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Is maintaining smart phone encryption after the commission of a crime, when the Gov. otherwise has a lawful right to search and seize evidence used in the commi

Is maintaining smart phone encryption after the commission of a crime, when the Gov. otherwise has a lawful right to search and seize evidence used in the commission of a crime an essential liberty? There is another famous quote from John Stuart Mill, "Your liberty to swing your fist ends where my nose begins." For example, take the Constitutional Right to bear arms. Obviously we have limited individual liberty to bear arms for safety through both regulations and criminal statutes. I think that trade off can be pretty reasonable in some instances (say, no guns at the airport/on a plane) and since I don't mind sacrificing a little liberty for safety I don't think that trade off makes me undeserving of either liberty of safety, does it? Please note, I am not trying to take a position other than public awareness and conversation about these things is always good; whereas, quotes about not deserving liberty or safety only serve censor an open conversation from a position of moral authority.

erdevs 10y ago
> Please note, I am not trying to take a position other than public awareness and conversation about these things is always good; whereas, quotes about not deserving liberty or safety only serve censor an open conversation from a position of moral authority. I agree with you fully, there. And I'm not a personal advocate of such quotes per se (though I note their power, as you do as well). I was simply arguing that it may be a false dichotomy to claim that the original meaning of the quote is "nearer the opposite" of it's current usage. Oversimplifying matters and creating false dichotomies also "serve [to] censor an open conversation" through logical fallacy and through historical authority, in this case. I think Franklin's quote is bombastic for dramatic effect, and that has its pluses and minuses. I think the real meaning is fairly simple and worthy of consideration, though: be very careful about trading short-term security at the cost of long-term freedom/liberty. In consideration of that point, there is a meaningful debate here. We should examine whether backdoors or other means of foiling encryption would actually provide a net increase to security in practice, or whether they might have no real effect or even decrease security. If we believe means of foiling encryption actually increase security overall in practice, then we would have to debate the tradeoffs to freedom/liberty, the potential for governmental abuse, etc. Given the government's track record of dramatic overreaching in the name of "security", I'm personally hesitant to take any of this lightly.
rudedogg 10y ago
> Is maintaining smart phone encryption after the commission of a crime, when the Gov. otherwise has a lawful right to search and seize evidence used in the commission of a crime an essential liberty? I would say NO. But, the issue is there's no way to only allow a backdoor to be used when/after someone commits a crime. As tech people we understand this, and history proves it. Apple had a person testify at the hearing who expressed this really well. She also brought up other points I hadn't considered. Also, the FBI is missing non-encrypted communications in most of these cases! I know encryption by default is going to be a problem for them in the future, but they are acting like it's the reason the recent attacks went undetected - when it actually had nothing to do with it.
- will_brown 10y ago
  >there's no way to only allow a backdoor to be used when/after someone commits a crime. Outside of the encryption debate, this concept rings true of most evidence. In other words in the streets nothing really prohibits an officer from illegally searching/seizing evidence of a crime and a prosecutor bringing charges, but the 4th Amendment is our protection only after the fact where illegally obtained evidence is subject to being suppressed from use at trial. Example, police illegally raid a house without a warrant, break open a safe and seize cocaine...all evidence of crimes including the illegally seized cocaine could be suppressed. Is there a way to determine when the backdoor was accessed? If so, then the defendant is actually more protected because there would be digital record of the illegal search/seizure vs the street example above where officers can lie about the factual events regarding illegal searches and seizures (i.e. testimony the defendant was outside the house in plain view holding the cocaine, so a warrant wasn't required). If not and it can't be determined when LEO accessed the backdoor it is still similar to any other illegally obtained evidence. >but they are acting like it's the reason the recent attacks went undetected - when it actually had nothing to do with it. I thought they tried to limit their position to need for the follow up investigation, but if they framed it to the public the way you describe, I agree that is disingenuous.
dvanduzer 10y ago
Another example: The phrase "an armed society is a polite society" is born of the frontier. The clearest (to me) boundary worth discussing here, is Apple as iCloud provider versus Apple as iPhone producer. Do we think of cryptography differently in these two contexts, or exactly the same?
TheSpiceIsLife 10y ago
I lean toward yes, it is an essential liberty. Society necessarily has to have protections built in that sometimes (often?) also protect criminals because we need strong civil liberty protections. When I was arrested for drug trafficking (the charges were later dropped) I told the police "No, you can't have my iPhone password, not because there is incriminating evidence on the phone I don't want you to see but because there are messages, emails, and notes on that phone that reflect the contents of my mind and the contents of the minds of my closes friends, and I will not give you nor your colleges access to the contents of my mind." They were unable to break the encryption on the phone, and my personal thoughts remained secure. If law enforcement can't obtain enough evidence from meta data and other evidence to get to beyond reasonable doubt, then too bad. I'm open to changing my opinion on this matter if someone can show me many examples of where serious crimes took place that wouldn't have happened if law enforcement had master keys to encryption.
michaelmrose 10y ago
Prove that someone knows the proper key to decrypt a given device. In some cases prove an encypted container actually exists. Suppose I set it up so that both data contained on the system and data I know is required to decrypt the data. Suppose that I set it up that the part of the data required is set up to be destroyed if I merely don't log in every day. If you arrest me and by the time anyone thinks to speak to me all possibility of ever recovering the data is gone. Have I destroyed evidence or not?

