This article quite wrongly assumes that the government is always justified in issuing warrants, not to mention the current excesses in the form of rubber stamp, overbroad, secret warrants that you can't even be informed of. This alarming attitude seems to be taking hold more and more, which is even more distressing considering that this is the country founded on distrust of the government.
Add to this that many people now treat their digital devices as extensions of their mind which leads in to fifth amendment territory, and there is absolutely no reason anyone but the person to whom the data is most dangerous should be allowed access.
The government, like IT departments, should not exist to serve itself: it is there to serve others, and so called "thinking of the children" or any other reason cannot excuse the invasions of privacy that occur on a regular basis. I'm no fan of Apple, but if they've made it so that even they can't unlock an iPhone due to court order, they are doing something right.
The government also gets many advantages from technology, and still has the advantages of extremely powerful and time tested techniques that have not become outdated merely due to advances in technology. Just because some LEO agents want to take shortcuts to be "tough on crime" doesn't justify harming innocent bystanders in the process, otherwise we'd allow them to shoot first and ask questions later.
What percent of warrants do you believe are issued without justification? I keep reading this comment here but no one has shown that most (or even a large amount of warrants) are unjustified.
I would say it does matter. If its 1%, that seems well in the realm of natural error and probably impossible (or too expensive) to solve. If its 99%, then that is a problem with the enforcement or interpretation of that law that point directly to abues and seems very fixable.
What I mean is, it doesn't matter if a warrant is justified or not. If the device is less secure to allow warrants to be carried out, it's less secure in general.
I don't have the resources to go looking, which is part of the problem.
On one side you have multiple publicly funded organizations attempting to get warrants (police, local da, federal da, fbi, etc) and on the other side you have individual defense attorneys plus generally woefully underfunded public defenders. You can get some notion of what one side would do without oversight -- ie the fisa court, which essentially never turns down a warrant. Relying on individual attorneys, who are after all advocating for their clients, not for what is best for the legal system or people as a whole, to set case law opposing warrants means they will basically be outmatched.
We can also get some sense, again, of how little you can trust any of these people by remembering that the fbi is supposed to be tracking officer involved shootings.
In 1994, Congress passed the Violent Crime Control and Law Enforcement Act.
Among its provisions was the order that “the Attorney General shall, through
appropriate means, acquire data about the use of excessive force by law
enforcement officers.” The Justice Department was also required to publish
an annual report on the data collected.
And…that’s pretty much the last anyone heard of that. The work of collecting
the data was shuffled off to the International Association for Chiefs of
Police, which made a few efforts at collecting data and put together a
report in 2001, but has produced nothing since. [1:2]
I'm sure it's just an accident :rolleyes:. Meanwhile, the police fight every inch of the way even the attempt to collect statistics on how many people they killed. And for more news in the quality of self-regulation, after the fbi decided to murder someone connected to the boston bombing under very suspicion circumstances, they discovered that shooting -- like all 150-odd fbi shootings -- was justified [3]! A stunning turn of affairs.
If anyone has any statistics on this I'd like to see them. Obviously there are cases when warrants are misused but I am still of the belief that overall the government does not act with malice and overall does its work for legitimate reasons. I'd image that thousands of warrants are issued daily but do we know how many end up in gathering enough evidence for formal charges? I'd assume it's a fairly large percentage but I could be wrong.
He doesn't seem to get that his less crypto version = no effective crypto. It is a false choice.
Also, it is a bit late to suddenly notice the existence of this stuff. To suddenly want to rewrite the US constitution because iphones change how their key gets stored seems a little bit mental.
Perhaps Steve Job's reality distortion field is still around somewhere making people think that decades old technologies have only just recently come into being when Apple does a press release about them. I think he'd have liked that.
> [1] In your view, can there ever a point when there can be too much encryption — and if so, what is that point? In other words, do you think there could ever be a point at which crypto is so widely used in so many contexts to protect so much data so strongly, that you would think that the marginal costs of more and better crypto begin to cause more harm than good?
