back to article Norman Conquest, King Edward, cyber pathogen and illegal gambling all emerge in Apple v FBI

OK, we got it: Apple good, FBI bad. But seeing as the court case between these two powerful institutions is taking on ever-increasing importance, we figured it was time to actually listen to what law enforcement has to say about the case of the locked phone. And the truth is, it makes a lot of sense. Certainly enough sense …

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Precedents

> but it would be nice to hear a legal opinion that stemmed from events where people weren't still using bows and arrows and Charles Babbage's Difference Engine has been invented

Perhaps, but a precedent[1] is a precedent so referring to it is appropriate, no matter how old.

[1] If indeed it is one, which is an entirely different question

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Re: Precedents

"But as records of courts of justice are admissible, it can easily be proved that powerful and malevolent magicians once existed and were a scourge to mankind. The evidence (including confession) upon which certain women were convicted of witchcraft and executed was without a flaw; it is still unimpeachable. The judges' decisions based on it were sound in logic and in law. Nothing in any existing court was ever more thoroughly proved than the charges of witchcraft and sorcery for which so many suffered death. If there were no witches, human testimony and human reason are alike destitute of value." -- Ambrose Bierce

Time for a clear-out of irrelevant precedents, perhaps?

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Law enforcement cannot be trusted

The FBI has already shat all over their bed with borderline illegal use of stingray cell towers which by design hijack the infrastructure hundreds of ordinary citizens are using.

Give anyone this power it will be abused.

Until the pendulum swings the other way and law enforcement officials are immediately jailed for their abuse of technology the only protection we have is to deny them that technology because it WILL be abused on a scale all out of proportion to the problems it solves,

It's rather like giving them guns training and culture that emphasises their personal power over the rule of law and then being surprised that a minority think it's ok to blow away demographics that they look down upon or are frightened of.

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i'm an old and hardly leave the house anymore so i guess i'm not even unintentionally breaking the law with any frequency any more . . . i have a dumb phone, the only things in memory are phone numbers of family and (too many) physicians . . . my life is so dull it has been threatened with classification as an opiate.

however, i care about your phones and your data . . . they shouldn't be accessible to anybody but you!

i may revise this opinion when law enforcement begins policing their own more vigorously than they police the rest of us . . . when they stop giving free passes to the well connected . . . and most importantly - when they disarm!

[ i don't think i'll live long enough to have to change my opinion ]

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The author's rather feeble effort to trivialize the First Amendment issues disgusted me... until it dawned on me that the Kieren McCarthy probably wrote that piece under duress from the US Department of Justice.

OK, so maybe not... but if Apple can be compelled to spend 10 man months or more using highly skilled individuals to create software (which, Kieren, is speech, as a matter of law, regardless of what you think), why can't some hack be compelled to spend 10 minutes or so banging out that article, and then attaching the by-line?

The cops are full of BS. Their argument is no different from arguing that cars should be limited to the speed of a galloping horse, so the cops can catch them. And it ignores the reality that unbreakable encoding has existed since the beginning of time: what does "Tora! Tora! Tora!" mean, anyway? (coding != ciphering, of course).

Yes, we understand it's convenient for cops to be able to mine all sorts of things for evidence, and we understand they've been able to achieve great things with the fruits of those mining expeditions, but fundamentally the cops (and Kieren) are arguing that everyone should be implanted with a GPS tracker / camera / recorder, because it would be jolly useful to have that evidence.

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Holmes

which, Kieren, is speech, as a matter of law, regardless of what you think

You may want to point to a legal precedent instead of making stuff up.

It would be nice to have code considered as "speech" but there is a truckton of legal discourse behind such a concept that is unlikely to be very likely to go that way. Interestingly, it would imply that DNA is speech, so I could wire up any pathogen in my basement when I get the DNA desktop combinator in about 10 years, then?

Apple compelled to spend 10 man months or more using highly skilled individuals to create software

Drop the "my poor Apple Corp" arguments, please. I feel like i'm reading a novel by Victor Hugo.

but fundamentally the cops (and Kieren) are arguing that everyone should be implanted with a GPS

I looked it up for you: Appeal to Extremes

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Anonymous Coward

First they came for my iPhone ...

