Obama Won’t Seek Access to Encrypted User Data

The New York Times ^ | October 10, 2015 | Nicole Perlroth & David E Sanger

[William Tell]

mrsmith said: "Making the honoring of a warrant optional ..."

Usually when the police want to serve a warrant on a storage locker, for example, they bring with them a set of bolt cutters.

They don't issue a warrant to a local hardware store to supply the bolt cutters. Or more like the Apple case, they don't issue a warrant to the manufacturer of bolt cutters ordering them to make them a custom set of bolt cutters.

I would assume that many of the engineers working for Microsoft are as talented as those working for Apple. Why not issue a warrant to Microsoft to hack the phone?

My understanding (perhaps mistaken) is that the FBI wishes to exploit the fact that a person can upgrade the operating system of an Iphone without entering the existing passcode or erasing the user data. Apple is expected to create a special version of the operating system to defeat one of the most important capabilities of their product.

Unless the government outlaws the creation of Iphones that cannot be upgraded, I expect that such will be offered in the future. Who then will receive the FBI warrant?

I would guess that Apple is in its present situation precisely because they NEVER anticipated that the government would attempt to enslave them to the extent of creating a hack for their Iphones.

The present situation would be analogous to expecting Apple to turn over all of the software and hardware design documents for the Iphone over to the FBI in order for the FBI to hire people to hack the phone. Why is that not the present expectation?

Is there probable cause to believe that Apple has in its possession evidence relating to a crime? Or is there to be a different notion of what the limits of a warrant should be?

Also, what obligation does the warrant create with respect to individual engineers? If a particular engineer refuses to work on this project, what then? Shall we jail them all?

[Ozark Tom]

They want the ability to upload ‘into’ your phone, and look about your phones history and contacts, without oversight and without your knowing. Consider what the ability to upgrade the phone to their ‘specifications’, and place files of their choosing into your phone, could accomplish.

[mrsmith]

I think Apple ran this by their lawyers and they saw the ability to evade warrants of the product and predicted at least this much trouble.
(Of course if they intentionally manufactured it to sell for that purpose they may have acted criminally- IANAL, just wild guessing there.)
Apple would prefer to keep as much info to itself and, recognizing the reasonableness of that, the courts are demanding they do the work because the court knows they would rather do that than turn over company secrets.
For difficult locks, like safe deposit boxes, a warrant is served on the bank to open them.

How far can the court go to compel a third party is a difficult question alright. It’s power over the parties is practically unlimited, but I find little info on what they can compel others to do.
If Apple and the court can’t agree then the only way to save the Fourth would be to ban encryption- but I don’t think that would be effective for long, because it’s not going back into Pandora’s box.

[William Tell]

I think our perspectives on this issue are so opposite that I have difficulty understanding you.

For example, I don't think Apple designed this product in order to avoid warrants. I think they designed it to provide maximum security to the customer.

Also, I disagree that Apple would be guilty of a criminal act for selling an unbreakable phone, which I anticipate will be in the marketplace soon; and sooner than later because of the hassle from the FBI.

I disagree with the assessment that the courts ever considered for even a moment whether it would be convenient for Apple to turn over all its trade secrets. The present case will reveal whether or not Apple has to cooperate by providing design services to the government, whether free, at cost, or, more reasonably, at cost plus.

I don't agree that saving the Fourth Amendment requires the banning of encryption. The Fourth was not designed to provide power to the police. It was designed to limit that power. Encryption makes some of that limitation unnecessary.

Finally, you refer to putting encryption back into Pandora's Box. I like to refer to letting the Genie out of the Bottle. Our Founders would be absolutely aghast at the amount of information and control the government has over people's lives today.

[mrsmith]

“So opposite”
It’s just obvious to me that courts can’t do their jobs (even as badly as they do) without mandatory warrants.

I think it seems to many that doing away with mandatory warrants is an improvement on the Fourth. That it is an increase in personal liberty and therefor a good thing.

[mrsmith]

Just saw all the candidates take the same view as I at the debate.
Of course that’s not necessarily a point in it’s favor...!

[William Tell]

mrsmith said: "I think it seems to many that doing away with mandatory warrants is an improvement on the Fourth."

What is it that they are searching for and intend to seize from Apple? Non-existent software?

From the Fourth Amendment:
"... particularly describing the place to be searched, and the persons or things to be seized." >/b>

I haven't seen anyone post anything from the warrant itself. What do you suppose it describes?

[hiredhand]

The only encryption I personally trust...and then only nominally is that which is open source, which hasn’t been reported as weak. The open source community is pretty tough on itself and can’t seem to be quiet for long about discovering vulerabilities. I don’t trusty ANYTHING “commercially produced”...no matter what they state in their marketing literature.