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The Law Is Clear: the FBI Cannot Make Apple Rewrite Its OS (backchannel.com)
An anonymous reader cites a post by Susan Crawford, Harvard Law Professor and former Obama Special Assistant: From her column at Backchannel, "Barack Obama has a fine legal mind. But he may not have been using it when he talked about encryption last week. [...] The problem for the president is that when it comes to the specific battle going on right now between Apple and the FBI, the law is clear: twenty years ago, Congress passed a statute, the Communications Assistance for Law Enforcement Act (CALEA) that does not allow the government to tell manufacturers how to design or configure a phone or software used by that phone -- including security software used by that phone.
The problem with this whole debate, is assuming making a system that is secure is beyond the means of mortal men. And will need a big organization to make such a system.
The truth is. If Apple are shown to be insecure, the bad guys will not use apple, they may make their own OS, which doesn't have the back doors. It may not be a fancy but secure for what is needed.
So Apple is loosing business, and the bad guys are still going under the radar.
If something is so important that you feel the need to post it on the internet... It probably isn't that important.
...can do what ever the hell he pleases. It isn't the first time he basically said screw the laws and precedents and tried to ram rod his way down everyone's throats.
The USA is in perpetual war and illegal acts are justified by the wartime status, terrorism, the children, etc.
Give them another week or to... they'll butcher the law, renege the whole thing. Make modifications so that they can do whatever the fuck they want... and there's nothing any of us can do about it. We pay them taxes, they use that money in return to fuck us over again.
When has this, or the previous, administration really cared about what the law says when the law disagrees with what the administration wants to accomplish?
Sigh.
Unfortunately Apple isn't a 'communications carrier'.
If this was a viable out then Apple would have used it. It isn't.
Like it matters what the law says, for the good of our children you must!!!!.......
The government doesn't care about following the law when it comes to "national security." They'll ignore this law just like they've ignored all the other laws protecting our privacy. And even if they lose this court case, it's almost guaranteed that Congress will pass some "temporary" provision in a random, unrelated bill that makes what they are trying to do now "legal."
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I long to live in a country where I don't have to put those words in quotes.
It's not enough that FBI can't force Apple to do it.
Apple should not be allowed to do it voluntarily.
When you buy a product from a company they should not be allowed to randomly change it without your consent and you constitutional rights should not depend on what the company feels like today.
Lawyers are hired to find holes that sound good. It's as much sales pitch as anything else. Lawmakers are there to convincingly sell an agenda. And if the law doesn't exist yet, they will find a way to politically sell a new one. 911 got used to shove a bunch a new policies like "The Patriot Act" (ironic isn't it) that undermined privacy unless cause can be show, that paved the way to where we are now when members of the FBI feel they can flippantly say "The constitution doesn't matter". But it's good to know that Apple has a solid legal foot to stand on, even if the DOJ/FBI tries to pull out the rug that foot is standing on.
"Imagination is more important than knowledge" - Einstein
A law professor who believes that the federal government is seriously constrained by the law. Given the ability of local police to get away with killing people at will, it's clear that this is not a good assumption...
We have a winner. Author applied the wrong law to the situation. The FBI already has all the data allowable under CALEA; this is 100% about cracking a computer, not tapping a phone.
When the government asks me "But what if terrorists kill you!!1!"
Then I'll reply "at least I died on my feet instead of dying on my knees, which I probably would anyway because you have a shitty track record"
If I have been able to see further than others, it is because I bought a pair of binoculars.
Yet the government did it anyway. I wouldn't put too much faith in laws when the government really wants to do something.
From the desk of the FBI director, the memo reads as follows:
I AM ABOVE THE LAW!
...but, like most people in government, he just doesn't give a shit. The law only applies to the people, not to government.
If the government wishes to break there's no oversight to stop it. Hacking is illegal, except when it's the government. Murder is illegal, accept when the government wants somebody dead. Theft is illegal, accept when the government decides it's entitled to a portion of your income.
Whenever a body has a monopoly they always end up abusing it, whether it's Microsoft and their OS monopoly or telecommunications companies with their local monopolies. No monopoly is more abused than the government monopoly, which is why it is best that power is spread around instead of being left in the hands of an overreaching government. Unfortunately we live in a society where the government holds most of the power and the citizens are in no position to object to anything the government does. The only option we have is to vote for the other party, who are equally bad as the first.
"Barack Obama has a fine legal mind."
