
Apple vs. The F.B.I.: How the Case Could Play Out - dankohn1
http://www.nytimes.com/2016/03/21/technology/apple-vs-the-fbi-how-the-case-could-play-out.html
======
kabdib
There's no down-side for the FBI here. Even if they lose in courts, all the
way to the Supreme Court, they're going to lobby in Congress for anti-crypto-
in-phones (and probably _all_ devices).

And they won't stop doing that. (It sucks that we're the ones paying for that
lobbying, but that's kind of beside the point).

If Crypto Wars II goes in favor of privacy versus surveillance, expect Crypto
Wars III. And IV. That's the thing about bad actors who are embedded in the
state, they can afford to just keep trying. And at some point there will be
some Big Event that will result in very bad knee-jerk legislation, or someone
will slip in a ban on consumer crypto right next to something unrelated like
waterways legislation, and we'll be back on the road to the Supremes again _at
best_. The most secure "enclave" doesn't help you if you can't legally make
the product.

I don't have a solution other than to change the makeup of the FBI and other
actors, somehow.

~~~
jrnichols
Feinstein is already trying to.

[http://www.reuters.com/article/us-apple-encryption-
legislati...](http://www.reuters.com/article/us-apple-encryption-legislation-
idUSKCN0WB2QC)

~~~
studentrob
That woman is so clueless. Her ideas are easy to debunk. She thinks tech
companies like Apple must have access to encrypted data since they sell
targeted ads. She mentions this when she questions Lynch on the DOJ budget
hearing [1]. She fails to see the difference between iPhone data on disk and
Facebook posts.

Obama, meanwhile, doesn't have much better understanding of the tech world. He
characterizes Facebook posts as "public" [2]. While I agree it is better that
citizens think of online data as public, FB is most definitely not all public.
It just isn't set up with the protections being put in place on the iPhone.

[1] [http://www.c-span.org/video/?406201-1/attorney-general-
loret...](http://www.c-span.org/video/?406201-1/attorney-general-loretta-
lynch-testimony-justice-department-operations) (seek to 51:00)

[2] [http://www.snappytv.com/tc/1159970](http://www.snappytv.com/tc/1159970)

~~~
kabdib
Feinstein was prominently anti-crypto in the Clipper Chip / Crypto Wars I.
She's been doing this for over 20 years. I don't think she's clueless. What
she knows and what she says are probably very different. Political power has
little to do with displays of technical competence.

~~~
studentrob
Perhaps I overstated it. I have only seen a few videos of her recently and I
got the impression other senators in the room don't really take her seriously
anymore. Maybe she was knowledgeable during CW I but her argument makes no
sense in this particular case. Plus, I do believe you can be an influential
person without really knowing what you're talking about. That's politics.

------
natch
These NYT reporters seem so clueless and breezy about the issues, it's scary.
To the extent one of them was sort of positioned as pro-Apple, you would
expect them to rebut or fill in the missing info for some of the mistakes of
the other one, but no.

Maybe it's fair that their discussion totally ignored some of the key issues,
such as the dangers of back doors and their impact on public safety, the
opening up of abuse by other governments, and the potential negative impact on
the technology industry in the US. Because they were focused just on what the
court will consider.

But even then as baldajan pointed out the first amendment issues are way more
than just code. They are also about the core values of the company. Apple
should be able to choose what kind of dent they put in the universe.

~~~
marcoperaza
> _Maybe it 's fair that their discussion totally ignored some of the key
> issues, such as the dangers of back doors and their impact on public safety,
> the opening up of abuse by other governments, and the potential negative
> impact on the technology industry in the US. Because they were focused just
> on what the court will consider._

These are all great arguments for Congress to consider. Maybe there's a good
reason to create a privilege, like doctor-patient privilege, for companies in
Apple's position. As I think you acknowledge, this is a political judgment
that must be made by the people's elected representatives. As an aside, you're
playing the same game with the definition of backdoor that we were accusing
the government of before. Hacking a phone is not creating a backdoor. Shipping
phones with an intentional vulnerability is a backdoor.

> _But even then as baldajan pointed out the first amendment issues are way
> more than just code. They are also about the core values of the company.
> Apple should be able to choose what kind of dent they put in the universe._

So let's assume that Apple outright had the PIN in their possession. They
would be forced to hand it over. "What kind dent they want to put in the
universe" notwithstanding. Again, you're asking the court to come to a
political decision, not to interpret the law as it exists and has been applied
repeatedly to other cases.

The court is not the third house of Congress.

~~~
thaumasiotes
> you're playing the same game with the definition of backdoor that we were
> accusing the government of before. Hacking a phone is not creating a
> backdoor. Shipping phones with an intentional vulnerability is a backdoor.

Well, those aren't entirely separate things. In the instant case, Apple is
being asked to create a tool to open an existing phone. That clearly falls
under the umbrella of "hacking a phone".

If they were to continue selling phones (that is, after all, what they do)
after creating the tool, though, they'd be intentionally shipping phones with
a known vulnerability[1]. So it's perfectly sensible to describe the request
as being "to create a back door".

