It's incredible how far we've come from the original intent of the Constitution. The reason the Bill of Rights isn't baked in is because the Constitution enumerated a small set of limited powers to the federal government, with the assumption (articulated in the Tenth Amendment) that all other powers were reserved for the states and for the people.
Thankfully the states demanded the Bill of Rights at ratification. Without it, we would have lost all of the rights listed by now, due to the rampant power-grabs of the federal government since the founding.
Although Snowden's lawyer claims the Bill of Rights was supposed to make the government's job "more difficult," he is missing a larger point: almost all of what the federal government does today is not it's job at all! Nothing in the Constitution grants the federal government power to do most of its current functions.
Careful, there: you're falling victim to historical revisionism in assuming there was a clear unified "original intent" that we can discern, or that the fight was between "the federal government" and "the states". The writing of the Constitution, and the fight over its ratification and the initial amendments (which had opponents who worried just as equally about enumeration of rights being used to deny others later -- the Ninth Amendment tried to solve this but people today still argue "well, it's not in the Constitution so it's not a right") was complex and full of individuals with all sorts of motivations that can't easily be boiled down to such simple terms.
And that's without getting into the fights over the Elastic Clause, or the Commerce Clause, or the other bits that underlie many of the things the federal government does today.
There's nothing complex or ambiguous about it. The United States' organic law is based in the acknowledgment of natural rights. Academics can debate if this has any legal enforcement or if the right of revolution is valid, but it doesn't matter to me.
My rights existed prior to the Bill of Rights and the government. If a local, state, federal or international government tries to diminish or deny my rights, I will fight to alter or abolish their policies and their institutions.
The FBI, NSA and DHS as a whole are enemies of human freedom and a threat to classical liberalism. There is no enumerated power that gives the federal government the authority to create a federal police force and what the NSA has done is unequivocally a crime.
Pass a Constitutional Amendment to make it legal. Abolish the FBI. And build a new organization from the ground up.
In the future, there won't be ISIS and there won't be the FBI. That is, if the future is of a better world.
"Natural rights" influence the Constitution (especially insofar as they influenced English Common Law, which is an even more powerful influence on the Constitution).
But it's very hard to argue that they control, because "natural rights" mean different things to different people.
(It is also the case that purported natural rights are frequently in tension with each other; there's no "natural tiebreaker" between "natural rights", which makes it hard to rely on them to resolve controversies.)
If you want to make an argument that the Constitution must implicitly protect some particular natural right not expressed in the text, it's helpful to be specific. Often, it's straightforward to infer the intent of the framers from their actions immediately after ratification.
The process of forming of the union was complex, and there was a negotiation to bring all parties together. History played out the way you wanted, slavery was abolished after a bloody civil war.
Damn whoever put this simplistic "the framers were slavers so the lessons they taught can be ignored" notion in your head. Individual freedom is not an outdated concept!
You and others here just add ignorant poison to a good debate.
> My rights existed prior to the Bill of Rights and the government
"Existed" in what sense!? Are they deducible by pure reason? Were they written on stone tablets?
Seriously though, the Constitution and the Declaration of Independence may refer to the idea of natural rights, but in my opinion this is due to the prevailing state of philosophy and political theory at the time, and doesn't bind Americans to forever understand their own rights in terms of "prior" natural rights that are "later" secured by the government.
This was the thesis of the Declaration of Independence upon which the theory for the Constitution was based. That natural rights are 1) exist and 2) are "God given" and are not granted by governments.
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...."
It speaks to the power of that part of US historical documentation that despite it declaring all men equal (women miss out again), the US then spent the next 80 years owning one type of human as property. If the core essence of the words were immediately ignored by the original authors, why should they be considered so ironclad today?
I don't bring this up to defend it, but it was pretty clear that Africans weren't actually considered people at the time. You can't use modern value judgements unless you want a dissonant argument.
> You can't use modern value judgements unless you want a dissonant argument
This is my whole point! It's dissonant. There is no point in holding to the purist ideals of a document, if the authors themselves wrote it to ignore the invconvenient facts of life. Some people talk of the authors like they're some sort of demigods, and therefore any of their utterances are uncontestable. Highlighting dissonance like this is important it countering this trend.
It's worth noting they were well aware of the contradiction and slavery mainly got a pass to avoid an immediate civil war with the southern colonies. So yeah, they made choices for purposes of political expediency, but they weren't totally unaware of the contradiction. Thomas Jefferson was actually in sort of a "tough" spot (I say this without sympathy or defense) because it was widely recognized in his intellectual circles that slavery was wrong and against the many ideas he and his peers espoused, but his own personal wealth was so tied up in it that he had to make intellectual excuses for it (see Notes on the State of Virginia).
No, you're confusing my statement of the what the law at the time was with some sort of comprehensive statement of opinions that I couldn't possibly know.
That's what the documents say - natural rights codified. If we no longer believe that, we need a new set of documents.
And there are plenty of folks who believe that. If we were writing new founding documents, we'd have a pretty good idea of what 'should' be rights. Where does that come from?
It comes heavily from what you've been taught is important, which, funnily enough, is culture-dependent. A good many people would, for example, argue that a person has a right to shelter and sustenance, and to demand that from others when they can't access it - but other people will argue that people have a right to refuse to give resources to others, even up to the point of refusing taxation. One might argue that one has a right to work without discrimination or harassment - others might argue in favour of freedom of association and free speech, "if you don't like it you don't have to work for them".
To move even further away from currently implemented systems, one might argue that private property is not a right, which is actually entirely reasonable - property is solely a "right" to abridge others' rights, if we're going by the "what's a right is whatever you're allowed to do if nobody stopped you" definition. We could even argue that the ability to break a contract without retribution must be protected as a right, in some schools of thought. What rights "should" be protected - and in what circumstances - winds up being a matter of the opinion of the people who decide which rights to protect. There is no formal system of logic which starts off with no assumptions, and many of the ones which back politics start off with the goal - to protect people's rights, we must... protect people's rights.
