
The Law is Clear: The FBI Cannot Make Apple Rewrite its OS - Osiris30
https://backchannel.com/the-law-is-clear-the-fbi-cannot-make-apple-rewrite-its-os-9ae60c3bbc7b#.ipffol88i
======
studentrob
Haha this article is fantastic and I'm only a few paragraphs in,

> The FBI has been terrific at reading statutes — including CALEA — in ways
> that require the rest of us to do headstands to understand what the agency
> is up to

I really want to hear from Obama's _current_ tech advisors, such as Megan
Smith, the current CTO of the US, or Obama himself about the discussions he
had after his remarks at the keynote. I bet he had some tough conversations.

Unfortunately nobody in the press has asked this question in the White House
Press Briefings which occur every day and whose transcripts [1] and videos [2]
are posted online

[1] [https://www.whitehouse.gov/briefing-room/press-
briefings](https://www.whitehouse.gov/briefing-room/press-briefings)

[2]
[https://www.youtube.com/user/whitehouse/videos](https://www.youtube.com/user/whitehouse/videos)

EDIT: Wow, Susan Crawford even discusses the lack of press in the state house
[3]

[3] [https://backchannel.com/what-if-we-built-a-c-span-on-
steroid...](https://backchannel.com/what-if-we-built-a-c-span-on-
steroids-4b014dd39f21#.ynhuajc5u)

~~~
fweespee_ch
I'd honestly say it is more important than Susan Crawford is not only a
technological adviser but a professor of law.

Megan Smith is an engineer and lacks the standing [in the eyes of some people
who value qualifications from an accredited University] to really argue with
the president about the legality of an action like Susan can.

So, I'd say this message works better with Susan as the spokesperson
regardless.

But yes, honestly, its quite embarrassing how far out on a limb both Obama and
the FBI have gone to insist on this path. It is just a question of whether
public opinion supports that limb at this point, honestly.

~~~
studentrob
Yes I agree Crawford's JD, professorship, and experience as an internet
activist lend a lot of credence to her stance.

Generally I like to think if you understand encryption and where it is used in
technology, then you should be able to understand why back doors are bad for
public safety and the economy. But there is still 42% of the population who
thinks the DOJ is in the right. That's too many.

The facts need to be brought to the attention of the public so they can make
up their own minds. And it is happening. Several public figures have already
changed their positions to support Apple after learning more about the issue.
Lindsey Graham and Sam Harris are two examples. Crawford's post is one more
voice of reason in this debate.

About Megan Smith, I assume if the President did not feel she was qualified to
advise him, then he would not have named her. We can only guess as to the
conversations that are happening. We haven't had much transparency with the
CTO on this issue.

------
ChrisBland
What if a "terrorist" wrote some "bad words" down on a piece of paper and
shredded it before/during a raid? Can the FBI require that paper shredders
come with an auto re-assemble feature? What if a drug dealer keeps a coded
ledger, can they go to crypto experts and compel them to work on solving it?
The government has in its possession the data, the data is just not in a
format the government wants so they are trying to bend the rules for
themselves.

~~~
Osiris30
I think the slightly better analogy would be a manufacturer that creates an
unbreakable safe.

A box for which they can't make an individual key, only a master-key (at great
cost of man-hours).

~~~
ChrisBland
The reason I don't like the safe analogy is that it is something physical,
which the courts have repeatedly said is fair game. They can compel you to
open a safe, they can not compel you to turn over a password. Something you
have vs something you know. Which is why I also added the crypto example. The
feds can not force me to decrypt my own crypto, I have 5th amendment
protection against that. The 5th does not extend to something you have / are,
which is why fingerprints to unlock an iphone can be compelled by the courts
but they can't force you to turn over your password.

~~~
jkyle
Well, they can "compel" in the sense that they can demand the owner release
it.

The owner can refuse and suffer the legal consequences.

In such a case, has there ever been a precedent of going to the safe
manufacturer and compelling _them_ to break into the safe? Have they ever then
required all safe makers to make exploitable safes with master keys?

