
Snowden lawyer: Bill of Rights was meant to make government’s job more difficult - pavornyoh
http://arstechnica.com/tech-policy/2016/02/snowden-lawyer-bill-of-rights-was-meant-to-make-governments-job-more-difficult/
======
clarkmoody
It's incredible how far we've come from the original intent of the
Constitution. The reason the Bill of Rights isn't baked in is because the
Constitution enumerated a small set of limited powers to the federal
government, with the assumption (articulated in the Tenth Amendment) that all
other powers were reserved for the states and for the people.

Thankfully the states demanded the Bill of Rights at ratification. Without it,
we would have lost all of the rights listed by now, due to the rampant power-
grabs of the federal government since the founding.

Although Snowden's lawyer claims the Bill of Rights was supposed to make the
government's job "more difficult," he is missing a larger point: _almost all_
of what the federal government does today is not it's job at all! Nothing in
the Constitution grants the federal government power to do most of its current
functions.

~~~
ubernostrum
Careful, there: you're falling victim to historical revisionism in assuming
there was a clear unified "original intent" that we can discern, or that the
fight was between "the federal government" and "the states". The writing of
the Constitution, and the fight over its ratification and the initial
amendments (which had opponents who worried just as equally about enumeration
of rights being used to deny others later -- the Ninth Amendment tried to
solve this but people today still argue "well, it's not in the Constitution so
it's not a right") was complex and full of individuals with all sorts of
motivations that can't easily be boiled down to such simple terms.

And that's without getting into the fights over the Elastic Clause, or the
Commerce Clause, or the other bits that underlie many of the things the
federal government does today.

~~~
notthegov
There's nothing complex or ambiguous about it. The United States' organic law
is based in the acknowledgment of natural rights. Academics can debate if this
has any legal enforcement or if the right of revolution is valid, but it
doesn't matter to me.

My rights existed prior to the Bill of Rights and the government. If a local,
state, federal or international government tries to diminish or deny my
rights, I will fight to alter or abolish their policies and their
institutions.

The FBI, NSA and DHS as a whole are enemies of human freedom and a threat to
classical liberalism. There is no enumerated power that gives the federal
government the authority to create a federal police force and what the NSA has
done is unequivocally a crime.

Pass a Constitutional Amendment to make it legal. Abolish the FBI. And build a
new organization from the ground up.

In the future, there won't be ISIS and there won't be the FBI. That is, if the
future is of a better world.

~~~
sowhatquestion
> My rights existed prior to the Bill of Rights and the government

"Existed" in what sense!? Are they deducible by pure reason? Were they written
on stone tablets?

Seriously though, the Constitution and the Declaration of Independence may
refer to the idea of natural rights, but in my opinion this is due to the
prevailing state of philosophy and political theory at the time, and doesn't
bind Americans to forever understand their own rights in terms of "prior"
natural rights that are "later" secured by the government.

~~~
JoeAltmaier
That's what the documents say - natural rights codified. If we no longer
believe that, we need a new set of documents.

And there are plenty of folks who believe that. If we were writing new
founding documents, we'd have a pretty good idea of what 'should' be rights.
Where does that come from?

~~~
vertex-four
> Where does that come from?

It comes heavily from what you've been taught is important, which, funnily
enough, is culture-dependent. A good many people would, for example, argue
that a person has a right to shelter and sustenance, and to demand that from
others when they can't access it - but other people will argue that people
have a right to refuse to give resources to others, even up to the point of
refusing taxation. One might argue that one has a right to work without
discrimination or harassment - others might argue in favour of freedom of
association and free speech, "if you don't like it you don't have to work for
them".

To move even further away from currently implemented systems, one might argue
that private property is not a right, which is actually entirely reasonable -
property is solely a "right" to abridge others' rights, if we're going by the
"what's a right is whatever you're allowed to do if nobody stopped you"
definition. We could even argue that the ability to break a contract without
retribution must be protected as a right, in some schools of thought. What
rights "should" be protected - and in what circumstances - winds up being a
matter of the opinion of the people who decide which rights to protect. There
is no formal system of logic which starts off with no assumptions, and many of
the ones which back politics start off with the goal - to protect people's
rights, we must... protect people's rights.

Even the idea that a founding document should primarily enumerate rights is
because of what you've been taught - why not enumerate duties as well, or
instead? Why not write a manifesto with a general goal and proposed method of
getting there and call that your founding document? What even is the goal of a
founding document?

Why is abridging your ability to do whatever you want to any degree abhorrent
- and why is abridging that ability in certain circumstances not so? Is it
impossible to come up with a stable system which holds up a different ideal?

I don't really expect all these questions to be answered, as the exact answers
are nearly entirely pointless - the point is that these questions can all be
asked and different answers can be reached, many of which make sense.

For example, an argument that nobody has a duty to feed and shelter somebody
on the edge of starvation, as that harms the person doing so, entirely ignores
the harm that this protected right has on the person about to die of
starvation - although of course to bring that up requires that the goal of
your system of protected rights is to reduce harm, which may not be the case.
However, the only way "we must protect all these listed rights at all costs,
ignoring all other input" makes sense is if the goal of your system is solely
to protect those rights. I don't personally feel that's a very useful thing to
do, as it's tautological. A good many people will disagree.

