Former NSA lawyer: the cyberwar is between tech firms and the US government • Hacker News Board

Re: Former NSA lawyer: the cyberwar is between tech firms and the US government

#61

Post by Zigurd » Wed, Nov 05, 2014, 2:12 PM UTC

csandreasen wrote: post #27

Spooky23 wrote: post #20

Earlier quoted context omitted.

It is touching that a NSA lawyer cares so deeply about Apple and Google's business model. BlackBerry fucked up their business the old fashioned way -- by screwing up. They were an early player that listened too closely to their early adopter customers. These customers, including the banks and federal government, cared about stuff like keyboards and CAC integration. I've worked in very large IT environments, and users…

What Baker is trying to express is that companies like Apple could be shooting themselves in the foot with corporate sales if the data sitting on devices they're manufacturing can't be handed over when counsel tells you that there's a valid warrant. If Apple says the data on the phones is completely secure and not even the cops can get to it, then that means IT can't get to it when directed to, either. Management mig…

The US tech industry as a whole has shot itself in the foot by being suspected of complicity with US spy agencies in providing back doors and overt assistance. Any government or enterprise that values autonomy relative to US policies would avoid US tech products.

Re: Former NSA lawyer: the cyberwar is between tech firms and the US government

#62

Post by gonzo » Wed, Nov 05, 2014, 2:15 PM UTC

declan wrote: post #31

I've known Stewart Baker, the ex-NSA GC quoted in the linked article, for about 15 years--not incredibly well, but well enough that he'd show up at parties I held in my home when I was living in D.C. before moving to the SF bay area. Stewart is extremely smart, should not be underestimated, and HN comments in this thread calling him "incompetent" reflect badly on the person making the comment. He's likely the single…

I assume that Mr. Baker is a competent attorney, well-versed in the subject.

But the rhetorical device he used, attempting to pin the demise of Blackberry on their choice to encrypt, is found waiting.

Blackberry was defeated by market forces, not a willingness to encrypt user data. The iPhone and Android changed the firmament in the market where Blackberry had been dominant.

His attempt at using this aside, his use of "law enforcement needs access" is also found wanting because the NDA, GHCQ, etc are not law-enforcement.

Re: Former NSA lawyer: the cyberwar is between tech firms and the US government

#63

Post by gonzo » Wed, Nov 05, 2014, 2:20 PM UTC

Spooky23 wrote: post #58

csandreasen wrote: post #47

Earlier quoted context omitted.

> i.e. instead of law enforcement going to Google and Apple and saying "I have a legal right to search X. Hand it over.", law enforcement now needs to go up to the person whose papers and effects are being searched and ask the same thing. Which is entirely the wrong way to conduct a criminal investigation. How effective can the police really be when they have to go to suspect and say "We've got enough evidence to sus…

That is exactly how you conduct an investigation. You gather evidence establishing cause to search, get a warrant to conduct the search and get your evidence. When the police seize your property, you're going to be compelled to provide access, or you'll be held in contempt until you do. It does make to harder for a traffic stop to turn into a fishing expedition, but that's the point of the 4th amendment.

> When the police seize your property, you're going to be compelled to provide access, or you'll be held in contempt until you do.

Though weakened, the Fourth Amendment still applies.

Re: Former NSA lawyer: the cyberwar is between tech firms and the US government

#64

Post by mike_hearn » Wed, Nov 05, 2014, 2:48 PM UTC

csandreasen wrote: post #53

mike_hearn wrote: post #51

Earlier quoted context omitted.

Eh? Police do that routinely. How do you think they get evidence to prove a building was a meth lab or crack house? They get a warrant, bust down the door and go inside. How do you think they get internal business documents when prosecuting white collar fraud? They get a warrant or subpoena and force the potentially guilty parties to hand over documents. I'm not sure why this seems like a radical departure. "The clou…

The two situations aren't analogous - in both my cell phone example and your meth lab example the police need warrants, but they don't need the owner's permission to bust open the door to a meth lab, and they can't bust open the login screen on an encrypted iPhone without the owner voluntarily decrypting it. I linked to some case law examples in a previous comment[1], but basically the cops can't force you to decrypt…

I think they are analogous - police usually start by asking nicely if they can search your home, and only get rough if you refuse.

