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EFF's Cindy Cohn On Why 'Code Is Speech' Is Key To Apple vs. FBI
blottsie writes: In a series of court battles in the late 1990s and early 2000s, Cindy Cohn represented plaintiffs challenging restrictions on DVD copying and the publication of cryptographic code. In all three cases—Bernstein v. United States, Universal City Studios v. Reimerdes, and Junger v. Daley—federal courts held that computer code merited protection under the First Amendment.
Cohn, now the executive director of the Electronic Frontier Foundation, endorsed Apple's repeated citations of her cases in its fight against a court order to unlock a terrorism suspect's iPhone for the FBI. But she said that the controversial iPhone-unlocking order impinged even further on Apple's free-speech rights than the restrictions in her cases.
Its weird to me that they could compel someone from a corp to open a safety deposit box but write a few lines of code would be a no-go.
Because if it were, monkey's couldn't code. And then how would you explain most Microsoft software?
SJW's don't eliminate discrimination. They just expropriate it for themselves.
Just that it's not as "protected" as other forms of speech.
Maybe "speech" will be limited to trademark and copyright, an no longer be subject to patents.
This issue is a bit more complicated than you think.
There is a huge difference between free speech, and speech you are forced to make.
You don't understand the concept, apparently. Apples "dangerous speech" is an inaction of not making speech, compelling Apple to do something is the exact opposite of free speech.
There is no rational scenario in which you compare forcing Apple to do something with restricted free speech. And if you think there is, you're an idiot.
In your analogy, giving a public endorsement to something under duress restricting their "dangerous speech".
You're a fucking moron if you think forcing something to do something is in any way related to restricting "dangerous speech".
Lost at C:>. Found at C.
Enjoy the cognitive dissonance of the 21st centurmary!
the preceding comment is my own and in no way reflects the opinion of the Joint Chiefs of Staff
You should do a better job of trolling next time. There's nothing clever or interesting about your attempt at trolling.
Religion does have a special place in the law. Perhaps you should read the first amendment again, which includes freedom of religion. Nobody can be compelled to speak in a manner that's offensive to them. That's illegal. If I run a bakery and someone wants me to bake a cake with an offensive message, I have a legal right to refuse. No reasonable person would expect a bakery run by black people to bake a cake with a KKK message. Likewise, a bakery run by Christians who oppose same sex marriage don't have to bake a cake with a pro-SSM message.
If code is speech, Apple can't be compelled to speak (code) in a manner that's offensive to them. Apple has indicated they support privacy and the strongest possible encryption to protect their users. The government is essentially trying to force them to speak in a manner that they find offensive. That should be as illegal as any of the examples in the previous paragraph.
"Apple's case, their speech is designed to oppose law enforcement and help criminals."
So you are pretending that both Apple and the the person buying the phone have no benefit and want of encryption to protect their abundance of personal information in a phone. Therefore the only reason it exists is to defy law enforcement and help criminals. Lousy uninformed argument that smells like troll feces.
Shouldn't the purpose or the intent with which the code is written determine if it's free speech or not? For example, a welder can make a metal staircase, or a welder can weld together parts in some sort of art form intending to express some sentiment or statement. The former isn't really speech, the latter is. Code is a tool; shouldn't the intent by which it's used determine if it's protected free speech or not?
You can't be forced to testify in court. How is this not the same thing?
Its weird to me that they could compel someone from a corp to open a safety deposit box but write a few lines of code would be a no-go.
The two things are not remotely comparable in this case. What is being asked of Apple is equivalent to creating a master key to open all existing safety deposit boxes in perpetuity. To my mind that is a huge overreach by the government. If the government with its own resources can crack the encryption then so be it but I see no reason why Apple should be compelled to assist them in harming their own product and the privacy of millions in the process. If Apple could just open the one and no others then it's kind of a non-issue but that clearly is not the case here.
Damn that ruling, giving Apple the ability to fend off 4th / 5th amendment violations of the government.
If encryption is 'designed to oppose law enforcement and help criminals' then stop using HTTPS right now. Go ahead and do your online banking and e-commerce in good ol' HTTP. After all, TLS can be used by terrorists, so therefore using TLS makes you a terrorist, right?
Can't imagine why you posted that nonsense as anonymous...