It seems to me that in general any given person is much more likely to suffer a digital crime than to commit a crime. And it seems to me that it is generally better to prevent crime than to solve a crime already committed. Therefore better consumer data encryption should tend to have a net positive effect.
And I think that as long as there is a court mechanism to compel decryption--via a warrant, for example--then many "bad guys" can still be kept off the streets. They won't decrypt their data? Cite for contempt and lock them up.
Will this make it harder for police to solve some crimes? Of course, but we accept those trade-offs all the time. It's inherent in our culture and system of government. The cops could solve a lot more crime if they had cameras in all our houses too. Doesn't mean that is a good idea or net positive.
> [2] If the government can’t get access to contents, even with a warrant, and that ends up substantially shifting the privacy-security balance, the Supreme Court will respond by expanding government power in other ways to counteract that shift and restore the prior balance of power. We’ll get more privacy in some ways from more technological protection, but less privacy in other ways from having less constitutional protection. So here’s the question: What privacy tradeoffs might the Supreme Court make in response to strong encryption that would more-or-less restore the prior balance of constitutional protection?
In this question, I think Kerr is not thinking through the implications of what Snowden revealed. It appears to me that we have already suffered a dramatic reduction in our legal protections of privacy, due to laws, executive orders, secret court authorizations, NSA/GCHQ overseas hacks, etc. since 9/11.
From this perspective, Apple's encryption change is actually adjusting the equilibrium back toward where it should be, not knocking it out of balance.
Kerr's claim that "The Supreme Court tries to roughly maintain the balance of Fourth Amendment protection over time as technology shifts, so that technological change doesn’t give the government too much power (which would lead to abuses) or take too much power away from the government (which would make it too easy to commit crimes undetected)." demonstrates a misunderstanding of the purpose of the Constitution. The Bill of Rights are strict checks on government power, not guidelines on how much infringement on individuals is acceptable.
The Fourth Amendment reads "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." There's no exception in there that can be read as "unless it makes the job of the government really hard."
No individual criminals or groups of terrorists pose the kind of threat that an overreaching government does. Encrypt it all.
The "exception" to the 4th Amendment would be a search/seizure that satisfies conditions set forth in the language of the amendment. Once those conditions are satisfied, the Constitutional checks are passed and the government can bring quite a lot of power to bear.
One of those powers is compelling cooperation from 3rd parties. Before telecommunications, the government could use a warrant to force a bank to open a person's safe deposit box (for example). Unbreakable encryption would be like an unopenable safe deposit box--it would prevent the execution of even the most obviously lawful and justified search. That would be a shift in the practical balance between government powers and individual rights.
You might applaud that shift, but I hope you would agree that it potentially exists.
I think your interpretation of the amendment is a little too rigid. There is plenty of room for debate depending on your definitions of a variety of words. One key example that is directly related to technology is how do we define a "seizure". Does copying data count as a seizure considering the original was not taken or altered in any way? If so, the government would legally be allowed to copy everything that happens on the internet and then only look at it once they get a warrant. That would seem to be something that is allowed by the letter of the amendment but perhaps not the spirit of it.
I know what you mean and it's not a valid point. Whether or not we are allowed to copy someone's copyrighted work has nothing to do with how we interpret the 4th amendment.
This just isn't true. Of all the amendments in the Bill of Rights, the Fourth is uniquely amenable to Kerr's argument, because it includes the word "reasonable" --- which meant the same thing at the time of the founders as it does today: the right to be free from searches is balanced against the interests of the state.
(I disagree with Kerr's argument, and obviously strongly support encryption, but his Fourth Amendment argument from what I can tell squares easily with the design of the Bill of Rights.)
> There's no exception in there that can be read as "unless it makes the job of the government really hard."
Law is not like code, an algorithm that is followed literally and logically. The U.S. Constitution's First Amendment is equally clear, but you can't yell fire in a dark, crowded movie theater. The Second Amendment does not differentiate cruise missiles from handguns, but you cannot own a cruise missile. I would not want it otherwise.