Even the idea that a founding document should primarily enumerate rights is because of what you've been taught - why not enumerate duties as well, or instead? Why not write a manifesto with a general goal and proposed method of getting there and call that your founding document? What even is the goal of a founding document?
Why is abridging your ability to do whatever you want to any degree abhorrent - and why is abridging that ability in certain circumstances not so? Is it impossible to come up with a stable system which holds up a different ideal?
I don't really expect all these questions to be answered, as the exact answers are nearly entirely pointless - the point is that these questions can all be asked and different answers can be reached, many of which make sense.
For example, an argument that nobody has a duty to feed and shelter somebody on the edge of starvation, as that harms the person doing so, entirely ignores the harm that this protected right has on the person about to die of starvation - although of course to bring that up requires that the goal of your system of protected rights is to reduce harm, which may not be the case. However, the only way "we must protect all these listed rights at all costs, ignoring all other input" makes sense is if the goal of your system is solely to protect those rights. I don't personally feel that's a very useful thing to do, as it's tautological. A good many people will disagree.
Right, rights are a horrible way to express the limits we impose on governments. You can starve in a hellish jail despite all the god-given yada yada.
If 'right' is to mean anything, it has to basically be seen as a natural-law restatement of "If you infringe these freedoms (restrict food, etc) then the victim will try to kill you and we'll be on his side."
In that case, a right is anything you'll fight to provide to others. (That being the only long-term effective way to guarantee it for yourself as well.)
> That's what the documents say - natural rights codified.
What documents? The Constitution says nothing of the sort.
> If we were writing new founding documents, we'd have a pretty good idea of what 'should' be rights. Where does that come from?
To the extent that people would share common preferences as to what rights should be protected, its a matter of shared cultural norms shaped by our political/legal history; there'd also be considerable disagreement, too.
You can't write a Constitution like the United States', without natural rights. The most basic question in any government is "who has the right to rule"? The very first line of the Constitution establishes that it is the people who hold that right in the U.S., which means they have some sort of natural rights. If they didn't, they couldn't form a government in the first place, for lack of sovereignty.
> You can't write a Constitution like the United States', without natural rights.
Sure you can.
> The most basic question in any government is "who has the right to rule"?
I don't think that's true. I think that you are assuming a framework of natural rights to make this statement, which is a circular argument.
> The very first line of the Constitution establishes that it is the people who hold that right in the U.S., which means they have some sort of natural rights.
Alternatively, the first line of the Constitution acknowledges the empirical fact that government is simply that which people treat as legitimate authority, and therefore, independent of any notion of right, the people have an inherent power to govern and choose their government, as any government that the people do not choose to treat as such cannot government, and anything that the people choose to treat as a government can govern, whether or not one assumes any mystical notion of pre-legal "rights".
Now, I suppose you could call this inherent, immutable power a "natural right" -- it is a real thing that really exists -- but, if so, its fundamentally different than all the other things that people hold out as "natural rights", which are not inherent, immutable powers, but instead are simply preferences for the conduct of relations between persons (including persons acting through or on behalf of "governments"), rendering the whole field a morass of equivocation.
> I think that you are assuming a framework of natural rights to make this statement, which is a circular argument.
Not true! For thousands of years, in hundreds of nations, the right to rule was divinely conferred and hereditary. The concept of natural rights was the legal invention that conferred similar rights upon everyday regular folks, so that they could self-organize to form their own sovereign government.
Sure people had done that before, but the concept of "natural rights" formalized an existing cultural convention--which is what all law does.
> independent of any notion of right, the people have an inherent power to govern
I mean, how can you have power without rights? Slaves in the American south are examples of people who did not have rights. Not coincidentally, they also had no power.
Quite easily. "Rights" are the moral (in the case of idealized views of rights, including natural rights) or legal (in the case of legal rights) authority to make a decision and expect it to be respected by others. "Power" is the practical ability to make a decision and have it take effect (whether or not others respect it, though others respecting it may be part of why you have that ability.)
Power can be a result of legal rights which may be the result of a cultural agreement on moral views of rights, but its possible for any or all of those three to vary from the others rather than reflecting them.
Let me rephrase: how can you have legal power without legal rights. (Answer: you can't.)
Sure, a slave can physically harm his master even though the slave has no legal rights. But the legal authority of his society will then fall upon him, and he will have no redress to process--like a presumption of innocence or evidentiary rules. He is property, and property can be destroyed by its owner.
Likewise, in a society in which the right to rule is conferred divinely, a king's subjects do not have the legal right to challenge the king's rulings. From a practical perspective, a populace can depose a king, but then what? If they install a new king, then that king assumes the same right to rule. If they choose to set up a republic, then they need a new basis for right to rule.
Natural rights are like the legal equivalent of a logical axiom. Legal reasoning must have a place from which to start; by asserting a small set of permanent, self-evident rights, the law has a foundation upon which to build a government of equals. Then the conversation can shift from "how does a government of equals grant the right to live" to "what are the few circumstances in which the law can impinge the right to live?"
The handy thing about the latter architecture is that the law becomes self-referential--the Constitution describes the powers and limits of the government rather than trying to comprehensively list all powers and rights of the people in all situations--which would be a much longer and more complicated list.
They are not exactly deducible by pure reason, but an artificial life algorithm based on human psychology and randomly sampled polls might be able to figure out the optimal allocation of powers to delegate to the government and to be retained by the people to maximize a total public benefit metric.
What we have now in the US is basically a guess from circa 1783, based on the prior centuries of British-American Common Law, plus a few hotfixes in the form of subsequent amendments.
This iteration has only run for 2.33 centuries, and hasn't entirely collapsed yet, but a preliminary analysis seems to indicate that the interstate commerce clause, self-reinforcing redistricting procedures, and the currency clause should have undergone a bit more scrutiny the first time around.
