"Please won't someone think of the children"
If the FBI had mind reading technology, they'd argue it should be legal to force its use on someone against their will contrary to the 5th Amendment, because "it could save lives".
FBI Director James Comey has complained that Apple and Google's use of stronger encryption in smartphones and tablets makes it impossible for cops and g-men to collar criminals. "There will come a day – well it comes every day in this business – when it will matter a great, great deal to the lives of people of all kinds that …
Funnily enough MrsPage and I watched (for the first time) "The Men Who Stare at Goats" last night.
Although we had a good chuckle at the "New Age Army", it was hard to forget the films opening statement ... "More of this is true than you would believe".
Top film, btw.
"I am a huge believer in the rule of law, but I am also a believer that no one in this country is above the law," Comey moaned today.
I would further point out that if he really believes this, he should be campaigning for all the people who are violating the "unreasonable seizure and search" provisions in US law to be prosecuted to the full extent of that law. It's the actions of his colleagues in the government law and security apparatus who are making his future job more difficult because they do think they're above the law.
Well, from Comer's point of view, to paraphrase Tricky Dickey..."I guess you could say that if the (insert 3 letter org. here) does it, it is not illegal." So, to have those pesky US - Global entities Apple and Google go ahead and put themselves in the position of not being able to be summonsed, well! That JUST WON"T DO!!!! THERE OUGHT TO BE A LAW!!!!
Agreed. I don't know what the exact crime stats are, but the police/government would have you believe that there are more criminals out there than honest, law abiding citizens. This is utter bollocks. You don't burn your house down to protect your family from a pyromaniac, you get a decent fire alarm and make sure you pay your taxes so you have a decent friendly neighbourhood fireman to come and save you, and a decent policewoman to find the criminal and bring them to justice. THEN you find them after their 2 week holiday, sorry, life sentence, beat them, pour petrol all over them and burn them alive in a sacrifice to the great firehawk...
"Agreed. I don't know what the exact crime stats are, but the police/government would have you believe that there are more criminals out there than honest, law abiding citizens. This is utter bollocks."
I'm going to have to disagree with you here. There ARE more criminals then there are law-abiding citizens, because we have made such a rediculous set of laws you can't help put step on one. They treat every like a criminal, because everyone is a criminal, it's just a matter of figuring out what you've done.
With a court order, of the law correctly enforced, there are two situations:
1. Compelling the suspect to reveal his information, with attendant 5th Amendment considerations.
2. Compelling a 3rd party to release your information. This is what Apple and Google want to avoid. It's Expensive, it's bad publicity, it's liable to further complications.
"That is what Apple wants to avoid."
Google never had the capability, nor did the device manufacturers.
Apple wants credit for no longer doing a wrong thing, as well as for making data security sort of a default. Google doesn't want to seem be unconcerned, so follows in making encryption a default.
The correct thing here is for the government to obtain a warrant to serve on the device owner, to be followed up by contempt of court punishment if the owner fails to get the warrant suppressed and refuses to open up the data. While I'm not a lawyer, I suspect the Fifth Amendment is not a major barrier; I would guess that search warrants have been issued, and executed, that require opening a safe, although in that case the police have a realistic physical alternative.
I find this to be a very interesting 5th Amendment issue, though probably in my legal naivete.
It seems to me that the information stored on mobile devices is akin or maybe adjacent to the information stored in people's heads. To compel them to allow access to that information is to compel them to incriminate themselves even if indirectly which would be a violation of their 5th Amendment rights. I'm sure courts have established otherwise, but then, they think corporations are people and money is speech.
If they want phone calls, SMS, MMS, browsing history, IMEI, or location they can go to the network with the phone number.
If they want WhatsApp messages they can go to WhatsApp with the phone number.
If they want Facebook or Twitter messages they can find whoever it is on Facebook or Twitter and go to Facebook and Twitter.
If they want cloudy data they can go to the cloud provider (Apple, Google, MS, BlackBerry - check IMEI to find out which one) with the phone number.
Preferably with a court order.
What else do they really need?
They want to be able to search the phone the same way the frisk you in a stop and search without a court order.