To be blunt, this is unsubstantiated. For someone who has as many degrees and has held as many academic positions as Obama has, his scholarly writings are strangely absent.
Alcohol, Tobacco and Firearms should be the name of a store, not a government agency.
More Calea info. CALEA applies to manufacturers of equipment. However, it's unclear to me if handset manufacturers are considered telecom equipment manufacturers or not. Also, if Apple claims CALEA I would assume they they would already be abiding by the provisions in CALEA.
What the FBI is asking for, though, goes way beyond CALEA, in that they're trying to compel Apple to do a specific action that goes beyond wiretapping and communications intercepts.
http://itlaw.wikia.com/wiki/CA...
Does the FBI want a back door to use on any iPhone or just this phone in particular unlocked?
If it's the first, fuck the FBI.
If it's the second, fuck Apple...unlock it, they've apparently done it before.
But can Apple break the laws of physics (or math)? A judge can order me to levitate but, at least for now, this is not possible due to the laws of physics.
The default status is that the people have the right to do, or not to do, anything. The government has no rights, except as stated in the Constitution.
Therefore, passing a law preventing the government from doing something is oxymoronic. The government cannot force Apple to do anything - no legislation required. Any attempt to compel Apple must pass constitutional muster.
I get annoyed when the media reports something like "a law to legalize marijuana", or "a law to legalize abortion", or " a law to legalize gun ownership." The correct framing is "a law prohibiting...has been repealed/found unconstitutional."
Prove anything by multiplying Huge Number times Tiny Number
Congress has no power to pass a law allowing the commandeering of a company or person.
Congress has no power to pass a law dictating forced weakness in the complexity of passwords, forced weakness in keys, or forced weakness in ciphers.
Congress has no power to pass a law dictating forced vulnerability in our ability to be secure in our selves and our possessions.
This entire topic is pure fallacy, begging that a law "banning it" and a law "allowing it" has any validity in the first place. Such topic is not within scope of Delegated Federal Power. The entire premise being considered is unlawful.
From 47 U.S.C. Â1002, these are the exclusions mentioned in TFA (my highlighting):
That's precisely how TFA describes the deliberate legal limitations imposed by CALEA. Apple doesn't have to be a 'communications carrier', as it's protected by being a 'manufacturer of equipment'. This section excludes Apple from being directed to implement "specific design of equipment".
Is this even relevant when the DOJ is threatening to just seize the code and signing keys? At this point, Apple is no longer being required to write code.
From the Slashdot story: "Barack Obama has a fine legal mind. But he may not have been using it when he talked about encryption last week."
Reality: Barack Obama often acts like a leader while saying or doing nonsense. One example: The ACA, "Affordable Care Act" gives money to the medical companies and takes it from citizens. Those who profit from people being sick got everything they wanted.
But can Apple break the laws of physics (or math)? A judge can order me to levitate but, at least for now, this is not possible due to the laws of physics.
If the Court gives you a lawful order and you do not do as directed, physics or math be damned, the judge can still throw you in jail.
In the case of ordering you to levitate the order would be found not to be reasonable, therefore not a lawful order, so you could appeal (though probably from your jail cell) and get out. But consider the case of a court ordering a person to enter a password on a device which the person claims they don't know. That person could spend a long time locked up as a result on failing to perform an act he is incapable of performing. The Court is the one who gets to decide what it feels is "reasonable", and only a higher court is allowed to override it. If the Court thinks you can perform the action(s) in the order, then it can penalize you if you do not comply.
This is sadly just another chapter in the most overturned, lawless administration in history. King Obama's administration gets kid gloves from the media for 99% of his coverage so, even though he knows the law full well, being a "constitutional scholar" and law professor, he shits on the constitution and law of the land which is the contract between the people and the government, and tries to do whatever the hell he wants. This is yet another reason why supreme court justices are so important. Liberal appointees are political hacks who want to legislate from the bench, rather than uphold their oath to faithfully interpret the law...
> Congress passed a statute, the Communications Assistance for Law Enforcement Act (CALEA) that does not allow the government to tell manufacturers how to design or configure a phone or software used by that phone
Can someone please point out exactly where it says that in CALEA?
I love it! CALEA...the law that basically mandates that Carnivore be built-in to our telecommunications infrastructure, and which has probably made the warrantless wiretapping/metadata collection by the NSA far more technically simple to accomplish, is what ends up backfiring on the FBI. Priceless.
For your security, this post has been encrypted with ROT-13, twice.