As for "natural rights", so long as "might makes right" is the dominant political paradigm on Earth, the natural rights are pretty much everything that people might threaten some form of rebellion over, if they were to be infringed. So there is no universal set. Different people would go to war over different principles.
If you love Taco Tuesday, and enough people share that sentiment that you would collectively present a legitimate threat to your current government if you were to actively oppose it, then you have a natural right to eat tacos on Tuesdays. Any government infringes upon that right at its own peril. That natural right is "secured" by the government only in the sense that its officers don't want to be fired (or guillotined) over a handful of cilantro. It does not secure and defend natural rights on behalf of the people, but avoids attacking them--actually just avoids presenting the appearance of attacking them--because the people will defend them if they are threatened.
So your rights did not exist before you were born. They didn't even exist as you were a baby. What you may have thought in retrospect was your right to live was actually your parents' right to not have their children killed. You didn't get any of your own natural rights until you acquired the ability to inflict some form of pain--or at least inconvenience--upon potential adversaries. Your right to yummy dessert after yucky vegetables was not defended by any government, but by the threat of the wailing, flailing temper-tantrum.
You decide what your "natural" rights are. If the government can't find some way to slot them into its existing laws, then you will eventually have a problem with each other.
> You decide what your "natural" rights are. If the government can't find some way to slot them into its existing laws, then you will eventually have a problem with each other.
Going back to the declaration of independence, the US had no more right to be independent than the Confederate States did. "After the Americans declared their independence, they had to win it by force." Similarly, the Confederate States had to do the same.
I think most of us have a strangely complacent thought process when it comes to individual rights. We think that rights are eternal and they will just exist forever. However, it seems that if we don't defend the rights they will morph or even go away if they are inconvenient to someone in power.
They existed because had the government not acknowledged our freedoms we wouldn't have accepted the government. It's not like people were sitting around in fear and a government walked by and said "Hey, how about some rights in trade for tax?".
They proposed and created a government that helped to protect the rights they had already decided to die protecting.
Most of what you say is reasonable and apparently historically accurate, but
> the Commerce Clause
was certainly, definitely, absolutely not understood by any notable thinker at the time of the drafting of the constitution to mean what it has been interpreted to mean today (ie, Raich v. Ashcroft etc).
I think there is basically unanimity among legal scholars on this point.
You should read the middle chapters of Ron Chernow's biography of Alexander Hamilton, because he had a pretty expansive view of the "Necessary and Proper" clause.
The word "federal" is doing a lot of work in your argument. Would people opposed to a federal court ordering Apple to unlock an iPhone be okay with a state court doing it? I'm going to guess "no." Remember: the Bill of Rights didn't originally limit the states at all. That's a 20th-century invention. And unlike the federal government, the state governments were always understood to be ones with general--rather than enumerated--powers.
As to your final point: while education or healthcare may arguably be outside the scope of the federal government's jurisdiction, national security and suppression of internal rebellion was one of the motivations for creating a strong federal government. Surveillance may be unconstitutional for other reasons, but it's definitely not outside the federal government's enumerated powers.
> Would people opposed to a federal court ordering Apple to unlock an iPhone be okay with a state court doing it? I'm going to guess "no."
If my state decides to do something demented, I can move to another state. If the thing they are doing is sufficiently demented that enough people move, it will have a material effect on the state. This creates a dynamic that disincentivizes stupidity.
The barrier is substantially less for the federal government. It usually takes quite a bit of abuse before people start moving to another country. That makes the state vs federal argument relevant.
> As to your final point: while education or healthcare may arguably be outside the scope of the federal government's jurisdiction, national security and suppression of internal rebellion was one of the motivations for creating a strong federal government.
Okay ... is the FBI/DEA/TSA/etc. there to suppress internal rebellion? I think you can make a pretty good argument that that's true, but they certainly don't advertise themselves that way.
Hear, hear. The freedom to vote with your feet is one of the most important characteristics of the American experiment.
Among all voting methods it is uniquely effective and accessible - you get a large roster of fifty 'candidates', and the cost of moving to another state is much lower than the cost of buying an election.
When power is ceded from state to federal level, diminishing the diversity of candidate states, an important form of democracy is curtailed.
> If my state decides to do something demented, I can move to another state.
Most people can't pick up and move their lives so casually. They're certainly not going to do so en masse if a state guv breaks into a criminal's phone. Hardly a disincentive.
If I move state, it won't be because the state government broke into a cell phone.
Police in certain areas in the US have shot innocent people in the back, yet those states aren't seeing huge exfluxes of population due to that. If the public aren't going to move state due to an innocent being shot by a macho cop, they're sure as hell not going to move because a phone got examined.
And in any case, if you really want to change this stuff, don't vote with your feet, vote with your vote. A politician doesn't care if a detractor goes elsewhere. It doesn't hurt. A politician does care if detractors vote against them - they can lose their fat-cat job. A small percentage of outraged citizens leaving the state is actually better for the politician than that same percentage creating a swing against them in the election.
Voting with your feet also doesn't help if all states are going down the same path (eg: current concealed carry laws are spreading like a virus)
Don't be so pedantic. My point was that when selecting a new state, should the opportunity arise, you can factor a state's laws into your decision. Many people, particularly entrepreneurs do this everyday. Moving to get the law you want has a much higher chance of success than voting. Faster too.
Incorporating in Delaware is not moving to Delaware. And entrepreneurs aren't going to move to South Dakota if that state starts making favourable laws, because that's not where the population centers are (and hence markets for both customers and talent).
Yes, you can "factor in a state's laws", but you're missing my point that no significant demographic of migrants will bother with "oh noes, that state broke into a criminal's iphone". The "invisible hand of the market as applied to the electoral system" does not apply in the OP's given context.
