[ehartsuyker]

> The FBI’s brief dismisses all of this as a marketing ploy, and then blasts Apple as a literal threat to American democracy, writing: “Apple’s rhetoric is not only false, but also corrosive of the very institutions that are best able to safeguard our liberty and our rights: the courts, the Fourth Amendment, longstanding precedent and venerable laws, and the democratically elected branches of government.”

Ironically, Apple giving users encryption doesn't weaken the Fourth Amendment; it makes it stronger because it provides the ability for citizens to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" in a way that the courts recently have been unable to.

[mstade]

Also, since when is the FBI a "democratically elected" branch of government?

[studentrob]

It's coming from the top. Obama has backed this effort from the start. The White House wants the Burr-Feinstein anti-encryption bill [1]. They've been waiting for it for months and the press keeps asking about it. From the White House Daily Briefing on March 11 [2],

> Q: Can I do the weekly check-in on if you guys have anything to say on the Burr-Feinstein legislation on encryption coming out of the Senate?

> MR. EARNEST: I don’t have anything new -- which is to say we continue to be in touch with Congress, and I continue to be personally skeptical -- more broadly, going beyond just this specific legislation, I continue to be a little skeptical of Congress’s ability to handle such a complicated policy area, given Congress’s recent inability to handle even simple things.

[1] http://www.politico.com/tipsheets/morning-cybersecurity/2016...

[2] https://www.whitehouse.gov/the-press-office/2016/03/14/press...

[harryh]

The FBI is part of the executive branch which is democratically elected.

[naringas]

the FBI is executive branch!?

I would've never occured to me... I thought all law enforcement was on the judicial branch. TIL.

[dfc]

The executive branch is home to the Department of Justice. Maybe that is what you were thinking of? If it makes it easier, when you think about the judicial branch think of judges, and for the executive branch think use power.

[ascagnel_]

I always thought of it as the judicial branch judges, while the DoJ is the executor of the law.

[brudgers]

In the US, judges adjudicate from the facts presented. Unlike many other legal systems, judges do not investigate. Roughly speaking, the judicial branch of the US Federal government is very small, little more than judges and their clerks. The US Constitution grants it little explicit power and its principle source of political power, declaring laws unconstitutional, was established solely by the Federal physician's own precedent: one day the US Supreme Court started declaring laws unconstitutional.

[Grishnakh]

>Unlike many other legal systems, judges do not investigate.

Maybe we should change that. Countries like France and Germany don't seem to have all the wackiness in their legal systems that we do.

[drzaiusapelord]

I can't remember the last time SCOTUS sent a democratic activist to the loving arms of Vladimir Putin's torture/death squads:

http://en.odfoundation.eu/a/6935,in-a-shocking-decision-fren...

Perhaps you're being too dismissive of the US system?

[gozur88]

I don't see any evidence the US has more or less "wackiness" in its legal system. It's served us quite well, over the years.

[harryh]

Most people tend to think that giving unelected judges an armed police force is a bad idea.

Even in France and Germany.

[beau26]

The US Marshal Service is basically the judiciary's law enforcement branch. Yes, the DEA is also part of the DoJ, but the DEA is a lot more akin to the FBI than the Marshal Service.

Marshals do prisoner security and transport, run the witness protection program, and are the legal enforcers of the court's orders. For instance, when the Supreme Court ordered the integration of Southern schools, it was US Marshals who actually enforced the order and were deployed to escort students into their schoools.

[blisterpeanuts]

The FBI is technically part of an "elected" branch, but it's nonetheless a semi-autonomous agency not directly accountable to the people who voted for the President. Even the President could be investigated by the FBI. We just have to trust that good people were appointed to this agency, and be ready to fight them in court when not-so-good people make bad decisions.

[rayiner]

Yeah let's just forget the whole "warrant" bit in the very next part of the fourth amendment.

[ehartsuyker]

> "no Warrants shall issue, but upon probable cause"

As a non-legal expert, the way this feels to me is that asking for a backdoor is like preemptively issuing a warrant for everyone on the grounds that they might commit a crime in the future that you'd want to investigate. Thus backdooring iOS is tantamount to issuing an unlimited warrant for everyone, which is exactly what the Fourth Amendment is trying to prevent.

[ethbro]

The difficulty is that encryption doesn't work with the warrant system. There's no "encrypted before a warrant is issued, but unlockable after one is" without key escrow or something similar.

The real tragedy is that if the government had good intentions about doing so in a responsible manner (setting aside the problems with key escrow in the first place), then the NSA burnt those bridges to the ground between 1990 and 2015.

Action. Reaction.

[tptacek]

That is an understandable set of emotions but not really a rational basis for public policy.