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First they came for my iPhone...

I hope many others here know how this (updated) mantra, or litany, ends.

Then: "Those who fail to learn from the mistakes of history are doomed to repeat them".

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"You may want to point to a legal precedent instead of making stuff up"

In case he can't be bothered with your somewhat rude reply, I looked it up for you: Bernstein v Dept. of Justice

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P.s. it would be convenient for me if a cop car parked on the street in front of my house all day and all night. Surely if Apple's efforts are "reasonable", then having that cop outside 24/7 is just as reasonable, and indeed nothing more than their job.

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Seems to me that short term memory is at fault.

Early on in this fiasco, I seem to recall that Apple have assisted in the recovery of data from hundreds of iPhones, their quote, for properly presented warrants for law enforcement. The requirement being that you have *not* reset the iCloud password associated with the iPhone.

Did not San Bernardino Police thank the FBI for helping them reset the password on the iPhones iCloud account or do I remember this incorrectly?

If that is the case then why are the FBI beasting Apple over the FBI, who should have known better, having screwed up recovery options? Recovery options that they cannot deny knowing about having used them before with properly issued warrants.

I don't use any Apple products, I don't actually like the way they work, but I'm with Apple over this one. The FBI screwed up the ability to recover the data. They are now scabbing about in the depths of the law system trying to find a way out without shouldering any blame.

Apple is quite right to give them the legally approved method of the Long bowmen two finger salute.

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Re: Seems to me that short term memory is at fault.

That's because the FBI are incompetent bottom feeders who only seem to exist to drawn down federal funds and spy on peacenik groups, but that's another problem. Or is it?

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Re: Seems to me that short term memory is at fault.

They might very well be incompetent in this case. However, instead of stupidity, let's consider "forethought".

It's been mentioned that one of the conditions is that the iCloud password NOT be reset for Apple to be able to help. Suddenly we have a phone in a well-publicized case that had it's iCloud password reset. No real answers but fingers pointed at different people... the FBI, the County office where he worked, and the local cops have all had the finger pointed at them for resetting the password. This is perfect case (due to publicity and well... terrorism) for them to push the envelope.

I'm guessing they know full well that there's nothing of value on that phone and that this is a test case to see how far they can push the envelope.

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Nobody complained before ...

I don't see what all the fuss is about. Before the Internet all mail was opened and copied at the Post Office before being redealed and delivered and nobody complained then.Or was it ...

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Anonymous Coward

Re: Nobody complained before ...

"[...] was opened and copied at the Post Office [...]"

Correspondents used coded messages, not necessarily encryption, to avoid spooking the Royal Mail interceptors into suspicions of treasonable behaviour. One imagines everyone who had to use the mail service soon learned to be very careful about the way innocent words or phrases could be construed by a biased, or ambitious, mind.

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Re: Nobody complained before ...

This 'Post Office' mind game has gone too far.

Before cheap, powerful computers and storage were invented it was uneconomical to spy on everyone unless the authorities had good reason to mistrust everyone. Now it is affordable and any bureaucracy will adopt useful equipment and practices if it fits into the budget. The problem is not the bureaucracies it is the law.

The FBI needs to know where the law stands. We need to have the laws that suit us.

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Off course Apple must help law enforcement

Obviously we must all do our best to help law enforcement in solving a crime that has been committed. I do not understand why that is even being discussed. However ...

Given the encrypted state of the phone they are trying to access, Apple should immediately assist the police in setting up a system that can be used to brute force the encryption. That is the best that can be done given the state of the phone. If the bad guy has chosen a good password this might take a long time.

We should not confuse assisting law enforcement with the different matter that is if we should setup our security beforehand so that law enforcement has a backdoor access.