Do you honestly think there's no level of taxation that would cause people to physically leave a populated state? There is, and this is why states are forced to keep it relatively low, just as they are forced to not impose "demented" laws.
Why isn't it true? There may be a high cost involved for some people, but it's not outside the realm of possibility. Can you provide an example why I couldn't move if the government was "targeting" me?
> Can you provide an example why I couldn't move if the government was "targeting" me?
Among the "demented" things that government might do that might offend your sense of rights and make you want to leave is detaining you based on based either on evidence seized (e.g., by covert surveillance) in a way you view as offensive to your rights or for violation of a newly-adopted emergency law you feel violates your rights.
By the time you become aware of the "demented" action that motivates you to leave, you may no longer be free to do so, as a direct consequence of that action.
The Constitution is, after all, just a piece of paper, so it can easily be ignored and misinterpreted without the system breaking and throwing an "error message". Paper has no power to enforce the rules written on it.
Digital systems, however, are programmed deterministically and do not have such problems:
>"The only way to ensure the human rights of citizens around the world are being respected in the digital realm is to enforce them through systems and standards rather than policies and procedures."
What exactly is the difference between systems and standards and policies and procedures?
Algorithmic systems can be internally deterministic and consistent, but always always the problem is ascribing significance to symbols. Rights and laws try to solve fundamentally ill-posed problems. Rights and laws inevitably conflict with each other and the baroque complexity of law is the result of top-down systems attempting to resolve such inconsistencies as they arise.
I for one do not welcome our algorithmic overlords. It sounds like the revenge of Han Feizi and the Legalists, who wanted to bind all human behavior to a systematic, all-pervading set of rules and thus bring human subjects into perfect harmony with the state. I do not see why systems and standards are better than policies and procedures.
>What exactly is the difference between systems and standards and policies and procedures?
Policies and procedures are paper based sets of instructions. I.e. the 4th amendment.
Systems and standards are electrically programmed. I.e. encryption.
It is the difference between saying "this should not be done" and actually designing a system in which it cannot be done.
>"The mere existence of the "police state" anywhere is the sure sign of old arrangements being propped up by newer forms that have already rendered the older forms irrelevant."
-Marshall McLuhan, Take Today: The Executive as Dropout
If I remember correctly, the Bill of Rights only applies to the states when a case has been challenged and the amendment applied to the states via selective incorporation.
True, but with the addition of the second amendment through DC v Heller, all of the bill of rights now applies to the states (expect, maybe, for the third amendment).
Parts of each of the first eight amendments, leaving aside the third, have been incorporated against that states. But not the entirety of all of them. For example the Grand Jury clause off the Fifth Amendment and the Excessive Fines clause of the Eight Amendment have not been incorporated.
The Ninth Amendment has sometimes been used as a partial basis of modern sexual privacy law (see penumbras and emanations) and inasmuch as those doctrines also apply to the state I guess you could say that the Ninth has kind-of, sort-of been (partially?) incorporated. It wouldn't make any sense to try to incorporate the Tenth Amendment.
>But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it.
Surveillance isn't any more okay because it's at the state level instead of federal.
In fact, I'd argue the more local the surveillance, the worse it is, because in federal government databases you are just a number, while your town/village government is more likely personally know you, your friends, and your family and have opinions about your lifestyle that they might share with those people.
Unless all 50 states democratically permit warrantless surveillance, you'll have a place to go to get away from it. Now you might have to live with other kinds of government intrusion, but it's in a state's interest to stand out and attract tax-payers with a progressive set of laws. Codifying and institutionalizing draconian laws the national level doesn't leave us with any choice (if we want to stay in the U.S.A. of course).
> Although Snowden's lawyer claims the Bill of Rights was supposed to make the government's job "more difficult," he is missing a larger point: almost all of what the federal government does today is not it's job at all!
I don't think he's missing the point. I think he is making the point that, even to the extent that government is serving legitimate purposes through powers that are unquestionably delegated to it in the Constitution, the Bill of Rights is intended to constrain the power of the government in ways which make it take more effort, because the alternative which leaves the governments job easier when it is well motivated also makes the government more dangerous when it has poor motives, both by endangering the innocent as targets of government action and by making it easier for the government to seem to be taking appropriate action while it neglects the real needs of the populace.
Due process protections make the government demonstrate that it is taking action against the right parties when it takes certain actions.
Even if what you're saying is true, would you have given up all the economic, political, and influential gains that the U.S.A. has made since the federal government became powerful after the civil war? Without the strong federal government, where would the states be today?
Philosophically, I probably agree with you: I'd like more individual rights, local rights, state's rights. But, if things had turned out differently, I'm pretty sure that our small fraction of the world's population would not control such a large portion of the world's wealth, and we wouldn't be living such comfortable lives. And, I'm sure that democracies would not be as wide spread as they are today.
The reason why I brought it up is because it illustrates just how flexible "strict textual constitutionalists" actually are. Like most political arguments, it quickly falls into "Well, I like this, so there."
By a strict textual reading, without amendment, the Air Force has been unconstitutional since September 16, 1947, and so should be immediately remanded to several states, because there's no strict authority spawning from the 18th century for establishing an air force.
The second amendment, also talks about bearing arms in the explicit context of "a well regulated [state] militia" and nothing else, but that gets washed over because, "I like my hobby."
> I’m not surprised when I see polls that say that Apple should turn over the information to the FBI
Grr. This poll was completely biased and it's being cited all over the place as if it were a good gauge of public opinion.
The question is framed as if Apple only needs to unlock the phone. It does not mention that Apple would need to write new software and alter its product. [1]
The real question is, should the DOJ be allowed to force Apple to create new software that enables the phone to be unlocked. That is the question that is being put to the courts, and that is the question that needs to be asked of the American people if this is to become an election issue.
