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EFF On Why FBI Can't Force Apple To Sign Code (boingboing.net)
New submitter Kurast writes with this article at Boing Boing: Code is speech: critical court rulings from the early history of the Electronic Frontier Foundation held that code was a form of expressive speech, protected by the First Amendment. The EFF has just submitted an amicus brief in support of Apple in its fight against the FBI, representing 46 "technologists, researchers and cryptographers," laying out the case that the First Amendment means that Apple can't be forced to utter speech to the government's command, and they especially can't be forced to sign and endorse that speech. In a "deep dive" post, EFF's Andrew Crocker and Jamie Williams take you through the argument, step by step. (You can follow along by reading the brief itself (PDF), too.)
The day the government controls your speech, democracy is dead.
Just try reading it outloud!
so that's what their calling 50 page walls of text these days, eh?
Anons need not reply. Questions end with a question mark.
It is true that the FBI cannot force Apple to produce new code that does not today exist.
But, code is not speech.
What the FBI cannot do is force a company to do something that will cause it irreparable harm and devalue its entire business model. Forcing Apple to produce this code goes against Apple's right to be free of unreasonable seizures, as the FBI would in effect be seizing 80% of the value of the company, if not more, to get a backdoor into all iPhones.
First, the FBI does not have a right to a backdoor into all iPhones. Second, Apple has a right to retain the value of its enterprise. Speech has nothing to do with it, and no reasonable person sees this as a free speech issue. This can and should be laughed out of court until Apple et al make the correct legal arguments.
I'm sure the FBI will be happy to have their own signatures and simply require apple to accept them.
Look. I see EFF lawyers saying code is speech and is protected. And I see EFF lawyers saying code is math and is not eligible for patent protection and sometimes not even eligible for copyright protection. I want an EFF lawyer to explain their stand on how these three mechanisms apply to code before this story gets posted AGAIN and it had better be consistent.
ah you think the constitution is your ally. When your precious constitution declared warrantless search and seisure to be unlawful, we merely declared our our borders to be hundreds of miles long. We declared our wiretaps to be constitutional through "metadata."
When the constitution declared the first amendment sacrosanct, we merely declared those who spoke against us as "enemy combatants" and had them executed by drone without so much as a second thought. We bombed the news stations that refused to fall in line with our message during our wars, and we openly slaughtered their journalists in the field. When it was reported, we sentenced the whistleblower to rot in prison.
Good people go to bed earlier.
Code is instructions to a computer to do something.
Agreed.
The computer cannot interpret code as an expression, because computers are not sentient. Code cannot therefore be considered expression, as it is not being written to convey ideas to other people.
Your argument goes off the rails here. I absolutely can convey ideas to other people through code. You are making the mistake of presuming the computer is the audience for the ideas being conveyed. That is incorrect. Other people are the audience, the computer is merely the means. Saying code cannot be used to convey ideas is as absurd as saying written music cannot convey ideas because you need a musical instrument to play it.
The government can mandate you buy a product, why not a mandate to open a product. If you believe the government can force you to do an action, why not another? What makes this any different than any other government force?
They already dictate your 4th amendment rights, so restricting your 1st for the "public good" is no stretch.
Just trying to make you think about the scope, that once you start giving up your rights for something you want, the government can limit your other rights.
Don't being a hypocrite when it comes to picking and choosing which rights you want to defend, defend them all.
So let's assume the courts get it right and rule that the FBI can't force Apple to sign code, or produce a modified version of iOS for them.
The FBI can (I think, IANAL) compel Apple to produce something it already has in its possession- the equivalent of compelling a lock maker to turnover their master key.
So the FBI changes their demand from
"Produce this code and sign it for us"
to
"Give us the source code you already have and your cryptographic keys."
And they then make the changes, sign the new binary, and install it themselves.
And I see EFF lawyers saying code is math and is not eligible for patent protection and sometimes not even eligible for copyright protection.