Slashdot still doesnâ(TM)t support Unicode after it was added to the HTML standard in 1997.
You can't be forced to testify in court. How is this not the same thing?
You can't be forced to testify AGAINST YOURSELF. You absolutely can be forced to testify against someone else in most cases. The 5th amendment does not apply to evidence obtained legally. If your phone contains evidence of a crime you committed and the police can obtain this evidence through approved legal processes then it can (and will) be used against you. They can't force the defendant to reveal the password but if they obtain it some other legal way then the evidence can be used. The 5th amendment doesn't apply here and it certainly doesn't apply at all to Apple in relation to this case.
That is a bizarre argument. Sure, code can be speech. But compelling people to speak is probably the primary function of court orders. If code were just speech, it is hard to see why the FBI shouldn't be able to compel Apple to speak to them and give them the signing keys and the source code. In fact, the only real objection to such court orders is that they may be an "undue burden".
Because if it were, monkey's couldn't code. And then how would you explain most Microsoft software?
Baby Talk?
Forcing Volkswagen to produce code to run on the engine control unit that cause their vehicles to comply with clean air regulations is forcing Volkswagen to violate their first amendment rights to produce whatever code they want! Furthermore, I contend that the IRS forcing me to file a tax return every year is a violation of my free speech rights as they are forcing me to publish certain documents on their behalf. Also if I am subpoenaed as a witness, I shouldn't have to testify in court because that is forcing me to speak in violation of my first amendment rights.
One of the biggest lies we tell our children.
One of the biggest lies we tell our children.
For the last time. Our kids do get hurt when hit with rocks and stones, Superman.
While we're at it. Your "Parachute-less skydiving: Learn by example." course was a nasty joke.
Damn no wonder the FBI has problems.
“The government is seeking legal precedent here,” she said. “There's nothing about the way the government has argued this case that would limit it to this particular case, that would limit it to terrorism investigations, that would limit it to Apple or limit it to these things. That's not what they're aiming for here. It's very clear from the papers. They’re saying the All Writs Act lets them do this or anything like it.”
http://www.dailydot.com/politi...
It's nice to see people calling bull-shit on the argument that the government isn't seeking a precedent.
If code isn't speech then it doesn't qualify for copyright protections; It would only be protectable with patents. Ironically this would further push code into the "trade secrets" category and would be even more protected in the current case.
Similarly, the First can be used against all regulations relating to software intensive systems since this is not the prosecution's side that is using it, right? Right?
You're conflating two issues. The issue at hand is whether Apple can be compelled to produce speech against their will. This isn't a question of whether Apple's speech is protected; it's a question of whether the government can compel someone to speak against their will.
The issue you're talking about has nothing to do with the current case as it exists today, and is instead asking if Apple in the future should have the right to produce any speech at all. That's an issue for legislators or the courts in the future to decide when Apple actually produces code that matches your description. As of yet, they haven't, though by all indications, they're trying.
My answer to that second issue is that yes, their ability to create products with strong encryption should be protected. Were strong encryption solely of use to criminals, you may have a point, but as it stands, our right to be secure in our papers and persons is protected under the Fourth Amendment. It's a bit silly to suggest that a Constitutional right should be abridged "because it helps terrorists", especially so because by that same logic, we should do away with the firearms that are protected by the Second Amendment and the right to not self-incriminate protected by the Fifth Amendment, since rapists, pedophiles, terrorists, and all sorts of other bogeymen use those rights on a daily basis to avoid prosecution and conviction. Strong encryption is one of the few ways that an innocent person can be secure in the modern era, so a suggestion that we should do away with it because it helps terrorists is a non-starter in my book, since it'd mean doing away with the right of the innocent--us--to be secure.
So, yes, strong encryption may help terrorists, but so does free speech, so do guns, so does the right to not incriminate themselves, and the list goes on. This is yet another right we protect so that it's there for when the innocent need it.
Also, stop worrying about bogeymen. To put the numbers in perspective, based on the 2011 statistics for U.S. citizens around the world (including U.S. soldiers in war zones), you're:
- 2x more likely to die to a dog bite...
- 4x more likely to die from a lightning strike...
- 9x more likely to be killed by a police officer...
- 26x more likely to die by falling out of bed...