~~~
lern_too_spel
In the case where the safe maker has special ability to break the existing
safe, there is plenty of precedent. Every application of the All Writs Act
follows that analogy, including this San Bernardino case.

------
chatmasta
What interests me about this piece is Ms. Crawford's willingness to interpret
President Obama's body language and to draw conclusions from it that support
her argument. As a former adviser to Obama, she has the credibility that
allows her to make inferences like that.

I wonder how many of Obama's aides depend on that body language for
interpreting his intent and preferences. When Obama is in a meeting with
dozens of people, only a few of his most senior advisers will actually get to
speak directly to him and engage with him in substantive discussion. His more
junior aides likely need to rely on non-verbal cues like body language in
order to determine what he really _means_.

(Also interesting to me is the white-labeled medium site... I was not aware
that was an option.)

~~~
vertex-four
It appears that Backchannel is an official Medium thing with a different focus
- [https://medium.com/@lotto/would-you-like-to-pitch-medium-
s-i...](https://medium.com/@lotto/would-you-like-to-pitch-medium-s-in-house-
publications-matter-and-backchannel-27cb772e6705)

------
adamc
The idea that he is "way on the civil liberties side" is a joke, given his
track record.

~~~
hinkley
Unfortunately the Democratic party has been running afoul of civil liberties
for decades. Especially those in or vying for the Oval Office. Have we all
forgotten Clinton and Gore and all that bullshit with the Clipper Chip? Export
strength encryption?

I think that's probably a big part of why the Libertarian Party has any legs
at all. Large number of people feeling disenfranchised by both major parties,
especially around privacy and "things that don't hurt anybody".

~~~
elevenfist
Careful there, the libertarian party's primary source of financial support is
David Koch.

~~~
elevenfist
Surprised about the down vote, Koch brothers fund voter suppression of
minorities and democratic voters, could've sworn we've had articles about this
on hn.

------
kolbe
The law is never clear. Just look at how unclear our legal system makes a very
straightforward statement like "Congress shall make no law [...] abridging the
freedom of speech, or of the press." Think of all the exceptions it has made
to a very clear decree[1]. And think of the ways that this statement has been
hijacked for use in topics like corporate personhood. No, the law is not
clear. Not on this issue. Not on any issue, really.

[1]
[https://en.wikipedia.org/wiki/United_States_free_speech_exce...](https://en.wikipedia.org/wiki/United_States_free_speech_exceptions)

~~~
chatmasta
What is unclear about this law? (CALEA, 1994)

"A telecommunications carrier shall not be responsible for decrypting, or
ensuring the government’s ability to decrypt, any communication encrypted by a
subscriber or customer, unless the encryption was provided by the carrier and
the carrier possesses the information necessary to decrypt the communication."

That seems extremely straight forward and explicitly applicable to this case.

~~~
siilats
Exactly, i read through the same sentence. I mean i understand the ideology
here, but the article is a clear lie. CALEA clearly states Apple needs to
decrypt in this case, there is no two ways about it. The software section is
there so that government cannot tell apple to install a backdoor API of
governments choosing on the iphone. Government just says decrypt and apple
complies, government cannot tell apple how exactly to comply. But if apple
says not possible, well government goes and says it is possible, for example
like this, and apple looses. I am surprised nobody linked to CALEA before.

------
mirekrusin
Apple could also say:

"Ok, no problem, you'll provide hardware, right? It will take around 9 * 10 ^
50 years (for AES-256 as an example). Our universe exists for around 1.4 * 10
^ 10 years so please be patient. Of course FBI can provide/pay for better
hardware if they want it broken faster."

ps. source
[https://www.reddit.com/r/theydidthemath/comments/1x50xl/time...](https://www.reddit.com/r/theydidthemath/comments/1x50xl/time_and_energy_required_to_bruteforce_a_aes256/)

~~~
NegativeK
And then the judge would start holding people from Apple in contempt.

------
skybrian
Not going to comment on the law. But "rewrite its OS" seems exaggerated.
Without the source, we don't know how extensive the change might be. This
might just be a matter of changing a constant and recompiling.

If Apple can't make small changes easily, they won't be able to respond to
security vulnerabilities either. This is, after all, what security updates are
all about.