Some code cannot be copyrighted, though this is the exception rather than the rule. For example I can write a hello world program but I can't copyright it because it is too basic to be considered a creative work but I can write a word processor and I can copyright that. In principle no code should be eligible for patents because the code should be adequately protected by copyright. You shouldn't be able to patent math. Patents should only be for tangible goods. But there is a sufficient level of creativity in coding that allowing a copyright is reasonable. (presuming we think copyright itself is reasonable which is a separate discussion)
I don't think the EFF is being inconsistent at all in their stance on these issues.
Should a car company be compelled into having to add government mandated components (air bag, seat belt, side mirrors, headlights, etc) to their designs which are eventually made into real and tangible objects?
I don't think there is any debate that the government can mandate companies follow regulations. I think the point here is that the government is attempting to mandate Apple perform an action that is arguably unconstitutional. You can make reasonable arguments against the FBI's actions under at least the 1st and 4th amendments. The FBI's actions would have all sorts of negative knock on effects if they get their way.
Code that is instructions to tell a computer what to do is not "communication.
ALL code tells a computer what to do. This argument fails right out of the gate. There is no such thing as computer code that doesn't tell a computer what to do.
There can be "communication" embedded within computer instructions, and that is certainly protected.
Not only can there be, there routinely is. The argument that code is not speech as a blanket assertion is demonstrably nonsense. If you want to argue that all code is instructions but not all code is speech then you'll have to dig a little deeper.
I think the First Amendment argument is not as strong as the argument against the government forcing a company to build something that it does not normally build. Should the government be able to force Black and Decker to build firearms? Should they be able to force Dupont to manufacture napalm? Now, if these companies WANT to manufacture these goods, that's one thing, but forcing them to do it is quite another.
Proverbs 21:19
the most logical and clear defense I've yet seen. good job.
if this is supposed to be a new economy, how come they still want my old fashioned money?
I'm not altogether I'd call source code "speech", but I'm pretty sure that object code isn't speech. If Apple wanted to use a binary editor to change the number of tries in the object code from 10 to 10,000, then sign the result, they haven't been forced to utter speech.
Yeah, it's a stupidly legalistic approach, but what we're talking about is corner cases where every interpretation of the rules is stupidly legalistic.
Let me be clear I think Apple shouldn't be forced to do this -- or at the very least they shouldn't let the FBI get its grubby mitts on a compromised version of iOS. But that's for other reasons than whether it technically falls under some provision of the law or not. It's because no government agency should have that kind of power.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
Only when it isn't functioning (when it is printed, on the disc, etc).
When it works, it is more than speech. It can kill people, direct missiles, etc after all.
If it was just speech, then an execution order is free speech too.
Patents Drive Free Software as Hurricanes Drive Construction Industry
That's an interesting thought. I know less-informed Slashdot commenters, who have never read the relevant law, make those claims. I would be surprised if an EFF lawyer made those claims about code. They might say that about one specific algorithm, which can be expressed in English, code, or hardware.
You mention two mistakes, wrong about both the law and the facts.
The statute on patentability says:
The laws of nature, including the laws physics and the laws of math, aren't patentable
That makes sense given that the laws of physics and the laws math aren't inventions.
HOWEVER, there is a common misconception among laymen. The operation of an elevator is physics- gravity, magnetism, etc. Newton's laws, etc. There is, however, "Newton's 743rd law" which states "to move people to the top of a building, you must install a motor at the top and a counterweight on the side and ...". The elevator was an invention, it USES the laws of physics, but an elevator is not a law of physics.
Similarly, a law of mathematics is that a+b=b+a. There is no law of mathematics that says "to recognize a face in an image, you must XOR the brightness of each vertical segment with ...". A new facial recognition system is an invention. It USES the laws of math, but facial recognition is not a law of mathematics.
You can't patent gravity, you can patent an elevator. You can't patent the commutative law (a+b=b+a), you can patent a new way of doing facial recognition.
That's the mistake of law.