WRT decryption the USA is currently in a weird spot: some countries don't have the same hangups about forcing people to reveal encryption keys or unlock codes if there is a valid warrant or court order. I think the USA will go the same direction; if I understand American history correctly the purpose of the 5th Amendment was to avoid people being coerced into giving false testimony? It doesn't really apply to things like combination locks or passwords where there's no coercion risk so the original reasoning behind the amendment would not apply.

My white collar example was thinking about banks, anti-trust and other such things where the suspect is the organisation as a whole.

Re: Former NSA lawyer: the cyberwar is between tech firms and the US government

#65

Post by mike_hearn » Wed, Nov 05, 2014, 2:48 PM UTC

csandreasen wrote: post #53

mike_hearn wrote: post #51

Earlier quoted context omitted.

Eh? Police do that routinely. How do you think they get evidence to prove a building was a meth lab or crack house? They get a warrant, bust down the door and go inside. How do you think they get internal business documents when prosecuting white collar fraud? They get a warrant or subpoena and force the potentially guilty parties to hand over documents. I'm not sure why this seems like a radical departure. "The clou…

The two situations aren't analogous - in both my cell phone example and your meth lab example the police need warrants, but they don't need the owner's permission to bust open the door to a meth lab, and they can't bust open the login screen on an encrypted iPhone without the owner voluntarily decrypting it. I linked to some case law examples in a previous comment[1], but basically the cops can't force you to decrypt…

I think they are analogous - police usually start by asking nicely if they can search your home, and only get rough if you refuse.

WRT decryption the USA is currently in a weird spot: some countries don't have the same hangups about forcing people to reveal encryption keys or unlock codes if there is a valid warrant or court order. I think the USA will go the same direction; if I understand American history correctly the purpose of the 5th Amendment was to avoid people being coerced into giving false testimony? It doesn't really apply to things like combination locks or passwords where there's no coercion risk so the original reasoning behind the amendment would not apply.

My white collar example was thinking about banks, anti-trust and other such things where the suspect is the organisation as a whole.

Re: Former NSA lawyer: the cyberwar is between tech firms and the US government

#66

Post by edison_carter » Wed, Nov 05, 2014, 3:03 PM UTC

michaelt wrote: post #46

AnthonyMouse wrote: post #38

Earlier quoted context omitted.

> Stewart is extremely smart, should not be underestimated, and HN comments in this thread calling him "incompetent" reflect badly on the person making the comment. Incompetent may be the wrong word. What people (including you) are getting at is that his arguments are unpersuasive upon examination. It's all just fear mongering. There are two plausible explanations for this. The first is that he doesn't see the holes…

As I understand it, in America the legal system is designed to be 'adversarial' - meaning the lawyers for both sides are supposed to to raise every issue, advance every argument, and ask every question, however distasteful, which they think will help their client's case. In other words, you aren't supposed to present both sides of the argument, you're supposed to present your side alone. It's up to your adversary to…

Not quite.

The role of the defense is much as you describe; to advance every conceivable argument, etc. The role of the prosecutor is intended to be a seeker of truth, however, which doesn't always mean aggressively seeking conviction.

In practice, however, your description is accurate; it's a rare prosecutor that doesn't pull out all the stops in an effort to convict, regardless of the evidence.

Re: Former NSA lawyer: the cyberwar is between tech firms and the US government

#67

Post by maxerickson » Wed, Nov 05, 2014, 3:12 PM UTC

mike_hearn wrote: post #64

csandreasen wrote: post #53

Earlier quoted context omitted.

The two situations aren't analogous - in both my cell phone example and your meth lab example the police need warrants, but they don't need the owner's permission to bust open the door to a meth lab, and they can't bust open the login screen on an encrypted iPhone without the owner voluntarily decrypting it. I linked to some case law examples in a previous comment[1], but basically the cops can't force you to decrypt…

I think they are analogous - police usually start by asking nicely if they can search your home, and only get rough if you refuse. WRT decryption the USA is currently in a weird spot: some countries don't have the same hangups about forcing people to reveal encryption keys or unlock codes if there is a valid warrant or court order. I think the USA will go the same direction; if I understand American history correctly…

The self-incrimination clause in the U.S. Constitution is rooted more in preventing the government from using coercion than it is in concern over the veracity of any testimony obtained through that coercion (of course torturing people into confessing crimes they did not commit is a major historical motivation for the provision, but mechanistically, it is not concerned with truth).

