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Comment by einarvollset | Hacker News Reader

I'm curious what you guys think the government should do differently here. There's a valid court order, there's a clear reason for this order to be executed, and the request is restricted. They do not, for example ask for the private signing keys for iOS. That would be less work for Apple, and actually well within the rights of the govt. An unpopular argument I realize, particularly in the post-Snowden era, but I would be curious to hear some considered reflections on how the govt should go about this differently. Assume for example that this is not Apple, but instead Enron protecting the laptop of their CTO

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> There's a valid court order, there's a clear reason for this order to be executed, and the request is restricted.

All three of these are in dispute.

1. I do not think that this is a valid court order, as I do not think it comports with the text or spirit of the All Writs act. Apple is not specifically inhibiting execution of the court order; the act in question that ostensibly inhibits government action (manufacturing a device with a particular configuration) occurred long before the acts against which the warrant was issued (the act of criminal violence).

If this is within the purview of the government on this basis, then it leaves little imaginable human activity that isn't subject to the government's whim via the All Writs Act.

2. There is no clear reason for this order to be executed because the crime has already been occurred and the subject of the warrant is deceased. Like so many search warrants, the government's request in this case does not name specifically the "things to be seized;" instead, the government wants to seize each and every thing on this phone. Presumably the government wants to seek evidence about accomplices and circumstances surrounding the crime so that it can prevent similar actions in the future. However, in order for this to pass constitutional muster landing anywhere near the text or spirit of the document, they need publicly explain precisely what they are looking for.

3. The request is not particularly restricted; it literally asks Apple to write new software to exacting government specifications.

So,

> I'm curious what you guys think the government should do differently here.

I think that the government is better suited to educate people about encryption, encourage them to protect their own security, and completely abandon the idea that software must ever work in a way that the government dictates. Much to the contrary, we'll be a freer and more prosperous country when software specifically inhibits the government's capacity to overreach and when it is made so that it is impossible to change by an actor under pressure from the government.

Re: 1

This is the core of my point though: by fighting this on the all writs act, you leave the govt no option but to request something that does not compel Apple to do anything: give up the master keys. If that's what you want, fine.

Re: 2

well, a democratically elected judge did. There is literally no other democratic way to figure out if a search warrant should be granted or not. I grant you that if this was your main point (which it clearly isn't) then you might have a case, as I've not looked into that part at all.

Re: 3

Either you did not read my comment carefully, or you misunderstand fundamentally what I mean by restricted: I mean restricted in terms of how much power Apple would grant to the govt. Clearly giving the master keys would be much less restricted in terms of how much power this gives the FBI than what they are currently asking. Let's be honest, this is not about comping a half dozen engineers time for a week or two.

Re: what you think the govt should do:

Honestly your argument here is weaker than anything else in your comment. So you honestly think that the way in which the government should perform their duties in terms of law enforcement is to "educate people about encryption, encourage them to protect their own security"? Really? Okay, let's play this out: I am a terrorist, and am apprehended at JFK with my iPhone. On my iPhone, there is the contact details of my co-conspirators, already in the US and already with AK-47s ready to shoot up a primary school. Tell me exactly how "educating people about encryption, encourage them to protect their own security" would be helpful in this case?

> I am a terrorist, and am apprehended at JFK with my iPhone. On my iPhone, there is the contact details of my co-conspirators, already in the US and already with AK-47s ready to shoot up a primary school.

Maybe you watched too much 24, but that's just not how these scenarios have played out. You're making the same mistake people make when they imagine hacking being like they show it in the movies: if the good guy can just type fast enough, he can get around the bad guy's defenses, blah, blah, blah. But that's not how it's done, is it? Which makes this a strawman argument.

My point is not a strawman argument - if it was so, then you'd have to prove that nobody is arguing that the govt accessing the information on terrorists phones would be helpful in countering terrorism. The case in point proves this not to be so.

Also, your condescending tone does not help your argument, does it?

Re: 1

No, the government can acknowledge that it cannot compel Apple to do anything. This is in violation of all four points of the All Writs Act. It's really not even close. This is such a strange situation to try to shove into this legal framework.

Re: 2

Even if the search warrant was properly issued, the All Writs act cannot be used to expand jurisdiction to an area where the Federal Government doesn't already have it. The matter of security features on a private phone made by an entity who is not a party in this case is a rock-solid example.

Re: 3

I, and Apple, and most legal scholars who have looked at this case do not believe this order to be particularly restricted. We are talking about forcing a company to rethink a crucial engineering decision on a complex piece of equipment and dedicate engineering effort to rewrite software in such a way that is completely at odds with the needs of the customer.