Factually, trying reading Excel.exe. It's almost impossible because compiled executables are written for computers, not humans. Executables use math to useful things. Source code, on the other hand, is written for humans. We can read excel_main_form.c and understand it. Source code DESCRIBES, in human-readable terms, what will be done. If executable programs are like a strange form of math, source code is like a math textbook. It describes, to humans, the operations to be done. The compiler will completely delete portions of it in order to use that description to create an executable which actually does the operations.
They are assuming the government can't make you speak. Forget the "code is speech" part, that's putting the cart before the horse.
I must file and pay taxes or go to jail, that includes communication ("speech"). I must get health insurance, again I must communicate to do so. They can compel you to either testify or plead the fifth - again "speech".
The government can and does compel speech in direct and indirect ways all the time. The closest parallel here I think would be being subpoenaed by Congress. You go or you go to jail. Now, you can plead the fifth - is Apple going to do that?
Can I argue that I don't want to pay taxes because by paying them I am implicitly making a statement that I support every action the US government takes? Good fucking luck with that. Isn't obedience a form of "speech"?
Note that I don't think Apple should have to do this, I just find this argument to be facile and narrow-minded. There are better lines of argument.
It is true that the FBI cannot force Apple to produce new code that does not today exist.
But, code is not speech.
The Sixth and Ninth Circuit courts would disagree with you:
* https://en.wikipedia.org/wiki/Junger_v._Daley
* https://en.wikipedia.org/wiki/Bernstein_v._United_States
And one cannot be compelled to speak, per US First Amendment:
* https://en.wikipedia.org/wiki/West_Virginia_State_Board_of_Education_v._Barnette
All I can think now, is that all terrorists attacks, terrorists organizers will make sure the terrorists leave a few iPhone, locked obviously, and maybe with "some data"; so investigators will force Apple to open them, and then show "how valuable" the data was.
If one thinks Apple is the only one, an Android device can get the same "treatment". Maybe even leave one device open by "mistake", with "data" in it.
Just guess how this will be treated around the world. This EFF brief will be looked at as a terrorist support action.
All in all, ISIS won, sadly.
Very sad situation, that a group of barbarians can use modern civilization technology against itself, with pretty low costs for them, and an unimaginable cost for us.
"Apple can't be forced to utter speech to the government's command". So why does the government force tobacco companies to post health warnings and pay for anti-tobacco advertisements? This is just one obvious contrary example. It seems the definition of any "right" is basically what one wants or does not want to do or to make someone else do or not do.
Calling a spade a spade. It is work, not speech. It's this type of legal mangling of concepts (which the US Supreme Court has done so often in the past) that twists logic, legal rulings, and the frameworks people live under into knots. But it does have a long history -- one thing Jesus did 2000 years ago was point out over and over how the religious/legal class of his day twisted original intent into hypocritical knots.
It would seem to me that EFF's line of defense is dependent on the Citizens United vs Federal Election Commission, where it was ruled that corporations have the same constitutional rights to free speech as people. If Apple did not have such a right, then the government could force them to produce and sign code. I personally was unhappy with the Citizens United vs FEC ruling, but this is an area where it could have a positive impact on me.
If writing the software is possible, then the FBI can do it themselves. If it isn't possible, then how can the FBI punish Apple for not achieving the impossible? That's the concern nobody is talking about: can the government hold you in contempt for not doing something you are incapable of doing? I get that Apple is fighting the good fight and trying to set a precedent that the government can't force them to neuter their own user privacy protection scheme. But wouldn't it be easier to just argue that the government must first prove that what they're asking for is possible before demanding that they produce it? Wouldn't a better plan of action by the government be to just ask for any access to trade secrets necessary for them to do the work of breaking encryption themselves? Setting a precedent that law enforcement can just demand that other people do their job for them would be a very bad precedent indeed!
I've abandoned my search for truth; now I'm just looking for some useful delusions.
Let's say this argument succeeds. Then the FBI just asks for the signing certificate, and letting the FBI have the certificate is worse than what they were asking for before.
If writing the software is possible, then the FBI can do it themselves.
Right now, to get to the contents of a phone, the FBI must use the courts to get a warrant. This at least provides a little bit of a check on what they are doing. If they write their own code, this removes this last vestige of oversite and they will be free to get into any phone they please (just like the NSA that wrote their own software). Is that really what people want?