~~~
Coincoin
The problem have never been the difficulty of patching the software. The
problem is they are forcing Apple to sign a software against their will.

~~~
skybrian
Well yes, coercion is what the police do when they have a search warrant.

~~~
adventured
Search warrants do not give the government the power to force you to write
software, or an equivalent economic activity, against your will. There is no
precedent for that in all of US history.

~~~
skybrian
Well, that's partially because software is new. Again, I'm not going to claim
it's legal now.

But "equivalent economic activity" seems a bit weak. A butler or security
guard can be paid to open the door to visitors. So that's "economic activity",
right? It doesn't mean they're not required to respond to a search warrant.
And legal discovery can be very expensive.

Writing a simple software patch and recompiling doesn't seem all that hard.
Rewriting the entire OS is a major undertaking. It may require passing new
laws, but it seems unlikely that we'll end up with a bright-line rule where
touching any line of code is forbidden. More likely it'll be a gray area where
the line is drawn somewhere in the middle.

------
gist
The law is never clear. If the law was clear cases wouldn't end up at the
Supreme Court (decided by narrow margins in some cases).

The law is open to interpretation and even when opposing parties have
differing interests there is almost always a basis for why they decide to sue
and/or appeal a court case. [1]

[1] In other words there could be other motives for bringing a lawsuit other
than thinking you might win the case.

------
mkoryak
why do people like to call him "POTUS" is President of the united states
really that hard to write out once in a while?

~~~
unethical_ban
5 vs almost 30 characters. Known by those who talk federal politics. It is
that hard to type out repeatedly.

~~~
elsurudo
Why not just "President"?

~~~
unethical_ban
Because those non-US residents who are abnormally uptight would remind the
thread that there are multiple presidents, and that as a world-wide board we
should make sure to be specific.

Or, once again, it's just the vernacular for journalists covering world
politics.

------
mozumder
If software is considered speech then we can get rid of software patents.

~~~
harryh
No.

Books are definitely speech and we have copyright laws.

~~~
rail2rail
copyrights != patents

~~~
TillE
It's not difficult to see how software can be simultaneously a patentable
process and free expression. Videogames are the most obvious example.

~~~
AnthonyMouse
An important distinction between patents and copyright is that independent
invention is not a defense to patent infringement and the patent covers the
concept rather than the specific implementation. Which means that unlike
copyright, software patents create concepts that you aren't allowed to
express, even if they're your own ideas.

------
BinaryIdiot
I feel like we've hit, or are near, maximum saturation regarding Obama's
comments at SxSW. We've had so many threads about this and most, I think, were
merged into one[1]. Hell, even I wrote something about this and now that every
single person in technology has written about it I almost feel embarrassed
writing about it on my blog.

Other than Obama's mannerisms that were pointed out I think we can probably
stop this feedback loop we're in.

[1]
[https://news.ycombinator.com/item?id=11270529](https://news.ycombinator.com/item?id=11270529)

~~~
studentrob
This article is pretty substantive.

I understand if people feel the topic of DOJ vs. Apple is saturated.

But this is Obama's former tech advisor, who also happens to have a JD from
Yale, saying Obama is in the wrong to pursue anti-encryption policy. She's
credentialed and worthy of HN readers seeing her article.

Nobody's forcing you to read the comments..

~~~
BinaryIdiot
> But this is Obama's former tech advisor, who also happens to have a JD from
> Yale, saying Obama is in the wrong to pursue anti-encryption policy. She's
> credentialed and worthy of HN readers seeing her article.

I get that and it's fine it's just other than some minor mannerisms that were
pointed out it's essentially the same substance of everything else posted to
HN about the SxSW topic.

The problem with echo chambers is the same thing tends to increase in volume;
if the general public and politicians have a view that we're all being
absolutists then echo chambers only end up polarizing and increasing the
volume further.

