
Senator drafting bill to criminalize Apple’s refusal to aid decryption - BerislavLopac
http://arstechnica.com/tech-policy/2016/02/senator-drafting-bill-to-criminalize-apples-refusal-to-aid-decryption/
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shawn-butler
I think it's funny it would be illegal for Apple to comply with the order
under federal law and now they want to make it illegal not to comply with it.

Kafka would be proud.

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bsder
What the real problem is is that the TLA agencies don't have anything to lose
with this.

Is there no way to go: "All right. We'll do that. HOWEVER, if we don't find
anything on this phone, we want this held up as a prime example of government
overreach and we want all further attempts on this judicially banned."

If the TLA agencies had a downside to losing the case, they'd drop it in a
flash.

~~~
sbose78
They'll probably never agree that they didnt get anything. They'll claim they
got evidence related to "suspicion to X " which could be entirely based on a
conversation where someone was expressing opinions. And yes, they might also
say that the information is classified!

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runamok
Yeap. "Parallel construction".

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snowwrestler
This is a positive development.

The central question in Apple's case is "what are the limits of the All Writs
Act authority?" Can a court use the All Writs Act to compel any behavior that
the FBI says would be helpful to an investigation?

If so, it would seem to obviate the need for legislation. No need to bother
Congress--just get a warrant for any encryption back doors you want.

At least a bill submitted to Congress will follow a public, democratic
process.

~~~
mc32
We'll likely see more developments like this from other large iPhone markets.
It's a noble but ultimately untenable position for a manufacturer to take.

If the courts, the owner and let's suppose the majority of the people of a
jurisdiction (in this case US law) legally make this request I don't see how a
company can get from out of complying by saying "we made it impossible". The
courts will say, fine, in the future make it possible and not complying will
forfeit the right to sell such a device.

Either the US, the EU or China will make their case economically and Apple
will capitulate or exit a market --and I don't see them exiting large markets.

There is also no historical precedent where the notion of privacy has meant
"secret forever" so this is new territory and where it ends up will probably
depend on how society values new notions of privacy versus providing legal
access to information for the purposes of crime investigation. In the US, and
China, people have typically sided with the state, so I don't see this
changing.

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snowwrestler
> There is also no historical precedent where the notion of privacy has meant
> "secret forever"

Sure there is: a private verbal conversation.

There are plenty of ways for the government to record such a conversation if
they know _in advance_ that they want to do so. But if they don't know that in
advance--as they did not with the San Bernadino shooters--then the only people
who will ever know what was said in that conversation are the people who held
it.

Historically, privacy meaning secret forever was the norm! It is only in the
last few years, with text-based electronic communications, that law
enforcement has come to expect retroactive access to all conversations.

It's a very dangerous concept that should require careful consideration and
votes to create. Instead it got created by default because no one knew how to
do info security well 10 years ago.

~~~
mc32
Historically the world was gossip and telling "secrets" people lived in close
quarters so keeping secrets was generally pretty difficult. With written
communication, secrets ended with the death of the recipient where upon people
would read letters and such --not that with most people illiterate there would
be many people writing secret things.

I don't think the courts, the electorate or congress would allow or condone
wholesale warrantless access to "private messages", however, I think what will
happen is people will decide discrete, lawful access for investigative
purposes with oversight will be tolerated. Most people are not binary about
this issue. Most people are more nuanced about the topic and most people, I
believe, will decide that there are circumstances where they believe "the
government" has valid reason to have access to that kind of data from specific
kinds of people who conduct specific kinds of acts.

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coldcode
So all of Apple will go to jail? Or just the shareholders?

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EvanPlaice
Legally, corporations are people so I'd assume they have some sort of secret
squirrel digital prison for imaginary people. /s

~~~
stvswn
No, they're not "legally people," they're "legal persons," and that was true
before Citizens United.

They are capable of suing and being sued, and capable of committing crimes.
Under the doctrine of respondeat superior, a corporation may be held
criminally liable for the illegal acts of its directors, officers, employees,
and agents.

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Outdoorsman
I believe you are correct:

The legal doctrine of respondeat superior is recognized in both common law and
civil law...it translates, from the Latin, as "let the master answer"...