That was borderline reasonable in the past when the phone contained a very little amount of data - f.e. just the people you called last.
In this day and age for a lot of people half of their "life" is on the phone. It is not different from searching your house. It contains a replica of all of your contacts, mails, financial information, etc. in the past to get that you had to go get a court order and turn the suspect house upside down.
So what he wants is to get that information without a court order using the phone as a backdoor the same way as he has managed to do that for a few years. There are some bad news for him. There is a court ruling already that he cannot use that information in law enforcement without a court order (I believe either New York or DC circuit of appeals). This makes most evidence obtained this way inadmissible in court. That ruling will probably stand all the way to the Supremes because it is obvious.
So he should stop bitching, pay attention to what the courts say and comply with the rule of law. Yeah, I know, difficult for a place founded and built by J.E. Hoover.
Downvoting because the basic claims put forward are simply false. Apple required warrrants and physical access to the phone, according to reports, so warrants always were in order there. And Comey's comments had to do with execution of search warrants issued by courts, not (now, in some circuits) searching of phones without a warrant.
"so warrants always were in order there"
Have you been sleeping under a rock for the also few years? Let me give you a brief simplified history lesson.
A guy called Snowden published to the world the fact that court orders were not required to access user data there was a large trawling effort that just captured anything whether that is 'naughty' webcam chats with your other half or you communications with your lawyer. It did this by tapping directly into the communications infrastructure, by forcing service providers to install backdoors and intercepting traffic in pother ways. All this was done without public scrutiny, with secret courts and with gagging clauses for the providers of services. It has been proved that this was illegal and overreaching.
The only way to stop this was for the service providers to use encryption which is believed to be currently unbreakable and leave a single key with the user. This means that they will have to be targeted as an individual and that the court order to access their encrypted data must be directed to the user themselves. The Service provider then doesn't have to spend millions arguing in a secret court to judges who are political allies or don't understand technology as they don't have anyway of complying with any request.
".....The Privacy and Civil Liberties Oversight Board....." Is a talking shop meant with no legal powers and is most definitely not a court. You fail.
"....U.S. District Judge Richard Leon....." Made a ruling regarding a specific case and limited it only to that case, and only said it was 'likely' unconstitutional. His ruling was also not final as he referred the case to the District Court and not a final ruling as to the legality of the NSA's actions nor a win for the five plaintiffs. So you fail again.
El Mod check part one:
".....The chance of there being an actual court case against 'the NSA' is slim to none....." Oh, so that is you admitting that there has been no legal judgement stating that the NSA broke the law. Oh, and legal cases have been brought against all types of government agencies before.
Oh dear, El Mod seems to be being a bit upset, so I'll repost my reply in chunks so we can see which bit caused offence.
"What sort of a cretin are you?...." Abuse button time! To be called a cretin by a clueless cretin? Truly abuisve.
Now, if the above bit is what caused offence then it seems some people are more equal than others when it comes to the use of the word 'cretin'......
All you are doing is providing evidence for the fact that some of El Reg's posters simply run out of relevant thoughts, and are unable to provide a reasoned response to other posts, long before those with an IQ in treble figures.
Seeing as it is obviously a challenge for you, let's examine the possible legal options for the FBI. The first is just to accept the idea that Apple users can now encrypt their data. It may surprise a lot of fanbois but that is already an option to a lot of Linux and Windows users and the FBI and other government agencies have proven quite capable of dealing with that problem. Encryption by Apple users rather than by Apple is an inconvenience to the FBI, not a novelty. The second option is the FBI starts pushing for the same legal powers as are used in the UK under RIPA - decrypt upon request or go to jail. Now, you may want to regurgitate (as formulation appears beyond you) arguments that such an enforcement infringes upon the Fifth Amendment, but that does not seem the case if the authorities have reasonable cause, and the evidence is 'physical' in that it is not memories being confessed.
And, of course, the Fifth does not apply to non-US citizens or US citizens' data if outside the US, and Apple is allegedly looking for sites in Europe for new datacenters, complete with replication between there and US datacenters. Which opens up the possibility of the FBI and NSA simply asking their chums in Europe to issue a court decryption request (already possible against Apple users in the UK).