That is simply not true. Article 5 says that the US does not have to provide Geneva protections to people within its territories who are engaged in hostile acts (or suspects) *where this would prejudice its security*. Article 5 also says spies and saboteurs lose the right to communicate -- but only this right. It then goes on to say that they all must still be treated with humanity.
I miss the days when people used to attend to detail.
> Code is instructions to a computer to do something
That's what your fourth-grade teacher told you with the sandwich- making demonstration, but that's not really true of most languages used since about 1978.
Most languages today include a lot of stuff for humans, and also tell the compiler / query optimizer / etc which RESULT the program should ACHIEVE. The process the computer uses, the steps it takes, are not in the code. This is blindingly obvious if you compare 1960s cursor-based database code (which was procedural) to modern SQL, which is declarative. The SQL code directly specifies what the result should be. What the computer does to get that result is completely unknown to the programmer, and may change completely based on external factors. It can also be seen in modern implementations of a procedural language like C. The computer may completely remove large sections of the task description (code) and turn others inside-out. It's only expected to come up with some series of actions which end up producing the same RESULT as what is described in the code.
Further, computers run executables, humans read programming languages (code).
Try reading Excel.exe. It's almost impossible because compiled executables are written for computers, not humans. Executables use math to useful things. Programming languages (code), on the other hand, is written for humans. We can read excel_main_form.c and understand it. Source code DESCRIBES, in human-readable terms, what will be done. If executable programs are like a strange form of math, source code is like a math textbook. It describes, to humans, the operations to be done. The compiler will completely delete portions of it in order to use that description to create an executable which actually does the operations.
If code is speech then it is covered by the First Amendment case closed. If code isn't speech then the First Amendment doesn't apply and then code can't be copywriten either and that could make many of our lives very interesting.
I think his argument is that we did already agree that the government can make us open a product (or anything else that suits their whim), back in 1913 when we ratified the 16th amendment, thereby granting the government this power.
If this assertion seems strange and controversial, fair enough! You'd be right so that it's not obvious, and that's an understatement. There was a lot of discussion about whether or not the voters of 1913 intended to grant that power or whether it was an exploit. SCOTUS adjudicated this question. Get it? This whole issue has been analyzed carefully by the leading experts that we do consider the very top authority on all constitutional matters.
Did you hear what they determined?
It's just a question of procedure at this point. The FBI can't force Apple's hand, but Congress+IRS could. Just say there's effectively infinite income tax for anyone who doesn't comply with unlock requests.
Very common sensy; I don't think any less of you for believing that. Yet, SCOTUS says you are wrong. The income tax amendment says the government can do what it decides, and it's been upheld that income tax does not necessarily need to have income in all its terms. The functions can have anything for terms, such as: Are you making mortgage payments to a bank? Did you buy health insurance? None of these terms are related to income, but the tax code can use them. So while Apple technically can't be "forced," their income taxes can be assessed as "everything you have, plus a little more" unless they comply. And then the new owners (IRS) can do whatever they want, with their newly seized company.
...to write the code? Then what happens if every Apple employee or contractor says that they won't or can't write the code. ...beyond my capabilities, sir.
Just because it would be against the constitution dose not mean that government can't do it. Look at Obamacare, it goes against the constitution to have the government fine you for NOT buying a product, yet the supreme court still allowed it.
Nice try but...noooooo....you're fundamental mistake is trying to equate physics & math via their 'laws' but they are entirely 2 different things..the only real 'subset' they share for this discussion is 'neither is patentable'...but while you are correct that you can patent things that use the laws of physics you are incorrect in apply this logic to only the 'laws of math'...specifically its not that you just can't patent the 'commutative law' of mathematics (a+b=b+a) you can't patent ANY expression of math or 'mathematical operations' e.g. you can't patent '3 + 2 + 1 = 6'....go ahead & try & before you complain that I used actual numbers you can't patent 'a + b + c = z' for any values of those variables...the patent office will quite rightly immediately toss any attempt to patent that out the window, the patent guys will probably have a good laugh over coffee as well...but than they'll happily go back to their desk and allow a 'novel patent on an encryption algorithm' not recognizing for a second that the latter is not in any way different in practice than the very simple 'aa + b + c = z' case. The only material difference is the 'number & type of operations'.