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Re: Off course Apple must help law enforcement

"Given the encrypted state of the phone they are trying to access, Apple should immediately assist the police in setting up a system that can be used to brute force the encryption. That is the best that can be done given the state of the phone. If the bad guy has chosen a good password this might take a long time." -- Steen Larsen

Let us enjoy the full majesty of your uninformed ad hoc reckon

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Childcatcher

"in order to do their jobs they need to be able to get at relevant evidence"

Which is followed by "In this digital age, data stored on mobile devices has proven time and again to be critical in assisting law enforcement officers to do their jobs."

That may be the case, but it is *NOT* a justification for fishing expeditions, nor widespread surveillance, ID cards, snooping on everyone based on the principle of "if you have nothing to hide..."

And, of course, it doesn't mention all those many more other cases which have been solved *without* accessing such information with that thing called "old fashioned police work".

> society accepts that the people that break its rules and laws should not be able to rely on those same laws to prevent them from being punished.

Did this one come from the Daily Mail's pages or maybe David Cameron (who thinks that "as long as you obey the law, we will leave you alone" is no longer acceptable)?

We have things called Human Rights Laws which say that *everyone* is entitled to the same liberties and protections, not just for people who believe the "right" things or come from the "right" places" or worship the "right" gods or have the "right" skin colour.

Clearly Sir William Blackstone's words: “It is better that ten guilty persons escape, than that one innocent suffer” are also no longer applicable.

> wait until you or your family are at the end of a crime and the person walks free because they were unable to prove their case. Thanks to that black-screened iPhone. Then you may not back Tim Cook quite so strongly

Seriously?!

This is the same argument I've heard from the pro-gun lobby in the USA: "You may be anti-gun now, but wait until someone's pointing one at you or your family is killed by a criminal because they couldn't defend themselves, then let's see how strong your principles are!"

This is the sort of thing which tests those principles. Do we cave in to the "Terrorists and Paedophiles and Criminals Oh My" demands or do we stand up for what we believe in and say "No, we are not going to let you fool us into giving up our rights and liberties wholesale because you can't get your way in this case"?

PS I have to wonder whether this entire article was written as some sort of massive troll...

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Hardly truth

But law enforcement is trying to tell anyone that will listen a hard truth: you like it now, but wait until you or your family are at the end of a crime and the person walks free because they were unable to prove their case. Thanks to that black-screened iPhone. Then you may not back Tim Cook quite so strongly.

It's true that at first I might not, but I'd like to think that my initial visceral reaction would then be tempered by my more rational mind

In earlier decades I might have wished that the cops were allowed to beat a confession out of the bastard who harmed my family, but I've long since learned that it's better for society as a whole not to allow such things. So law enforcement can go stick their emotive, fear-mongering and fallacious 'hard truth' up their collective behinds.

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It's rather trite to say that everyone should assist in the pursuit of lawbreakers etc. But we also have to remember there's supposed to be - and I'd like to think still is - a concept of presumption of innocence.

The FBI appear to have chosen the case on which to raise their demand with considerable care. There is nobody charged and very likely nobody ever to be charged as a result of this. The user of the phone, whilst neither charged nor convicted, has any outstanding human rights to be contradicted, moreover it's likely that when a coroners court sits on the murders it's likely to pronounce that he committed them. Also the phone wasn't his property, it belonged to the local government body who are agreed to the phone being hacked. So, apart from the fact that the FBI and the owners between them made a cock-up by changing the password and the dubious arguments for the phone's likely evidential value over and above any information the FBI might already have, the case for doing this is about as persuasive as it gets.

However, the precedent it would set, practically if not legally, would extend well beyond these circumstances. Even if a decision in favour of the FBI were limited to the particular circumstances I outlined above it would still be a dangerous precedent. On the one hand it would undoubtedly be just the first slice in a campaign of salami tactics to make the decision universal. On the other, if the circumstances were limited to those in which the user were dead that might be an irresistible temptation that shouldn't be on offer.

The argument's been made that those who break the law shouldn't be entitled to call on the law to protect them. That argument fails to take account of the presumption of innocence. Until proven guilty the alleged lawbreaker is as entitled to the protection of the law as anyone - it's one of the final lines of defence we all share against a false allegation. So the risk of such a precedent being widened to overrule that presumption is not a trivial one.