The poll question:
"As you may know, the FBI has said that accessing the iPhone is an important part of their ongoing investigation into the San Bernardino attacks while Apple has said that unlocking the iPhone could compromise the security of other users’ information. Do you think Apple"
* Should unlock the iPhone (51)
* Should NOT unlock the iPhone (38)
* Don’t know/Refused (11)
I really wish the poll questions included anything at all asking about whether people understood the potential negative consequences of simply "unlocking the phone". For example, "do you believe Apple that unlocking this phone would compromise security for other users?"
Yeah. The poll does a lousy job of ascertaining the respondent's knowledge. That also shows bias for the DOJ/FBI since most people probably aren't knowledgeable about such a recent case yet.
Another question asks the respondents to judge their own expertise on the subject:
> How much if anything, have you heard about a federal court ordering Apple to help the FBI unlock an iPhone used by one of the suspects in the San Bernardino terrorist attacks? Have you heard
* A lot (39)
* A little (36)
* Nothing at all (24)
* Don’t know/Refused (1)
>The problem I have is with stuff like their answer to the question "Could Apple build this operating system just once, for this iPhone, and never use it again?", which essentially is outright lying: the "master key" in question is their signing key, not some piece of trivial software they develop (and then sign) in order to automate this process for the FBI. Apple already has the only master key of relevance: that key already exists; the idea that the master key is something that they need to "build" and then would have to "protect" is them trying to divert attention from what is actually important.
>The world isn't somehow different once that software exists
The world is very different once compelled speech is accepted, i.e. when the government can force you to use a signing key to produce a digital signature expressing trust in software you didn't voluntarily write and don't actually trust.
Some people are bending over backwards to tell us how easy this will be for Apple. Strangely, none of them are on the hook for that prediction...
Weakened firmware would be a master key. The only hope is that a device-ID check could be baked in well enough to prevent it from being repurposed, etc. In my experience, a hastily designed security feature in a rushed firmware update will always have bugs.
There is a ton of risk to the innocent owners of iPhones, and to everyone from this precedent, and most-importantly, very little benefit from cracking this specific work phone of a dead killer.
The government has failed to make a convincing case.
Every time any recent iPhone is updated, it needs a new signature from Apple specific to that device, and a nonce to prevent replay attacks. Without Apple's key, the firmware is useless.
The point is that every use of it requires a judge to sign off on it. That means it can't be used by "rogue" government officials, nor will "hackers" be able to use the software, because the software is useless without a signature.
I will trust Apple over the government on computer security matters any day of the week.
Even better, when Snowden buys a smartphone, we'll know which one is truly securable by the user.
From an above commenter,
"Handing over the key is worse than being compelled to use it; that's perpetual compelled speech, where the government would be able to declare software trusted-by-Apple forever. Eroding public trust in digital signatures is an attack on the entire 21-century economy."
A judge signing off on compelled speech and conscripted development of software is still unconstitutional (and specifically excluded under CALEA). If the government wants a back door in to the cryptosystems of private companies, they should pursue this through the legislative process.
Handing over the key is worse than being compelled to use it; that's perpetual compelled speech, where the government would be able to declare software trusted-by-Apple forever. Eroding public trust in digital signatures is an attack on the entire 21-century economy.
The real question is: should private citizens have the right to engage in private communication that the government cannot tap? That's essentially the data being asked for here.
You need to understand that once you commit a crime, you lose many rights you previously had (e.g. to vote). Not to mention that once you're dead (as in the San Bernardino case), you arguably lose all of your rights.
The problem isn't that the government wants to infringe on the rights of a deceased criminal. The problem is that by doing so, every citizens' rights are in jeopardy.
Basically Apple created the current problem by making it possible to push new firmware to a locked phone. I'm not saying that Apple is worse than industry standard, just that the backdoor already exists.
So what prevents the FBI from asking Apple to have a team visit the Apple offices, get access to all code that runs on the iPhone and the docs and signing keys?
The team will then unlock the phone and leave with nothing but the unlocked phone.
All of this, get Apple to appear as a third party witness already exists in the law.
I agree with you that a more secure device could have been created. However, Apple did not write this poll, and that's what I'm focused on in the above comment.
> So what prevents the FBI from asking Apple to have a team visit the Apple offices, get access to all code that runs on the iPhone and the docs and signing keys?
I believe the DOJ would like to set a precedent here of having Apple weaken its own security. If the US wins this case and Apple is compelled to write special software, then Apple may be expected to provide a back door to any other of its present or future devices. That is much more powerful than having the FBI grab source code and hack the system themselves. They'll simply expect Apple to do it for them.
The FBI doesn't just want to unlock one phone. They want a system to unlock all iPhones. This case is just a convenient way for the FBI to force Apple to comply with their greater goal.
The legal precedent set would compel Apple to do this for every phone the FBI brought them. The process of unlocking the phone doesn't matter. It's the precedent set that is at issue.
I'm saying the government framed it in a weird way. The court case compels Apple to act. That's clearly wrong.
However, Apple is a neutral third party that holds information needed in an investigation. And there are ways to use this information securely. And the phone is clearly connected to a crime.
So it should be easy for the government to formulate a request that Apple cannot refuse under the law.
Why the FBI asked for something else, I don't know.
What Apple should do now is as soon as possible to roll out a firmware upgrade that locks them out of all phones that are currently in use. Then next time, it will be impossible for Apple to help.
>>However, Apple is a neutral third party that holds information needed in an investigation.
No, they may have the technical ability to weaken a product they made, which may hold information needed in the investigation. They already provided the information they actually have access to (the iCloud backups).
If they are indeed forced to do this, I expect the market cap of AAPL will drop significantly (billions of dollars, most likely) to reflect the weakened security of their product. Is that a reasonable thing for the government to require of a neutral third party?
The whole conversation is being muddied by people who insist that every observation and line of thinking is a form of advocacy for one of two positions, and should be interpreted through this. Witness the responses to Gate's comments.
