5 ms·

> "no Warrants shall issue, but upon probable cause" As a non-legal expert, the way this feels to me is that asking for a backdoor is like preemptively issuing

> "no Warrants shall issue, but upon probable cause" As a non-legal expert, the way this feels to me is that asking for a backdoor is like preemptively issuing a warrant for everyone on the grounds that they might commit a crime in the future that you'd want to investigate. Thus backdooring iOS is tantamount to issuing an unlimited warrant for everyone, which is exactly what the Fourth Amendment is trying to prevent.

ethbro 11y ago
The difficulty is that encryption doesn't work with the warrant system. There's no "encrypted before a warrant is issued, but unlockable after one is" without key escrow or something similar. The real tragedy is that if the government had good intentions about doing so in a responsible manner (setting aside the problems with key escrow in the first place), then the NSA burnt those bridges to the ground between 1990 and 2015. Action. Reaction.
- ehartsuyker 11y ago
  Agreed (on all that).
- tptacek 11y ago
  That is an understandable set of emotions but not really a rational basis for public policy.
  - marssaxman 11y ago
    "We cannot trust you to use this power responsibly and therefore refuse to delegate it to you" might be the most rational basis for public policy there is.
    - tptacek 11y ago
      The power to collect evidence to resolve criminal cases is one of the most fundamental powers of the state. You might just as productively suggest that we can't trust the USG to be a responsible state, and therefore it should disband.
      - AlgorithmicTime 11y ago
        The fact is this: you can't argue with math. It's math. You might ban it, but in this day and age, that's nigh-impossible. The ease of violating any ban, and the number of violators will effectively make the law unenforceable. And you know what will make government even less respectable? Unenforceable laws.
      - ethbro 11y ago
        > The power to collect evidence to resolve criminal cases Is already limited by the 5th Amendment and other caveats. So it's never been unlimited in the US.
        tptacek 11y ago
        You mean the 4th Amendment (the 5th guarantees due process and prohibits coerced self-testimony). Put aside for a second that 4A is not in play here, because the phone's real owners consent to the search. 4A delegates to the courts the power to determine what evidence is and isn't in-bounds in an investigation. Nowhere in 4A will you find a prohibition on imaging someone's phone. Assuming the judiciary approves of a warrant, virtually nothing is out of bounds to a warranted search. That's what we're talking about here: a search that a judge has authorized. It's that power that we're talking about clawing back because of a loss of trust in the government. And what I'm saying is, it's pretty silly to pretend that you can claw back the power to collect evidence without calling the whole state into question.
        ethbro 11y ago
        No, I meant the 5th amendment and coerced self-testimomy. To me, that's an obvious example of evidence the government would like to have in many cases, but we clearly decided it cannot. A judge cannot grant a warrant compelling an individual to waive their 5A rights. That seems to have direct bearing on the idea of providing individuals a right to strong personal encryption. Admittedly, there are many edge cases (furnishing information about a third party that one has personally encrypted), but we've bounded what the government can and cannot have before. Although from another comment I made I generally agree with your position that this is a pretty serious point of balance between the individual and the state due to the nature of encryption.
  - gozur88 11y ago
    "We got burned giving these people too much power" is absolutely a rational basis for public policy. The biggest threat to your life and liberty comes from the government, not some shady group out of the Middle East.

ethbro 11y ago

The difficulty is that encryption doesn't work with the warrant system. There's no "encrypted before a warrant is issued, but unlockable after one is" without key escrow or something similar. The real tragedy is that if the government had good intentions about doing so in a responsible manner (setting aside the problems with key escrow in the first place), then the NSA burnt those bridges to the ground between 1990 and 2015. Action. Reaction.

ehartsuyker 11y ago
Agreed (on all that).
tptacek 11y ago
That is an understandable set of emotions but not really a rational basis for public policy.
- marssaxman 11y ago
  "We cannot trust you to use this power responsibly and therefore refuse to delegate it to you" might be the most rational basis for public policy there is.
  - tptacek 11y ago
    The power to collect evidence to resolve criminal cases is one of the most fundamental powers of the state. You might just as productively suggest that we can't trust the USG to be a responsible state, and therefore it should disband.
    - AlgorithmicTime 11y ago
      The fact is this: you can't argue with math. It's math. You might ban it, but in this day and age, that's nigh-impossible. The ease of violating any ban, and the number of violators will effectively make the law unenforceable. And you know what will make government even less respectable? Unenforceable laws.
    - ethbro 11y ago
      > The power to collect evidence to resolve criminal cases Is already limited by the 5th Amendment and other caveats. So it's never been unlimited in the US.
      - tptacek 11y ago
        You mean the 4th Amendment (the 5th guarantees due process and prohibits coerced self-testimony). Put aside for a second that 4A is not in play here, because the phone's real owners consent to the search. 4A delegates to the courts the power to determine what evidence is and isn't in-bounds in an investigation. Nowhere in 4A will you find a prohibition on imaging someone's phone. Assuming the judiciary approves of a warrant, virtually nothing is out of bounds to a warranted search. That's what we're talking about here: a search that a judge has authorized. It's that power that we're talking about clawing back because of a loss of trust in the government. And what I'm saying is, it's pretty silly to pretend that you can claw back the power to collect evidence without calling the whole state into question.
        ethbro 11y ago
        No, I meant the 5th amendment and coerced self-testimomy. To me, that's an obvious example of evidence the government would like to have in many cases, but we clearly decided it cannot. A judge cannot grant a warrant compelling an individual to waive their 5A rights. That seems to have direct bearing on the idea of providing individuals a right to strong personal encryption. Admittedly, there are many edge cases (furnishing information about a third party that one has personally encrypted), but we've bounded what the government can and cannot have before. Although from another comment I made I generally agree with your position that this is a pretty serious point of balance between the individual and the state due to the nature of encryption.
- gozur88 11y ago
  "We got burned giving these people too much power" is absolutely a rational basis for public policy. The biggest threat to your life and liberty comes from the government, not some shady group out of the Middle East.