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Apple and Google are merely absolving themselves of being involved in the legal matters of others. The third-party doctrine basically forces third-parties to b

Apple and Google are merely absolving themselves of being involved in the legal matters of others. The third-party doctrine basically forces third-parties to be legally culpable for discovery. Google and Apple don't want to be legally responsible anymore, so they've pushed the responsibility for complying with counsel to the end-user. i.e. instead of law enforcement going to Google and Apple and saying "I have a legal right to search X. Hand it over.", law enforcement now needs to go up to the person whose papers and effects are being searched and ask the same thing. Had the founding fathers been aware that the notion that one day third parties would become responsible for the papers and effects for millions of citizens, it's reasonable to assume the warrants would have had to be issued in a way where the subject of the warrant would at least have a right to know they were the subject of a warrant. With third-party doctrine, the government got the benefit of issuing warrants to entities unlikely to protest because protecting the rights of others incurs a cost. Third-party doctrine has been a civil liberties disaster because it decoupled the recipient of the warrant from the subject of the warrant. That decoupling has lead to a scenario that deprives millions of people the right to contest a warrant in court because they might not even know such a warrant was ever issued. It's not like Google and Apple are taking away the government's ability to issue warrants. They are just removing themselves as a third-party. The government now needs to go directly to the person who possesses the phone and issue a warrant to that person.

csandreasen 12y ago
> i.e. instead of law enforcement going to Google and Apple and saying "I have a legal right to search X. Hand it over.", law enforcement now needs to go up to the person whose papers and effects are being searched and ask the same thing. Which is entirely the wrong way to conduct a criminal investigation. How effective can the police really be when they have to go to suspect and say "We've got enough evidence to suspect you of a crime and get a warrant, but not enough to convict. Can you please hand over all evidence that would further incriminate you?" > It's not like Google and Apple are taking away the government's ability to issue warrants. No, but they're making the warrants useless.
- mike_hearn 12y ago
  Eh? Police do that routinely. How do you think they get evidence to prove a building was a meth lab or crack house? They get a warrant, bust down the door and go inside. How do you think they get internal business documents when prosecuting white collar fraud? They get a warrant or subpoena and force the potentially guilty parties to hand over documents. I'm not sure why this seems like a radical departure. "The cloud" is a very recent phenomenon. Up until quite recently almost all interesting documents were held only by the suspect parties themselves.
  - csandreasen 12y ago
    The two situations aren't analogous - in both my cell phone example and your meth lab example the police need warrants, but they don't need the owner's permission to bust open the door to a meth lab, and they can't bust open the login screen on an encrypted iPhone without the owner voluntarily decrypting it. I linked to some case law examples in a previous comment[1], but basically the cops can't force you to decrypt an encrypted device because of your 5th Amendment rights, except in the rare case where you've already admitted that incriminating evidence is stored on that device (thus waiving your right to not self-incriminate). In your white collar example, they're not demanding the suspect turn over the documents, they're demanding the employer turn over the documents, which would imply that a third party already had access to the unencrypted documents and was willing to cooperate with the police. [1] https://news.ycombinator.com/item?id=8430501 https://news.ycombinator.com/item?id=8430501
    - mike_hearn 12y ago
      I think they are analogous - police usually start by asking nicely if they can search your home, and only get rough if you refuse. WRT decryption the USA is currently in a weird spot: some countries don't have the same hangups about forcing people to reveal encryption keys or unlock codes if there is a valid warrant or court order. I think the USA will go the same direction; if I understand American history correctly the purpose of the 5th Amendment was to avoid people being coerced into giving false testimony? It doesn't really apply to things like combination locks or passwords where there's no coercion risk so the original reasoning behind the amendment would not apply. My white collar example was thinking about banks, anti-trust and other such things where the suspect is the organisation as a whole.

csandreasen 12y ago

> i.e. instead of law enforcement going to Google and Apple and saying "I have a legal right to search X. Hand it over.", law enforcement now needs to go up to the person whose papers and effects are being searched and ask the same thing. Which is entirely the wrong way to conduct a criminal investigation. How effective can the police really be when they have to go to suspect and say "We've got enough evidence to suspect you of a crime and get a warrant, but not enough to convict. Can you please hand over all evidence that would further incriminate you?" > It's not like Google and Apple are taking away the government's ability to issue warrants. No, but they're making the warrants useless.

mike_hearn 12y ago
Eh? Police do that routinely. How do you think they get evidence to prove a building was a meth lab or crack house? They get a warrant, bust down the door and go inside. How do you think they get internal business documents when prosecuting white collar fraud? They get a warrant or subpoena and force the potentially guilty parties to hand over documents. I'm not sure why this seems like a radical departure. "The cloud" is a very recent phenomenon. Up until quite recently almost all interesting documents were held only by the suspect parties themselves.
- csandreasen 12y ago
  The two situations aren't analogous - in both my cell phone example and your meth lab example the police need warrants, but they don't need the owner's permission to bust open the door to a meth lab, and they can't bust open the login screen on an encrypted iPhone without the owner voluntarily decrypting it. I linked to some case law examples in a previous comment[1], but basically the cops can't force you to decrypt an encrypted device because of your 5th Amendment rights, except in the rare case where you've already admitted that incriminating evidence is stored on that device (thus waiving your right to not self-incriminate). In your white collar example, they're not demanding the suspect turn over the documents, they're demanding the employer turn over the documents, which would imply that a third party already had access to the unencrypted documents and was willing to cooperate with the police. [1] https://news.ycombinator.com/item?id=8430501 https://news.ycombinator.com/item?id=8430501
  - mike_hearn 12y ago
    I think they are analogous - police usually start by asking nicely if they can search your home, and only get rough if you refuse. WRT decryption the USA is currently in a weird spot: some countries don't have the same hangups about forcing people to reveal encryption keys or unlock codes if there is a valid warrant or court order. I think the USA will go the same direction; if I understand American history correctly the purpose of the 5th Amendment was to avoid people being coerced into giving false testimony? It doesn't really apply to things like combination locks or passwords where there's no coercion risk so the original reasoning behind the amendment would not apply. My white collar example was thinking about banks, anti-trust and other such things where the suspect is the organisation as a whole.