to push my agenda. Put the bar too low, and make any disagreement with my belief a matter of fundamental human rights, and I feel one essentially legitimizes violence against anyone who doesn’t follow most of my beliefs.

I consider it illegitimate for a government to outlaw conception, contraception, or any sexual behavior between consenting adults.

I consider such laws utterly repugnant. But if I am to claim that removes the legitimacy of the government, I think I’ve probably justified the disenfranchisement of the majority of the worlds population, and if they push to have a government that follows their beliefs – their destruction.

As I said, I strongly believe in process that avoids violence between factions of significantly different beliefs, although by definition that must mean that I allow for the government legitimately enacting policies that I consider loathsome.

Bianca, I do apologize for going off topic (although the topic has died down, so I don’t think I’m stealing it from anyone). I was simply a bit shocked.

Even as a statist, I am willing to see a process limiting government power over corporations. However, when that occurs, I can’t see how I have the right to complain when the government lacks the power to enforce decisions I agree with. Limiting the bad means limiting the good. If you want to prevent the government from enforcing any decisions you consider bad, then one’s only choice is to go the Libertarian route.

And yes, I certainly believe in limitations to democracy – constitutions, representatives, etc. that prevent the majority from exercising whatever grabs their interest at that moment. However, some mechanism to allow for change must be present if a government is to claim to actually represent the people.

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TM 02.22.16 at 9:10 am

I have to agree with Tom 44. If the courts order Apple to do X, and the court order is upheld on appeal, it is very difficult to argue that it’s ok for this particular company in this particular case to refuse compliance, just because we don’t like the outcome in this particular case. That is the basis of a civilized society, really.

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Matt 02.22.16 at 6:39 pm

However, below that bar I feel that I am morally compelled to use only legal means to push my agenda. Put the bar too low, and make any disagreement with my belief a matter of fundamental human rights, and I feel one essentially legitimizes violence against anyone who doesn’t follow most of my beliefs.

I consider it illegitimate for a government to outlaw conception, contraception, or any sexual behavior between consenting adults.

I consider such laws utterly repugnant. But if I am to claim that removes the legitimacy of the government, I think I’ve probably justified the disenfranchisement of the majority of the worlds population, and if they push to have a government that follows their beliefs – their destruction.

It seems we have similar beliefs except my bar for illegitimacy is lower and my bar for “legitimate violence” is higher. When I consider a government action illegitimate that doesn’t mean I am calling for war against it. It just means that I have no respect for that government and won’t regret if it loses power, by ordinary succession or by e.g. mass disobedience. For example, I find the hereditary dictatorships of Saudi Arabia and North Korea repellant and illegitimate. I wish that democracies were no more allies with the former than with the latter. But I do not want outside powers to try to remake either of these states in the image of secular democracies at gunpoint. I believe it would replace a bad problem with a worse one. I have seen enough of that for one lifetime.

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Jon 02.23.16 at 6:54 am

I’ve heard of version of events in which Apple tried to bring discussions into private talks and the FBI refused, insisting on going public.

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