Thomas Jefferson and Apple versus the FBI

https://blog.cr.yp.to/20160315-jefferson.html

by lx • 10 years ago

217 51 10 years ago

blog.cr.yp.to

    In 1977 the Institute of Electrical and Electronics     
    Engineers (IEEE) scheduled a symposium at which several 
    important papers on cryptography were to be presented. 
    Research had established a basis for developing powerful 
    new encryption schemes, using fundamental concepts of 
    computer science, and examples of these schemes were 
    included in the papers. Prior to the symposium, however, a 
    letter arrived at IEEE headquarters warning that the 
    presentations might subject the authors and the IEEE to 
    prosecution under the Arms Export Control Act of 1976. The 
    letter was signed by an IEEE member, Joseph Meyer, who gave 
    only his home address, but who turned out to be an employee 
    of the National Security Agency (NSA).

40 years later, we still repeat the same arguments and make the same mistakes.

DINKDINK• 10 years ago

the same arguments and [...] the same mistakes.

Would you elaborate?

legittosser112• 10 years ago

This shouldn't be too big of a surprise. Our current politicians views of the world were largely molded by the people in office when the Arms Export Control Act was voted in.

It would be interesting to see a visualization of our political "family tree". For example, Rep George Miller from California was in office from 1975-2014. Who worked for him over those years, where are they now? Or flip it around, who did our current pols work/mentor under?

Keith Sebelius was a rep for KS in 1976. Father-in-law of Kathleen Sebelius. No direct ties to the 1976 bill, but that isn't the point I'm making. Nepotism and family ties run deep.

Rep Paul Tsongas voted Yea for the bill in 1976. His widow is now a Rep for California.

Rep John Conyers is the longest serving member of the house, having been elected in 1965.

Senator Trent Lott retired in 2007. Was elected to House in 1973.

Senator Chuck Grassley elected to House in 1975.

Recently retired Senator Tom Harkin elected to house in 1975.

Rep John T. Myers in office 1967 to 1997. His son-in-law takes over the seat 2001-2003.

Senator Paul Sarbanes served in the House from 1971-77 then moved over to Senate until 2007.

Rep Charles Rangel in office continuously since 1971.

Rep Norm Mineta server from 1975 to 1995, then went on to Sec of Commerce and Sec of Transportation.

Not all these people voted for the bill. Again, not the point. The point is, our system makes the same stupid decisions because it's a lot of the same stupid people.

The more I look at the govtrack.us page for this bill, the more names I recognize, the more I think "we really need to get away from politics being a legit `career` option."

kbenson3• 10 years ago

The more I look at the govtrack.us page for this bill, the more names I recognize, the more I think "we really need to get away from politics being a legit `career` option."

Which has been tried, and the extreme on the other end isn't pretty either. Strict term limits in California (prior to some revision in 2012) meant that Senators and Congresspeople were almost never around long enough to truly get involved and understand an issue. There was a lot of freshman lawmakers all trying to make their own mark, perpetually blind to the prior efforts.

The question really is how many years in congress, the senate, or both is too much, and how low of term limits is too low? If we can't find a happy middle ground (I honestly don't know), then maybe we need to step back and examine the question again, and decide whether there are some other levers and incentives and regulations we can use to our benefit.

Note: It's also worth looking at whether passing institutional attitude (knowledge?) as you described is actually a bad thing, or a natural correlation. If that district or state has a particular leaning, it could be that it's just natural that a similarly positioned person will be more likely to pick up the seat later.

rkevingibson• 10 years ago

"Defendants appear to insist that the higher the utility value of speech the less like speech it is. An extension of that argument assumes that once language allows one to actually do something, like play music or make lasagne, the language is no longer speech. The logic of this proposition is dubious at best."

I love this - definitely not a side to the argument that I'd considered before, but I find it very compelling. Well written article all around.

rayiner6• 10 years ago

"Speech" is not about the medium, it's about whether something is being communicated. Courts have long recognized that functional things can be speech. Clothes are functional, but fashion can be speech if the point of wearing it is to communicate an idea to other people. Of course, fashion (and code), can be not speech too. Code in the context of instructing a computer to perform encryption is not speech. But publishing that code to communicate to other people how to peform encryption is surely speech.

over• 10 years ago

Agreed, the test is instructing vs. making instructions available.

swombat2• 10 years ago

IANAL, but I think that argument about code-as-not-speech breaks down when you consider that this is code that, because of the digital signatures it includes, is intrinsically tied to Apple, and can be used to break any Apple phone. Perhaps a good analogy there would be that the FBI is asking Apple to write a speech that they disagree with, and then sign that speech, and then allow the FBI access to that speech, and the FBI is saying "don't worry, no one will see it, just us". And Apple is, quite rightly, saying "like hell, you can't even secure your personnel records - that speech is harmful to us and we will not be compelled to write it and sign it."

