8 ms·

I always found examples such as the one with the trucker, which keep getting brought up in this context, extremely disingenuous. The same sort of argument could

by 4bpp 12y ago

I always found examples such as the one with the trucker, which keep getting brought up in this context, extremely disingenuous. The same sort of argument could easily be used for any tactic that ever resulted in anyone being convicted for something they most likely did - in a hypothetical alternative scenario, they might just as well have been extolling the benefits of torture by saying how after having a few of his fingernails pulled out, the scumbag trucker was more than happy to confess to his crimes. Nobody is doubting that giving the prosecutors more powers to produce incriminating material will produce more convictions. Emotionally charged anecdotes like this just serve to distract from the discussion about proportionality and possible abuses that we should be having, while providing no relevant information.

IBM 12y ago
I don't think it's an unfair argument. The assault by the trucker happened and evidence of it existed on the phone. In the post-iOS 8 world that evidence would be unavailable. It's the difference between him getting off or not (or likely getting off depending on the circumstantial evidence).
- 4bpp 12y ago
  Sure, but this is not being disputed. It's just such an obvious proposition that I'd argue making it adds nothing to the discussion, while taking attention away from the counterpoints that would (and slowly conditioning the reader to think that "who does it allow us to convict that we would like to see convicted?" is the most important benchmark to apply to legal principles).
- mckiddy 12y ago
  The evidence also wouldn't be available if he simply hadn't recorded the videos in the first place.
- drdeca 12y ago
  I don't understand why it would be reasonable to require that the phone have a backdoor which allows them to access the data if they have a warrant for that specifically, but not reasonable to require someone to give up the the password under contempt of court if they have a warrant for that specifically. Not that I necessarily think either is reasonable, but I don't understand in what way the second would be worse? I suppose if a person turned out to have not committed a crime, and there was a warrant against them, if they were required to give up their password, they might fail to remember it? Is that risk worse or lesser than the risk of authorities being able to e.g. get data without a warrant via the backdoor? I'm not really sure?
  - csandreasen 12y ago
    Because if there's something really bad on my device, I'd be better off telling the cops "I forgot the password" and risking possible contempt of court rather than them seeing the actual evidence and getting a far worse sentence.
danielschonfeld 12y ago
another disingenuous thing about that example is that law enforcement, really didn't do anything special. they got lucky, by the criminal's own stupidity. in other words, law enforcement really didn't do much in terms of law enforcing, by utilizing power that were available to them and will now be stripped away in an all encrypted world. in the new world, the criminal could just as likely do something stupid that will cause the data to be unencrypted and for them to find the damning evidence.
- csandreasen 12y ago
  In a sense, all evidence is the result of the criminal's own stupidity and all crimes are solved based on law enforcement getting lucky. If the criminals were smart, they wouldn't leave any evidence behind. The issue from law enforcement's perspective is that there is now a class of evidence that was previously accessible to them, but is no longer accessible not because the criminal got smarter, but because Apple said the police shouldn't have access to it. A warrant is already required to search a cell phone. Is there any reason why a cop shouldn't be allowed to search a phone when they went to court, presented their probable cause to a judge and was subsequently issued a warrant?
  - 4bpp 12y ago
    I think the answer people would be inclined to give to the last question depends a lot on how you formulate it. How about "Is the possibility that a court might decide that a cop should be allowed to see your data a reason to not allow you to hide it properly"? Should people also be legally compelled to take daily paper notes of all their potentially criminal thoughts because if they are later needed as evidence, it might be impossible to get them out of their heads even with a warrant?
    - csandreasen 12y ago
      In this case, though, it's not the people who are hiding it - the device manufacturer is. You've always been free to encrypt your data if you so choose. Nobody is buying a new iPhone because of the encryption; they're buying it because it's a newer, better version of an existing product - a product that police could search for evidence before if they had a warrant. If you want to keep your data away from the police, there's never been anything stopping you. If I'm the victim of a crime, I don't want some third party deciding whether or not the police can collect the evidence.
bickfordb 12y ago
I think it's also important to point out that this sort of evidence didn't exist until very recently. Before smartphones with video capability existed, the FBI wasn't insisting that technology companies develop them and that consumers adopt them. Now that we have them they're insisting that we give them unencrypted access to incriminate ourselves.
- ctdonath 12y ago
  Nonetheless, the American Founding Fathers recognized the core problem and addressed it in a clear comprehensive manner: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." In no way could that be construed as permitting federal requirement that personal communications & records be arbitrarily accessible by law enforcement agents on a "fishing expedition".
  - csandreasen 12y ago
    No, but it could be construed as permitting federal requirement that personal communications & records be accessible by law enforcement agents who have been issued a warrant based upon probable cause and describing the place to be searched and the persons or things to be seized.
    - ctdonath 12y ago
      Disagree. They understood encryption, and enumerated rights to free speech and not testifying against oneself. Warrants empower government agents to acquire information, but not compel the accused to explain it.
- YokoZar 12y ago
  Let's be fair, the police are actually very concerned about privacy and ubiquitous recording when it's of on-duty police behavior.

by 4bpp 12y ago

IBM 12y ago

I don't think it's an unfair argument. The assault by the trucker happened and evidence of it existed on the phone. In the post-iOS 8 world that evidence would be unavailable. It's the difference between him getting off or not (or likely getting off depending on the circumstantial evidence).

