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Orin Kerr is clearly a lawyer. He argues not for what is right but for what is permissible given the existing body of law. Where the existing body of law is w

Orin Kerr is clearly a lawyer. He argues not for what is right but for what is permissible given the existing body of law. Where the existing body of law is wrong, his writings have no sympathy for the damage inflicted on its victims nor any sense that resisting such wrongs is noble. If the government never abused its authority, I would be much more sympathetic to Kerr's position. Given the facts of prosecutorial abuse, vague and conflicting laws, the ongoing gutting / suspension of habeas corpus, "three felonies a day" -- http://www.threefeloniesaday.com/Youtoo/tabid/86/Default.aspx http://www.threefeloniesaday.com/Youtoo/tabid/86/Default.asp... -- and many more reasons not to rest moral authority on our body of law, I find his insistence that we revere lawfulness to be foolish at best. It's important to stand up to unjust laws. Leaving aside warrants which are merely held to be lawful (where the true facts, might we know them, show the opposite), it's not just lawful warrants that this technology protects against. Law-abiding citizens may be compelled to reveal private information via totally unjust mechanisms such as National Security Letters. Consider Nick Merrill's experience: http://en.wikipedia.org/wiki/Nicholas_Merrill#Challenging_the_National_Security_Letter:_Doe_v._Ashcroft http://en.wikipedia.org/wiki/Nicholas_Merrill#Challenging_th... Also http://techpresident.com/news/24272/nick-merrill-fought-fbi-can-he-beat-nsa-too http://techpresident.com/news/24272/nick-merrill-fought-fbi-... Let's not even get into protecting yourself from the NSA. Any tools which help us resist such tyranny, even at the risk and expense of civil disobedience, are to be applauded. Reserve your condemnation for the John Yoo of the tech world.

snowwrestler 12y ago
Orin Kerr is definitely a lawyer, and has been working and writing on digital crime and civil rights for years. For example, he was part of the defense team during weev's appeal of his conviction. I do think he thinks beyond the technicalities of the law. And I think he's correct that there are legitimate reasons to pierce device encryption. If a victim is murdered, and their phone is locked, it sure would be nice too see if there were some evidence on that phone that could help catch the killer. That said, he knows better than most what the law does say, and I think that makes this an op-ed worth reading carefully. I found two of his points interesting. 1) A passcode is probably not covered by Fifth Amendment protections. Thus a phone owner who refuses to lock their phone could be punished by the court anyway. 2) An encryption system strong enough to thwart legitimate and legal police actions could lead to a legislative "backlash" (my word, not Orin's) of increased consequences for failure to unlock. This is the "game" in the title of the op-ed. Technology and law are often in tension and an escalation from one side could trigger an escalation from the other. But I disagreed with his state that "The policy switch doesn’t stop hackers, trespassers, or rogue agents. It only stops lawful investigations with lawful warrants." That seems wrong to me because it's not just a policy change, it's an improvement in how the OS encryption actually works. Seems to me that could help keep out some bad guys too.
- RickHull 12y ago
  I completely agree with your assessment of Kerr, and there is nothing wrong with purely legal analysis. What got to me initially was the deliberate limiting of legal scope to warranted privacy violations, as though warrantless privacy violations are insignificant. He's welcome to do so, but he should be clearer about this and less rhetorically dedicated to his agenda. EDIT: I see now that he reasons this technology only affects warranted privacy violations, since Apple has a policy of refusing unwarranted inquiries. He is overlooking the possibility that Apple may nonetheless be pressured, deceived, or compelled to violate users' privacy. He doesn't realize that Apple's claim of being invulnerable to warrants also protects the user from Apple's own vulnerabilities. It's not just USA law enforcement that targets users by exploiting Apple's access to protected data. My understanding is that warrantless privacy violations have grown tremendously since the Patriot Act, both in scope and quantity -- that we have many new laws or codes since then which reclassify previously warrantful privacy violations as now warrantless. He asks "How is the public interest served by a policy that only thwarts lawful search warrants?" This is a nasty rhetorical trick. Does Apple's policy change serve any other purpose than to thwart lawful search warrants? Kerr puts "no" in your head, but of course the answer is yes. He then makes appeal to the "civil libertarian tradition" of protection from warrants, saying that Apple is thumbing its nose at "that great tradition". What a joke. Apple is selling a product with powerful capabilities, some of which can be used to break the law, all of which have legitimate lawful purposes. Are Ford, Boeing, Delta, Budweiser, Louisville Slugger, Smith & Wesson all playing dangerous games as well? Lastly, this is about removing Apple's ability to unlock. Just like Colin Percival's tarsnap. Doing proper security via proper cryptography. Minimizing untrusted third parties. Apple is getting criticized by Kerr for doing the right thing for its users. There are no victims in this action. It should matter not a whit that this makes the government work harder to violate privacy. Apple has no general duty to offer permanent taps for the government's pleasure. This is why focusing only on warrantful privacy violations is a travesty of justice. Please watch this before re-reading Kerr: https://www.youtube.com/watch?v=eT2fQu50sMs https://www.youtube.com/watch?v=eT2fQu50sMs
  - deleted 12y ago
    [deleted]
eevilspock 12y ago
"Get real Orin - the government can serve the warrant the old fashioned (constitutional) way: on the intended target," wrote one of the commenters on the article itself. Gag orders served on service providers such as Apple preventing people from knowing the government is looking at their data a effectively made irrelevant. This is a big deal, whether or not the Fifth Amendment allows people to ultimately deny the government access.
- deleted 12y ago
  [deleted]
vfclists 12y ago
Sad to see a legal expert sounding like an apologist and a shill for the entitlement mentality which seems to afflict the security, law enforcement and entertainment industrial complexes. Their sense of ENTITLEMENT is ENORMOUS. "We are ENTITLED to YOUR PRIVATE DATA."

