Apple v. FBI

[newtogolf]

7 minutes ago, k-troop said:

@iacas it sounds as if you think the Courts are the right body to write this law. They're not. The 9th Circuit could decide whatever they want. It'll be years before the USSCt decides, and there's no guarantee they'll side with Apple. In the intervening years device and OS creators are left with producing devices and code that comply with the law then current, and five years is generational for technology. 

Congress is an elected, representative body. Sure they're dysfunctional but they're the closest thing we have to something responsive to popular will. If they wrote a law protecting tech companies from assistance orders that diluted the value of their IP, the courts would have to find a specific constitutional provision that invalidated it. Given that all of the relevant Constitutional provisions are written to protect citizens against the government I have a hard time seeing how that would happen. 

Why would Congress have to create such a law when there isn't any law to require tech companies to respond to assistance orders that dilute the value of their IP?  Apple is an international company, the implications go beyond what the United States government wants.  

[k-troop]

11 minutes ago, saevel25 said:

Congress will not touch this. First this issue is with the AWA act and its application. So they would probably have to amend the constitution to modify the AWA for modern application with tech companies.

The judge in this case talked specifically about the security burden, 

Basically it doesn't matter if the security is a burden Apple made. They have a right to make that burden because it's in line with the quality of product they want to achieve and provide to their customers. Unless the government is willing to create a law saying that a tech company can not provide a certain level of security, and in fact providing a product that could in fact be insecure and could provide a major risk to their own personal data and possible identity theft, then Apple has the right to create whatever security level they want to provide. 

Yet there is such a thing as legislating from the bench. Judges do it, and it has happened in the past. 

 

1. Why would "they" need to "amend the constitution?"  The FBI isn't relying on a constitutional authority.  The FBI is making an argument applying the AWA, a law Congress wrote and Congress can amend/clarify. 

2. The ruling in the EDNY case was made by a Magistrate Judge.  Not even a District Judge.  It has zero application to the Apple case which is before a California district judge in a different circuit. 

3. "Legislating from the bench" is exactly what the District Court judge did in the Farook case.  The court interpreted that the AWA compels Apple to provide assistance in the form of writing code to defeat the security measures in iOS8/9.  An act of Congress defining specifically what reasonable assistance is in this kind of case would severely restrict the Court's discretion to interpret the reach of the AWA.

8 minutes ago, newtogolf said:

Why would Congress have to create such a law when there isn't any law to require tech companies to respond to assistance orders that dilute the value of their IP?  Apple is an international company, the implications go beyond what the United States government wants.  

Again, the trial Court has already interpreted the AWA, an act of Congress, as allowing compelled assistance from Apple that dilutes their IP.  Congress could nullify that easily and severely limit any court's ability to interpret the AWA broadly (as has arguably happened here).

[k-troop]

24 minutes ago, iacas said:

The first result in Google for a phrase I've already forgotten demonstrates all I've said:

https://www.washingtonpost.com/local/crime/us-appeals-court-strikes-down-one-gun-a-month-law-in-district/2015/09/18/137fa290-5e22-11e5-8e9e-dce8a2a2a679_story.html

A law was struck down as unconstitutional. Courts changing laws. Not writing them, literally, no. Just saying "nope, not a valid law."

But Erik this actually supports the point I made.

This law was struck down because it violated the 2nd Amendment.  The 2nd Amendment protects citizens right to keep/bear arms against the Government's attempt to infringe on that right in the name of safety.

If Congress were to pass a law saying the AWA (or any other statute) does not authorize a court to grant an assistance order that requires a tech company to dilute the security of their product, it would be difficult to strike that law as unconstitutional.  The law wouldn't deny any citizen due process.  It wouldn't infringe on a citizen's protection against unreasonable searches/seizures.  The FBI (or law enforcement generally) rarely has standing to even challenge the application of such a law.  The only conceivable way the law could be challenged is if it limited the President's war power, which could only be raised in a case involving a non-citizen, foreign detainee who's case would likely never even get to federal court for many other reasons.

[iacas]

Just now, k-troop said:

But Erik this actually supports the point I made.

Yeah, at the risk of dragging this out even further, Kevin, I don't see it that way.

I've said the courts can effectively determine law by how they interpret laws (or strike down laws, or apply laws), and you've said "no, that's Congress's job."

The AWA is law, but how far it reaches and how it applies, is up to the courts right now.

I don't really want to carry on with this, now, either. IANAL, but I feel I have a reasonable understanding of the legal issues at play here, and a fairly good understanding of the technical issues at play.

