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N. Carolina Senator Drafting Bill To Criminalize Apple's Refusal To Aid Decryption (arstechnica.com)
Ars Technica reports that North Carolina senator Richard Burr says he plans to introduce legislation "to criminalize a company's refusal to aid decryption efforts as part of a governmental investigation." In a USA Today op-ed, Burr, griping that "[t]he newest Apple operating systems allow device access only to users," even Apple itself can't get in," drags out the usual bugaboos: "Murderers, pedophiles, drug dealers and the others are already using this technology to cover their tracks."
Updated Friday 12:40pm EST: The Wall Street Journal reports Senate Panel Chief Decides Against Plan to Criminalize Firms That Don't Decipher Encrypted Messages
Updated Friday 12:40pm EST: The Wall Street Journal reports Senate Panel Chief Decides Against Plan to Criminalize Firms That Don't Decipher Encrypted Messages
only senators and outlaws will have iphones.
Some drink at the fountain of knowledge. Others just gargle.
A few lessons on the 4th and 5th amendments...
First, self incrimination, i.e. the 5th amendment, has absolutely no bearing on this case. If a police officer, prosecutor, congressional tribunal, what-have-you, asks you a question that may be used to incriminate you of a crime, you have the right to say, "I plead the 5th." But your constitutional protections end there; they have every right to look for evidence that may incriminate you outside of your own self. In this matter, we have a phone. It's not a person. It is an object that presents itself as evidence, ergo it may be used as such.
Second, and more difficult to accept, the 4th amendment has no bearing on this case either. The 4th amendment protects an individual's right to be "secure in their persons, houses, papers, and effects." It begins and ends with the individual. This phone was not unlawfully seized. It didn't even belong to the individual; it belonged to the company he worked for. And the company who owns the property surrendered it willingly to law enforcement. (Side tangent lesson: don't ever use a company phone EVER for anything other than business. It may be used against you for any crime.)
Third, I don't see how treason plays into any of this. Article III, section 3 defines treason as "levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." The charges I believe Apple will be facing is Obstruction of Justice, as, from the perception of the government, they are interfering with an investigation. And, like it or not, current US law requires them to follow the court order, under 18 U.S. Code 2511, which reads, in part, "Providers of wire or electronic communication service...are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with a court order directing such assistance."
Apple is trying to set a new precedent, one I would consider a push-back for all the illegal surveillance the US Government has done over the last fifteen years. They are attempting to make digital-communication-evidence-gathering impossible if an individual so wills it. I don't know whether they'll be successful or not.
For the record, I am not a lawyer, but it's my country and my laws as much as the rest of yours, so I feel responsible to understand them.
Oh but it IS unreasonable search and seizure.
To appreciate this you have to step out of the context of this specific case and look at the bigger picture.
Keep in mind, any and all of that data you presuppose Apple has just lying around is something the Gubmint can very likely already obtain through a variety of legal mechanisms if they don't already have it.
It all hinges on what the Feds are seeking. If they just went to Apple, handed them the phone, and said "decrypt please" things might be different. If they said "THOU SHALT DECRYPT" based on whatever authority, it might be different. No, what they're asking for is that Apple provide them an alternative iOS firmware to deactivate the functionality of wiping the phone after so many bad password attempts. Then with this, the Feds can themselves simply brute force it and eventually hit upon the right password.
There may be valid reasons for approaching it this way. This may, for example, increase the sense of validity of the data procured from the phone since the Feds could demonstrate the methodology on any phone. It may also prevent accusations that Apple didn't provide real decrypted data but instead colluded with the Feds to create stuff. Maybe the Feds don't want Apple seeing the data. I imagine there may be other reasions as well.
Nonetheless, this request to create and deliver an alternative iOS is new and unwarranted. It's probably essentially unconstitutional/illegal. Legalize it's "compelling speech". In vulgar terms, it's slavery. And it grants the Feds to ability to do this to any other phone anytime they want. Next, it essentially reverses and undermines the entire functionality of the device whereby you have some measure of security that if your phone is lost or stolen, the data won't fall into others hands. Once this new alternative iOS is out there, it WILL be leaked. So this suffers from the same problem as almost all backdoor or key-escrow proposals that giving the Feds the backdoor opens it up for thieves as well.