Thursday, February 25, 2016

Concerning an Apple/FBI "Compromise"


As I sometimes do, I'm going to structure this piece just a wee bit in reverse of the obvious order so that I can get certain things above the fold. Namely, Neal Reynolds's thoughts on the matter of the FBI vs. Apple's iPhone encryption.

Quick summary -- reasonably objective, I think -- of Neal's thoughts: This isn't that big a deal because the FBI is willing to compromise and let Apple just crack the one iPhone rather than providing the FBI with a tool to crack all iPhones.

But the full discussion is worth reading, and you can find it in the comments below this RRND blurb/link. In response to my skepticism that such a compromise is even on the table, here's a news story from last week that Neal went to the trouble of digging up, and here's the Chicago Tonight panel discussion he references on the compromise proposal.

Why do I think Neal is wrong? Two main reasons.

The first reason is that if the FBI really wanted to compromise on its demands, it could simply go back to the judge who issued the order requiring Apple to create custom software and let the FBI use that software and ask the judge to modify that order. If that's happened, I haven't heard about it. The order is, so far as I know, still in force, and no amount of FBI public posturing about "willingness to compromise" will magically change the text of that order, which specifically orders Apple to render "reasonable assistance" under the All Writs Act as follows:

"Apple's reasonable technical assistance shall accomplish the following three important functions: (1) it will bypass or disable the auto-erase function whether or not it has been enabled; (2) it will enable the FBI to submit passcodes to the SUBJECT DEVICE for testing electronically via the physical device port, Bluetooth, Wi-Fi, or other protocol available on the SUBJECT DEVICE and (3) it will ensure that when the FBI submits passcodes to the SUBJECT DEVICE, software running on the device will not purposefully introduce any additional delay between passcode attempts beyond what is incurred by Apple hardware."

The key words there are "enable the FBI to submit passcodes to the SUBJECT DEVICE."

In other words, the phone remains in the FBI's possession and Apple has to create the software and hand it over for the FBI's use. The chances of that software not being kept and/or copied while in the FBI's possession are somewhere between slim and none.

The suggested "compromise" is that the FBI can give the phone to Apple so that the FBI never sees or has possession of the software used to crack it. Well, if that's the compromise the FBI is willing to make, they should tell that to a judge, not a reporter.

Not that I would trust the FBI to not go back to court as soon as the software is created and ask for an order permitting them to raid Apple's HQ and seize the code. But if they want to be seen as willing to compromise, they could at least pretend to actually be compromising.

And, in my opinion, even the above is not a demand for "reasonable assistance" per the All Writs Act.

If the police have a warrant to search a house, resort to the maker of the lock on that house's door for "reasonable assistance" would amount to "if you have a key that unlocks this house, either unlock this house or give us the key." If the lockmaker doesn't have the key, demanding that the lockmaker order his design team to design a key that will unlock every lock the lockmaker has ever manufactured is not "reasonable" -- even if the "compromise" offer is that the maker will be allowed to keep the key after that one use, rather than handing the key over for prospective future uses.

In cases where Apple has "had the key" to data, they have generally handed over that data when presented with a warrant or subpoena. Apple does not have the key, and this is not a demand for data. It's a demand for creative work that has consequences far beyond the declared objective of getting information off of one iPhone.

The second reason is that the All Writs Act is unconstitutional. It may or may not have been unconstitutional when it was passed as part of the Judiciary Act of 1789, but the Constitution has been amended at least twice since then in ways which supersede it:

The 5th Amendment requires that no "private property be taken for public use, without just compensation." If Apple writes the software demanded, that software will be Apple's property and it will be valuable property  which Apple will have made a significant financial investment to create. The court order does not offer to pay for it.

The 13th Amendment forbids "involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted." In order for the software the FBI is demanding to come into existence, someone has to write that software. Presumably several someones, actually. What if they don't want to write it? In what universe is it constitutionally permissible to force them to do so? Once they're done, can they also be required to pick some cotton,  or perhaps bake some wedding cakes for same-sex couples? If Apple's management decides to comply with the court order and its iOS team resigns en masse in protest rather than write the software, will the FBI ask the court to have them chained to their desks on bread and water until they change their minds?

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