The laws never will be written perfectly, so we need a system to deal with those flaws. Another way to think of it is that there are edge cases, many of which were not anticipated by people who wrote the code, some over 200 years ago.
EDIT: Another way to think about it: If the law permits something horrible (e.g., 'sale of first-born children') because it was written poorly or unclearly, should the courts allow first-borns to be sold until Congress fixes it? What if the law explicitly allows something, such as denial of voting rights to an ethnic group?
In the SF bay area, I can "keep" but not "bear," and in many other locations in the U.S. it is illegal to possess the means of self-defense at all. The ability of policymakers to completely disregard the Constitution lets us enact policies preventing the ownership of cruise missiles, but it also lets them disarm citizens entirely, require people to verbally invoke the right to remain silent, and so on.
We could do these things without disregarding the constitution. For instance, we could hold a constitutional convention and ban private ownership of cruise missiles, grenades, rocket launchers, SAMs, nuclear weapons, most 9mm handgun magazines used by police ("High capacity magazines"), and rifles that look scary but kill almost nobody. We could also repeal the 5th amendment. Instead of doing these things, we make them policy in contradiction of the law.
> For instance, we could hold a constitutional convention ... Instead of doing these things, we make them policy in contradiction of the law.
I agree with the principle ... but: Imagine if updates to your software project required consensus of over 300 million people, sometimes about very heated questions. I think you would only do updates in extremis and otherwise use other mechanisms to resolve issues.
Yes, for example the founding fathers might not have thought of growing plants for personal consumption as interstate commerce, or building a private office towers as a public purpose, thankfully we have the SCOTUS to realize that growing plants for your own use is interstate commerce and that private office towers are public purposes.
Whatever you're doing is probably illegal if the government wants it to be illegal, and legal if the government wants it to be legal.
As most lawyers say, don't talk to the police, so I assume the best advice would be to encrypt your documents to the maximum extent possible, and have your lawyer sort it out in court.
Arguments and discussion with a statist. His credentials don't hide his poor technical solutions. In fact, given his background and claims of expertise, I would have expected far more understanding.
Have not read all three parts of this, but Kerr obviously is unaware that Apple actually sell a lot more in foreign countries than in the USA. (He is probably unaware that most of the world now have access to mobile phones). Now if Apple got banned from selling Apple products in the US it would hardly make a dent in their profits ...
This guy keeps using the same arguments that fail in the pre-mobile security world.
> Maybe the crime is child molestation offenses involving child pornography, or maybe it’s a conspiracy to commit murder or to inflict violence.
First, I think that situation is terrible and should definitely be investigated lawfully. The challenge is that if a person molests a child and there is evidence in a car, the Authorities do not serve the auto manufacturers with a warrant saying "Give me a copy of the key to this persons vehicle so we can inspect it." The Authorities serve the individual. That is the point of crypto in this case. The consumer of the property owns the product instead of giving ownership to the corporation who makes the product.
Automobile manufactures don't give authorities back door keys to your cars. Lock manufactures don't give authorities back door keys to your home. So why should Apple give them back door keys to your phone?
The argument the author is making is not about how hard the algorithm is to crack, it's about process. Also, I was a CISSP and everything can eventually be cracked. It's just a matter of time and access--that's why most process put in place is to limit those two factors.
One is related to the other. If the police have a warrant for the contents of a car they don't contact the car manufacturer only because picking the lock is easier.
Here's the the one and only question he should be asking himself: Why does Apple need to provide the key to the user's stuff? You want to charge a user? How about getting his keys? If the 5th amendment stops you from doing that - well, tough.
The Constitution is there for a reason, and it seems to me law enforcement have found this "cloud computing" loophole, where they can say that the data you host on other people's servers is not yours, and therefore they can get access to it.