Your argument is basically akin to saying, "well, they aren't saying they're going to personally kill Apple employees who don't comply, so this is actually a very moderate request."

Re: what the government needs to do if it wants to stay relevant:

You are mistaken if you think that these wild hypotheticals are the way that we make law. Nobody cares about the bizarre narrative of a kidnapper at an airport; case law is made exclusively on the basis of actual case or controversy.

In the scenario you describe, you will sadly probably succeed at an act of horrific violence; I am not moved by your suggestion that the government will be able to stop this action even if the All Writs act did apply in this situation. This is the (relatively small) price of freedom. We live in a country where one is more likely to be killed by a falling vending machine than a terrorist act, but neither is a good enough reason to completely rethink the basis of our legal system.

Re: 1

Of course the US govt can compel Apple to do things that are within the law. If your side wins on your narrow All Writs argument; bully for you. Stand by for the big guns.

Re: 2

So your rock solid argument is what: that I am secure from govt intrusion if I buy a Samsung as the software was made by Google? Hm..

Re: 3

Now you're talking either from ignorance or hyperbole: ain't all that hard to have them take the specific phone into a safe room with custom cloned hardware, bypass the check and unlock it. Don't see how this fundamentally changes thinking on any crucial aspect of their engineering.

(Ignoring comment about equivalency as it makes no sense, but feel free to elaborate)

Re: govt needs to do...

So there is nothing you want to contribute in a conversation about how we balance this dilemma? You don't see there ever being a case for the govt wanting access to the contents of a phone, even with a court order? What about a house or a car? If my house has a key, with a crypto seal on it, and it blows the whole house up if you pick it for more than 10 minutes, that's okay? Nobody should be compelled to help the govt get in?

> there's a clear reason for this order to be executed

No. They are abusing a law written two centuries ago to compel a private corporation to perform work on their behalf when they have the resources and know-how to do it themselves in this specific case. They are doing it purely to establish precedent so that they can then proceed to do the same, again and again, on an absolutely massive scale. A scale which wouldn't be possible with their resources. This is shameful and shouldn't be permitted.

> I would be curious to hear some considered reflections on how the govt should go about this differently

It's very simple. Stop trying to compel private corporations to do their job for them.

See part re: master keys of iOS. Would not require any work on part of Apple.

Would you like to explain how you'll guarantee that those keys won't end up in the wrong hands?

I trust those keys with Apple far more than the FBI.

By definition having them be in more places makes them less secure, so clearly I cannot. That's my point though. The FBI is not currently asking for this. But they could.

> and actually well within the rights of the govt

[citation needed]

It's also entirely possible Apple can't easily give them the key, since from what I've heard the key only exists in HSMs. Presumably they have more than one HSM, but I imagine the fact that they'd need to physically give the FBI hardware that's normally used in the course of their business would complicate matters.

Agreed. Though does not negate my point that the govt has not actually asked for this.

Regarding [citation needed] specifically related to how the govt has a right to seize the keys:

https://en.m.wikipedia.org/wiki/Fourth_Amendment_to_the_Unit...

If Loretta Lynch were informed about how encryption works, she would not be pursuing this case. As it is, she does not understand that she is wasting the time of American government and people.

She does not understand that even if the FBI can get into every Apple phone, criminals can simply choose another form of encryption software to accomplish means of hiding their communications. Assuming the FBI can force Apple to install a key logger to grant them access into encrypted apps, will the FBI then go after Samsung and HTC which are made outside the US?

The whole thing is absurd and a waste of our time. The way in which the FBI is going about this is not going to get them what they want.

I don't know how to get them what they want. That's their job to figure it out. But they should know better about encryption technology. Or someone should tell them. This has gone on too long.

Assume she is informed. Assume she doesn't really care about the outcome of this case, but is after a particular precedent.

At this point her actions become a lot easier to understand.

I do not think you have actually read enough about this specific case. For example: the govt is not asking for "the FBI to get into every Apple phone".

If you disagree with this assertion, please provide a link where govt is asking for that.

Maybe not "every" phone, but "a lot" of phones:

On Tuesday, Comey said the FBI is asking for access to that specific phone but understood the decision would set a precedent for similar cases.

Asked how many iPhones the FBI would like Apple to unlock, Comey said he could not name a number but that there were "a lot" of phones that hold information needed for law enforcement investigations.

http://www.reuters.com/article/apple-encryption-congress-com...