The situation is more nuanced than the loudest voices would want us to believe.
Or put it another way, pretend Apple runs a storage facility. The FBI wants access to a particular storage locker, but Apple is refusing to cut the padlock on the door. Very few people would argue that Apple is justified in that situation. I'm personally not sure why digital privacy shouldn't follow the same laws as physical privacy.
By Apple giving itself the ability to unlock the phone (through a new firmware push) they now have to justify why they shouldn't use that ability. If Apple never had that ability, they could simply say "It isn't possible" and could never (legitimately) be accused of obstruction of justice. Apple put itself in this position.
It's harder than pushing a firmware. You need to write and validate a special firmware with a specific weakening of some measures, and then add a protection to lock it to that specific phone so it can't be used as a master-unlock and verify that. Because of how the FBI is pursuing this, Apple will have to take all the risk. If the update bricks the phone or fails to recover the data, Apple's reputation suffers.
As for storage lockers, like safe-deposit boxes, it's only reasonable for the government to ask the provider to open the locker/box because the business has the means for this. Non-payment results in eviction and probably "every day" they have a maintenance person sawing locks off. On the other extreme, Apple doesn't need to have a way to decrypt and evict your data for their general business so it's unreasonable to expect them to be able to provide this.
If the government wants this lock sawed off, it needs to do it itself. (Or pay a hardware-reverse engineering company do it for them.)
Not really. It's more like the FBI wants access to a particular storage locker and has the ability to open it, but wants apple to build a new kind of saw for that door so they can use it on other doors later.
The structure of the US Government was born out of a centralization of power and thus was meant to be a decentralization of power.
It seems this fundamental aspect is lost on people and everyone gets caught up in a flurry of arguing over who to trust. The entire point in decentralization of power is trusting any one entity (or group with aligned incentives) as little as possible.
The simple, easy, and wrong answer is to try to optimize certain groups of people with aligned incentives by removing barriers to what they want. Those barriers, if at the service of the rest of the system are the very reason the system works.
Distribution of power is a very, very difficult concept for people to grasp. I feel like if there was a better way to educate people about the consequences of misplaced power in our society, we wouldn't be facing many of the problems we have today.
Most Americans don't remember all the various other break off republics that Americans and American leadership wanted to spawn. The whole concept of a singular law via treaties, or large nations comprising of hundreds of millions of people is flawed. Nation States should be very small, a few million people and sovereign and independent and directly democratic. That way you can actually get some representation in how you want to live. As it is, you get virtually no representation.
I'm not the one who downvoted you, but I assume it's because you're advocating direct democracy, because everything else is spot on.
The problem with direct democracy is that people end up voting on things that don't affect them, which they don't have enough time or incentive to fully consider, but that severely harm other people.
Representative democracy (in sufficiently small communities) works because a representative can then afford to take the time to hear members of the community out before making a decision. And when the communities are small, individuals actually have the capacity to make their grievances heard and can potentially personally sway enough other voters to change an election outcome.
Switzerland is an example of direct democracy that works just fine. There is also the idea of an Athenian democracy which I also support.
At the end of the day the representative democracy has similar problems, where the representatives represent those people funding them. Don't even bother reading the legislation they are passing. and so on.
There is direct democracy and then there is the ability to have a referendum. Switzerland has a legislature. And about 20% of the population of California, where referendums have been nothing but trouble.
The place where direct democracy works great is to give the public the ability to repeal laws.
I think the big problem with the initiative system in California is that an initiative constitutional amendment needs only a bare majority to pass. While I believe the people should be able to amend the constitution, I think it should require a supermajority of at least 60%.
That would mean the vast majority of initiatives would be statutes, which could in principle be subsequently amended or overridden by the legislature. Of course, the legislature would presumably be reluctant to modify a popular initiative without a very good reason, as there would be a political cost to doing so, but at least it would be possible.
> That would mean the vast majority of initiatives would be statutes, which could in principle be subsequently amended or overridden by the legislature.
No, they couldn't. The power of the legislature to legislate is a delegated power from the citizenry, and, based on that principle, initiative statutes cannot be repealed or modified by the legislature (the legislature can send a measure to the voters amending them), unless the initiative statue itself expressly waives this protection.
Okay, but as long as we're talking about changing the initiative system, that could be changed too (in principle, of course -- I understand well how unlikely these proposals are to fly politically).
When I read the Constitution and other things from that time period, it seems to me that the founders' primary concern was making sure that rich white men maintained power over government rather than a king.
I'm not upset. Americans have very averse reactions to accusations about the fundamentals of the American government. I went through public school in America so I am not at all surprised. A significant portion of public school here is dedicated to very explicitly outlining how amazing and enlightened the founding fathers were.
You haven't given an examples of what you are talking about so I'm not sure you should switch on the self righteousness just yet.
Glamorizing historical figures is ridiculous and if you look at the replies, no one thinks the current system is perfect or even close. Even so, the amount of decentralization and the relative success of that structure in government was an enormous leap from the state of governments at the time.
I made a fairly simple claim which had nothing to do with your claims about the relative success of the US government or the enormity of the leap from the state of governments at the time.
History buff here. For those interested, take a look at the ratification debates. For a lot of people, it wasn't even clear why you'd need a Bill of Rights in the first place. The only reason it was included is to get the states to ratify.
The anti-federalists (those opposed to the new constitution) made all kinds of arguments about the things that would happen. The federal government would take over most of the power. There would be a standing army. Language would be stretched to take the government far beyond the bounds that were initially established.
There are two especially interesting things about this. First, the anti-federalists, like libertarians recently, were considered the tin foil hats of the day. Who could believe such silliness would ever happen here? Yet, like our recent example, they were proven right.