The user seems to have much weaker protection in this case, and it's also very easy for law enforcement to just go to a one-stop shop. So they've gotten very used to that. And they'd very much like that to continue. I bet if there were no more warrants for say a decade, they'd be getting used to that, too, and they'd fight tooth and nail against reinstating the warrants.
Kerr forgets that the internet is global. This device has super large threat models. There should be little concession for any specific government with regard to encryption.
A crime which is entirely inevident save for the ability to decrypt a file, is, ipso facto, a thought crime, and therefore IMO not a crime at all. The state needs to find its evidence somewhere which doesn't require the accused to testify against themselves.
This concept Kerr puts forward that criminals will become unstoppable given too powerful crypto is so laughable to anyone who understands cryptography as to be a complete waste of time. For a government built on balance of power and a long history of pushing the limits of that balance, the need for strong crypto is inherently obvious.
You can't issue a warrant for someone's private thoughts, no more than you can issue a warrant for my encrypted diary. It's not actually a 4th amendment issue, it's really an issue for the 5th.
What Apple has done, is take themselves out of the legal loop, where they shouldn't have been in the loop in the first place. Proper crypto is a win-win where I don't have to trust Apple, and Apple doesn't have to trust me. I doubt Apple is actually 100% there, but maybe close enough to stop the government from co-opting them into their investigatory responsibility.
It's perfectly obvious and reasonable that the manufacturer of a diary, e.g. Moleskin, should not be on-the-hook to reveal to authorities everything you write using their product. Similarly, before the Internet and cloud-era, it was perfectly reasonable that the manufacturer of a computer was not on-the-hook to reveal everything produced with that machine.
It's just a quirk of technology that these systems are easier to implement in a 'centralized clear-text' manor, exposing the data to 3rd parties, and therefore government warrants against those 3rd party copies. They never used to be centrally accessible, we've seen the damage a clear-text central store inflicts, and if we've learned anything from it, we won't ever return to this broken model again. Over time crypto will enable many of the 'easier to do centrally' type of services, performed over ciphertext, and without compromising individual privacy.
At this point I think Kerr is just trolling for the page views, since he doesn't seem to have learned anything from the extensive and thoughtful comments his first post elicited.
your ipso isn't quite so facto. There are many scenarios where encrypted information is evidentiary in non-thought-only crimes. Consider bitcoin theft, other money laundry. Consider second-order evidence, e.g. incriminating pictures or video of illegal acts for which not enough physical evidence has been gathered.
Self-incrimination is highly compelling evidence in all crimes. Interesting to note, however, is that a confession is one of the lowest and most unreliable forms of evidence.
But in speaking of thought crime, I'm merely speaking of crimes which are entirely inevident (which admittedly is a term I just made up) save for self-incrimination. Likewise, if it is evident that a crime has been committed, then by definition it is not a thought crime.
If there is evidence beyond self-incrimination, by all means find it and produce it at trial. For example, bitcoin theft by definition must effect an unwilling 3rd party, therefore there's at least a human who can testify their coins were stolen. It's evident in victim testimony, on the blockchain, in access logs and source code of the central service that was hacked, or in malware left behind on the victim's computer, etc.
The existence of a wronged third party is not evidence of guilt; the existence of a bitcoin wallet with the stolen funds on your phone, however, would be.
The idea that the digital world is so sancrosanct that it's totally exempt from existing law is enticing, I'll grant you. But not necessarily convincing.
It can be perfectly evident that a crime has been committed, without it being evident who committed it. So the evidence potentially found by examining the contents of a suspect's devices is not at all necessarily evidence of thoughtcrime.
The analogy with a diary is a good one, except that humanity has never been addicted to publicly carrying around a comprehensive all-encompassing diary, until now.
For many of us, these mobile computers record all of our thoughts, intentions and actions. They're really extensions of our minds. And our minds belong to us, not the government.
The government can build their cases as they've always done, without forcing us, or our extensions, to testify against ourselves.