4bpp 12y ago
Sure, but this is not being disputed. It's just such an obvious proposition that I'd argue making it adds nothing to the discussion, while taking attention away from the counterpoints that would (and slowly conditioning the reader to think that "who does it allow us to convict that we would like to see convicted?" is the most important benchmark to apply to legal principles).
mckiddy 12y ago
The evidence also wouldn't be available if he simply hadn't recorded the videos in the first place.
drdeca 12y ago
I don't understand why it would be reasonable to require that the phone have a backdoor which allows them to access the data if they have a warrant for that specifically, but not reasonable to require someone to give up the the password under contempt of court if they have a warrant for that specifically. Not that I necessarily think either is reasonable, but I don't understand in what way the second would be worse? I suppose if a person turned out to have not committed a crime, and there was a warrant against them, if they were required to give up their password, they might fail to remember it? Is that risk worse or lesser than the risk of authorities being able to e.g. get data without a warrant via the backdoor? I'm not really sure?
- csandreasen 12y ago
  Because if there's something really bad on my device, I'd be better off telling the cops "I forgot the password" and risking possible contempt of court rather than them seeing the actual evidence and getting a far worse sentence.

danielschonfeld 12y ago

another disingenuous thing about that example is that law enforcement, really didn't do anything special. they got lucky, by the criminal's own stupidity. in other words, law enforcement really didn't do much in terms of law enforcing, by utilizing power that were available to them and will now be stripped away in an all encrypted world. in the new world, the criminal could just as likely do something stupid that will cause the data to be unencrypted and for them to find the damning evidence.

csandreasen 12y ago
In a sense, all evidence is the result of the criminal's own stupidity and all crimes are solved based on law enforcement getting lucky. If the criminals were smart, they wouldn't leave any evidence behind. The issue from law enforcement's perspective is that there is now a class of evidence that was previously accessible to them, but is no longer accessible not because the criminal got smarter, but because Apple said the police shouldn't have access to it. A warrant is already required to search a cell phone. Is there any reason why a cop shouldn't be allowed to search a phone when they went to court, presented their probable cause to a judge and was subsequently issued a warrant?
- 4bpp 12y ago
  I think the answer people would be inclined to give to the last question depends a lot on how you formulate it. How about "Is the possibility that a court might decide that a cop should be allowed to see your data a reason to not allow you to hide it properly"? Should people also be legally compelled to take daily paper notes of all their potentially criminal thoughts because if they are later needed as evidence, it might be impossible to get them out of their heads even with a warrant?
  - csandreasen 12y ago
    In this case, though, it's not the people who are hiding it - the device manufacturer is. You've always been free to encrypt your data if you so choose. Nobody is buying a new iPhone because of the encryption; they're buying it because it's a newer, better version of an existing product - a product that police could search for evidence before if they had a warrant. If you want to keep your data away from the police, there's never been anything stopping you. If I'm the victim of a crime, I don't want some third party deciding whether or not the police can collect the evidence.

bickfordb 12y ago

I think it's also important to point out that this sort of evidence didn't exist until very recently. Before smartphones with video capability existed, the FBI wasn't insisting that technology companies develop them and that consumers adopt them. Now that we have them they're insisting that we give them unencrypted access to incriminate ourselves.

ctdonath 12y ago
Nonetheless, the American Founding Fathers recognized the core problem and addressed it in a clear comprehensive manner: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." In no way could that be construed as permitting federal requirement that personal communications & records be arbitrarily accessible by law enforcement agents on a "fishing expedition".
- csandreasen 12y ago
  No, but it could be construed as permitting federal requirement that personal communications & records be accessible by law enforcement agents who have been issued a warrant based upon probable cause and describing the place to be searched and the persons or things to be seized.
  - ctdonath 12y ago
    Disagree. They understood encryption, and enumerated rights to free speech and not testifying against oneself. Warrants empower government agents to acquire information, but not compel the accused to explain it.
YokoZar 12y ago
Let's be fair, the police are actually very concerned about privacy and ubiquitous recording when it's of on-duty police behavior.