I love it! CALEA...the law that basically mandates that Carnivore be built-in to our telecommunications infrastructure, and which has probably made the warrantless wiretapping/metadata collection by the NSA far more technically simple to accomplish, is what ends up backfiring on the FBI. Priceless.
Exactly. The irony is unending with this one. Who would have ever thought it would have been this that would have stopped them.
Changing the value of two variables, to something greater than 10,000 is not a rewrite.
The article quotes the following
But in exchange, in Section 1002 of that act, the Feds gave up authority to “require any specific design of equipment, facilities, services, features or system configurations” from any phone manufacturer.
It misses the preceding clause;
This subchapter does not authorize any law enforcement agency or officer
Notice that it "does not authorize" rather than "prohibits" and it only applies to law enforcement agencies or officers. There is nothing in it that prohibits another agency like the the Office of the President, as it is not a law enforcement agency from requiring it.
Also, the term "specific design" is questionable. A specific design would be something like "must use SHA2". It could easily be argued that "access to encrypted data" is not a "specific" design but a "general" design as it can be implemented in several ways and therefore the clause does not apply.
I am not saying a back door is a good idea but this law does not prohibit the requirement.
How is changing the maximum number of logins considered "rewriting" an operating system? If a parameter's hard wired it shouldn't magically become different in relation to the operating system's functionality than parameters that aren't. In other words, if I change the Windows account lockout threshold I don't consider it as rewriting Windows.
brBing yoUr own
under socialism, the government can because they are in charge of everything
All it takes to make a civilization dumb is for the education system to keep people so busy with bullshit that there is no real time or merit to education and critical thinking.
When we look at all of the special students on College campuses protesting their own personal micro aggression and squashing any opposing speech we see that this is really not that difficult to do. Video games, Facebook, "Reality" TV, and Sports are more important than silly wastes of time like "Math".
The "Common Core" addition method of dashes, boxes, and bigger boxes takes 100 times longer to do than simple addition, but simple addition will get a kid marked WRONG and the school threatening the parents with legal action if they interfere with the Government mandated system.
Half a century ago without computers we were able to land men on the moon. We had people like Milton Friedman and MLK to look up to. Today, we have nothing close, at least in public view.
-The wise argue that there are few absolutes, the fool argues that there are no probabilities.
Easiest way to unlock the phone is to vote for Trump. He will get Bill Gates working on that and will make the Mexicans pay for it.
I think the FBI knows it will not win this case in the courts. What they are attempting to do is when the court of public opinion.
Oh it is to laugh. As if the FBI or any part of the government actually follow laws. The laws are for the little people, not them.
Remember to pick up that can citizen.
That's problematic for 2 reasons.
1. Other laws have been passed since then. Timeline-wise this was before even the telecom deregulation, before DMCA, even before the Patriot Act.
2. The last thing you'd want is leave this hanging over as a legislative prerogative. The legislature changes every 2 years. The FBI would just have to wait until the right set of unrelated circumstances gives them a Congress willing to give them this power. This is why you want this to be declared squarely unconstitutional by the SCOTUS. Which makes the key nomination so crucial right now.
Any guest worker system is indistinguishable from indentured servitude.
How many of the Mathematicians and Engineers working on those programs had computers at their disposal? How many of the trajectories were calculated by computer, how many models were made on a computer? The people did not have calculators in their brief cases, they had slide rules in their brief cases. They did not attend classes on programming in college, they had to do the work manually.
The ship having a couple of processors with less computer power than a hand calculator does not mean the people did.
-The wise argue that there are few absolutes, the fool argues that there are no probabilities.
... has the government ever let things like the law, the Constitution, or basic human morality get in its way?
I'm sure this won't get much visibility, but for what it's worth...
Apple has smart lawyers, which made it odd for me to read when they were basing their primary objection on first amendment grounds, rather than the more obvious undue burden defense (and/or reference to this law, and the lack of statute which would compel them to rewrite the OS). But more recently, the government made their real strategy more clear (ie: rewrite it, or give us the code), which made Apple's strategy make more sense. Although the government cannot necessarily compel Apple to rewrite the OS code, they have much better legal footing to compel Apple to give them the OS code, and presumably could write GovOS themselves fairly trivially.
That's where the freedom of speech argument comes in: although the government can, in effect, steal Apple's code (legally), it's much more clearly established that they cannot compel Apple to "say" that it's coming from Apple (in technical terms, sign the code). Without the code signature, GovOS cannot be pushed onto, or run on, iOS devices. In essence, Apple was countering the more legally persuasive argument that the DOJ was holding back as their would-be trump card, if Apple fought the initial ruling. Well played, indeed.
