4 ms·

There is US case-law around this issue; the Federal government cannot compel "speech"; code is speech.

charlesdm 11y ago
Good thing some US judges are sane. Hats off to the judge(s) who ruled this.
dogma1138 11y ago
There are other ways to interpret it, which might soon be attempted. The 5th protects you from being compelled to be a witness at your own trial, it does not however protects from destroying evidence, interfering with a police investigation or hindering justice. If you intentionally destroy incriminating evidence that's a crime, if you prevent the police from executing a search warrant that's a crime too, a court can order you to present existing physical evidence including private diaries, recordings, or anything else and refusal to do so is a crime. Now while you can say that a code is "speech" it's wouldn't be that hard to claim that it isn't, handing out a code isn't baring witness, this isn't speech in any sense, you can already be compelled to give DNA and fingerprints. That code essentially is a device that serves only 1 purpose and it is to unlock your phone, if you build your house in a nuclear silo and refuse to give the police the keys when presented with a search warrant they'll lock you up, quite a few constitutional lawyers can argue that this example can also be applied to passwords, encryption keys, and other similar devices.
- vessenes 11y ago
  There's a little bit of helpful background from the EFF here: https://www.eff.org/deeplinks/2014/04/warrant-canary-faq https://www.eff.org/deeplinks/2014/04/warrant-canary-faq. I'm not a lawyer. :)
  - dogma1138 11y ago
    That link is completely unrelated are you sure you've linked the correct one?
  - scintill76 11y ago
    Yeah, but it hasn't been tested in court ("Are there any cases upholding warrant canaries? Not yet. EFF believes that warrant canaries are legal, and the government should not be able to compel a lie."), and EFF almost has an interest to give not-your-lawyer advice persuading people to use canaries so that they can fight it in court. Moxie Marlinspike reports that lawyers have advised him it's not legal: https://github.com/WhisperSystems/whispersystems.org/issues/34 https://github.com/WhisperSystems/whispersystems.org/issues/...
    - vessenes 11y ago
      Well, I will say that Moxie's needs and risk profile is very different than (presumably yours) or mine; he will be coming at most imaginable court proceedings accused of helping terrorists or at least money-launderers. A warrant canary in that case looks bad; why would any lawyer tell him to do such a thing? It just increases their own risk if they say "that's fine", and then it turns out to hurt. This isn't the same situation that Apple has; while I bet the motions would be filed under seal, I don't believe it would create significant liability for Apple to have a warrant canary, and then remove it after the canary 'dies'. In fact, in 2014, Apple's canary did 'die', with no further comment, and no public disclosure that their were material difficulties with the canary. Apple seems to have been working to enhance security on their devices since then. I would take from this that they didn't receive giant, secret penalties from their canary.
      - scintill76 11y ago
        Apple has pretty much already been accused of helping pedophiles and drug dealers by FBI & Friends' public whinings about encryption over the past year or so, such as[0]. I thought you were saying EFF's assumption that a court cannot compel a canary to be maintained, would also prevent a court from compelling a software update targeting a certain user. Anyway, I believe we can't trust either a canary or software, because either can probably be compelled. [0] https://www.washingtonpost.com/posteverything/wp/2014/09/23/i-helped-save-a-kidnapped-man-from-murder-with-apples-new-encryption-rules-we-never-wouldve-found-him/ https://www.washingtonpost.com/posteverything/wp/2014/09/23/...
- JoshTriplett 11y ago
  > if you prevent the police from executing a search warrant that's a crime too, a court can order you to present existing physical evidence including private diaries, recordings, or anything else and refusal to do so is a crime. Whether it's a crime for the device owner is an entirely separate question; there's case law in both directions about whether you can be compelled to supply the passphrase or unlock the device. (That case law also varies by jurisdiction.) There's an entirely separate question about whether the device vendor can be compelled to introduce a backdoor where none previously existed. And you could quite reasonably argue that even if the device owner could be compelled to unlock the device, the device vendor should not be compelled to produce a less secure device, any more than a safe manufacturer should be compelled to produce a backdoor combination that unlocks one of their safes.
  - dogma1138 11y ago
    I understand, the problem is that i fear that this is what will be implemented soon and become and common thing, and things can get only worse from there.
- AnthonyMouse 11y ago
  Most of your examples involve affirmative acts that interfere with the police, not merely refusals to help them. And if you have the key to your nuclear silo in your hand but refuse to unlock the door, the police don't have to lock you up because they can take the key from you instead. But if the lock is a keypad then the scenario is identical to the iPhone and you're just assuming the conclusion. Your argument seems to distill into the idea that if the police can't read your iPhone without violating your constitutional rights then your constitutional rights have to give way.
beeboop 11y ago
There are tons of examples of US agencies compelling service providers to make backdoors in their software to intercept encrypted information.
- throwaway2048 11y ago
  Such as? Please do not reference a google search.

