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>The power to collect evidence to resolve criminal cases is one of the most fundamental powers of the state. I agree. But it is no where stated or implied that

by aniro 11y ago

>The power to collect evidence to resolve criminal cases is one of the most fundamental powers of the state. I agree. But it is no where stated or implied that this should be an unlimited power. In fact, clear limits are placed upon that authority. If I invent a cypher and store all of my physical written works using that cypher, can the government compel me to decrypt those works upon discovery that they lack the ability to do so? What if I taught that cypher to my family? Can they be compelled? If so, under what authority? >You might just as productively suggest that we can't trust the USG to be a responsible state This suggestion is inherent within the Constitution. It is framed upon a mistrust of any Government to not become tyrannical. >therefore it should disband uh, what? nice leap.. did you use rocket shoes to get over the gap?

ethbro 11y ago
I agreed with your points until the last. :( Assumption of good intentions on the part of all comments usually produces a more productive discussion.
- aniro 11y ago
  I didn't intend to be inflammatory (at least any more so than the parent), merely point out that a logical leap had been taken that was not entirely faithful (imho) on the part of the writer. It is certainly not "mistrust government" ergo "disband government", especially when the government in question was formed near entirely upon the notion that a government should exist in a perpetual state of mistrust.
tptacek 11y ago
What "clear limits" are you referring to? Remember, this case is about the limits judges have in compelling the production of evidence. What are the limits on that authority? It's unclear whether you will eventually be compelled into decrypting documents. One circuit says you can't be, because of 5A. But that ruling was situational, and other courts might rule otherwise. Certainly I don't personally agree with the logic that compelled decryption is necessarily testimonial in nature, any more than opening a safe for which only you have the combination is testimony. The primary purpose of the ban on coerced self-testimony is to prevent bogus confessions elicited under torture. That's not at issue here. I don't understand your "inherent within the Constitution" argument. The Constitution says what it says. I'm citing it.
- aniro 11y ago
  It is my understanding that the central issue is not the judges authority to compel evidence be turned over to the state. The State is already in possession of the evidence, it is simply in a format that is unintelligible. Apple is not in possession of any evidence. The issue is whether a third party can be compelled to provide access to that evidence in order to make it intelligible and therefore meaningful. The combination to the lock (which apple claims they would be forced to construct, as it does not yet exist. The government seems to have accepted the veracity of this claim when they agreed to perform the labor if handed the tooling). What is the purpose of explicitly stating 4A if we can simply trust the government to be a good actor? It is inherent in the statement of explicit restraint that there is not trust. Preamble to the Bill of Rights - "The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution." I like that they use confidence.. it implies a matter of shades or degrees. Trust seems to imply something much more B&W. (http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html http://www.archives.gov/exhibits/charters/bill_of_rights_tra...)
  - tptacek 11y ago
    I'm sorry, but this still isn't a coherent argument. The Fourth Amendment delegates to the court the decision over whether a search is or isn't reasonable. It is a court that has ordered this particular search. The court is part of the government. If you can't trust any part of the government, the Fourth Amendment is immaterial: you can't trust the entity to whom is entrusted the power to adjudicate reasonableness.
    - JoeAltmaier 11y ago
      Its an electronic search of a device in the FBI's possession. Clearly this is a modern issue that exceeds the language of the Constitution etc. Its a fair question - how much extra work can a manufacturer be compelled to do for the FBI, to enable them to understand the device/information they have already seized? The word 'search' is being stretched to the breaking point here.

by aniro 11y ago

ethbro 11y ago

I agreed with your points until the last. :( Assumption of good intentions on the part of all comments usually produces a more productive discussion.

aniro 11y ago
I didn't intend to be inflammatory (at least any more so than the parent), merely point out that a logical leap had been taken that was not entirely faithful (imho) on the part of the writer. It is certainly not "mistrust government" ergo "disband government", especially when the government in question was formed near entirely upon the notion that a government should exist in a perpetual state of mistrust.

tptacek 11y ago

What "clear limits" are you referring to? Remember, this case is about the limits judges have in compelling the production of evidence. What are the limits on that authority? It's unclear whether you will eventually be compelled into decrypting documents. One circuit says you can't be, because of 5A. But that ruling was situational, and other courts might rule otherwise. Certainly I don't personally agree with the logic that compelled decryption is necessarily testimonial in nature, any more than opening a safe for which only you have the combination is testimony. The primary purpose of the ban on coerced self-testimony is to prevent bogus confessions elicited under torture. That's not at issue here. I don't understand your "inherent within the Constitution" argument. The Constitution says what it says. I'm citing it.

aniro 11y ago
It is my understanding that the central issue is not the judges authority to compel evidence be turned over to the state. The State is already in possession of the evidence, it is simply in a format that is unintelligible. Apple is not in possession of any evidence. The issue is whether a third party can be compelled to provide access to that evidence in order to make it intelligible and therefore meaningful. The combination to the lock (which apple claims they would be forced to construct, as it does not yet exist. The government seems to have accepted the veracity of this claim when they agreed to perform the labor if handed the tooling). What is the purpose of explicitly stating 4A if we can simply trust the government to be a good actor? It is inherent in the statement of explicit restraint that there is not trust. Preamble to the Bill of Rights - "The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution." I like that they use confidence.. it implies a matter of shades or degrees. Trust seems to imply something much more B&W. (http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html http://www.archives.gov/exhibits/charters/bill_of_rights_tra...)
- tptacek 11y ago
  I'm sorry, but this still isn't a coherent argument. The Fourth Amendment delegates to the court the decision over whether a search is or isn't reasonable. It is a court that has ordered this particular search. The court is part of the government. If you can't trust any part of the government, the Fourth Amendment is immaterial: you can't trust the entity to whom is entrusted the power to adjudicate reasonableness.
  - JoeAltmaier 11y ago
    Its an electronic search of a device in the FBI's possession. Clearly this is a modern issue that exceeds the language of the Constitution etc. Its a fair question - how much extra work can a manufacturer be compelled to do for the FBI, to enable them to understand the device/information they have already seized? The word 'search' is being stretched to the breaking point here.