> "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.
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.
"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.
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.
The argument has the exact same form as the advice "don't talk to the police without a lawyer", and for the laws that support this protocol (right to silence/counsel). That is,
"I don't trust you to be an impartial seeker of the truth who's 'only' concerned with solving this murder rather than railroading me on random charges, therefore I will not answer even simple questions that you deem necessary to conduct your investigation."
(With that said, I really, really don't like the whole "don't talk to police" circlej---, like how it gets overapplied or dangerously applied ... but within a very narrow interpretation it's correct and well accepted enough to carry the implications over here.)
Edit: Correspondingly, the advice would carry a lot less weight in counties with a much better government that actually could be trusted not to look for petty reasons to arrest people. And so a government that prices itself a better steward of privacy could be trusted with key escrow.
Correct, however we're entering into an entirely different area of argument here. Historically, physical safeguards have been utilized, and any physical safeguard can be overcome give a moderate amount of funding and/or time. I'm not aware of any period where a safeguard would need to be intentionally fundamentally flawed in order to allow the government to proceed with their collection of evidence.
The question becomes whether it is within the power of the government to mandate that flaw, or whether they will need to find some other approach. There is also a question of freedom of speech, as it has historically been held that you can be forced to not express something, however you cannot be forced to express something. In regards to key signing, it could be said that that is an expression of authenticity that you endorse whatever is being signed. Can the government force you to give that endorsement? Does the government's power to collect evidence supercede your right to freedom of speech (or the abdication of speech)?
>The power to collect evidence to resolve criminal cases is one of the most fundamental powers of the state.
I agree. But it is no where stated or implied that this should be an unlimited power. In fact, clear limits are placed upon that authority.
If I invent a cypher and store all of my physical written works using that cypher, can the government compel me to decrypt those works upon discovery that they lack the ability to do so? What if I taught that cypher to my family? Can they be compelled? If so, under what authority?
>You might just as productively suggest that we can't trust the USG to be a responsible state
This suggestion is inherent within the Constitution. It is framed upon a mistrust of any Government to not become tyrannical.
>therefore it should disband
uh, what? nice leap.. did you use rocket shoes to get over the gap?
A monopoly on violence is the fundamental power of the state, which isn't being challenged here. What is being challenged is the state's methods of evidence collection, which determines an attribute of the state - not its existence. Put more simply: you haven't leapt in your logic, you've presented a false equivalence.
"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.
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.
> 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.
> 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.
(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.
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.
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.
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.
The whole point of a warrant is to allow investigators to resolve the question of whether evidence is or isn't located somewhere. By your logic, any time a judge issues a warrant, they might as well issue a conviction at the same time, because the question of what the evidence says needs (in your view) to be settled before the warrant issues!
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.
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.
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.