If we are to be called on to assist against lawbreakers we need to be able to trust those who make such calls. As things stand various agencies in both the US and the UK have forfeited a great deal of public trust. ISTM that one of the most important things now, for the FBI and for the others, is to rebuild that trust. In the circumstances, whatever new evidence might be gleaned from the phone the wisest step the FBI could take right now would be away from their request. It could be the first step towards that rebuilding.

As the FBI and their supporters have chosen to invoke the rulings of Edward I we should remember that the presumption of innocence was reintroduced into European law in his time and also that he not only reaffirmed Magna Carta, he made it part of English statute law. From Magna Carta we have the concept of due process of law. These days I fear the concept of due process is being stretched to breaking point if not beyond.

Finally I should reiterate that I spend a good many years as a forensic scientist in the midst of a terrorist campaign. I carry no brief for terrorism or any other form of criminality. I understand from my own experience the desire to investigate cases as fully as possible. But the thing I dreaded for all those years was the possibility that, however inadvertently, I might end up making a mistake that could help convict someone who was, and would know themselves to be, innocent. I wish I could see evidence of that dread in the decision makers of law enforcement agencies today.

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Thirteenth Amendment

bans both slavery and involuntary servitude (except as punishment for a crime), so it's actually quite relevant here. The judge may not agree that it's a good argument, but it's not unreasonable to try to make that argument.

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completely ignores the purpose and tradition of constitutional freedom

As Franklin pointed out, anyone who is willing to give up a bit of freedom for increased safety deserves (and will achieve) neither. The fundamental philosophy of American law has always been that it is better that a few guilty go free rather than a single innocent be punished unjustly. Finally, the fact that today's law enforcement can use tactics that East Germany STASI would only dream about in silence and darkness, while the STASI had to do it in public, does not make it justified to hold every citizen as guilty until proven innocent. I don't have an ideal answer, but giving government authoritarians Carter Blanche certainly is not the right answer. And depending on a present government's good graces and protestations of virtue is a foolish conceit, as has been demonstrated throughout history.

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Anonymous Coward

If you really need a reason to _not_ grant even more power to the government, just check out aclu.org.

Assuming that government always acts in society's best interest is a fallacy.

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FAIL

Cognitive Dissonance Blah Blah

"While Apple has been listing the briefs filed with the court on its website, we note one missing: the 18-page argument in favor of the FBI's position..."

Of course Apple doesn't list this brief. What Apple lists is, to quote:

"Amicus Briefs in Support of Apple".

The critical phrase is 'in Support of'.

Pointing out quotes from New York District Attorney Cyrus Vance is incoherent, seeing as he just lost a court case demanding Apple help crack an iPhone in a drug crime case. Or didn't you know that?

You state: "The crux of the law enforcement argument is pretty simple: in order to do their jobs they need to be able to get at relevant evidence." NO. In order to do their jobs they have to protect and defend both the law, including the US Constitution, and the citizens of the USA. That includes defending The Fourth Amendment to the US Constitution. Breaking the US Constitution is NOT their job. Subverting US citizen's rights to privacy, including as much and any encryption they choose to use, is NOT their job.

Immediately, this article comes off as a hit piece with no adherence to facts, little understanding of the subject and meagre background in US law, including the US Constitution. Did you expect this issue to be a mud puddle you could splash about in? You've drowned yourself.

Why did you bother to write this cognitive dissonance diatribe and why did The Register publish it? Try again, without attempting to enable, excuse or support totalitarianism.

Speaking of which, don't UK citizens have their own more offensive problems with governmental totalitarianism to route out and end?

Reminder: When we nations of the world subvert citizen's rights in response to terrorism, the terrorists WIN.

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Anonymous Coward

I would take that view of law enforcement seriously...

... if there had been less videos of Usanian law enforcement officers shooting at people, then walking free, without even a trial. So, how can evidence locked inside a phone matter than much when that on Youtube does not?

Anyway, the crime rates in the USA are overall going *down*, not *up*. So that new technology is not ushering in an age of anarchy and lawlessness.

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E 2

"...the citizenry may be called upon to enforce the justice of the state, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand."

