[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.

[tptacek]

That's the exception that proves the rule. So concerned were we about torture that we constitutionally prohibited coerced self-testimony. What other form of search does the constitution bar from judges? You can't say "the unreasonable kind!", because the constitutional definition of "reasonable" is "whatever the Supreme Court says it is".

[ethbro]

I don't think limiting searches categorically has ever been a problem to this extent before (big statement, but maybe?). Because there's never been a broadly-used impediment to the types of searches the government typically conducts that simultaneously requires a sacrice on the part of individuals if it is not available.

Or to turn it around, what has the government historically desired to legally do after obtaining a warrant that it has been unable to do?

We never made locks or strong doors illegal. The closest would probably be mandating log retention at telecom providers for a certain period of time.

[tptacek]

I'm not sure we're talking about the same case. The government is capable of conducting the search it demands in this case. Because of the way Apple designed this particular phone, it can in fact assist the government with the search.

The question of how cryptography might stymie whole classes of search entirely is germane to the question of whether we should pass laws restricting default-on cryptography (obviously, I don't think we should). It is not germane to this case, which is not about "mathematics" or even "security", but instead whether the government has the power to compel a product manufacturer to assist in a search of their products.

[ethbro]

The government is not capable of conducting the search on its own in the sense of "access the contents of this particular iPhone at this point in time." Unless you have read some very different material than I have or are using different definitions?

Richard Clark seems to think the NSA would have the capability, and they might, but the FBI apparently (and believably) doesn't.

Apple "assisting in a search" is a little overly summarizing in my opinion. I think there's a difference between "we received your warrant, here's the information we have" and "we received your warrant, we will dedicate engineers employed by our company to actively exploit the security we designed into our products."

Is there precedent for compelling lockmakers to provide technical expertise in defeating their own lock systems? I can't imagine that's never come up historically.