erdevs 10y ago

> Please note, I am not trying to take a position other than public awareness and conversation about these things is always good; whereas, quotes about not deserving liberty or safety only serve censor an open conversation from a position of moral authority. I agree with you fully, there. And I'm not a personal advocate of such quotes per se (though I note their power, as you do as well). I was simply arguing that it may be a false dichotomy to claim that the original meaning of the quote is "nearer the opposite" of it's current usage. Oversimplifying matters and creating false dichotomies also "serve [to] censor an open conversation" through logical fallacy and through historical authority, in this case. I think Franklin's quote is bombastic for dramatic effect, and that has its pluses and minuses. I think the real meaning is fairly simple and worthy of consideration, though: be very careful about trading short-term security at the cost of long-term freedom/liberty. In consideration of that point, there is a meaningful debate here. We should examine whether backdoors or other means of foiling encryption would actually provide a net increase to security in practice, or whether they might have no real effect or even decrease security. If we believe means of foiling encryption actually increase security overall in practice, then we would have to debate the tradeoffs to freedom/liberty, the potential for governmental abuse, etc. Given the government's track record of dramatic overreaching in the name of "security", I'm personally hesitant to take any of this lightly.

rudedogg 10y ago

> Is maintaining smart phone encryption after the commission of a crime, when the Gov. otherwise has a lawful right to search and seize evidence used in the commission of a crime an essential liberty? I would say NO. But, the issue is there's no way to only allow a backdoor to be used when/after someone commits a crime. As tech people we understand this, and history proves it. Apple had a person testify at the hearing who expressed this really well. She also brought up other points I hadn't considered. Also, the FBI is missing non-encrypted communications in most of these cases! I know encryption by default is going to be a problem for them in the future, but they are acting like it's the reason the recent attacks went undetected - when it actually had nothing to do with it.

will_brown 10y ago
>there's no way to only allow a backdoor to be used when/after someone commits a crime. Outside of the encryption debate, this concept rings true of most evidence. In other words in the streets nothing really prohibits an officer from illegally searching/seizing evidence of a crime and a prosecutor bringing charges, but the 4th Amendment is our protection only after the fact where illegally obtained evidence is subject to being suppressed from use at trial. Example, police illegally raid a house without a warrant, break open a safe and seize cocaine...all evidence of crimes including the illegally seized cocaine could be suppressed. Is there a way to determine when the backdoor was accessed? If so, then the defendant is actually more protected because there would be digital record of the illegal search/seizure vs the street example above where officers can lie about the factual events regarding illegal searches and seizures (i.e. testimony the defendant was outside the house in plain view holding the cocaine, so a warrant wasn't required). If not and it can't be determined when LEO accessed the backdoor it is still similar to any other illegally obtained evidence. >but they are acting like it's the reason the recent attacks went undetected - when it actually had nothing to do with it. I thought they tried to limit their position to need for the follow up investigation, but if they framed it to the public the way you describe, I agree that is disingenuous.

dvanduzer 10y ago

Another example: The phrase "an armed society is a polite society" is born of the frontier. The clearest (to me) boundary worth discussing here, is Apple as iCloud provider versus Apple as iPhone producer. Do we think of cryptography differently in these two contexts, or exactly the same?

TheSpiceIsLife 10y ago

I lean toward yes, it is an essential liberty. Society necessarily has to have protections built in that sometimes (often?) also protect criminals because we need strong civil liberty protections. When I was arrested for drug trafficking (the charges were later dropped) I told the police "No, you can't have my iPhone password, not because there is incriminating evidence on the phone I don't want you to see but because there are messages, emails, and notes on that phone that reflect the contents of my mind and the contents of the minds of my closes friends, and I will not give you nor your colleges access to the contents of my mind." They were unable to break the encryption on the phone, and my personal thoughts remained secure. If law enforcement can't obtain enough evidence from meta data and other evidence to get to beyond reasonable doubt, then too bad. I'm open to changing my opinion on this matter if someone can show me many examples of where serious crimes took place that wouldn't have happened if law enforcement had master keys to encryption.

michaelmrose 10y ago

Prove that someone knows the proper key to decrypt a given device. In some cases prove an encypted container actually exists. Suppose I set it up so that both data contained on the system and data I know is required to decrypt the data. Suppose that I set it up that the part of the data required is set up to be destroyed if I merely don't log in every day. If you arrest me and by the time anyone thinks to speak to me all possibility of ever recovering the data is gone. Have I destroyed evidence or not?