Drop the reference to Edward. It seems a reasonable statement.

When it is the state that is breaking the laws (privacy, illegal search and seizure, torture) however...

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to summarize the FBI position

(Which the writer of this article appears to be endorsing)

Unless you give up some of your rights, criminals will get away with it.

Of course, (replacing criminals with 'enemies of the state') totalitarian states have used this argument for decades. Conversely if you do give up your rights - for any reason whatsoever - you WILL get a totalitarian state. Police and governments can't help themselves.

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Anonymous Coward

Is this real?

A pro-Backdoor article written by a Mccarthy?

He didn't have a famous dad, did he?

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Facepalm

Precedents?

This is the best they've got...

Some 950-year-old laws imposed on England by the Norman conquerors.

Some 700-year-old decrees of Edward I, a notorious tyrant.

And some unconstitutional 20th-century government excesses which gave law enforcement access to private financial transaction records and similar paperwork, which, they argue, should also apply to electronic devices that are constantly recording the minutiae of our lives (often out of context).

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Apple and the Z10 funeral selfie

Until the POTUS endorses the iPhone it is not a serious device and it can't gain that endorsement until it is shown to be secure.

If the Feds win then the sheen on the shiney will be forever dulled.

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But... the cloud may be searched

It is true that a mobile device has an abundance of data and possible evidence on it. However, much data is also sent to could services. The metadata can be a rich source of evidence and leads to other actors/information. Right now, I side with apple because the government demonstrated unambiguously that they are unworthy of trust. This is technology taketh away what the government should should never have been given. The government will need to work hard to regain the lost trust. Unfortunately, they seem to be more interested in "justice" for Edward Snowden's alleged crimes than rebuilding trust with the citizenry.

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Boffin

Outlaw

"... society accepts that the people that break its rules and laws should not be able to rely on those same laws to prevent them from being punished..."

What the author refers to is the original meaning of the term "outlaw": one who was outwith the law and the law *would not protect*. Being an outlaw was tantamount to walking around with a target on one's chest: anyone could do anything to you with no comeback.

As a result, being declared an outlaw was considered a very harsh penalty indeed. Not a default position taken before guilt has even been established!

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oh dear

"you like it now, but wait until you or your family are at the end of a crime and the person walks free because they were unable to prove their case. Thanks to that black-screened iPhone."

.. May as well have just done the cliched "think of the children" instead of same intent, just reworded.

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No! No! A thousand times NO!

"it's fair to say that the majority of law-abiding citizens would want prosecutors to be able to access evidence that could help convict someone of a serious crime, regardless of how strongly they feel about their own personal privacy."

No it is not fair to say that. It would be fair to say that citizens object strongly to innocent citizens having their rights violated, whether by criminals or by the criminal justice system. It would also be fair to say that citizens expect investigators to follow a trail of evidence to its logical conclusions, remembering at all times that all citizens are innocent until proven otherwise. If, and only if sufficient evidence warrants it, should prosecutors consider bringing criminal charges. Does this mean that some criminals will get away with it? Yes. That is one of the prices to be paid for living in a fair and honest civilization. The alternative approach, which is to assume that everyone (you included) is a criminal, has been tried many times, and has failed every time.

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WTF?

Hereby

Hereby I would like to nominate this... thing... as the most unpopular article I've ever read at this website!

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The FBI treats this as if it was an inexhaustible resource. Crime committed - just break the phone and crime solved. Not so. A few big cases and people stop using phones in a way that leaves evidence around.

However, once you put a back door into phones, phones as safe repositories of personal data that could lead to ID theft are gone. If people get hacked because their phones are hacked and we are soon back to land lines (I actually only have a land line, so that would not bother me).

The FBI/police were able to solve most cases before phones and the incriminating information that they claim is in those phones. They relied on physical evidence and that physical evidence still exists.

Do phones create crime. Do people become crazed and decide to kidnap a child because they have a phone? Does the phone allow them to hide the other evidence of the kidnapping?

The US is spending billions on security every year. That should allow far better crime solving than ever before even without cracking phones.