For the sake of everyone in the US (and not to mention all the principles the country is founded on), I sincerely hope Apple prevails. Their forethought in legal argument gives me some hope that all is not lost, privacy-wise.
To examine the danger of green house gas emissions. The had no choice but to regulate. In that they were being lawful.
...that's what they tell themselves, and then they go and do what they want...
Truth is like the sun. You can shut it out for a time, but it ain't goin' away. - Elvis Presley (source: imdb.com)
What mathematical principle says they can't hand over their private key?
This isn't about physics or math. This is about law.
The white house supposedly operates separately from the Justice Department. Im pretty sure Barack's sharp legal mind has absolutely nothing to do with this.
---Up Up Down Down Left Right Left Right B A START
Good points. There is a long list of things they got. I need to go somewhere and don't have time to make another comment.
1) The law is whatever the Supreme Court decides it is. I think it is doubtful this argument will win the day. But who knows.
2) I believe the Supreme Court has clearly recognized a difference between the powers of a court in enforcing an order and what government agencies are allowed to do directly.
3) The court ordered Apple to unlock a phone by producing an alternative operating system that will allow a forced defeat of their encryption. Its not clear that producing that operating system requires modification of any existing or future phone by Apple.
4) The real problem is Apple created an encryption system that it can easily defeat while portraying themselves as a champion of privacy. What we needed was a law that prevented them from doing that. To ensure privacy we need laws requiring universal secure encryption that makes our privacy off limits regardless of how badly someone behaves. That means letting even ISIS and child molesters communicate in private. So there is your trade off.
(3) Encryption A telecommunications carrier shall not be responsible for decrypting, or ensuring the government’s ability to decrypt, any communication encrypted by a subscriber or customer, unless the encryption was provided by the carrier and the carrier possesses the information necessary to decrypt the communication. if apple possesses the information they need to decrypt
The era of "low information voter" , "low information consumer", "low information anybody" is really at an end. The only people who aren't informed are those who don't have the desire to know.
When any government entity tries to bullshit their way on almost any subject the "internet" community will quickly point out the inconsistent nature of their ways. Really, didn't the lawyers think they would be fact checked? Our government has been less than trustworthy on many subjects and they continue to dig their hole deeper... The famous quote " If you find yourself in a hole, STOP DIGGING" comes to mind.
Even as a kid decades ago, I taught myself how to add and subtract using what today people would call the common core way.
It made no sense to me, when given the question, what is 999 + 2001 to start the process in the one's column, carrying one, etc. I started with the most significant digit and worked left to right. It scales beautifully, and it gave me a sense of the size of the numbers. If I made a mistake, I'd be off by one or two. I'd love to see the example cited in your post.
There are bad math teachers. Perhaps your third grader has one. Perhaps the teacher doesn't have a good grasp on what they're teaching. Perhaps they're like you and don't want to change.
It's possible that kids learn differently and some love math while others don't. Some kids probably grasp the common core method slowly but would have excelled at the old way. Teach them the old way.
And have your kids take "high stakes testing." Only parents think of these tests as high stakes. The kids' lives don't change based on any single test. Even the SAT can be retaken. As for me, I had my kids take the SAT when they were in middle school. They did ok. But they did a lot better the next time, and the time after that.
Exactly which laws against spying on Americans did the government definitely break? I don't like the interpretations of the law I've heard from the NSA, but they have some reasoning behind them.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
The Fourth Amendment of the U.S. Constitution provides, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly ...
There are 11 million illegal immigrants in the US. What exactly is your plan to deport them? To round them up? Where are you going to house and feed them while you do? Are you going to build some sort of colossal prison-city?
It's all very well to talk about deportation, but it's not a practical idea at this point, and to even attempt to do so would be both ruinously expensive and necessitate the vast expansion of police numbers and powers. We would destroy our society in this vain and foolhardy attempt.
For my part, I have been an illegal immigrant before, staying on a tourist visa in Central America for several years*. I would still be there today, building a better life for myself, if I could have managed it. I was far from the only gringo there trying to do so. I can say from personal experience that it takes an exceptional kind of person to pack up and leave their entire family and try to settle in a new country, and many American families are also proud to attest to this. As far as I can tell, there is no economic or social argument to be made against the free flow of labor other than simple racism. I see no reason why this latest group of immigrants should not be granted the same opportunities our ancestors were. I believe that it is a moral imperative to do so, as well as patriotic. And not to belabor the point, but there really isn't an alternative: a wall might keep some people out, but the immigrants in the country now are here to stay.