Again, I don't think you've really read what the govt is asking: yes this would set the precedent for them to request via a valid search warrant and on a case by case basis to open maybe even "a lot" of phones. My point is - grabbing the master keys would give them access to all.

Once they set precedent to get Apple to provide them with the software they need, why do you think they won't later compel Apple to provide them with the keys to let them unlock any phone?

Surely it's going to become a burden if the government has to go through Apple for every single unlock request - there may be thousands of them, so for convenience, why wouldn't they demand the software to do it themselves?

It seems like gaining access to this dead guy's phone is not really what the FBI is after - they can already get his call records and SMS's from the carriers, there's not likely to be any actionable information left on the phone.

Yes, this sets the precedent that the govt may request, with a valid court order, to compel Apple to help grab information from a specific phone.

The point I'm trying to make (repeatedly through this thread, which everyone seems to ignore) is that this is a pretty reasonable request.

Notice that it becoming a burden for the govt to request this through Apple every time is in no way a reason why the govt would legally be allowed to "demand the software to do it themselves". In fact, as every single case would require a court order, the hassle of the court order is likely a magnitude greater than asking Apple to comply.

For the govt to "demand the software to do it themselves" would be an entirely new court case. In fact, it is this very case that I do not want to see.

> The point I'm trying to make (repeatedly through this thread, which everyone seems to ignore) is that this is a pretty reasonable request.

So when Apple makes the iPhone 7 such that even Apple cannot unlock the phone what happens?

I don't know.

The point I'm trying to make relates to the facts as they are before us.

To not think this is where it is headed is naive. Just like the original claim of only one phone was laughable. The FBI wants to get a precedence now so that they can prevent Apple from ever making a phone that cannot be broken into. That is what this case is about and has always been about since the beginning. It is also why Apple took a stand here.

I've read everything about this case.

The implication that this is just about one phone is what is so demonstrably false. And it is people like you who we must seek to inform. The FBI has hundreds, if not thousands of iPhones they wish to unlock in this manner. Google it.

Further, what the DOJ does not understand is that if Apple provides the tool for opening this phone, then the government and any hackers who get ahold of that tool will be able to access any phone with the same specifications. As Tim Cook puts it, it'd be the software equivalent of cancer.

Even if the FBI has thousands of phones it wishes to unlock with a valid court order, where is the problem? Why are you against this in principle? How is your phone fundamentally different to your house?

Regarding it being like cancer - why? How can it not be like smallpox? What is hard about clean rooming these phones and hacking them?

Specifics please.

IIRC Enron was being investigated under the RICO act. In this case no one is even being investigated for committing a crime, let alone charged with one.

Hmmm.. Unlike Enron before an investigation was started or a conviction was made, it is beyond a shadow of a doubt that several crimes were in fact committed by the users of these phones.

Enron can hand over the laptop. This would be like asking Enron to break into their CEO's house.

The phone was owned by the state.

And if the state (or any employer) were appropriately managing their devices they'd have access to the data, known which apps were on it, and have remote wiped it.

Not really. If Enron put encryption with their master keys on the data, how is this different? Seems very similar to me?

Enron doesn't make encryption software/hardware I don't see how that is a comparable situation? Obviously there are limits to what courts can order in the pursuit of law enforcement goals, and this should be one of them.

Neither does Apple. afaik they use open source and vetted software for all their encryption need. As they should.

The CTO would likely be compelled by the courts to reveal their password.

What if the CFO (sorry, typo in post) was dead or realized that revealing that would land him in hotter waters than providing them?

And if they didn't they would be charged with obstruction and that's where it would end. They would not go to Dell and force them to write software that allows a secret FBI password to get into every laptop.

The Enron case was a bad analogy because only billions of dollars were at stake: assume there were details on a Dell computer that would save a dozen or so lives. Do you think Dell wouldn't help? Do you think they shouldn't?

The case at hand is a discarded work phone -- of which call and text records are readily available to investigators. It does not represent a "clear and present danger".

Even if it did I would still fight it in the courts: Warrantless wiretapping, secret Fisa courts. Guantanamo bay prison. Lawyers and congressional leaders being electronically spied on... I do not think its safe for our democracy to continue giving the government tools to spy on citizens.

Your comment perfectly illustrates what's wrong with your side of the argument (but don't worry, you are on the side of most of HN):

Isn't the current case in fact exactly what you would hope to see from a government changing in response to gitmo and warrant less wiretapping? If not - what would you expect to see assuming the govt was changing? Honestly curious here, as you seem to want to fight the govt even in the face of "clear and present danger" and even if they had reformed.

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