- 187x more likely to starve to death...
- About 2000x more likely to commit suicide...
- About 6000x more likely to die due to medical error...
- About 33,000x more likely to die from cancer...
- About 35,000x more likely to die from heart disease...
...than be killed by a terrorist.
But hey, if you think that allowing the police to have unfettered access to you and your personal information makes sense, despite the fact that we were just talking the other day about how over 100 identified and 200 unidentified officers had abused that access in a single case of harassment against one of their own , you'll have to pardon me for disagreeing with you.
No reasonable person would expect a bakery run by black people to bake a cake with a KKK message.
Logical fallacy. Not sure which one, but automatically labeling me as "unreasonable" just because I disagree with you is a logical fallacy. It gives you an excuse to completely dismiss anything I might have to say on the subject, because hey, I'm totally unreasonable, so obviously nothing I say is important.
I beleive "no reasonable person" would be a True Scotsman fallacy. As a libertarian, I believe businesses do have a right to choose their customers. Should I be able to sue the All Star Cheer team that kicked my daughter out for discrimination, or does the owner of the for-profit company have a right to pick and choose his customers? (This is an actual case, the owner of StyleShock banned my daughter from his gym in retaliation for my complaints that they were discriminating against her. He actually said, "It's my gym, and I can do what I want." I think he's an asshole, but I have to agree with him -- it's his gym and he can do what he wants.)
I've abandoned my search for truth; now I'm just looking for some useful delusions.
If it is HS gym and he can do what he wants, then he doesn't have to care about the fire code, about safety, or anything.
There are limits to what you can do and requirements to what you need to do.
You want to bake cakes? Fine. But expect some conditions when you want to get into business of selling them.
Likewise, a bakery run by Christians who oppose same sex marriage don't have to bake a cake with a pro-SSM message.
There's a bakery in Oregon that would disagree with you. There's also a farm in New York and a florist in Seattle. We are absolutely not free to refuse, unless it's against someone not on the Approved Victim List.
Given that it would be much easier to compel apple to hand over signing keys and documentation, I think this is a reasonable compromise. In fact, if Apple does indeed refuse to comply with the writ; it is reasonable and appropriate for the signing keys and documentation necessary to be demanded. The judge made a reasonable ruling, and the FBI made a reasonable request that balanced the need for search with the need for Apple to maintain security. If you read the order, the judge did not demand that Apple give over anything; the FBI leaves with the data on the phone, not the software used to defeat the wiping mechanism. This is a reasonable compromise. Given that Apple has been tacitly advertising the iPhone as a device to defeat law enforcement, this is the best compromise available.
Just because 'death by terrorist' is rare, doesn't mean we shouldn't do everything we can to prevent it. Whether making Apple help decrypt the phone of a known terrorist is a step too far down a slippery slope, or whether our courts can be counted on to limit the access just to cases like this is a valid discussion. 'Don't worry because terrorists don't kill a lot of people in the US' is pretty lame. If nothing else, terrorists caused the US to spend a trillion or so dollars that could've been better used elsewhere. And hundreds of millions of us to have to take our shoes and belts off to get onto an airplane. Terrorism is more than just the lives lost - that's the whole point. To induce, y'know, terror. And, yes, maybe overreactions. But still...
Posted from my Android phone. Oh, I can change this? There, that's better...
Sorry, I could have been clearer. I was basically getting at the idea of "use your noggin and stop allowing yourself to be terrorized". Obviously, terrorism deserves a response, but that response should in some way be proportional to the threat, rather than being "everything we can to prevent it", since if we literally were to do that, we'd be nuking the entire Middle East, which is clearly a disproportionate and uncalled for response. Likewise, attacking our Constitutional rights on the basis that terrorists can use them too is a nonsensical argument that could apply to nearly every right we have.
Code as speech. I can see how that applies at times, but for the most part code is a tool. It is primarily functional.
But even if we do accept that it is speech, the first amendment offers a lot less protection against being compelled to "speak" then being prevented from doing so. Courts will rule that a newspaper must print an apology, for example, and has means to compel witnesses to testify (The fifth amendment protects here)
I hope it's trolling and not simply being earnest and uninformed.