Or, is all the money spent on show with no real results?

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Backdoors On Phones Will Not Stop Terror

All calls made by the number can be retreved through the service provider via already established legal means. If the data is in the apps e.g social apps then that data can be accessed via normal data requests to the app companies and is already in practise.

While it appears its Apple vs FBI but if Apple is forced into making a backdoor for iOS, then Android, Windows, Linux and all other operating suites will have to do the same.

Q - So how do we stop foreign companies from making bloatware and snooping on people in other countries??.

Q - Why switch to manufacturing unsafe hardware just because political mistakes have created situations where the world is overan by mercenaries created by the same forces ?? Should'nt we solve those political problems rather than build virtual guantanamo bays on mobile devices?

Q - Should the world have to pay for foreign mistakes?. How will US manufacturers present this in foreign markets?. Example if you live in Italy should you be JulianAssange/EdwardSnowden worried that you are being snooped on by the US?.

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When someone writes

...but it would be nice to hear a legal opinion that stemmed from events where people weren't still using bows and arrows...

It's an admission that they KNOW that based on established LAW, they've already LOST the case, but for POLITICAL reasons, they want the COURTS to VOTE against the LAW.

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Silver badge

When the law break in, how you gonna go?

In term of privacy, what is the difference between searching a home and searching a phone? Both are invasion of legal forces into one's individual sphere.

If we consider it is legitimate for the police to snoop into one's house if a judge says it is legal to do so, then we should have the same consideration when the police with the authorization of a judge wants to dig into a suspect's phone.

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Apple vs FBI re iOS encryption

"This is the quote from Justice Cardozo in the 1928 New York case of Babington vs Yellow Taxi Corp:

As in the days of Edward I, the citizenry may be called upon to enforce the justice of the state, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand."

Surely a key point for Apple is that the implements the FBI wants are neither "convenient" nor "at hand"?

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13th Amendment

The 13th Amendment abolished involuntary servitude. The author, Kieren McCarthy, wonders how that could be applicable.

"...argues that the court order breaks the Thirteenth Amendment (1865) – that's right, the one abolishing slavery. How does that work exactly? We don't yet know because the proposed brief has yet to arrive."

But isn't it clear that compelling a company (which is composed of individuals) to perform a task against their will amounts to involuntary servitude?

The government must be limited in its powers. Even if you can find instances where a good government would be aided with additional powers, the real government must be limited.

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Terminator

Bigger picture

Frighteningly, most discussion of this case is being discussed in a national frame. But you can be sure as eggs that if they don't already, once the FBI has such a tool then the NSA, CIA and any other acronym, will also have it and use it with impunity within and without US borders.

While a lot of privacy discussion at the moment focusses on matters internal to the US, it's intelligence gathering agencies that operate outside of its borders have to date demonstrated **much** less restriction or moral qualms about foreign citizens information sovereignty.

As a US citizen you might say "Well that's because we need to know what those dangerous muslims/torrorists/Iraqis/Afghanis/commies/Chinese/Japs/North Koreans/zombies (take your pick of the new Hollywood bad guys) are at for our own safety!". But then also imagine that is just as likely that the same argument may be made in other countries. As the US is often held up as a shining example of democracy, then if the argument wins there surely other countries wanting to emulate such great governance will also follow suit - indeed how could one hold them to blame?

Furthermore, in this age of global intelligence community it is likely that such a tool would be willingly shared or bartered with other nation's police and intelligence agencies making such a scenario extremely likely. Once beyond the marvellously stringently laws of use of US jurisdiction who's to say that it wouldn't just be used for this, at best, morally gray area of policing and intelligence? The Us and its allies have often allied with countries that have since gone on to become near totalitarian, using every tool in their arsenal, including invasion of their own citizens privacy and free speech, to control their people, Egypt, Afghanistan, Libya - the list goes on. In such a case the US - self-appointed purveyor of democracy, equality and justice across the globe thus provides the means to oppress the same 3 qualities just mentioned.

"Our intelligence agencies would never share such a tool with foreign powers!" you cry. To which I laugh my arse off.

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