The second thing that's interesting is the depth of conversation and debate that was going on almost 250 years ago. The debaters understood which structural flaws the government might or might not have and were arguing about weaknesses that in some cases took many decades to eventually show up. I seriously wonder if such a well-reasoned and supported by history discussion could happen today.
Of course. The whole points of a) the bill of rights and b) the entire system of checks and balances is to make things more "difficult". This is as the framers intended, explicitly to avoid things like judicial overreach as is happening in the iPhone case.
The "inefficiency" caused by the system of checks and balances is by design... sort of like a delay after the entry of an incorrect password.
> The "inefficiency" caused by the system of checks and balances is by design... sort of like a delay after the entry of an incorrect password.
I think that shows an important insight: The FBI believes that both the Constitution and the "PIN delay" are "making its job more difficult", because it would rather not have to follow any laws and just do whatever it wants every time, anytime.
Both rise from the same type of thinking that's happening at the FBI and most other intelligence and law enforcement bodies in the US = the laws don't apply to us.
Bingo. Every time I see a fresh gripe from the likes of the FBI, I think of how much worse it would be if we didn't have the nominal protection of the Constitution.
If it were really the case that the FBI "would rather not have to follow any laws and just do whatever it wants every time, anytime," they would have already raided Apple's headquarters and taken what they wanted at gunpoint. Obviously, they believe their position is legally justifiable.
Or it could be that the FBI expects compliance from Apple as they expect compliance from all of us _and_ they know that raiding Apple's headquarters to take what they want (what? what would they take?) at gunpoint would cause many currently compliant citizens to become less compliant.
Our system depends on many lies to keep lurching along for the benefit of the elite and anything that causes those lies to be uncovered for more and more people is best avoided, according to the status quo.
It seems obvious to me that the FBI considers their position here to be legal. All I'm saying is, if it were truly the case that they didn't care about the law at all, there are probably more direct and effective extralegal methods they could try.
He's right. Part of the purpose of the Bill of Rights is to give the Government less power than the Government would like. Law enforcement needs to be a bit frustrated on a regular basis.
Most programmers actually hate computers and now just want "cloud APIs" for everything so they don't have to think about how networking/systems/storage all works together.
Most law enforcement officers actually hate the law and just want "privacy APIs" for everything so they don't have to think about how searches/seizures/privacy all works together.
Most law enforcement officers don't know what an API is, so I don't know why you're saying they want them and putting it in quotes. Basically, you're just making stuff up.
>I have been urging colleagues to respond any time anybody asks about FBI and San Bernardino to say: the real conversation is about China wanting to unlock the phone of a US Embassy employee who they suspect is a CIA agent and don’t we want Apple to be able to say they can’t do that.
Wanting Apple not to be able to comply doesn't mean they shouldn't comply when they can. They should comply, and make sure they can't comply on newer models (i.e. make secure enclave nonupdatable without wiping keys or unlocking first).
> Doesn't your argument imply nobody should ever obey the law?
No..
> And Apple has the option to do everything on their own facilities, so no trade secrets need to be revealed.
Serving DOJ requests within Apple's facility does not mean the newly created software will not get out into the wild. We know the DOJ wants to unlock hundreds or thousands of phones. Apple will need to hire more staff to handle such requests, come up with a procedure for doing it securely, etc. None of this is without risk, and it is much more risky than not doing it at all.
There are bad actors, foreign entities, who would love a copy of the software that the DOJ is asking Apple to produce. They will try their hardest to get their hands on it. Furthermore, if the US successfully forces Apple to unlock iPhones, China will ask for the unlock feature as well. We do not want this tool in the hands of oppressive regimes. We do not want to internationally set a precedent that it is okay to install backdoors on phones or computers.
>Apple will need to hire more staff to handle such requests, come up with a procedure for doing it securely, etc. None of this is without risk, and it is much more risky than not doing it at all.
This still seems like a general argument for never complying with warrants. After all, then the government will get more warrants, we'll need to hire people to comply with the warrants, and that's a security risk!
Every large company has people employed solely to respond to requests from law enforcement.
>We do not want to internationally set a precedent that it is okay to install backdoors on phones or computers.
Then pass a law that bans backdoors like the one Apple has on all its devices, if you think backdoors are not ok. As is, Apple has a backdoor, and the FBI is effectively asking for the key.
>There are bad actors, foreign entities, who would love a copy of the software that the DOJ is asking Apple to produce. They will try their hardest to get their hands on it.
Remember, the only piece that's difficult to get is Apple's key. Once you have that, the software is easy to create. That's something that already exists, and making the software doesn't make it any easier for someone to steal the key.
> Then pass a law that bans backdoors like the one Apple has on all its devices, if you think backdoors are not ok
That's not even on the table. Congress passes laws and this case is in court.
I support Apple in standing up to the DOJ. They should not be forced to write software that weakens their device's security. The semantics of whether we say a backdoor already exists or not do not matter. The fact is Apple will have to create something that does not yet exist in order to fulfill this request, and there is a risk that that can get out into the wild. Nobody understands the risk of that possibility better than Apple. I stand by them because I feel the time to support them is now. There may not be a later. You're free to disagree.
>That's not even on the table. Congress passes laws and this case is in court.
That's exactly my point. If you don't want companies to have the ability to put in backdoors, that's something you need to get Congress to pass. Not wanting backdoors is not relevant to the legal question here.
>The fact is Apple will have to create something that does not yet exist in order to fulfill this request, and there is a risk that that can get out into the wild.
As I and others have said, the risk is not increased by the software being created. That's not too hard to do. The only thing that can't be done is sign the update to install it on the device. There's no risk being added by that signing, because Apple anyway signs every new iOS release.
If Apple doesn't want to create new software, I'm sure the FBI will be happy for them to hand over the key, and the FBI can create the software themself.
> If you don't want companies to have the ability to put in backdoors, that's something you need to get Congress to pass
(1) I don't want that and (2) it wouldn't be constitutional. Congress shall make no law abridging free speech. Code has been ruled free speech.
