61–70 of 113 posts
Tradition is not law.
I like Apple's approach. It's not their job to do the government's job for them nor is it their job to make the government's job easier. It's their job to develop the best product they can and not be hindered by tradition or whatever other albatrosses they don't wish to accept.
The government is now free to develop the best methods they can to retrieve information, within the law.
While Apple is pointing fingers at Google about collecting user data, let's see what kinds of business Apple and Google are in.
Apple's main strength is designing product, farm them out to contractors for assembly, market the products and sell them.
When it comes to child labor or near slavery like working condition that the Chinese assembly line workers labor in, Apple's defense is that they are not Apple employees. Well, that doesn't fly with me. They are still paying (or not paying enough) for the tough condition.
And what business is Google in? Their business is in collecting user data and selling them for ad. They don't farm out assembly work to contractors that force employees to work in slavery like condition.
So what do like less? 1) Supporting a company that condones slavery like working condition? 2) Supporting a company that collects data but does not pay contractors who put workers into slavery like working condition?
So I'd say it's even. Apple is not any better than Google. And frankly, looking at me.com and other cloud platform that Apple has tried to prop up and failed so far, I'd say Apple is better off staying in their line of business.
> That’s hugely important. And under Apple’s old operating system, cryptography protects iPhones from rogue police officers, too.
Kerr is a lawyer, not a techie, and it really shows here. This statement first of all implies that the previous system was "adequate, but with a backdoor", which of course we know is not possible.
But that is a matter of theory; the practice, according to [1], is that previously iOS filesystem encryption wasn't tied to the user passcode anyway, so it wasn't even a matter of "decrypting" the devices, nor was it something only feasible for Apple to do. Indeed, vendors such as Elcomsoft (believably, given the info in those slides) claim that their software can grab most user data without a password [2].
The aforementioned slides mention a second level of encryption, "data protection", which is derived from the passcode, and which Elcomsoft claims to not be able to access. I wonder whether Apple could (since if implemented properly it shouldn't have).
> Because Apple demands a warrant to decrypt a phone when it is capable of doing so, the only time Apple’s inability to do that makes a difference is when the government has a valid warrant.
Kerr never says it, because he knows it's not true, but he gives the impression throughout the piece that because Apple could access on-device data when presented with a warrant, it had to. It didn't. Perhaps Kerr thinks they had/have a moral obligation?
> The policy switch doesn’t stop hackers, trespassers, or rogue agents. It only stops lawful investigations with lawful warrants.
I don't know what Kerr is getting at here. If it is within the means of "hackers" or "trespassers", it is surely within the means of law enforcement.
> How is the public interest served by a policy that only thwarts lawful search warrants?
But it doesn't only thwart lawful search warrants, it protects against other would-be intruders. Apple is simply choosing, in light of recent controversies regarding government incursions on privacy, to highlight that aspect.
> Apple’s new policy seems to thumb its nose at that great tradition. It stops the government from being able to access the phone precisely when it has a lawful warrant signed by a judge. What’s the public interest in that?
Apple is responding to a political and market reality: a lot of us don't believe that "great tradition", as practiced, is actually serving the public interest. I guess it is out of the scope of the piece for Kerr to explain why we're mistaken, but many of those applauding Apple's decision aren't going to buy it, and yet it's his argument's key premise.
> Because the victim isn’t alive to share his password, and the phone will have locked before the body was found, the government won’t be able to search the phone to find the messages. Apple’s policy will keep the police from finding the killer. That seems bad.
Maybe. But recall, for perspective, that 15 years (generously) ago people didn't carry these repositories of personal information with them.
> If we get a lot of cases like that, I suspect Congress may look to legislation to try to restore the privacy/security balance more in the direction of the traditional Fourth Amendment warrant requirement.
I would expand on the same point as above: what year's balance are we striving to "restore" to? Law enforcement today have unprecedented access to personal information, and that will be only marginally less true when smartphone encryption is more widespread and robust.
> The most obvious option would be follow the example of CALEA and E911 regulations by requiring cellular phone manufacturers to have a technical means to bypass passcodes on cellular phones.
I know Kerr is talking about what Congress might do and not what would be ideal, but I'm sure Kerr knows the lessons of the Clipper chip [3].
I know I'm preaching to the choir here, but I've been stewing over this since I read it on Friday. Apologies for the rantiness.
[1] http://www.slideshare.net/eltufl/ios-encryption-systems [2] http://www.elcomsoft.com/eift.html?r1=pr&r2=ios6#passcode [3] https://en.wikipedia.org/wiki/Clipper_chip
Earlier quoted context omitted.
