FBI Director Comments on San Bernardino Matter

No, I'm arguing that incrementalism means the court doesn't have to fail (as a court) - the follow-on steps that I outlined and you found perfectly acceptable will not stop wherever you personally think they will, nor have I outlined (or even imagined) all the incrementally creative applications of this case that will likely follow. I'm also arguing (which you didn't counter) that this case lays the groundwork for the FBI to request _new_ products from companies.

> This is the part that doesn't follow from precedent. Giving over control of the tool to the FBI who could use it without a warrant is novel, and would require a judge to justify it.

I was being brief to illustrate, not to set a literal expectation of progression; I'm not here to present an argument for court. Giving the FBI control over the tool could be argued at any point in the very long lifetime of this decision, be it tomorrow or years from now. Perhaps after the courts have decided to allow for multiple devices or when suspect X is holed up for weeks in their cabin eating pizza and playing candy crush and the FBI cannot reach them by normal investigative means.

> Pure tinfoil material here.

Perhaps. Consider the probable value of the data on the phone beyond what's already available externally. Consider that the FBI could have simply requested Apple provide the data on the phone instead of specifying the mechanism and thereby creating precedent that they can compel a company to create something new. Consider that, in spite of generally dim views of the FBI's technical capabilities, the FBI usually provides sound, conservative advice with regard to electronic evidence (as a forensic analyst I've been party to a lot). Consider that over the past year+ the FBI has been protesting with little effect in congressional hearings that $todays_crime_buzzword are "going dark", that technology companies need to cooperate with them, that "securely insecure" (my words) systems are possible if created "at the design level" (not my words). They were nearly shouted down in those hearings. Consider the subsequent public visit the FBI and others made to Silicon Valley, extending an olive branch and returning effectively empty-handed.

Then consider that this case, involving an older and still-vulnerable version of a technology the FBI has been warning about, suddenly falls into the FBI's lap. It's politically and emotionally charged, it involves terrorists - they can ask for the world and society will rubberstamp it "because terrorists."

So the FBI asks for something small but very specific, and in doing so "happens" to set a precedent that they can compel companies to create a new product to bypass the very security measures they've been arguing vehemently against. Do you really think that's accidental?

> I'm also arguing (which you didn't counter) that this case lays the groundwork for the FBI to request _new_ products from companies.

I don't really have an opinion on that. I haven't commented much on whether they should have that power.

I think in this case, Apple would prefer to make it themself than be forced to hand over the code and keys to let the FBI make it. If Apple says "this is too hard for us", it's plausible that they'll need to do that instead. I have seen this point made elsewhere, but I'm not sure of its validity.

>Consider that the FBI could have simply requested Apple provide the data on the phone instead of specifying the mechanism and thereby creating precedent that they can compel a company to create something new.

My understanding was that the FBI asked for the data, Apple said "we can't do it", FBI countered with "Do X, Y, and Z, it is technically possible". Is my understanding incorrect? It sounded like the order needed to specify exactly what was to be done.

About the precedent point:

I think the proper response is to argue against specific details of the actual case (which you have with the point about forcing them to make a product). If you don't have specific objections against the actual case, but worry about precedent, then make explicit the difference between the specific case and the general one, and try to get that acknowledged by the judge. Introduce those arguments in briefs to the court, and try to make it very clear to a future court what the limits of the precedent set should be.

If you haven't imagined what could go wrong, then don't reject something because of unknown dangers. It seems to be born of a lack of trust in future courts, but there's no particular reason to distrust future courts over current ones.

(If you happen to know any philosophy of law articles that discuss this topic, I'd love to see them.)

What this case is doing is setting precedent that the courts can compel a company to _create_, no matter how trivial one may think that creation may be today. _That_ is the precedent so many draw exception to, because stare decisis is also a doctrine of incrementalism, of gradual expansion of interpretations. Today Apple is compelled to create a very controlled firmware; who's to say in the figurative tomorrow that Samsung won't be compelled to create and send a firmware update to a specific Blu-Ray player that creates an air microphone out of the laser? Where does it stop?

To be complete (as was pointed out in another sibling thread) incrementalism may be curtailed if implications are carefully argued and acknowledged by the judge. I am skeptical of the value of that approach, but have no hard argument against it.

[1] http://www.reuters.com/article/us-apple-encryption-victims-e...

There should be more discussion. Tech companies should seek to understand the government's job to keep people safe, and the government needs to understand that this is a game of whack-a-mole they can't win