> the risk is not increased by the software being created
That's fine if you don't believe what Tim Cook says about his product. I do. Regardless, whether or not the DOJ can compel a company to weaken its product is the question being asked. Handing over software or a signing key are both trade secrets Apple has a right to protect. Handing over the signing key certainly increases risk.
I know enough about the system to know that every installation requires a signature by Apple. There's no "belief" required here.
Note that the creator of cydia, the software that pretty much every jailbroken iPhone runs to install packages, has said that Cook is lying in the letter. He's also said that many people, including him, could create the software in less than a week, and all they need is the signing key.
The cydia creator, while accomplished, is not right to call Cook a liar. Cook says the OS does not exist and that only Apple could make it work on the iPhone. What's untrue about that? The DOJ did not ask for a signing key. They asked for special software.
Regardless of the semantics, the question is should Apple be forced to weaken the security of its product which is used globally. It doesn't matter if you think Apple only needs to hand over a signing key. The result is the same. Anyway, neither the DOJ nor Apple are saying what you or the cydia creator are saying.
>"The problem I have is with stuff like their answer to the question "Could Apple build this operating system just once, for this iPhone, and never use it again?", which essentially is outright lying: the "master key" in question is their signing key, not some piece of trivial software they develop (and then sign) in order to automate this process for the FBI. Apple already has the only master key of relevance: that key already exists; the idea that the master key is something that they need to "build" and then would have to "protect" is them trying to divert attention from what is actually important."
Again, both the DOJ and Apple are talking about creating a custom OS. Nobody is saying it's just a signing key except the Cydia guy, who by the way has been at odds with Apple for years. He's not exactly unbiased, and he is not more knowledgeable about Apple software than Apple, as much as he loves to claim to be.
It sounds like you believe that Apple can service these requests from the DOJ without any increased risk of either a "signing key" or the OS being released into the wild. I disagree and that's okay
We're not saying it's just the signing key. We're saying it's trivial to make those changes.
For the record, I made this claim before I saw anything from saurik. The changes are very minor, just disable erasure and the delay, plus something to allow remote password attempts.
Re "OS being released" that's not something that matters, because the OS is useless without the key. The only risk is compromise of the signing key, and that's the same as any iOS update.
Do you have any other justification for your belief other than trusting Tim Cook?
I'm not claiming he's more knowledgeable, but that Cook lied. This may just be poor phrasing or dumbing down on Cook's part, but the implication is wrong.
> The only risk is compromise of the signing key, and that's the same as any iOS update.
I disagree. If the DOJ gets a signed copy of the software, that's a very different level of risk. There are all kinds of issues with software development we often underestimate. The issues aren't always technical matters. Sometimes they are human.
This court case isn't just about software development. It's also about what the DOJ can demand, and how that impacts software development. The DOJ could very well demand that Apple hand over a signed version of the customized OS. After that, how can Apple be expected to secure their product? They can't.
The last relevant case using AWA was USA vs. New York Telephone. Have you read OK's review of that case as it pertains to a potential USA vs. Apple? [1]
This is from the judges' concluding remarks, which help define the AWA as it will be used today and in the future:
"We agree that the power of federal courts to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed"
"The order provided that the Company be fully reimbursed at prevailing rates, and compliance with it required minimal effort on the part of the Company and no disruption to its operations."
n.b. compliance with it required minimal effort on the part of the Company
Consider the burden Tim Cook and Apply will bear when he compels his software engineers to remove password-entry safeguards and release the signing key that they have guarded so carefully. Employee morale will tank.
> Do you have any other justification for your belief other than trusting Tim Cook?
I trust Tim and stand behind him when he says it's time to stand up to the DOJ. These cases have been heard behind closed doors for years, decades, have hurt business such as Yahoo, Skype etc. and have never been shown the spotlight that this case has. Everyone knows what an iPhone is, from the US to Cambodia, and they will all be following this case closely. It's time to share what we know as techies about the inner workings of the devices in people's pockets and the unchecked surveillance systems of our government.
Dare I say; The Constitution is an Objective Document, that is (forthrightly), been subjected through interpretation. . .ergo, opinions and power grab's. The US. Constitution is simple and elegant, but cruel and antithetic to the Federal Government's power hungry tendencies of knowing what is best for all. . . so the interpretation of the document. Article 1 Section 8 of the Constitution is the most misinterpreted section of the US.CONST. Example: the NOT enumerated power (a summary to say the least, of the actually enumerated powers) "general welfare of the USA" or the "to regulate commerce clause"... this article words it great "This is patently obvious: the power to “regulate” commerce cannot include the power to compel commerce!. . ."
http://blog.chron.com/txpotomac/2012/04/ron-paul-says-suprem...
"respond any time anybody asks about FBI and San Bernardino to say: the real conversation is about China wanting to unlock the phone of a US Embassy employee who they suspect is a CIA agent and don’t we want Apple to be able to say they can’t do that."
Even if the ability existed, the answer would be still be "no". Nation states have no recourse beyond economic/military actions. I don't understand the potential threat of China requesting information we won't give them anyways.
> Don’t we want Apple to be able to say that they can’t help China track the communications of dissidents or other repressive regimes?
People are more worried about the US' being the "repressive regime".
The poll released is telling of how power is kept in the US. You don't have to have 100% support, just over 50%. Here we see that the FBI is far more sophisticated than they let on, and supported by a more cohesive program considering support for them is just north of 50%.
Thankfully the states demanded the Bill of Rights at ratification. Without it, we would have lost all of the rights listed by now, due to the rampant power-grabs of the federal government since the founding.
Although Snowden's lawyer claims the Bill of Rights was supposed to make the government's job "more difficult," he is missing a larger point: almost all of what the federal government does today is not it's job at all! Nothing in the Constitution grants the federal government power to do most of its current functions.