It's a hard topic I'm just concerned about the echo chamber and it ultimately
hurting our position due to perceptions is all.

~~~
studentrob
Mmm. I hear you. I leap at these articles because it's one more voice to share
the facts of the situation.

As for polarizing the public, well. I think we need not beat the public over
the head with a stick and tell them what to think. We lay out the facts in a
manner that is understandable by non-techies, and let them decide for
themselves. This is coming to pass through credible voices, such as Ms.
Crawford's, sharing their unique perspectives.

------
jessriedel
> The FBI has been terrific at reading statutes — including CALEA — in ways
> that require the rest of us to do headstands to understand what the agency
> is up to. Their claim about CALEA in their latest brief in the Apple case is
> a shining example of just this kind of breathless, vertiginous, Alice-in-
> Wonderland assertion: CALEA, they say, limited only _law enforcement’s_
> authority to _directly_ require companies to redesign devices and software.
> But once law enforcement is authorized by a court to do a search — given a
> search warrant, in other words — then (under the AWA) an FBI official can
> ask the _court_ to do what law enforcement is prohibited from doing directly
> under section 1002 of CALEA.

I don't get it. Law enforcement is explicitly prohibited from doing all sorts
of things without a warrant that can then later be compelled by a court order.
If the police don't have a warrant, they can't search your house. But if they
do, they can, and if you have a locked safe, they can get a court order that
compels you to open it.

I think what the FBI is asking for here from Apple is almost certainly a bad
thing, but the above argument doesn't go through.

> Got it? Right, I don’t either. As the well-respected lawyer Albert Gidari
> carefully explains in a recent blog post, this is a weirdly circular
> argument that ignores the specific limitation Congress enacted to remove the
> government from the business of dictating the design of phones or software.
> No gaps; no interpretive sunlight: CALEA stops the government from doing
> what it wants to do to Apple.

Look, I think it's useful to discuss the overall impact of "the government" or
"the state" as much as the next pseudo-libertarian. But here I think the
author is trying to interpret a restriction on law enforcement as obviously
intended to restrict the government as a whole, but that's not obvious at all.
Distinguishing between law enforcement and the government as a whole isn't
complicated, headstand-inducing legal gymnastics, it's well-established legal
reasoning.

~~~
AnthonyMouse
> Law enforcement is explicitly prohibited from doing all sorts of things
> without a warrant that can then later be compelled by a court order.

It doesn't say they can't do it without a warrant. It says they
unconditionally can't do it.

> Distinguishing between law enforcement and the government as a whole isn't
> complicated, headstand-inducing legal gymnastics, it's well-established
> legal reasoning.

The problem with trying to draw that distinction is that having the court
order you to do it is how it always works. If CALEA said the FBI _could_ order
Apple to build the back door, the FBI still couldn't just throw Tim Cook in
prison without trial if he refuses. They would still have to go to the court.
So what the law is really saying is that law enforcement can't ask the court
to order that -- but here they are asking anyway.

~~~
jessriedel
> It says they unconditionally can't do it.

This isn't correct. More precisely, it does not address obtaining court
orders.

> If CALEA said the FBI could order Apple to build the back door, the FBI
> still couldn't just throw Tim Cook in prison without trial if he refuses.
> They would still have to go to the court.

If the EPA tells you that you can't dump in the river, and you dump in a
river, then they can prosecute you and send you to jail. But this is _very
different_ then getting a court order to do something as part of an
investigation.

~~~
AnthonyMouse
> This isn't correct. More precisely, it does not address obtaining court
> orders.

Please explain how the FBI could legally compel Apple to do something
_without_ a court order. If it's the only way it can happen then it's kind of
implied.

> If the EPA tells you that you can't dump in the river, and you dump in a
> river, then they can prosecute you and send you to jail. But this is _very
> different_ then getting a court order to do something as part of an
> investigation.

The primary difference apparently being that in that case there is something
the law says you can't do, whereas in this case there is something the law
says the government can't do.