And I still support Apple's position in this. And I hope the courts rule similarly in CA as they have done today in NY.

[newtogolf]

30 minutes ago, k-troop said:

Again, the trial Court has already interpreted the AWA, an act of Congress, as allowing compelled assistance from Apple that dilutes their IP.  Congress could nullify that easily and severely limit any court's ability to interpret the AWA broadly (as has arguably happened here).

The 4th criteria of the AWA is it only applies if compliance is not an unreasonable burden.  Apple has assisted in the past with phones that were not encrypted but has clearly stated that developing a version of IOS that will allow the FBI to review the contents of Farooks phone is an unreasonable burden.  

Quote

Reengineering iOS and breaking any number of Apple’s promises to its customers is the definition of an unreasonable burden. As the Ninth Circuit put it in a case interpreting technical assistance in a different context, private companies' obligations to assist the government have “not extended to circumstances in which there is a complete disruption of a service they offer to a customer as part of their business.” What’s more, such an order would be unconstitutional.Code is speech, and forcing Apple to push backdoored updates would constitute “compelled speech” in violation of the First Amendment. It would raise Fourth and Fifth Amendment issues as well. Most important, Apple’s choice to offer device encryption controlled entirely by the user is both entirely legal and in line with the expert consensus on security best practices.

For simplicity sake and consistency, CALEA should be interpreted to apply to all data regardless of whether it's in motion or not.

[iacas]

On March 1, 2016 at 10:14 PM, k-troop said:

Again, the trial Court has already interpreted the AWA, an act of Congress, as allowing compelled assistance from Apple that dilutes their IP.  Congress could nullify that easily and severely limit any court's ability to interpret the AWA broadly (as has arguably happened here).

And a later court upon appeal could decide that the lower court interpreted the AWA incorrectly.

---

Also: http://motherboard.vice.com/read/the-apple-fbi-encryption-hearing-judiciary-committee-fbi-director-james-comey

Quote

A couple of representatives were openly hostile to Comey, but most launched passive aggressive, loaded questions at the FBI director. Even though the representatives (both Democrats and Republicans) were mostly polite, the tone of the the questioning was a huge departure from how the House Judiciary Committee typically addresses Comey. 

“I would be deeply disappointed if it turns out the government is found to be exploiting a national tragedy to pursue a change in the law,” Rep. John Conyers (D-MI) told Comey.

…

The questions got more hostile. Rep. Conyers asked Comey if the San Bernardino case was an “end-run around this committee” — a loaded question that Comey of course denied.

…

After that, Rep. Darrell Issa (R-CA) opened his questioning by quoting the late Justice Antonin Scalia: “There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of all of us.” Issa’s questioning was overtly hostile in tone, delving deep into the technical details of the iPhone 5c. Comey was at loss, admitting, “I have not answered the questions you have asked me today and I am not entirely sure I understand the questions.”

Rep. Zoe Lofgren (D-CA) then said to Comey, “As I was hearing your opening statement talking about a world where everything is private, it may be the alternative is a world where nothing is private. Because once you have holes in encryption, the question is not if but when those holes will be exploited.”

At least some members of Congress seem to get it.

Hopefully.

https://sixcolors.com/link/2016/02/new-member-of-the-golden-key-wizard-society/

[nevets88]

Amazon Quietly Removes Encryption Support from its Gadgets

Quote

While Apple is fighting the FBI in court over encryption, Amazon quietly disabled the option to use encryption to protect data on its Android-powered devices.

The tech giant has recently deprecated support for device encryption on the latest version of Fire OS, Amazon’s custom Android operating system, which powers its tablets and phones. In the past, privacy-minded users could protect data stored inside their devices, such as their emails, by scrambling it with a password, which made it unreadable in case the device got lost or stolen. With this change, users who had encryption on in their Fire devices are left with two bad choices: either decline to install the update, leaving their devices with outdated software, or give up and keep their data unencrypted.

 

http://motherboard.vice.com/read/amazon-removes-device-encryption-fire-os-kindle-phones-and-tablets

[k-troop]

7 minutes ago, nevets88 said:

Amazon Quietly Removes Encryption Support from its Gadgets

 

http://motherboard.vice.com/read/amazon-removes-device-encryption-fire-os-kindle-phones-and-tablets

Which is why Congress needs to deal with this. The uncertainty over what companies may be required to do to assist LE is not good, considering how fast the tech curve is. We can't afford to wait for the USSCt to decide this. 