[1] I am given to understand that the phones Apple _currently_ manufactures
would not be vulnerable to the tool they're being asked to create. I don't
feel that changes the issues I mention, but it does mean they don't apply
perfectly to this case.

~~~
marcoperaza
They wouldn't be creating the backdoor. The door exists, they're being asked
to use their key and walk through it. The exact mechanics of accomplishing
that don't matter. The fact that they can do it means that the door already
exists. That they publicly insinuated in marketing that this wasn't the case
isn't anyone's problem but Apple's. Sounds like a lesson in not making
stronger claims than you can justify.

Also, I'm not sure newer phones are unaffected, here's a line from Apple's
public letter:

> _Specifically, the FBI wants us to make a new version of the iPhone
> operating system, circumventing several important security features, and
> install it on an iPhone recovered during the investigation. In the wrong
> hands, this software — which does not exist today — would have the potential
> to unlock any iPhone in someone’s physical possession._

Emphasis on "any iPhone".

------
baldajan
Not a fan of the pro-gov person not seeing the connection to the first
amendment and writing code a software engineer does not want to write. I do
hope this case gets thrown out early or ends up SCOTUS.

~~~
nickff
Many of the pro-gov people in this debate do not believe in corporate free
speech. This makes some sense, as broad approval of corporate free speech
would require agreement with the Citizens United opinion, as well as a dim
view of many parts of the Dodd-Frank regulations.

~~~
JoshTriplett
Corporations are groups of individuals. Individuals have free speech rights.
They do not lose those rights by working in groups. That doesn't require
Citizens United or Santa Clara County v. Southern Pacific Railroad; it takes
(among many other arguments) recognizing that compelled speech from a group
means compelled speech from the individuals comprising it.

There are substantial arguments that need making about whether code is speech,
whether compelled production of code is compelled speech, whether compelled
_signing_ of code is compelled speech[1], and so on. But I _don 't_ see any
reason why those arguments should have different answers when applied to the
group of people comprising a corporation than when applied to individual
people.

[1] For that one, see Wooley v. Maynard, which even in the _dissent_ said 'For
First Amendment principles to be implicated, the State must place the citizen
in the position of either apparently or actually "asserting as true" the
message'; that sure sounds like the function of a digital signature to me.

~~~
bpodgursky
OK? So the court can compel Apple to write the software-- not individual
employees. I don't think anyone is considering holding individual employees in
contempt.

But yes Apple as a corporation can be punished financially if they refuse, if
you hold that corporations don't have speech rights.

Your point is not consistent.

~~~
JoshTriplett
That was not at all my point. I'm saying that you should be able to reason
naturally from "individuals have rights" to "groups of individuals have
rights", without encountering some massive disconnect when the group of
individuals happens to have formed a company.

If code is speech, and compelling the development and signing of code is
compelled speech and thus prohibited, then it shouldn't _matter_ whether the
legal entity charged with the development and signing of that code is a
company or an individual. It's wrong to compel an individual developer to
develop and sign a backdoored version of a program they personally wrote and
personally hold the signing keys for, and _therefore_ it's wrong to compel a
company to develop and sign a backdoored version of a program they
collectively wrote and collectively hold the signing keys for.

~~~
wlesieutre
To make an analogy with another part of the first amendment:

It's like the government saying "Look, individually you Catholics are fine.
Believe what you want. But as a group we're going to need your church to
collectively renounce the Pope."

------
luckydude
I'm looking for an article that commented on Obama's comments at south by
southwest. Wondering if anyone saved a link.

The article talked about two Obama's, one with his legal hat on and the other
with his just-been-briefed-on-terrorists hat on.

The article claimed that All Writs only applies when there is a gap in the law
and then listed some other law that showed there was no gap. Seemed compelling
to me but I'm not a lawyer so wanted to post it here and see what HN thought.

If someone knows of the article, please post a link. I'll keep looking.

Edit: this is close but not the article I was looking for
[https://cyberlaw.stanford.edu/blog/2016/02/calea-limits-
all-...](https://cyberlaw.stanford.edu/blog/2016/02/calea-limits-all-writs-
act-and-protects-security-apples-phones)

Nevermind, here it is:

[https://backchannel.com/the-law-is-clear-the-fbi-cannot-
make...](https://backchannel.com/the-law-is-clear-the-fbi-cannot-make-apple-
rewrite-its-os-9ae60c3bbc7b#.9k7qls8z4)

So what do people make of that article, is it as cut and dried as the law
professor says?

------
studentrob
No new news in this article. The court hearing is on Tuesday

This is a report on two reporters debating the case. Unfortunately, the title
does not say that.

I gather it's an attempt to make the issue more relatable to a layperson.
Probably pretty boring to the HN crowd.

~~~
FungalRaincloud
They're not even debating, they're just stating the major arguments. It could
just as easily be an article stating the facts of the case, and might well be
more valuable if it was.

~~~
natch
Some of the arguments. If this is experimental journalism where they say "hey
we recorded this conversation over coffee, wouldn't it be fun to share it on
the site and see what happens?" then that's kind of cool, but if they consider
it a full debate of the issues or even only the issues before the court, it's
pretty weak.

------
Patronus_Charm
This needs to get thrown out ASAP. The government is beyond delusional with
their overreach, everything in the name of terrorism.

------
whybroke
A a room full of people are brutally murdered using semi automatic weapons and
the national debate is about their telephone.

Oh, and how many (non gun related) rights we should give up.

Interesting society.