~~~
EdHominem
Right, rights are a horrible way to express the limits we impose on
governments. You can starve in a hellish jail despite all the god-given yada
yada.

If 'right' is to mean anything, it has to basically be seen as a natural-law
restatement of "If you infringe these freedoms (restrict food, etc) then the
victim will try to kill you and we'll be on his side."

In that case, a right is anything you'll fight to provide to others. (That
being the only long-term effective way to guarantee it for yourself as well.)

------
studentrob
> I’m not surprised when I see polls that say that Apple should turn over the
> information to the FBI

Grr. This poll was completely biased and it's being cited all over the place
as if it were a good gauge of public opinion.

The question is framed as if Apple only needs to unlock the phone. It does not
mention that Apple would need to write new software and alter its product. [1]

The real question is, should the DOJ be allowed to force Apple to create new
software that enables the phone to be unlocked. That is the question that is
being put to the courts, and that is the question that needs to be asked of
the American people if this is to become an election issue.

The poll question:

"As you may know, the FBI has said that accessing the iPhone is an important
part of their ongoing investigation into the San Bernardino attacks while
Apple has said that unlocking the iPhone could compromise the security of
other users’ information. Do you think Apple"

* Should unlock the iPhone (51) * Should NOT unlock the iPhone (38) * Don’t know/Refused (11)

[1] [http://www.people-
press.org/files/2016/02/2-22-2016-iPhone-r...](http://www.people-
press.org/files/2016/02/2-22-2016-iPhone-release.pdf)

~~~
phicoh
Basically Apple created the current problem by making it possible to push new
firmware to a locked phone. I'm not saying that Apple is worse than industry
standard, just that the backdoor already exists.

So what prevents the FBI from asking Apple to have a team visit the Apple
offices, get access to all code that runs on the iPhone and the docs and
signing keys?

The team will then unlock the phone and leave with nothing but the unlocked
phone.

All of this, get Apple to appear as a third party witness already exists in
the law.

~~~
zepto
Are you advocating for the government positions here? It sounds like you are,
but it's not 100% clear.

~~~
jshevek
The whole conversation is being muddied by people who insist that every
observation and line of thinking is a form of advocacy for one of two
positions, and should be interpreted through this. Witness the responses to
Gate's comments.

The situation is more nuanced than the loudest voices would want us to
believe.

~~~
nitrogen
It would be helpful to identify the nuances you aren't seeing.

------
CyberDildonics
The structure of the US Government was born out of a centralization of power
and thus was meant to be a decentralization of power.

It seems this fundamental aspect is lost on people and everyone gets caught up
in a flurry of arguing over who to trust. The entire point in decentralization
of power is trusting any one entity (or group with aligned incentives) as
little as possible.

The simple, easy, and wrong answer is to try to optimize certain groups of
people with aligned incentives by removing barriers to what they want. Those
barriers, if at the service of the rest of the system are the very reason the
system works.

~~~
x5n1
Most Americans don't remember all the various other break off republics that
Americans and American leadership wanted to spawn. The whole concept of a
singular law via treaties, or large nations comprising of hundreds of millions
of people is flawed. Nation States should be very small, a few million people
and sovereign and independent and directly democratic. That way you can
actually get some representation in how you want to live. As it is, you get
virtually no representation.