Now, concentrate real hard and try and formulate an original opinion in reply to the above.
"...Snowden published to the world the fact that court orders were not required to access user..." has, of course, nothing at all to do with Comey's complaint that properly issued warrants will be more difficult to execute due to Apple changing its encryption implementation and more widespread use of encryption generally.
"The only way to stop this was for the service providers to use encryption which is believed to be currently unbreakable". But they have not actually done anything yet to the bulk of cell phone communication data. Comey's subject was data at rest in smart phones and similar devices. As the Supreme court ruled in Riley v. California and United States v. Wurie, these searches require a warrant. Apple has stated that in the past they demanded a warrant before decrypting an iPhone for the police. For Google, the question is moot, as they never had a way to comply with such requests.
It sounds as if what he's saying is that having a right to keeping conversations, images, home videos private is above the law. I thought a right to privacy was, precisely, "the law".
I'm getting a sense of "the lady doth protest too much, methinks" and this is part of the campaign to give users a false sense of security. As a number of commenters have already said, there are many other avenues to get metadata, or other evidence, physical or virtual, that can point towards what is likely contained on the encrypted device, or that make the contents of the encrypted device inconsequential to getting a warrant or conviction.
There's always a trail, unless you're dealing with someone at The Grugq's level of computery counter intelligence and at that level of discipline any arguments over default encryption by Apple and Google are rendered moot.
P.S. The guns, drugs, bags of fertilizer, little boys, sex workers, and my missus' bruises are all hidden in my phone, which is encrypted, so even if we're pulled over there's nothing 'the man' can do about it. Let's ride!
> P.S. The guns, drugs, bags of fertilizer, little boys, sex workers, and my missus' bruises are all hidden in my phone, which is encrypted, so even if we're pulled over there's nothing 'the man' can do about it. Let's ride!
Erm, you do realise that, by stating that in a public forum, you are giving the courts the ability to order you to unlock your phone or be held in contempt of court (and fined/ locked up for it until you do so) because you have thereby given them evidence that you do have illegal material on your phone?
Not sure if my attempt at black humour fell flat or I missed your attempt at dry humour, but I can't see how the stating of obvious physical impossibilities could become the basis for any law enforcement investigation. If the situation does come to pass, however, is there a 'you didn't get the joke' clause that can be invoked to minimise the wastage of the public purse?
If not, I'm going to have to work out how to get one of those Roger Rabbit holes stuffed into my phone as well, or further protect the contents of the phone by relocating an Icelandic volcano into it.
"Did the FBI finally create an account here? What's with all the single downvotes?"
Yes, I've noticed it too, in a lot of threads. Relatively innocuous, factual replies often seem to get a single down vote.
I think that this is the El Reg equivalent of the Tooth Fairy. Instead of money under your pillow people get a random down vote instead. It happens to me sometimes, much to my amusement.
It might be of interest if a webmaster at El Reg could take a look and see if there is one person running around with the down vote stick and let us know if it an organised campaign. No need to say who the person is, just whether it's happening or not.
i think this particular pendulum has just begun the return swing and the 3-letter agencies are in for a lot more swing back toward humans having human rights as "guaranteed" by their constitutions or whatever the prevailing local system is.
[that said, the director can just eat a bag of lightly salted, poison rat dicks]
That they apparently can't break this encryption. Only a little, because if the FBI can't, maybe the NSA can, or GCHQ... or maybe even the FBI can and he's just spouting this crap to further reinforce the 'if you've got nothing to hide....' mentality that Manning/Snowden have made a little less popular with the former sheeple?
Not A/C because I'm sure the powers that be know me already and are yawning and saying 'meh, he's harmless'
My cursory understanding is that it's the time increment added to every wrong attempt that makes for ensured security.
Unless the underlying hardware is something with FIPS 140-2 Level 3 or 4 certified tamper-proof hardware (the kind that destroys the key if you try to open it up to extract the storage media containing the key) any "time increment" countermeasures are moot. I'm guessing any federal agency worth its salt will be able to rip apart the phone and then fire up a brute force PIN/password guessing program that is unhindered by these measures.