> judges act as rubber stamps now Exactly. Our government is as overbearing and oppressive as it's been in a very long time. I read somewhere that judges approve something like 99% of the search warrants presented to them. They no longer serve as a check on law enforcement. I'd love to hear otherwise, to hear how judges are doing a good job balancing the interests of people against the interests of law enforcement.
> I read somewhere that judges approve something like 99% of the search warrants presented to them. They no longer serve as a check on law enforcement. Where? Most sources I can find (usually focussing on individual departments) indicate rejected warrants applications aren't tracked, so there would likely be no basis for this conclusion. Even if it was true, it would likely be misleading -- the fact that a warrant is…
Just using the FISA numbers as a starting point for discussion, I'm not ready to believe that 11 requests denied and 33,942 warrants issued is something that makes sense. I'd bet that the Russian Parliament is less of a rubber stamp on Putin. :)
[1] http://en.wikipedia.org/wiki/United_States_Foreign_Intellige...
"The first question is whether the government can lawfully compel the telephone’s owner to divulge the passcode. I believe the answer is that yes, a person can in fact face punishment for refusal to enter in the password to decrypt his own phone. If the government obtains a subpoena ordering the person to enter in the passcode, and the person refuses or falsely claims not to know the passcode, a person can be held in…
I don't know how they can reasonably prove you remember what the code is.
Apple is an international company, while I trust my government I do not trust the Chinese.
the question is, why do we take Apple at their word here?
Earlier quoted context omitted.
> there's a perfectly good explanation for why 99% of warrants would be approved. Your argument is that the approval rate could be 99% legitimately. Even if true it doesn't actually provide any evidence that judges are not acting as a rubber stamp, it only attempts to discount some evidence in favor of it. Moreover, the fact that the approval rate is 99% is still evidence that judges are not being very critical in ap…
> Moreover, the fact that the approval rate is 99% is still evidence that judges are not being very critical in approving warrants. No it is not. > The high rate makes it statistically more likely that judges are approving warrants uncritically than would be the case if the rate was lower. As I said in another sub-thread, you are going to have to explain the statistics involved if you want to make an argument from th…
Yes it is. There is no question that it is evidence, so you can only be questioning whether the evidence supports the proposition. You want a mathematical proof? OK. Without knowing the percentage of approved warrants we can't exclude the possibility that exactly zero warrants were approved, which would be a hard disproof of the proposition that judges are uncritically approving warrants. Discovering that the percentage is nonzero eliminates the possibility that it is 0%, which increases the probability that the proposition is correct. Continuing by induction, with each warrant not approved the possibility that it was approved uncritically is eliminated, whereas with each warrant approved the possibility that it was approved uncritically is retained. So the higher the percentage of approved warrants the more it supports the proposition that they are being approved uncritically. QED.
What you're arguing is that it's weak evidence. It could be that there were many legitimate warrants requested and few illegitimate ones. But that's a weak argument unless you can present some contrary evidence for the opposite position. All you're doing is claiming that the proposition hasn't been strongly proved, not proving it incorrect.
Earlier quoted context omitted.
I too was surprised by the author's question. It's as if he hasn't been following the news lately about the apparent impotence of the 4th amendment these days. Yet his wiki page says he "has been regarded as a leading scholar on Fourth Amendment jurisprudence in electronic communications and surveillance." In light of that, he comes across as extremely naive. (or worse?)
His Wikipedia page also relates his career in the DoJ and as a US Attorney, a very different background from the typical libertarian HN reader. I don't agree with Orin Kerr on this, but I'm willing to accept that he's likely seen things about the day-to-day business of law enforcement that I just don't understand. It's worth us spending at least a few moments entertaining the thought that maybe we are the naive ones.
I'm sorry, but no, no, no. I'm perfectly clear on what exactly this move by Apple enables, which is that more criminals -- some horrible -- will go free.
But context is important here:
1. By the same token, more innocent people who never should have been charged will also go free.
2. Giving up many of our constitutional rights would also result in more criminals being apprehended, but few of us would do that, because we understand the importance of these rights for our system of government. Why is this any different?
3. Most importantly, many of us would be much more amenable to a compromise here if the government hadn't horribly abused their power over the past 15-20 years. Prosecutorial misconduct and out-of-control blackops agencies have become such a problem that almost any solution is worth consideration. You think Apple would have done this if our government had a reputation for fairly using its power?
So no, not falling for the "we've seen things you kids would never understand" ploy -- that's been pulled on us before. It's not working this time.