Good thing some US judges are sane. Hats off to the judge(s) who ruled this.

There are other ways to interpret it, which might soon be attempted. The 5th protects you from being compelled to be a witness at your own trial, it does not however protects from destroying evidence, interfering with a police investigation or hindering justice. If you intentionally destroy incriminating evidence that's a crime, if you prevent the police from executing a search warrant that's a crime too, a court can order you to present existing physical evidence including private diaries, recordings, or anything else and refusal to do so is a crime. Now while you can say that a code is "speech" it's wouldn't be that hard to claim that it isn't, handing out a code isn't baring witness, this isn't speech in any sense, you can already be compelled to give DNA and fingerprints. That code essentially is a device that serves only 1 purpose and it is to unlock your phone, if you build your house in a nuclear silo and refuse to give the police the keys when presented with a search warrant they'll lock you up, quite a few constitutional lawyers can argue that this example can also be applied to passwords, encryption keys, and other similar devices.

vessenes 11y ago
There's a little bit of helpful background from the EFF here: https://www.eff.org/deeplinks/2014/04/warrant-canary-faq https://www.eff.org/deeplinks/2014/04/warrant-canary-faq. I'm not a lawyer. :)
- dogma1138 11y ago
  That link is completely unrelated are you sure you've linked the correct one?
- scintill76 11y ago
  Yeah, but it hasn't been tested in court ("Are there any cases upholding warrant canaries? Not yet. EFF believes that warrant canaries are legal, and the government should not be able to compel a lie."), and EFF almost has an interest to give not-your-lawyer advice persuading people to use canaries so that they can fight it in court. Moxie Marlinspike reports that lawyers have advised him it's not legal: https://github.com/WhisperSystems/whispersystems.org/issues/34 https://github.com/WhisperSystems/whispersystems.org/issues/...
  - vessenes 11y ago
    Well, I will say that Moxie's needs and risk profile is very different than (presumably yours) or mine; he will be coming at most imaginable court proceedings accused of helping terrorists or at least money-launderers. A warrant canary in that case looks bad; why would any lawyer tell him to do such a thing? It just increases their own risk if they say "that's fine", and then it turns out to hurt. This isn't the same situation that Apple has; while I bet the motions would be filed under seal, I don't believe it would create significant liability for Apple to have a warrant canary, and then remove it after the canary 'dies'. In fact, in 2014, Apple's canary did 'die', with no further comment, and no public disclosure that their were material difficulties with the canary. Apple seems to have been working to enhance security on their devices since then. I would take from this that they didn't receive giant, secret penalties from their canary.
    - scintill76 11y ago
      Apple has pretty much already been accused of helping pedophiles and drug dealers by FBI & Friends' public whinings about encryption over the past year or so, such as[0]. I thought you were saying EFF's assumption that a court cannot compel a canary to be maintained, would also prevent a court from compelling a software update targeting a certain user. Anyway, I believe we can't trust either a canary or software, because either can probably be compelled. [0] https://www.washingtonpost.com/posteverything/wp/2014/09/23/i-helped-save-a-kidnapped-man-from-murder-with-apples-new-encryption-rules-we-never-wouldve-found-him/ https://www.washingtonpost.com/posteverything/wp/2014/09/23/...
JoshTriplett 11y ago
> if you prevent the police from executing a search warrant that's a crime too, a court can order you to present existing physical evidence including private diaries, recordings, or anything else and refusal to do so is a crime. Whether it's a crime for the device owner is an entirely separate question; there's case law in both directions about whether you can be compelled to supply the passphrase or unlock the device. (That case law also varies by jurisdiction.) There's an entirely separate question about whether the device vendor can be compelled to introduce a backdoor where none previously existed. And you could quite reasonably argue that even if the device owner could be compelled to unlock the device, the device vendor should not be compelled to produce a less secure device, any more than a safe manufacturer should be compelled to produce a backdoor combination that unlocks one of their safes.
- dogma1138 11y ago
  I understand, the problem is that i fear that this is what will be implemented soon and become and common thing, and things can get only worse from there.
AnthonyMouse 11y ago
Most of your examples involve affirmative acts that interfere with the police, not merely refusals to help them. And if you have the key to your nuclear silo in your hand but refuse to unlock the door, the police don't have to lock you up because they can take the key from you instead. But if the lock is a keypad then the scenario is identical to the iPhone and you're just assuming the conclusion. Your argument seems to distill into the idea that if the police can't read your iPhone without violating your constitutional rights then your constitutional rights have to give way.

beeboop 11y ago

There are tons of examples of US agencies compelling service providers to make backdoors in their software to intercept encrypted information.

throwaway2048 11y ago
Such as? Please do not reference a google search.