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25 pointsshawndumas8 comments

"Further, I find it hard to believe that President Obama — a professor of Constitutional Law — doesn’t recognize that backdooring US technology is inconsistent with his duty to protect our Constitution."

He's had 7 years to change the behavior of the Executive Branch in regards to our rights versus how the departments operate and he hasn't done it. He either doesn't believe in his duty to protect the US Constitution or regard any of this as violating it.

Another possibility that we are forced to consider is that the Executive is not as unitary as it looks; There is likely severe coalition-building and politics even within the Oval Office itself, such that even a Constitutional scholar with good intentions could not realistically and singlehandedly deliver on actions that would seem to be well within the scope of her powers.

My insight into this was by reading (listening to) the very long book by Robert Gates called Duty. It described goings-on at the Department of Defense during his time there and showed that even for this slice of government, decisions were never clear cut, the factions many, and opinions numerous. Even for something as clear cut (in retrospect) as the mission to get Bin Laden was debated extensively.

So far Obama has only used his knowledge about the Constitution to twist interpretations of various laws in favor of giving the executive more power, whether it's for things you disagree with (mass surveillance) or things you agree with (climate change action).

So from that perspective, I think he's been downright hostile to "protecting the Constitution".

I tell people his constitutional study is the equivalent of a theif who studies locks... So he can pick and disassemble them.

He's a lot closer to the larger geopolitical game being played. In the world that us techies live in, a government-controlled backdoor is an irredeemable assault on our civil liberties, not to mention useless at the actual task of national security. In his, a backdoor that US agencies can access would be an insanely useful espionage tool against Russia and China, and he has to, as a patriot, believe in our law enforcement personnel and trust them to not abuse their power.

Lines in the sand have been drawn. It will be interesting to see how this plays out. Apple is hell-bent on giving the world real, honest-to-god security. It's never existed before. Every technology so far had failure points that state-level actors could find and exploit.

Encryption technology represents a brave new world where anybody can move and hide information outside the reach of governmental authority. The stakes are incredibly high here.

I think that Gassee does not fully appreciate the impact of the independence of U.S. law enforcement and judiciary.

Now that it's a court case, it might not be possible for it to be "delicately guided into a marsh of hearings and commissions". Its fate as a court case will be determined by judges, who generally have no interest in careful political management.

If the Justice Department loses, they can choose not to appeal, sure. But that decision will have to come from within Justice. As far as I know, it is illegal for the president to interfere with a criminal investigation.

If Apple loses, they will appeal it all the way to the Supreme Court.

Ultimately the only thing that can short circuit the process now, is Congress.

Maybe that's why the FBI did what they did. As things stood until this case, the default was that companies did not have to help. Congress would have to pass a law to force them to. But if the FBI wins this case, the opposite will be true: Congress would have to pass a law to limit the forced helping.

Betting on Congress is never a good idea, especially these days. So whoever is happiest to ask Congress to the least, often wins. The FBI is betting that there is a chance to flip the script.

It's interesting to tie this to Scalia's death, as Gassée mentions in the article.

”There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.” -- Antonin Scalia

The Supreme Court will stay in its new state for a while at least, and we may see more cases like this pushed hard during the interim wherever he was a key holder of a viewpoint.

On GovtOS I can imagine the next request after this software would be a version only for senior US officials that can't be broken by the GovtOS tool. I would find that a very frustrating and annoying request if I were designing software at Apple or Google.

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