[saevel25]

3 minutes ago, k-troop said:

Which is why Congress needs to deal with this. The uncertainty over what companies may be required to do to assist LE is not good, considering how fast the tech curve is. We can't afford to wait for the USSCt to decide this. 

Not going to happen unless states start really pushing their own laws on this. Then it becomes a big mess. I don't see Congress pushing this before the USSCt. It just doesn't seem high on their agenda of just not getting along. 

[iacas]

18 minutes ago, saevel25 said:

Not going to happen unless states start really pushing their own laws on this. Then it becomes a big mess. I don't see Congress pushing this before the USSCt. It just doesn't seem high on their agenda of just not getting along. 

They're already showing signs of doing it. It's not a states issue.

[k-troop]

22 minutes ago, iacas said:

They're already showing signs of doing it. It's not a states issue.

Yeah individual states could limit what LE can do in their state but it wouldn't impact the FBI. Unless it's comprehensive it won't fix the problem--Apple isn't going to make 50 different OS. 

[saevel25]

http://www.zdnet.com/article/fines-jail-for-apple-execs-over-iphone-unlocking-refusal-french-bill-clears-next-hurdle/

Quote

"The rule aims to force phone makers to give investigators data and it will be up to the manufacturer to use whatever technique is necessary," Philippe Goujon, the Republican lawmaker who proposed the amendment, told Bloomberg.

"The target is to have them cooperate. The aim is not to break the encryption. The principle is that manufacturers should cooperate."

If this passes I hope Apple tells France to go  themselves and then stop exporting Iphones to France.

 

[inthehole]

I'm late to the party ... Bottom line is that I have NOTHING that I consider private enough that I wouldn't give permission to the govt to see if it could be applied to subvert terrorism.   I'm not a terrorist so I have nothing to hide.      I consider terrorism that much of a threat, that I'm willing to lose some personal privacy.   I support the FBI and apples thumbing its nose will likely affect my decision to buy their products in the future 

[newtogolf]

47 minutes ago, inthehole said:

I'm late to the party ... Bottom line is that I have NOTHING that I consider private enough that I wouldn't give permission to the govt to see if it could be applied to subvert terrorism.   I'm not a terrorist so I have nothing to hide.      I consider terrorism that much of a threat, that I'm willing to lose some personal privacy.   I support the FBI and apples thumbing its nose will likely affect my decision to buy their products in the future 

It's not a matter of having something "private enough" that you wouldn't give permission it's the fact that legally you're not obligated to nor should you waive those rights willingly.  Apple is protecting all of us from government spying and illegal search of our electronic devices. 

[inthehole]

I feel nothing is as important as subverting terrorism & I support the govt in obtaining whatever information they need at any cost, which includes my piddly online bank records, texting,  even political discussions on golf forums.   Small price to pay if even one terrorist plot could be circumvented.   Give the govt the tools they need to protect us !!!!

[k-troop]

4 hours ago, newtogolf said:

 Apple is protecting all of us from government spying and illegal search of our electronic devices. 

Again, nothing in the cases we've been reading about has anything to do with illegal searches. These are searches done with a warrant. 

[saevel25]

5 hours ago, inthehole said:

Small price to pay if even one terrorist plot could be circumvented.   Give the govt the tools they need to protect us !!!!

So, if Apple is forced to created a hack into their own phone. China now has basis to force apple to do that same. That means any government employee of the USA who is stationed in China is forced to have a hack in their phones for China to get access to? 

Just showing you where this can go. 

1 hour ago, k-troop said:

Again, nothing in the cases we've been reading about has anything to do with illegal searches. These are searches done with a warrant. 

I still contest the warrant should not have been issued. 

First, this isn't like the government phone tapping the landlines. In equity the landlines are the data streams. In that regard that would be on the mobile plans. Apple is the company that makes you the devices you stick on your wall to plug into your landline. No one asked Phillips Co. to create a hack into their landline phones to get access. 

Second, the warrant can't ask for something Apple doesn't have. They do not have the passcodes. They do not have access to your data line. They do not have access to your phone. Apple does not own that phone. This would be like the FBI asking you to break into your neighbor's house. 

[newtogolf]

3 hours ago, k-troop said:

Again, nothing in the cases we've been reading about has anything to do with illegal searches. These are searches done with a warrant. 

So are you contending that all the "monitoring" that NSA does under programs like PRISM, FACIA, Dishfire and Optic nerve are done with a warrant?