Zigurd5• 10 years ago

That can easily be made to look ridiculous: Does it become speech again after I disassemble it to find out how it works? At what point wasn't it speech?

ambulancechaser2• 10 years ago

"code in the context of instructing a computer to perform encryption is not speech." the decision cited from 1999 by the appellate court specifically considered this and found the opposite. As long as your phrase "Code in the context of instructing..." means source code, then they disagreed wholeheartedly with you. They found that people in the encryption field universally used source code to convey ideas and to communicate. They argued that utility of something doesn't revoke it as speech, as the parent to your comment noted. They did not take into consideration CD's with object compiled code on them nor easily scannable papers, which they note are a dubious prospect to begin with--being limited by the same export restrictions.

kposehn• 10 years ago

Agreed. Best distillation of the free speech argument I've seen so far for this case.

ameister14• 10 years ago

It's actually especially interesting considering that speech lacking any utility can be defined as obscene and not protected.

SilasX• 10 years ago

What's dubious about it? It's saying that "no, you can't just reframe an act to focus on the speech (communicative aspect) and automatically inherit free speech protections".

Example: "What? What's the problem? All I did was the send the signal 100100111011110[...] to my computer. I have the right to say '1', don't I? I have the right to say '0', yeah? So I must have the right to say '100100111011110[...]'. The fact that this triggered a destruction of the evidence on my hard drive is totally irrelevant, because we established I have the right to say '100100...', don't infringe on that, man."

swombat2• 10 years ago

Ah, but the point of free speech is not that you are shielded from the consequences of the action of your speech.

In your example, giving instructions that destroys evidence can certainly make you guilty of obstruction of justice or some other similar crime. But the point is, the government cannot either compel you to give those instructions, or compel you to not give them. They don't have the right to do that - at least not until they've convicted you of a crime that allows them to restrict your rights. If you're a free citizen, you can give whatever instructions to your computer you damn well please - and then face the consequences, which may be to make you a criminal.

What the government ends up arguing in the Apple case, is they want to make you work to figure out what a "10101..." is that will break your own products and make you say it (to the right phone... and then the next phone, and the next). This, they want to do, even though you have not committed any crime. That is the issue at stake.

As a free, lawful person you have the right to decide for yourself whether you're going to say something that you disagree with ethically and commercially. The FBI wants to take away your right to make that decision. They want, without even having legislated on the topic, to force you to say what they want you to say "because terrorists".

ambulancechaser2• 10 years ago

the court decision cited only took up source code, and not compiled object code, precisely because source code is meant to be read by humans. Also, the right to normal "spoken" speech can be abrogated when it is a call to immediate action, and it may not be a stretch that issuing a command to destroy evidence--a crime-- would be an unprotected communication towards immediate action.

With regard to publishing the encryption algorithm, the court found that he wasn't "refram[ing] an act to focus on speech" as you say but was engaging in the standard way that cryptologists communicate ideas: source code.

wyldfire2• 10 years ago

This blog entry is remarkably clear about the problem and why the suggestion of barring non-key escrow'd encryption won't work.

nerdponx• 10 years ago

Yep, I was stuck by how lucid the discussion was. The "remove the computer" idea is powerful.

beachy• 10 years ago

djb strikes me as the most lucid person on the planet.

His style extends to his software - he offered a bounty for a verifiable security hole in his qmail software in 1997 which still stands today. Nobody has ever found any security holes in qmail. https://cr.yp.to/qmail/guarantee.html

delinka• 10 years ago

Exactly this makes me feel that turning Obama's "fetishizing our [smart]phones" comment back at his branch of government is plausible. The executive branch has fetishized the smartphone (and started paying it as much attention as a locked safe inside a locked house) - and therefore deserves as much protection as any other part of our private lives.

0942v8653• 10 years ago

A counterpoint: https://www.technologyreview.com/s/600916/apples-code-speech...

I don't think the OP falls into the trap that the above is pointing out, but it would be easy to take this argument and accidentally make it into an argument that does.

adekok• 10 years ago

Free speech includes “All these guys did is simply push a sequence of buttons that they were legally entitled to push.”

http://www.wired.com/2013/05/game-king/

The prosecutors argued that they were "hacking" the machines, and behaving illegally. That's ridiculous.

If Apple can be forced to falsely claim that any hacked software is "valid", then every single citizen of the USA can be forced to parrot the government line.

Free speech? Only when it's acceptable speech.

Thomas Jefferson and Apple versus the FBI

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