Why do you consider anything encrypted as an extension of oneself? The 5th amendment protects you from being forced to testify against yourself. It does not protect you from being forced to turn over evidence. That is where obstruction of justice charges come into play. In your example of refusing to turn over a key to a diary is no different to the government than you burning that diary. You are actively preventing the government from accessing preexisting evidence.
The 5th Amendment grants you the right not to incriminate yourself in legal proceedings. Diaries found with a proper warrant can totally be used against you.
One could argue that governments can take possession of a computer with a search warrant, but even if they did, it violates the right against self-incrimination to have to give up your passwords and encryption keys. That's where the fifth amendment comes into play. It's my understanding that this is not settled law, and I'm not a lawyer, but that's the general idea.
Memorizing an unbreakable password to an encrypted file is a lot more convenient that memorizing the entire file and then destroying the bits.
However legally, I believe it should have the same net effect, because using technology to augment our increasingly limited biological memory shouldn't eliminate the protection against the government accessing that memory to use against us.
Maybe I'm 10-100 years early on this, but I think time will tell.
I totally agree with one exception. It's not a thought crime when there's an alleged crime and insufficient evidence. You could have a situation where there's good reason to believe a crime took place but the evidence is encrypted. (ie: a kid claiming to have been abused with photos taken, the accused is found to have an encrypted file labeled "kids", not a thought crime just alleged crime)
Certainly your example is not thought-crime. By Apple forcing the government to serve the warrant on the accused, most importantly I think we put the conversation where it belongs; not on the 4th but the 5th.
Does the 5th actually protect the accused in your particular example? I think it does, and I'm glad it does, because I think a 5th amendment which failed to protect the accused from this sort of self-incrimination, would fail overall.
How much can a defendant be forced to aid in their own prosecution? You cannot ask them "did you do it" and use their refusal to answer as evidence against them.
Now I have a device which constantly records the audio, video, GPS, temperature, barometric pressure, heart rate, breathing rate, etc. Maybe in a few years time it records not just everything it hears and sees, but literally everything its owner hears and sees. These devices have become, and will increasingly become, true and pure extensions of our own consciousness.
Today you have two choices; you can leave it all open and available for the government to "collect" and use against you, or you can quite literally keep it locked in your head using encryption.
The Bill of Rights was written in 1789. Seventeen-fucking Eighty Nine. In another 200 years, I hope its protections continue to be as meaningful.
Crypto is a two way street, it allows gov't to hide it's crimes and people to hide theirs.
Given the number of people killed by gov't vs private action in the 20th century, I'm not overly concerned about the crimes of people as a first course of action to reduce human suffering.
I think we should view crypto in the same way we view very strong safes with catastrophic tamper-proofing. While it is possible to gain unauthorized access to my imagined safe, it's quite difficult. If the government has a strong case for access a safe-owner can be held in contempt for not providing physical access. While I understand there is not a perfect analog between physical key and password, I think it's unlikely that the court will treat them differently.
I'm having a hard time finding case law, but I would imagine that people have been held in contempt for not providing access to a rotary dial (password protected) physical vault before.
edit: As an aside, an encrypted drive should not be cause for action by the law, however that is covered by the 4th amendment.
Restricting the argument to only those cases where the government gets a warrant seems a bit beside the point now that Snowden has revealed mass warrantless secret surveillance.
Add to this that many people now treat their digital devices as extensions of their mind which leads in to fifth amendment territory, and there is absolutely no reason anyone but the person to whom the data is most dangerous should be allowed access.
The government, like IT departments, should not exist to serve itself: it is there to serve others, and so called "thinking of the children" or any other reason cannot excuse the invasions of privacy that occur on a regular basis. I'm no fan of Apple, but if they've made it so that even they can't unlock an iPhone due to court order, they are doing something right.
The government also gets many advantages from technology, and still has the advantages of extremely powerful and time tested techniques that have not become outdated merely due to advances in technology. Just because some LEO agents want to take shortcuts to be "tough on crime" doesn't justify harming innocent bystanders in the process, otherwise we'd allow them to shoot first and ask questions later.
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