snowwrestler 12y ago

Orin Kerr is definitely a lawyer, and has been working and writing on digital crime and civil rights for years. For example, he was part of the defense team during weev's appeal of his conviction. I do think he thinks beyond the technicalities of the law. And I think he's correct that there are legitimate reasons to pierce device encryption. If a victim is murdered, and their phone is locked, it sure would be nice too see if there were some evidence on that phone that could help catch the killer. That said, he knows better than most what the law does say, and I think that makes this an op-ed worth reading carefully. I found two of his points interesting. 1) A passcode is probably not covered by Fifth Amendment protections. Thus a phone owner who refuses to lock their phone could be punished by the court anyway. 2) An encryption system strong enough to thwart legitimate and legal police actions could lead to a legislative "backlash" (my word, not Orin's) of increased consequences for failure to unlock. This is the "game" in the title of the op-ed. Technology and law are often in tension and an escalation from one side could trigger an escalation from the other. But I disagreed with his state that "The policy switch doesn’t stop hackers, trespassers, or rogue agents. It only stops lawful investigations with lawful warrants." That seems wrong to me because it's not just a policy change, it's an improvement in how the OS encryption actually works. Seems to me that could help keep out some bad guys too.

RickHull 12y ago
I completely agree with your assessment of Kerr, and there is nothing wrong with purely legal analysis. What got to me initially was the deliberate limiting of legal scope to warranted privacy violations, as though warrantless privacy violations are insignificant. He's welcome to do so, but he should be clearer about this and less rhetorically dedicated to his agenda. EDIT: I see now that he reasons this technology only affects warranted privacy violations, since Apple has a policy of refusing unwarranted inquiries. He is overlooking the possibility that Apple may nonetheless be pressured, deceived, or compelled to violate users' privacy. He doesn't realize that Apple's claim of being invulnerable to warrants also protects the user from Apple's own vulnerabilities. It's not just USA law enforcement that targets users by exploiting Apple's access to protected data. My understanding is that warrantless privacy violations have grown tremendously since the Patriot Act, both in scope and quantity -- that we have many new laws or codes since then which reclassify previously warrantful privacy violations as now warrantless. He asks "How is the public interest served by a policy that only thwarts lawful search warrants?" This is a nasty rhetorical trick. Does Apple's policy change serve any other purpose than to thwart lawful search warrants? Kerr puts "no" in your head, but of course the answer is yes. He then makes appeal to the "civil libertarian tradition" of protection from warrants, saying that Apple is thumbing its nose at "that great tradition". What a joke. Apple is selling a product with powerful capabilities, some of which can be used to break the law, all of which have legitimate lawful purposes. Are Ford, Boeing, Delta, Budweiser, Louisville Slugger, Smith & Wesson all playing dangerous games as well? Lastly, this is about removing Apple's ability to unlock. Just like Colin Percival's tarsnap. Doing proper security via proper cryptography. Minimizing untrusted third parties. Apple is getting criticized by Kerr for doing the right thing for its users. There are no victims in this action. It should matter not a whit that this makes the government work harder to violate privacy. Apple has no general duty to offer permanent taps for the government's pleasure. This is why focusing only on warrantful privacy violations is a travesty of justice. Please watch this before re-reading Kerr: https://www.youtube.com/watch?v=eT2fQu50sMs https://www.youtube.com/watch?v=eT2fQu50sMs
- deleted 12y ago
  [deleted]

eevilspock 12y ago

"Get real Orin - the government can serve the warrant the old fashioned (constitutional) way: on the intended target," wrote one of the commenters on the article itself. Gag orders served on service providers such as Apple preventing people from knowing the government is looking at their data a effectively made irrelevant. This is a big deal, whether or not the Fifth Amendment allows people to ultimately deny the government access.

deleted 12y ago
[deleted]

vfclists 12y ago

Sad to see a legal expert sounding like an apologist and a shill for the entitlement mentality which seems to afflict the security, law enforcement and entertainment industrial complexes. Their sense of ENTITLEMENT is ENORMOUS. "We are ENTITLED to YOUR PRIVATE DATA."