If you're scared of your govt then you need to further restrict its powers
Vote 3rd Party in 2016 and beyond
The draft as an institution is enshrined in the Constitution:
US Constitution: Article I Section 8
Show me where in the constitution is forcing companies to do the bidding of the government for the purposes of law enforcement. Also, you appear to be completely ignorant of the term "conscientious objector," I see. And indeed, last I checked the "war on terrorism" was not a declared war as defined by the Constitution, there is no active draft, and we are not under martial law.
And finally, there is that pesky 13th Amendment that was ratified AFTER the All Writs Act:
Anything in the Constitution that stops this is good, but it seems to me that the 4th amendment is more applicable here.
Requiring Apple to write and sign this hacking tool seems a clear seizure of their design efforts, time, and good will with the public.
This seems unreasonable because the government is not asserting that Apple is the bad guy, only that Apple is in a unique position to help out.
Kind of like it might be ok to force you neighbor to snoop on you because being next door, he is in a unique position.
Having the government coerce good guys to get bad guys seems a bad path to head down.
For some reason, the case is using the 1st amendment.
Is that because of some previous decision eliminating the 4th, or is there something considered extra special about the 1st?
You forget that there is a wrongdoing on the side of Volkswagen. Rather obviously so. They are asked/compelled to fix that. That is completely different.
Most ACs are not even worth the keystrokes to insult them. Be generically insulted by this and ignored otherwise.
Which would you find more offensive? Which is less forgivable? In the day /. would weed out this level of ignorance via nerd hostility. I'm assuming trolling or a shill.
While I agree with you that all businesses should have the right to refuse service, regardless of the reason, those cases really aren't the same as the situation of being compelled to produce a product with a message that one disagrees with. In the three cases you cited, the businesses refused to provide the same services to same-sex couples which they already provide to everyone else. There was no message involved, unless you count the implied endorsement of same-sex marriage which may or may not attach to simply providing a generic wedding cake or flowers or a place to hold the ceremony.
It is unfortunate that one apparently cannot provide a useful and beneficial service to most, but not all, members of the public without having one's labor and capital effectively appropriated by the State for the public use of the remainder. If you do not wish to be compelled to facilitate activities you personally find abhorrent, the only option the State offers you is to avoid providing the service at all, to society's detriment.
"The state is that great fiction by which everyone tries to live at the expense of everyone else." - Bastiat
If corporations are citizens, and have free speach rights (which they are and do, although I personally think corporations should NOT be citizens)
And if the freedom to speak also means the freedom NOT to speak (which it is)
And if code is speach (which it is)
Then the government is infringing on Apple's freedom of speech by forcing them to write this code when they do not want too.
Yet again, I really LOVE how this has all come full circle. Now let's tear this down.
If corporations were not citizens, you'd still be infringing the freedom of speech of the Apple employees (who are citizens). Apple could fire anyone willing to speak in this way, but would then be infringing on the employees freedom of speech.
If code wasn't speech, you still simply cannot force someone to do something they do not want to do, and Apple could decide to fire anyone who was willing to do write that code.
Either way, I see no legal means of the FBI/NSA forcing Apple to do this work, even IF it is actually doable. And I expect Apple will be working towards making this kinda of hack impossible (or at least, impossible for Apple) in their new phones.
IANAL
And that, folks, is what modern progressivism has devolved to: refusing to make a goatse cake is equivalent to violating fire codes.
Also leave your front door unlocked, just in case the police need to come in and look around. No need for a warrant, or even a reason to look - just because they're curious.
Door locks are designed to oppose law enforcement and help criminals.
It prohibits the gov't from *barring* speech, not from *mandating* it. This is why you can be subpoenaed to testify in court, or required to put a warning label or list of ingredients on your product.
Except that these cases you cited are most certainly artistic expression. I see no reason to suggest a mechanic is exercising any protected expression. When following a service manual to fix a car, but those three things you picked are most certainly artistic expressions.
No, you CANNOT be forced to testify against somebody else. You can only be forced to describe the truth as it is known to you.
A distinction without a difference depending on who is doing the questioning. Furthermore testimony is routinely not truth and even when it is it may not end up as your version of the truth. Any lawyer worth his diploma can frame the questions and twist your answers to suit his narrative of "the truth".
What if the Baker misspelled it?