~~~
AnthonyMouse
I'm not the one who downvoted you, but I assume it's because you're advocating
direct democracy, because everything else is spot on.

The problem with direct democracy is that people end up voting on things that
don't affect them, which they don't have enough time or incentive to fully
consider, but that severely harm other people.

Representative democracy (in sufficiently small communities) works because a
representative can then afford to take the time to hear members of the
community out before making a decision. And when the communities are _small_ ,
individuals actually have the capacity to make their grievances heard and can
potentially personally sway enough other voters to change an election outcome.

~~~
x5n1
Switzerland is an example of direct democracy that works just fine. There is
also the idea of an Athenian democracy which I also support.

At the end of the day the representative democracy has similar problems, where
the representatives represent those people funding them. Don't even bother
reading the legislation they are passing. and so on.

~~~
AnthonyMouse
There is direct democracy and then there is the ability to have a referendum.
Switzerland has a legislature. And about 20% of the population of California,
where referendums have been nothing but trouble.

The place where direct democracy works great is to give the public the ability
to _repeal_ laws.

~~~
ScottBurson
I think the big problem with the initiative system in California is that an
initiative constitutional amendment needs only a bare majority to pass. While
I believe the people should be able to amend the constitution, I think it
should require a supermajority of at least 60%.

That would mean the vast majority of initiatives would be statutes, which
could in principle be subsequently amended or overridden by the legislature.
Of course, the legislature would presumably be reluctant to modify a popular
initiative without a very good reason, as there would be a political cost to
doing so, but at least it would be possible.

~~~
dragonwriter
> That would mean the vast majority of initiatives would be statutes, which
> could in principle be subsequently amended or overridden by the legislature.

No, they couldn't. The power of the legislature to legislate is a delegated
power from the citizenry, and, based on that principle, initiative statutes
cannot be repealed or modified by the legislature (the legislature can send a
measure to the voters amending them), unless the initiative statue itself
_expressly_ waives this protection.

~~~
ScottBurson
Okay, but as long as we're talking about changing the initiative system, that
could be changed too (in principle, of course -- I understand well how
unlikely these proposals are to fly politically).

------
DanielBMarkham
History buff here. For those interested, take a look at the ratification
debates. For a lot of people, it wasn't even clear why you'd need a Bill of
Rights in the first place. The only reason it was included is to get the
states to ratify.

The anti-federalists (those opposed to the new constitution) made all kinds of
arguments about the things that would happen. The federal government would
take over most of the power. There would be a standing army. Language would be
stretched to take the government far beyond the bounds that were initially
established.

There are two especially interesting things about this. First, the anti-
federalists, like libertarians recently, were considered the tin foil hats of
the day. Who could believe such silliness would ever happen here? Yet, like
our recent example, they were proven right.

The second thing that's interesting is the depth of conversation and debate
that was going on almost 250 years ago. The debaters understood which
structural flaws the government might or might not have and were arguing about
weaknesses that in some cases took many decades to eventually show up. I
seriously wonder if such a well-reasoned and supported by history discussion
could happen today.

------
Gnewt
Of course. The whole points of a) the bill of rights and b) the entire system
of checks and balances is to make things more "difficult". This is as the
framers intended, explicitly to avoid things like judicial overreach as is
happening in the iPhone case.

The "inefficiency" caused by the system of checks and balances is by design...
sort of like a delay after the entry of an incorrect password.

~~~
mtgx
> The "inefficiency" caused by the system of checks and balances is by
> design... sort of like a delay after the entry of an incorrect password.

I think that shows an important insight: The FBI believes that both the
Constitution and the "PIN delay" are "making its job more difficult", because
it would rather not have to follow any laws and just do whatever it wants
every time, anytime.

Both rise from the same type of thinking that's happening at the FBI and most
other intelligence and law enforcement bodies in the US = the laws don't apply
to us.

~~~
krapp
If it were really the case that the FBI "would rather not have to follow any
laws and just do whatever it wants every time, anytime," they would have
already raided Apple's headquarters and taken what they wanted at gunpoint.
Obviously, they believe their position _is_ legally justifiable.

~~~
wavefunction
Or it could be that the FBI expects compliance from Apple as they expect
compliance from all of us _and_ they know that raiding Apple's headquarters to
take what they want (what? what would they take?) at gunpoint would cause many
currently compliant citizens to become less compliant.

Our system depends on many lies to keep lurching along for the benefit of the
elite and anything that causes those lies to be uncovered for more and more
people is best avoided, according to the status quo.

~~~
krapp
It seems obvious to me that the FBI considers their position here to be legal.
All I'm saying is, if it were truly the case that they didn't care about the
law at all, there are probably more direct and effective extralegal methods
they could try.

------
Animats
He's right. Part of the purpose of the Bill of Rights is to give the
Government less power than the Government would like. Law enforcement needs to
be a bit frustrated on a regular basis.

------
howeyc
Exactly, law enforcement isn't exactly supposed to be a super easy job.

~~~
seiji
Most programmers actually hate computers and now just want "cloud APIs" for
everything so they don't have to think about how networking/systems/storage
all works together.

Most law enforcement officers actually hate the law and just want "privacy
APIs" for everything so they don't have to think about how
searches/seizures/privacy all works together.

~~~
Karunamon
The difference being, when I use the AWS API, I'm not perpetrating a crime
against the citizenry...

~~~
fnordfnordfnord
That's debatable depending upon what you're using it for.

------
ikeboy
>I have been urging colleagues to respond any time anybody asks about FBI and
San Bernardino to say: the real conversation is about China wanting to unlock
the phone of a US Embassy employee who they suspect is a CIA agent and don’t
we want Apple to be able to say they can’t do that.

Wanting Apple not to be able to comply doesn't mean they shouldn't comply when
they can. They should comply, and make sure they can't comply on newer models
(i.e. make secure enclave nonupdatable without wiping keys or unlocking
first).

~~~
studentrob
If they comply here that's a step towards the DOJ being able to ask them to
always _be able to comply_ in the future. It's a slippery slope

Plus, compliance now may reveal some of their trade secrets which may hurt
other elements of their future products' security. I trust Cook on this

~~~
ikeboy
"Obeying the law when you agree with it is a slippery slope to obeying it when
you disagree!"

Doesn't your argument imply nobody should ever obey the law?

And Apple has the option to do everything on their own facilities, so no trade
secrets need to be revealed.

~~~
studentrob
> Doesn't your argument imply nobody should ever obey the law?

No..

> And Apple has the option to do everything on their own facilities, so no
> trade secrets need to be revealed.

Serving DOJ requests within Apple's facility does not mean the newly created
software will not get out into the wild. We know the DOJ wants to unlock
hundreds or thousands of phones. Apple will need to hire more staff to handle
such requests, come up with a procedure for doing it securely, etc. None of
this is without risk, and it is much more risky than not doing it at all.

There are bad actors, foreign entities, who would love a copy of the software
that the DOJ is asking Apple to produce. They will try their hardest to get
their hands on it. Furthermore, if the US successfully forces Apple to unlock
iPhones, China will ask for the unlock feature as well. We do not want this
tool in the hands of oppressive regimes. We do not want to internationally set
a precedent that it is okay to install backdoors on phones or computers.

~~~
ikeboy
>Apple will need to hire more staff to handle such requests, come up with a
procedure for doing it securely, etc. None of this is without risk, and it is
much more risky than not doing it at all.

This still seems like a general argument for never complying with warrants.
After all, then the government will get more warrants, we'll need to hire
people to comply with the warrants, and that's a security risk!

Every large company has people employed solely to respond to requests from law
enforcement.

>We do not want to internationally set a precedent that it is okay to install
backdoors on phones or computers.

Then pass a law that bans backdoors like the one Apple has on all its devices,
if you think backdoors are not ok. As is, Apple has a backdoor, and the FBI is
effectively asking for the key.

>There are bad actors, foreign entities, who would love a copy of the software
that the DOJ is asking Apple to produce. They will try their hardest to get
their hands on it.

Remember, the only piece that's difficult to get is Apple's key. Once you have
that, the software is easy to create. That's something that _already_ exists,
and making the software doesn't make it any easier for someone to steal the
key.

~~~
studentrob
> Then pass a law that bans backdoors like the one Apple has on all its
> devices, if you think backdoors are not ok

That's not even on the table. Congress passes laws and this case is in court.

I support Apple in standing up to the DOJ. They should not be forced to write
software that weakens their device's security. The semantics of whether we say
a backdoor already exists or not do not matter. The fact is Apple will have to
create something that does not yet exist in order to fulfill this request, and
there is a risk that that can get out into the wild. Nobody understands the
risk of that possibility better than Apple. I stand by them because I feel the
time to support them is now. There may not be a later. You're free to
disagree.

~~~
ikeboy
>That's not even on the table. Congress passes laws and this case is in court.

That's exactly my point. If you don't want companies to have the ability to
put in backdoors, that's something you need to get Congress to pass. Not
wanting backdoors is not relevant to the legal question here.

>The fact is Apple will have to create something that does not yet exist in
order to fulfill this request, and there is a risk that that can get out into
the wild.

As I and others have said, the risk is not increased by the software being
created. That's not too hard to do. The only thing that can't be done is sign
the update to install it on the device. There's no risk being added by that
signing, because Apple anyway signs every new iOS release.

If Apple doesn't want to create new software, I'm sure the FBI will be happy
for them to hand over the key, and the FBI can create the software themself.

~~~
studentrob
> If you don't want companies to have the ability to put in backdoors, that's
> something you need to get Congress to pass

(1) I don't want that and (2) it wouldn't be constitutional. Congress shall
make no law abridging free speech. Code has been ruled free speech.

> the risk is not increased by the software being created

That's fine if you don't believe what Tim Cook says about his product. I do.
Regardless, whether or not the DOJ can compel a company to weaken its product
is the question being asked. Handing over software or a signing key are both
trade secrets Apple has a right to protect. Handing over the signing key
certainly increases risk.

~~~
ikeboy
I know enough about the system to know that every installation requires a
signature by Apple. There's no "belief" required here.

Note that the creator of cydia, the software that pretty much every jailbroken
iPhone runs to install packages, has said that Cook is lying in the letter.
He's also said that many people, including him, could create the software in
less than a week, and all they need is the signing key.

You can trust Cook, but perhaps educate yourself to the point you don't need
to trust anyone. Read
[https://en.wikipedia.org/wiki/SHSH_blob](https://en.wikipedia.org/wiki/SHSH_blob)
and
[https://www.theiphonewiki.com/wiki/SHSH](https://www.theiphonewiki.com/wiki/SHSH),
and you'll see how there's no additional risk by creating the software, as
long as the key is not released.

~~~
studentrob
The cydia creator, while accomplished, is not right to call Cook a liar. Cook
says the OS does not exist and that only Apple could make it work on the
iPhone. What's untrue about that? The DOJ did not ask for a signing key. They
asked for special software.

Regardless of the semantics, the question is should Apple be forced to weaken
the security of its product which is used globally. It doesn't matter if you
think Apple only needs to hand over a signing key. The result is the same.
Anyway, neither the DOJ nor Apple are saying what you or the cydia creator are
saying.

~~~
ikeboy
>"The problem I have is with stuff like their answer to the question "Could
Apple build this operating system just once, for this iPhone, and never use it
again?", which essentially is outright lying: the "master key" in question is
their signing key, not some piece of trivial software they develop (and then
sign) in order to automate this process for the FBI. Apple already has the
only master key of relevance: that key already exists; the idea that the
master key is something that they need to "build" and then would have to
"protect" is them trying to divert attention from what is actually important."

[https://news.ycombinator.com/item?id=11158036](https://news.ycombinator.com/item?id=11158036)

Yes, the OS does not exist. But to claim that creating the software means it
can somehow get "out there" and be used without Apple's control is false.

~~~
studentrob
Again, both the DOJ and Apple are talking about creating a custom OS. Nobody
is saying it's just a signing key except the Cydia guy, who by the way has
been at odds with Apple for years. He's not exactly unbiased, and he is not
more knowledgeable about Apple software than Apple, as much as he loves to
claim to be.

It sounds like you believe that Apple can service these requests from the DOJ
without any increased risk of either a "signing key" or the OS being released
into the wild. I disagree and that's _okay_

~~~
ikeboy
We're not saying it's just the signing key. We're saying it's trivial to make
those changes.

For the record, I made this claim before I saw anything from saurik. The
changes are very minor, just disable erasure and the delay, plus something to
allow remote password attempts.

Re "OS being released" that's not something that matters, because the OS is
useless without the key. The only risk is compromise of the signing key, and
that's the same as any iOS update.

Do you have any other justification for your belief other than trusting Tim
Cook?

I'm not claiming he's more knowledgeable, but that Cook lied. This may just be
poor phrasing or dumbing down on Cook's part, but the implication is wrong.

~~~
studentrob
> The only risk is compromise of the signing key, and that's the same as any
> iOS update.

I disagree. If the DOJ gets a signed copy of the software, that's a very
different level of risk. There are all kinds of issues with software
development we often underestimate. The issues aren't always technical
matters. Sometimes they are human.

This court case isn't just about software development. It's also about what
the DOJ can demand, and how that impacts software development. The DOJ could
very well demand that Apple hand over a signed version of the customized OS.
After that, how can Apple be expected to secure their product? They can't.

The last relevant case using AWA was USA vs. New York Telephone. Have you read
OK's review of that case as it pertains to a potential USA vs. Apple? [1]

This is from the judges' concluding remarks, which help define the AWA as it
will be used today and in the future:

"We agree that the power of federal courts to impose duties upon third parties
is not without limits; unreasonable burdens may not be imposed"

"The order provided that the Company be fully reimbursed at prevailing rates,
and compliance with it required minimal effort on the part of the Company and
no disruption to its operations."

n.b. _compliance with it required minimal effort on the part of the Company_

Consider the burden Tim Cook and Apply will bear when he compels his software
engineers to remove password-entry safeguards and release the signing key that
they have guarded so carefully. Employee morale will tank.

> Do you have any other justification for your belief other than trusting Tim
> Cook?

I trust Tim and stand behind him when he says it's time to stand up to the
DOJ. These cases have been heard behind closed doors for years, decades, have
hurt business such as Yahoo, Skype etc. and have never been shown the
spotlight that this case has. _Everyone_ knows what an iPhone is, from the US
to Cambodia, and they will all be following this case closely. It's time to
share what we know as techies about the inner workings of the devices in
people's pockets and the unchecked surveillance systems of our government.

[1] [https://www.washingtonpost.com/news/volokh-
conspiracy/wp/201...](https://www.washingtonpost.com/news/volokh-
conspiracy/wp/2016/02/19/preliminary-thoughts-on-the-apple-iphone-order-in-
the-san-bernardino-case-part-2-the-all-writs-act/)

------
slicktux
Dare I say; The Constitution is an Objective Document, that is (forthrightly),
been subjected through interpretation. . .ergo, opinions and power grab's. The
US. Constitution is simple and elegant, but cruel and antithetic to the
Federal Government's power hungry tendencies of knowing what is best for all.
. . so the interpretation of the document. Article 1 Section 8 of the
Constitution is the most misinterpreted section of the US.CONST. Example: the
NOT enumerated power (a summary to say the least, of the actually enumerated
powers) "general welfare of the USA" or the "to regulate commerce clause"...
this article words it great "This is patently obvious: the power to “regulate”
commerce cannot include the power to compel commerce!. . ."
[http://blog.chron.com/txpotomac/2012/04/ron-paul-says-
suprem...](http://blog.chron.com/txpotomac/2012/04/ron-paul-says-supreme-
court-has-utterly-abused-commerce-clause-but-hopes-it-will-overturn-obamacare-
abomination/)

------
reacweb
"respond any time anybody asks about FBI and San Bernardino to say: the real
conversation is about China wanting to unlock the phone of a US Embassy
employee who they suspect is a CIA agent and don’t we want Apple to be able to
say they can’t do that."

~~~
josefresco
Even if the ability existed, the answer would be still be "no". Nation states
have no recourse beyond economic/military actions. I don't understand the
potential threat of China requesting information we _won 't_ give them
anyways.

------
deepnet
It is undemocratic to secretly steal freedom - they must make us beg them to
take it away.

------
massemphasis
WTF does this have anything to do with China?

> Don’t we want Apple to be able to say that they can’t help China track the
> communications of dissidents or other repressive regimes?

People are more worried about the US' being the "repressive regime".

The poll released is telling of how power is kept in the US. You don't have to
have 100% support, just over 50%. Here we see that the FBI is far more
sophisticated than they let on, and supported by a more cohesive program
considering support for them is just north of 50%.