[https://en.wikipedia.org/wiki/Respondeat_superior](https://en.wikipedia.org/wiki/Respondeat_superior)

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dang
In the hierarchy of unsubstantiveness, "announcement of an announcement"
definitely comes first, but "drafting a bill" could well be second. Most bills
go nowhere, let alone bills that haven't been written yet.

If anything comes of this, we can discuss it then.

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droithomme
This concept of retroactive back doors seems a new awareness.

Actual, non-retroactive, backdoors are built into a design.

The idea you can take an existing design and insert a backdoor that works
retroactively really is not a backdoor but is a complete security failure and
a bug in the original design.

"My design is completely secure as long as no one issues a retroactive
backdoor." means the design is not secure at all.

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jhanschoo
For certain notions of secure.

Let's use the analogy of a house to describe the OS.

Most organizations may trust Apple to provide the service of updating their OS
when new bugs (some security) are discovered, that is, they are comfortable
giving Apple "maintenance door" access to the non-sensitive parts of their iOS
device, to perform janitorial and construction services, and plugging holes in
the house; and only Apple has the keys through the maintenance door.

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wantreprenr007
Just goes to show you can't legislate morality, but a crooked politician can
try to make scruples illegal.

(I so hope Bernie wins and has the DoJ investigate folks for corruption and
racketeering, starting with Cheney.)

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beedogs
Ah, the GOP.

Keep this in mind when they carry on about being the party of personal
liberty.

~~~
rhino369
Taken narrowly, there is no personal liberty at stake in this situation.
Searching this phone is clearly permissible under the 4th amendment.

I guess making Apple--a huge corporation--assist is somewhat against liberty,
but I wouldn't call it personal liberty. They get compensated for it.

The slippery slope argument everyone seems to be pushing doesn't quite make
sense to me. How is forcing Apple to help get past security after a valid
court order going to hurt third parties privacy? Nobody is asking for Apple to
introduce a backdoor into their products for sale. Only to exploit a backdoor
into one specific phone.

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skywhopper
The backdoor does not currently exist. Creating it leads to a slippery slope
because the FBI will not only ask Apple to unlock phones from known dead
terrorists who killed multiple people, but it will cascade to suspected
terrorists, and then families of suspected terrorists, and then drug dealers
and drug users and then speeders and loiterers and people of the wrong color,
just like every other police abuse of power.

And then if Apple gives into the FBI, it'll have to give into the UK and
France and Germany and China and Russia and anywhere else they want to sell
their phones. And once the capability is created and exists, it can leak, and
then no one's phone is safe anymore.

That's the slippery slope.

~~~
rhino369
>The backdoor does not currently exist.

This is pretty much semantics. Apple can load a modified firmware without the
password. That is a backdoor.

>Creating it leads to a slippery slope because the FBI will not only ask Apple
to unlock phones from known dead terrorists who killed multiple people, but it
will cascade to suspected terrorists, and then families of suspected
terrorists, and then drug dealers and drug users and then speeders and
loiterers and people of the wrong color, just like every other police abuse of
power.

The fact is that each time this tool would be used would require a federal
district court to specifically order it. That eliminates the slippery slope
risk. The courts would absolutely allow it for murder cases. In fact, any
federal crime. But that's what is supposed to happen.

And if you really think that a district court would let the FBI search a phone
because they are the wrong color (or any other blatantly illegal purpose),
well that court would also force apple to help them. So it ordering this now
doesn't increase the likelihood of it happening.

>And then if Apple gives into the FBI, it'll have to give into the UK and
France and Germany and China and Russia and anywhere else they want to sell
their phones.

I am not arguing that Apple should give the FBI the power to do it
independently. The FBI isn't asking for it. And the court didn't order Apple
to do that.

Apple already has the capability to do this.

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oldmanjay
That you consider it a fact that law enforcement obeys its judicial
constraints undercuts any argument you might make

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rhino369
I'm not considering it a fact. I consider it a fact that the FBI would not
physically be able to use this tactic without an explicit court order.

You don't have to trust the FBI at all.

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oldmanjay
I'm not sure what physical restraints you believe would be in place. Please
explain that.

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rhino369
They ask apple to code the firmware so it only works on that specific iphone.
And it would be signed so they cannot edit the firmware.

Finally, the FBI even said they'd agree to do this on Apple campus and then
actually give the iphone to apple after they copied data off it.

There is zero chance they could reuse it.

