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There is something very, very disturbing here, sort of like a "(legal) disturbance in the (legal) force", to join a Star Wars quote with Law... Let me explain.
by peter_d_sherman 7y ago
There is something very, very disturbing here, sort of like a "(legal) disturbance in the (legal) force", to join a Star Wars quote with Law...
Let me explain.
First, let me get across that I am neither for nor against Huawei, neither for nor against The Wall Street Journal, neither for nor against this article/video nor the claims made in it.
My first problem, if I have a problem, begins with human language...
You see, we can call something a "front door", we can call something a "back door". We can say that "front doors" are used lawfully, by law enforcement (or others), for the purpose of "lawful interception". And we can say that there are "back doors" (generally associated with illegal, unlawful activity -- but this may not be the case in all circumstances), and that there are "maintenance doors", that workers use.
But the problem is, this use of language dumbs down our conversation.
A simpler view of the universe would say that there are methods which can be used to access data, and that actors employing such methods are either authorized or not authorized.
In other words, you have "access method", and "authorized" or "unauthorized".
That's it.
Authorized is you have permission to use it.
Unauthorized is you don't.
That would be the simplest view of things.
But this is not what's disturbing...
You see, there's a fairly deep legal question in relation to this...
To understand it, let's suppose I was a manufacturer of network equipment. And let's suppose I was coerced by a government (U.S., Chinese, Other Government), by whatever means (legal, sanctions, threat of violence, threat of loss of commerce, ?) to add a backdoor/front-door/access method (call it what you will) to the network equipment, for this government's law enforcement community.
OK.
So now that backdoor/front-door/access method (again, call it what you will) -- is there and all.
Now, here's the legal question...
If it's there, by virtue of it being there, by virtue of the government actor knowing how to use it as a means of access, is the government (foreign or domestic) then legally authorized (do they have permission) to use it?
?
In other words, if I, as a network equipment producer, then sell my backdoored/front-doored/access method enabled product to a service provider -- do the legal rights for that backdoored/front-doored/access method -- go to the service provider, who must again explicitly grant them to the government (again, foreign or domestic) in order for them to use that backdoored/front-doored/access method, and still be authorized?
To make the story short, authorized access, (from a legal point of view), is not just one, but a series of contracts and contractual agreements (and the interpretation of those contracts!) made between many parties, including, but not limited to the manufacturer, the service provider, and the users to whom service is provided to.
In other words -- there's no easy answer!
The devil is in the details!
Even a Lawyer could not answer this question... it would have to be determined by the Courts, and then it could go many ways, depending on the number of actors involved, the contractual agreements between them, and the legal arguments raised...
We have FISA Court -- but even FISA is not a blanket authorization in the presence of other contracts! (FISA might be a blanket presumed authorization if no other contracts were present, but generally speaking, that won't be the case...)
In other words, two cases involving a lawful intercept from two different equipment manufacturers could go two seperate ways in the courts!
A legal mess, to be sure...