That is what is fundamentally wrong with the concept of algorithms or code being patentable. At their fundamental level all any code is (whether 'human readable' or not...though in theory and even in practice for 'some value of humans' 'binary' is readable) is an expression of mathematical operations. We have built up alot of libraries & code that make implementation of whole 'packages of mathematical operations' easy (such as say doing a 'BitBlt' to a graphics buffer that changes the screen display) but that doesn't mean their not fundamentally performing simple mathematical operations. As such a new 'facial recognition algorithm/program/code' should NOT be patentable. Though any 'unique physical device used in the system' COULD be patentable.
after reading the PDF brief.
I mean, I understand the importance of the decision, and I also understand the importance of cooperation.
My question is, when are we just trying to 'stick it' to the government, and when are we actually being intellectually honest about the road ahead for humanity and the use of encryption in it's future? I don't know, and that's the question that is never asked.
Another jackass that thinks strong encryption is treason.
In no way is the EFF supporting ISIS, they are supporting you, the ignorant American.
Fuck
> should NOT be patentable
You are of course welcome to your own opinion about what SHOULD be patentable.
What IS patentable under US law is of course unaffected by your opinion. "Recognize emotions in facial photos via a new method comprising ..." is in fact patentable for virtually any wording in place of the ellipses. Actual US law, which you're free to like or dislike, is that it doesn't matter whether you describe the multiplication operation as a lever, gear, pulley, using the * symbol, a left shift, or any other way. What matters is whether it's new (novel) and useful. A method of recognizing emotions in photographs is useful regardless of whether it's done with gears, bytecode, or both.
Sorry if you don't think it SHOULD be so, it is. (And anyone who knows what an ASIC is knows why it -must- be so).
Photography has also been judged protected speech and the courts have said that photographers can be compelled to take photos of gay weddings. That right had already been taken away.
Wouldn't First Amendment protection against compelled speech also apply to the specific engineers who would have to write that code?
In the cake maker case, the issue was that "if you sell to the public, you have to sell to all the public", i.e. you can't discriminate. Apple could not, for instance, sell encrypted phones only to men, and only unencrypted phones to women.
The cake case is a a sort of gray area: each cake is fabricated independently. It is legal to have restrictions on what kind of cakes you will make, with some limits: for instance, you could refuse to make a particular flavor of cake (because that is independent of who is buying it). What you cannot do is have restrictions on who you sell (your limited range of products) to: you cannot say "We sell only chocolate cakes to African Americans" or even "We do not sell devils food cake to Christians"
The case of the cake maker is NOT "I won't put a decoration of two same sex on top of the cake" (probably legal), it was "I won't sell to those kind of people".
I am quite happy that Apple is resisting breaking into its own encryption. The US has gone out of balance in more ways than one. The public is very restricted on what we are allowed to know as well as how we can study or record the deeds and words of others. Yet the government demands more and more access into out lives. The power of the state vs. the power of the citizen is way out of balance. It is high time that we are allowed to know a lot more about what goes on in government and within corporations. And to make matters even worse the US now has a substantial number of citizens that are more dangerous than either Arab terrorists or our own government. I have no worries about a terrorist attack at all at this time. I do worry about a nation whose schools systems are so ineffectual that we actually have citizens that would vote for Donald Trump. Can you imagine what such a man could do if you could not encrypt your information and just how far he would go to abuse you?
Even if corporations have no right to free speech, Apple could hardly force their own (human) programmers to code what they didn't want to.
The trick then would be for the Feds to identify Apple programmers willing to do the work.
Hey .. I know code! Maybe if the Feds offered me a big enough bonus ...
No, wait .. I don't work for Apple. Oh well ...