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Good grief. I would have thought that it was blindingly obvious that if "Apple" can access information on a phone, that means that some employees of Apple can

Good grief. I would have thought that it was blindingly obvious that if "Apple" can access information on a phone, that means that some employees of Apple can also do so, and I doubt very much that control of that access is as tight as I for one would wish it to be. Closing the backdoor is a win purely on that basis. Add into that the large question marks over FISA's legitimacy as a court ( https://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act#Criticism https://en.wikipedia.org/wiki/Foreign_Intelligence_Surveilla... ), and the potential for illegitimate use of the backdoor becomes decidedly alarming. My way of thinking is to compare a potential backdoor to what would happen if the backdoor doesn't exist. You get a warrant, and now you use the warrant to try and compel the accused to reveal the passcode to their phone. The accused refuses. Now what? Two possibilities: 1) the defendant is protected by the 5th Amendment, and can refuse to answer on the grounds that it may incriminate. If this is how the law goes, then any attempt to backdoor the phone is essentially an attempted end run around the 5th amendment. 2) The courts decide that this does not infringe on the 5th, and is instead covered better by the provisions for warrant-based search as provided for in the 4th amendment. In this case, the courts already have well-established remedies for refusal to acquiesce to a search, which should be used. Again, the backdoor is unnecessary.

twoodfin 12y ago
the defendant is protected by the 5th Amendment, and can refuse to answer on the grounds that it may incriminate. If this is how the law goes, then any attempt to backdoor the phone is essentially an attempted end run around the 5th amendment. I'm pretty sure that's not how the 5th Amendment works: Just because your protection against self-incrimination allows you to withhold potential evidence doesn't imply that the government can't attempt to acquire that evidence themselves through other means. You can refuse to answer questions like "What's written in your diary entry for the night of the murder?" or "Where did you hide your diary?". The police can still get a warrant to search your house for your diary and read it.
Someone1234 12y ago
There's another scenario which isn't relevant to the 5th or 4th: If the victim of crime was dead/incapacitated OR the perpetrator of a crime was dead (and the big G want evidence against their cohorts, or details on a crime which may harm others (like addresses where letter bombs were mailed)). Dead people aren't protected by the US constitution.
snowwrestler 12y ago
Kerr's first post claims that #2 is the current state of the law now with respect to passcodes. In general, 5th Amendment protections do not give people the power to resist warrants for evidence. The law makes a distinction between evidence (which can be compelled via warrant) and testimony (which cannot due to the 5th Amendment). If digital information stored on a phone is evidence covered by the 4th amendment[1], then the court can compel a person to provide it, including compelling them to use their passcode. Kerr's argument in his first post was that high-profile efforts to actively resist such warrants might lead the courts or Congress to "up the ante" by increasing the possible punishments. For example, imagine if Congress passed a law that failure to enter your passcode in a federal case results in a mandatory 10 year federal sentence (my invented example, not Kerr's). This is the legal equivalent of the "rubber hose" approach to defeating cryptography. [1] Generally I think we probably do want it to be so treated, because it would be a strong basis for limiting the NSA's power to collect such information.

twoodfin 12y ago

the defendant is protected by the 5th Amendment, and can refuse to answer on the grounds that it may incriminate. If this is how the law goes, then any attempt to backdoor the phone is essentially an attempted end run around the 5th amendment. I'm pretty sure that's not how the 5th Amendment works: Just because your protection against self-incrimination allows you to withhold potential evidence doesn't imply that the government can't attempt to acquire that evidence themselves through other means. You can refuse to answer questions like "What's written in your diary entry for the night of the murder?" or "Where did you hide your diary?". The police can still get a warrant to search your house for your diary and read it.

Someone1234 12y ago

There's another scenario which isn't relevant to the 5th or 4th: If the victim of crime was dead/incapacitated OR the perpetrator of a crime was dead (and the big G want evidence against their cohorts, or details on a crime which may harm others (like addresses where letter bombs were mailed)). Dead people aren't protected by the US constitution.

snowwrestler 12y ago

Kerr's first post claims that #2 is the current state of the law now with respect to passcodes. In general, 5th Amendment protections do not give people the power to resist warrants for evidence. The law makes a distinction between evidence (which can be compelled via warrant) and testimony (which cannot due to the 5th Amendment). If digital information stored on a phone is evidence covered by the 4th amendment[1], then the court can compel a person to provide it, including compelling them to use their passcode. Kerr's argument in his first post was that high-profile efforts to actively resist such warrants might lead the courts or Congress to "up the ante" by increasing the possible punishments. For example, imagine if Congress passed a law that failure to enter your passcode in a federal case results in a mandatory 10 year federal sentence (my invented example, not Kerr's). This is the legal equivalent of the "rubber hose" approach to defeating cryptography. [1] Generally I think we probably do want it to be so treated, because it would be a strong basis for limiting the NSA's power to collect such information.