* My reasons were complicated and not worth getting into.
Those who advocate genocide deserve every protection afforded by law, and none afforded by common human decency.
I'm sorry to say this, but everyone is missing the point. Even "Susan Crawford, Harvard Law Professor and former Obama Special Assistant".
The problem here isn't the law and it never was. Seeking a legal solution to a problem that isn't legal in nature is attempting to workaround the real problem. The workaround will fail because it implies respect for the law when such respect is absent.
Has no one noticed that the Three Letter Agencies have been abusing the Constitution? If they are willing to contravene that, why should we put our faith in law-based remedies? I mean lots of /. commenters have talked plenty about the Constitutional abuses but they aren't connecting the dots here.
The problem here is a security establishment run amok. They have power, money and political support and they want more. They are on an epic power trip and need to get their chain jerked. The President could do this but has not. What needs to happen to change this?
There needs to be a political price paid by supporters of the current behaviour of the Three Letter Agencies. Eventually this results in some politicians, and later some Directors/executives of the TLAs losing their jobs. Others need to be publicly chastised, in open testimony before Congress. This is what finally sends the message: You got your way for too long and you took advantage. Now go to the penalty box and think about what you've done.
This can then lead to the TLAs begin to respect the Constitution again and stop asking for security steps that can only diminish security. Stop asking for backdoors that will inevitably be discovered and exploited by the very people you claim to protect us against. Stop asking for a free pass to spy on people with minimal/no accountability or oversight. Stop asking for innocent civilians to surrender privacy and civil rights. Stop asking for a free society to become rather like the police state the terrorists already claim it is.
When the TLAs stop asking for powers that undermine the very basis of a free society, and do so because they know what principles support a free society, and the costs of failing to defend those principles, then freedom will have won. And not before then.
Hello. I'm a math teacher, licensed to teach in two states, currently teaching algebra 2 and AP calculus. What are you talking about? I'm familiar with the common core state standards (CCSS). I've never heard of a "common core addition method." Care to enlighten me?
Please give a link to the online version of the CCSS that describes this algorithm. If, instead, you're seeing this algorithm described in some crap textbook your school district got from the lowest bidder, well, that's too bad. The publishers don't have their books vetted by common core. They are completely independent.
"Mit der Dummheit kaempfen Goetter selbst vergebens." - Schiller
The Government has restrictions. But SCOTUS has ruled that where the Gov't HAS power, its powers are broad.
So, it is UNREASONABLE for the Gov't to ask for backdoors? No. The 4th goes away once granted a warrant (aka the search is deemed REASONABLE).
Is it an UNDUE BURDEN to put in a back door? No. A simple OTA patch and POW! All your devices are now backdoored.
The liberal leaning SCOTUS would most definitely agree with this.
Why do you think the NSA has been illegally gathering route and frame data on every call for so long?
The goal is to make sure there is never another successful revolution after the teagagger one.
Controlling your access to secrets is how they can put any of you out of business.
What is really happening is "Herd immunity" to day to day surveillance. If enough people have enough protection, the minor conspiracies we all live with, like underreporting income from gig work, to overreporting the value of donations, will be invisible to the States.
And you having the same rights as megabankers is just unacceptable.
Hence the law is wrong. Nothing can go against the will of our great Leader, President Barack Hussein Obama, defender of this Great Nation and protector of the Free World. Who dares to oppose Him? Have them arrested immediately!
I'm aware of the Fourth, thanks, but it doesn't say the NSA can't look at mail headers, for example. Is that "reasonable"? Is it like looking at something in public view? If I maintain a copy of something and don't let it be accessed until somebody has a warrant, is that a "search"? You have opinions on those, and they're fine. Can you establish that there is no other reasonable interpretation than yours?
It's possible that the NSA has done something clearly against the Fourth, as interpreted by later law, but I don't know if it has or what it would be.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
Do you really believe the NSA was only looking at headers?
Enough about the fucking phone! Someone step on it already... Jeez
For some values of "looking", with the exception of unauthorized access, which we know happens, quite possibly. The NSA pushes their interpretations of laws hard, and might not normally be going over those lines. I really don't know. Now, if you were to ask me how confident I was the NSA wasn't overstepping its idea of legal bounds on a regular basis, I'd say I wasn't confident at all.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes