Rich Mogull:
Don’t be distracted by the technical details. The model of phone, the method of encryption, the detailed description of the specific attack technique, and even the feasibility are all irrelevant.
Don’t be distracted by the legal wrangling. By the timing, the courts, or the laws in question. Nor by politicians, proposed legislation, Snowden, or speeches at think tanks or universities.
Don’t be distracted by who is involved. Apple, the FBI, dead terrorists, or common drug dealers.
Everything, all of it, boils down to a single question.
Do we have a right to security?
This isn’t the government vs. some technology companies. It’s the government vs. your right to fundamental security in the digital age.
Rich expands on the points he brought up on my show this past Wednesday and, as usual, asks good questions. Keep in mind, there is no “right to privacy” embedded in the US Constitution so it is what we make of it. We can be secure from governmental intrusion or not. As Rich says, there is no middle ground.
The Fourth Amendment guarantees US citizens’ right to privacy:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The government likes to forget about it when it comes to national security, but it’s there.
Yes, but note that the 4th Amendment as currently interpreted (for these past 200 years or so, though not in the first few decades of the Republic) does not protect anyone’s papers or persons or houses against reasonable, warranted searches.
So that’s not a “right to security” as such.
(On the high-level question “Do we have a right to security?”, well, it depends on what that even means.
It certainly cant be a positive right to somehow have security just given to us and maintained by someone else; nobody’s rights are violated by a security flaw in a program, for instance.
So it must be, if a right at all, a negative right, to have the state not prohibit having whatever level of security in our software and objects we desire and can obtain.
I’m behind the latter, though I’m not sure it’s actually guaranteed by the Constitution as a Federal mandate; the text simply doesn’t address it – the Fourth Amendment means the State can’t open your door to search your house even if it’s unlocked, after all…
An amendment would fix that quite nicely.)
That was diminished by FISA. Many complained about FISA until the government used warrantless wiretaps after 9/11. Then those same people said, “USE FISA”. This is the next step to remove all semblance of privacy.
That is simply not correct. The 4th amendment literally says you have a right to be “secure” in your “person, houses, papers, and effects.” Your iPhone is on your person or in your house, and your iPhone is your papers, and your iPhone is one of your effects. The question is not whether or not we have a right to privacy or security — we clearly do. The question is only what is a reasonable search or not.
Security does not mean you can never, ever be searched. Your house is private but if there are bloodcurdling screams coming out of there, we are going to kick in your door in order to rescue the person you are likely assaulting. But can we kick in any random door? No. There is no reason for that. It is unreasonable. Even if it is reasonable to want to break into a terrorist’s iPhone, it is still unreasonable to break the security on every iPhone in America to do so, and violate the 4th amendment rights of every single American who happens to carry an iPhone.
So the law is all very clear on this. Notice that the FBI is using a strange law from 1789 called the All Writs Law as their justification. Why go back all that time? What is the reason for that? It is because the 4th amendment is from 1792. The 4th amendment made the All Writs Law unconstitutional.
Think about how unreasonable your must be if you are living in the year 2016 and you try to use a law from before the US Bill of Rights.
One trap we can fall into is seeing this as Apple versus FBI and trying to have a debate as though there are two reasonable points of view here. There are not. All the reasonable things have already been done. It is clearly unreasonable to break the locks on the President of the United States’ iPad as well as the iOS devices of hundreds of millions of innocent Americans. Even if a search of a dead terrorist’s house is perfectly reasonable, if in order to carry out that search you had to defeat the door locks on every other house in the United States, the violation of the security of 300+ million people is not reasonable. There is no argument to say it is reasonable.
That is the point of the attached article. The author is saying don’t look at the details, don’t look at Apple, don’t look at FBI, don’t look at the terrorists, look at us. Do we have a right to security? Yes, we clearly do, and it is a constitutionally guaranteed right. In that case, Apple certainly has a right to build security solution products and lawfully sell them to us to lawfully use so that we can express our constitutionally-recognized right to be secure in our persons, houses, papers, and effects.
A big problem here is that law enforcement got caught up in the fact that some of the spying that they could do in the analog era, they can no longer do in the digital era, and they failed to notice that they got a net positive spying ability in the digital era. They can literally login to an AT&T server and put in a phone number and get a map that shows the movements of that phone over the past week or month. They can subpoena incredible amounts of data from iCloud backups and other cloud storage. They can intercept unencrypted data in so many cases. They can put fake cell towers onto planes and track phones directly. So the argument that law enforcement is somehow crippled by lack of access to some encrypted data in some circumstances is absurd and unreasonable. There has never been a better time to be a spy. They don’t even have to leave the office anymore.
So no new law is needed. We already have a very clear constitution and hundreds of years of precedent that shows that the U.S. government can’t break down every door in the country just because there might be a terrorist behind one of those doors.
If decisions like this continue, you should expect some other country to take the US’s place in software over time.
What’s interesting to me about this case is how inconsistent Obama and the courts alike have been. Obama has been adamantly supporting abortion rights, which are founded on a “right to privacy” established by Roe vs. Wade, drawing on a combination of amendments 4, 9, and 14. Why can’t this “right to privacy” be extended here, where it frankly applies more directly? Because it’s not in the administration’s best interests, of course.
I would up vote this reply 10x if I could.
The oligarchy of the USA can kiss my ass!
that’s a bad hope… Maybe Russia will be the free country next.
The right to privacy does extend here… yet rabid dogs don’t know any better.
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