When it comes to a locked safe, the U.S. Supreme court still muses about whether revealing the combination to a lock is testimonial. For instance:

http://blogs.denverpost.com/crime/2012/01/05/why-criminals-s...

http://illinoisjltp.com/timelytech/is-the-battle-over-for-sm...

Re: Former NSA lawyer: the cyberwar is between tech firms and the US government

#68

Post by api » Wed, Nov 05, 2014, 3:47 PM UTC

declan wrote: post #39

AnthonyMouse wrote: post #38

Earlier quoted context omitted.

> Stewart is extremely smart, should not be underestimated, and HN comments in this thread calling him "incompetent" reflect badly on the person making the comment. Incompetent may be the wrong word. What people (including you) are getting at is that his arguments are unpersuasive upon examination. It's all just fear mongering. There are two plausible explanations for this. The first is that he doesn't see the holes…

Welcome to the delightful world of Washington, D.C. realpolitik! A third possibility is that he honestly believes his position is the correct one--or is holding out the possibility of returning to a .gov/.mil job in this or a future administration--and (a) is using the best arguments for his case, however weak or (b) is on a conference panel, not in a courtroom, and is aiming for entertaining one-liners rather than a…

"Welcome to the delightful world of Washington, D.C. realpolitik!"

I don't understand how the people who play these games can motivate themselves to get up in the morning.

Forget morality. I'm just talking about a sense that you're doing something worth doing at all.

I just couldn't do it. No matter how hard I tried, eventually the realization that what I was doing was meaningless backbiting bullshit would sink in and I'd blow my brains out.

Maybe it's the "secret to success in New York" joke. The joke goes that the secret is to be smart enough to play the game but not smart enough to figure the game out. My guess would be that applies to DC far more than NY.

Re: Former NSA lawyer: the cyberwar is between tech firms and the US government

#69

Post by AnthonyMouse » Wed, Nov 05, 2014, 4:11 PM UTC

michaelt wrote: post #46

AnthonyMouse wrote: post #38

Earlier quoted context omitted.

> Stewart is extremely smart, should not be underestimated, and HN comments in this thread calling him "incompetent" reflect badly on the person making the comment. Incompetent may be the wrong word. What people (including you) are getting at is that his arguments are unpersuasive upon examination. It's all just fear mongering. There are two plausible explanations for this. The first is that he doesn't see the holes…

As I understand it, in America the legal system is designed to be 'adversarial' - meaning the lawyers for both sides are supposed to to raise every issue, advance every argument, and ask every question, however distasteful, which they think will help their client's case. In other words, you aren't supposed to present both sides of the argument, you're supposed to present your side alone. It's up to your adversary to…

> Stewart Baker, being a former lawyer, might simply be arguing in this tradition.

Congress and the court of public opinion have no judges to sanction "lawyers" for misbehaving. The sanctions [are supposed to] come in the form of loss of credibility and people not listening to you anymore. The argument that everyone shouldn't stop listening to him because he's just arguing like a lawyer would literally break the entire political process -- which appears to be what has happened, and it needs to stop.

Re: Former NSA lawyer: the cyberwar is between tech firms and the US government

#70

Post by CWuestefeld » Wed, Nov 05, 2014, 4:19 PM UTC

csandreasen wrote: post #53

mike_hearn wrote: post #51

Earlier quoted context omitted.

Eh? Police do that routinely. How do you think they get evidence to prove a building was a meth lab or crack house? They get a warrant, bust down the door and go inside. How do you think they get internal business documents when prosecuting white collar fraud? They get a warrant or subpoena and force the potentially guilty parties to hand over documents. I'm not sure why this seems like a radical departure. "The clou…

The two situations aren't analogous - in both my cell phone example and your meth lab example the police need warrants, but they don't need the owner's permission to bust open the door to a meth lab, and they can't bust open the login screen on an encrypted iPhone without the owner voluntarily decrypting it. I linked to some case law examples in a previous comment[1], but basically the cops can't force you to decrypt…

the cops can't force you to decrypt an encrypted device because of your 5th Amendment rights

I don't believe this is quite correct.

AIUI, they cannot demand that you hand over the password as such, because that is tangential to the case - it's a third piece of information that has no bearing. But they can sit your down and tell you that you must unlock it for them - enter the password yourself - under penalty of the law.