[marssaxman]

"We cannot trust you to use this power responsibly and therefore refuse to delegate it to you" might be the most rational basis for public policy there is.

[tptacek]

The power to collect evidence to resolve criminal cases is one of the most fundamental powers of the state. You might just as productively suggest that we can't trust the USG to be a responsible state, and therefore it should disband.

[gozur88]

"We got burned giving these people too much power" is absolutely a rational basis for public policy. The biggest threat to your life and liberty comes from the government, not some shady group out of the Middle East.

[ehartsuyker]

Agreed (on all that).

[studentrob]

That bit's definitely in there and it's definitely important for physical goods.

But digital goods are a different ball game. Even if the government is able to mandate back doors be put into phones, criminals will simply change to use other software.

We're going to need to face the fact that terrorists will still be able to hide their communications using encryption whether the US government attempts to rewrite all encryption communications software in the US or not. There are too many moles to whack.

I'd prefer that our law enforcement officers figure this out sooner or later so they can get back to figuring out how to keep us safe given the circumstances. They have a very difficult job which we need to support through whatever means we can. It's our job to help them learn how encryption works.

[harryh]

> Even if the government is able to mandate back doors be put into phones, criminals will simply change to use other software.

People say this a lot. But I'm not so sure. I'm sure they will some of the time, but I bet there are a lot of unsophisticated criminals out there who will use whatever consumer software I use to message my wife about who's picking up milk on the way home today. It's just easier.

We've actually seen evidence to support this position as well. The Paris attackers coordinated over unencrypted SMS when, even now, there are far more secure solutions that one can easily install.

[studentrob]

> I bet there are a lot of unsophisticated criminals out there who will use whatever consumer software I use to message my wife about who's picking up milk on the way home today. It's just easier.

For sure there are. Is that a good reason to pass laws mandating back doors in phones? I don't think so. The economic and security impact will be too large.

The FBI is focusing on terrorist cases as a means to win the public on their side. And, many sophisticated criminals have already figured out how to use encryption. The FBI is saying that criminals use Twitter as a means of connect, and then encourage followers to continue conversation via encrypted methods. I guess this is how they get metadata about who is talking to who but not the actual conversation content.

[rdpickard]

(disclaimer; not a lawyer) How do you see there being probable cause for the issuance of a warrant? My reading of the FBI-Apple-CDCal-Govt-Reply document (page 2 / line) was that there was not forthcoming or ongoing attack, but evidence of the attack that Farook had executed.

[tptacek]

Probable cause? The phone's user shot 22 people. The phone itself belongs to the county, so legally, they don't even need a warrant, but if there isn't cause to issue a warrant in this case, there's never been such cause in any case.

[rdpickard]

But the phone has no (additional) prosecutorial value against Farook and Apple itself is not in possession of any evidence or information that has to do with the attack, which seems to be the reason why the FBI is using the All Writs Act.

What i am trying to figure out is if the FBI is saying that there is evidence on the phone of future attacks, or information about co-conspirators, or some other material that would lead to additional action. From what I have read, there is no indication that is the case.

What is it the FBI is gaining by unlocking the phone? Other than a legal precedent.

[tptacek]

You have no idea what the phone contains, neither does the DOJ, and the whole point of the investigation is to resolve that question.

[rdpickard]

Not knowing what is on the phone is my point. The FBI is asking for a method to access information on a specific device that impacts all devices of the same type. If there is not a stated reason for positive action, this seems to be unreconcilable with the FBI dismissing concerns about this being a violation of the fourth amendment.

However, I don't know enough about the law to know if probable cause means to take action regardless of the outcome of that action. That seems to be slippery slope toward justified constant mass surveillance.

[frandroid]

They literally have no idea what's on the phone; they're speculating that there might be something useful. A search warrant for searching the possessions of someone who committed a terror act is not out of the ordinary. But I agree with your conclusion.

[rdpickard]

Right, that makes sense. I don't have the link handy but the aclu post from a few days ago about a method to brute force the phone by backing up and restoring disk images after a wipe seemed reasonable to me. I also think that the fact that the phone wasn't farook's property but San bernardino government's is a strong argument that there is no expectation of privacy on that particular phone.

It's probable cause for the warrant against (??) Apple that I haven't wrapped my head around. Since apple has no known or suspected connection with the crime itself.

Who wants to start a key escrow company :)

[paulryanrogers]

Don't they have backups which could provide some probability the phones may contain relevant evidence?

[teaneedz]

[Encryption, Privacy Are Larger Issues Than Fighting Terrorism, Clarke Says : NPR](http://www.npr.org/2016/03/14/470347719/encryption-and-priva...)

[tptacek]

This is in no way responsive to what I wrote.