[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.

[SilasX]

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.

[ethbro]

> The power to collect evidence to resolve criminal cases

Is already limited by the 5th Amendment and other caveats. So it's never been unlimited in the US.

[tptacek]

You mean the 4th Amendment (the 5th guarantees due process and prohibits coerced self-testimony).

Put aside for a second that 4A is not in play here, because the phone's real owners consent to the search.

4A delegates to the courts the power to determine what evidence is and isn't in-bounds in an investigation. Nowhere in 4A will you find a prohibition on imaging someone's phone. Assuming the judiciary approves of a warrant, virtually nothing is out of bounds to a warranted search. That's what we're talking about here: a search that a judge has authorized.

It's that power that we're talking about clawing back because of a loss of trust in the government. And what I'm saying is, it's pretty silly to pretend that you can claw back the power to collect evidence without calling the whole state into question.

[ethbro]

No, I meant the 5th amendment and coerced self-testimomy.

To me, that's an obvious example of evidence the government would like to have in many cases, but we clearly decided it cannot. A judge cannot grant a warrant compelling an individual to waive their 5A rights. That seems to have direct bearing on the idea of providing individuals a right to strong personal encryption.

Admittedly, there are many edge cases (furnishing information about a third party that one has personally encrypted), but we've bounded what the government can and cannot have before.

Although from another comment I made I generally agree with your position that this is a pretty serious point of balance between the individual and the state due to the nature of encryption.

[curryst]

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)?

[ethbro]

The physical vs virtual component is the most fascinating part of the issue for me. And the fact that "make a virtual thing that behaves like the previous physical thing" is impossible / extremely ill-advised.

We've seen the popular media analogies gradually become more accurate in their understanding that this is a novel question. And, admittedly, hats off to Tim Cooke and Apple for getting more technically accurate descriptions out in the media.

We do seem to be having a more productive discussion socially this time around.

I think the last major rebalancing of rights due to new technology concerned copyable copywritten digital media and... we decided to make a lot of things that are technically trivial illegal. Not the best message to kids that "these things are illegal, but easy to do and unenforceable."

[stcredzero]

The power to collect evidence to resolve criminal cases is one of the most fundamental powers of the state.

But this doesn't mean that the state gets to do that however it wants. There have to be limits on such power.

[shaftoe]

No state power is unlimited and all state powers end where individual rights begin.

Any state that cannot be trusted to be responsible should be disbanded. See the US Declaration of Independence.

[aniro]

>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?

[tptacek]

What "clear limits" are you referring to? Remember, this case is about the limits judges have in compelling the production of evidence. What are the limits on that authority?

It's unclear whether you will eventually be compelled into decrypting documents. One circuit says you can't be, because of 5A. But that ruling was situational, and other courts might rule otherwise. Certainly I don't personally agree with the logic that compelled decryption is necessarily testimonial in nature, any more than opening a safe for which only you have the combination is testimony. The primary purpose of the ban on coerced self-testimony is to prevent bogus confessions elicited under torture. That's not at issue here.

I don't understand your "inherent within the Constitution" argument. The Constitution says what it says. I'm citing it.

[aniro]

It is my understanding that the central issue is not the judges authority to compel evidence be turned over to the state. The State is already in possession of the evidence, it is simply in a format that is unintelligible. Apple is not in possession of any evidence.

The issue is whether a third party can be compelled to provide access to that evidence in order to make it intelligible and therefore meaningful. The combination to the lock (which apple claims they would be forced to construct, as it does not yet exist. The government seems to have accepted the veracity of this claim when they agreed to perform the labor if handed the tooling).

What is the purpose of explicitly stating 4A if we can simply trust the government to be a good actor?

It is inherent in the statement of explicit restraint that there is not trust.

Preamble to the Bill of Rights -

"The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."

I like that they use confidence.. it implies a matter of shades or degrees. Trust seems to imply something much more B&W.

(http://www.archives.gov/exhibits/charters/bill_of_rights_tra...)

[ethbro]

I agreed with your points until the last. :( Assumption of good intentions on the part of all comments usually produces a more productive discussion.

[aniro]

I didn't intend to be inflammatory (at least any more so than the parent), merely point out that a logical leap had been taken that was not entirely faithful (imho) on the part of the writer.

It is certainly not "mistrust government" ergo "disband government", especially when the government in question was formed near entirely upon the notion that a government should exist in a perpetual state of mistrust.

[woodman]

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.

[tptacek]

The collection of evidence (more broadly: the investigation of crimes) is one of the core purposes to which the state's monopoly on violence is applied, so the issues are the same.

[woodman]

You are doubling down on a logical fallacy. By your logic a state that has no law enforcement investigations is not a state, regardless of military strength and the sovereignty that enables. Now you may say that you would not want to live in such a place, but you can't with a straight face deny that it is still a state. As far as lumping potential precursor activities (evidence collection) in with the eventual excising of violence (arrest), and a challenge to the former is a challenge to the latter... by that logic the US isn't a state - because there are already plenty of restrictions in place.

[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).