It would also be really fast for most phones, because most sheeple still use 4-digit PIN passwords to "secure" their phones. 10k attempts should be easy to brute-force through; even WPS now uses 8-digit passcodes and those are still brute-forceable.
It's also entirely possible that they *can* break this encryption, but they don't want anyone to realise they've managed it because then the standard will increase again and they're going to start struggling. Being able to bypass encryption for a criminal prosecution (ie they have to submit the decrypted phone data as evidence, so people know it happened and will suspect the encryption was broken) is kind of a one shot deal
Due to RIPA 2000.
Give us your password or go straight to jail.
Do not pass go.
Do not collect £200
Despite hundreds of years of not being able to force you to supply incriminating evidence against yourself, they abolished torture, then decided, in the pre-dawn of the new millenium, and at the stroke of a pen, that it was OK to deprive you of your liberty until you give them what they want.
Who should we fear the most?
Those who can do us the most harm. Directly.
Afaik they can only require you give them the password if they have specific evidence they know is on the device they want access to, much like they can require the key to a safe that contains a company's accountancy records. The only case I know of where the court was able to actually require access to a phone the guy had already showed the contents to someone at a border crossing, and it was what he'd shown them that they wanted access to.
Arguably you might be able to get around it by providing the specific thing they wanted access to on your device, but considering they can only get that kind of court order if the thing they're after is evidence of criminality I don't think you'd want to be doing that
I've always wondered what would happen in the following theoretical situation:
I have an encrypted file with loads of important stuff in - important enough for me to want to secure it heavily.
To secure it, I type a fairly long passphrase. I then call my friend in another country and ask them to remote to my machine and then type their long passphrase on the end of mine. The file is encrypted.
For whatever reason, plod decides that they want the contents of that file. They arrest me, and I type in my half of the key. I then inform them that the rest of it is unknown to me and give them the details of my friend, who promptly refuses to divulge the key.
Being in another country, plod doesn't have jurisdiction to force my friend to give their portion.
Would they still (legally) be able to lock me up, as I have given them the password as far as I know?
".....Would they still (legally) be able to lock me up, as I have given them the password as far as I know?" Yes, because the court order under RIPA is not to supply a key but to decrypt the data. If you try to deliberately circumvent the law by letting your foreign friend hold an additional key then you are still in breach of the court order, and possibly also liable for further charges should the police be able to show in court (e.g., by the emails between you and your foreign friend) that you did so with the deliberate intent of hiding evidence and frustrating a police investigation.
How could they tell "my friend has the other half of the password and he died" from "I don't want to give them the password, so I'll give them some gibberish and say my friend who sadly died last year had the other half so I can keep them out"
They'll just throw the book at you unless you could somehow provide proof of your claim.
A good web site does not keep your password on the server but uses that to make a keys that cannot tell you the original password . You could use a similar system to encrypt a users files emails etc but if the user loses the password how do you get back in. You can't send them a reset password as this would not decode the files.
It's like we are back in the times of Janet Reno productions (incontinent killing of civilians for progressive ends) and the endless whining of the Clinton Mafia (imma want muh Clipper chip).
KILL THEM WITH FIRE. THEY HAVE ALL THE SNOOPING THEY WANT. THROUGH THE BACKDOOR. THEY MESSED UP THE POLITICIAL SITUATION SO THAT A FEW OKLAHOMA CITIES ARE PRACTICALLY CERTAIN. AND YET THEY WHINE. F*CKKETY F*CK F*****CKKKKKK!!!!
And I may add that it is as yet very much uncertain that Oklahoma BoomBoom wasn't an undercover operation gone awfully wrong with the purpose of "flushing out right-wing elements". That modus operandi we have so often lovingly had to approve of during the last 10 years or so (Wee, we have terrorists! Yeah, our guy made them do it all, what of it?)
" ... I'd hate to have people look at me and say, 'Well how come you can't save this kid,' 'How come you can't do this thing.'"
Well, while we're at it ... how about access to:
1. An FBI kid-saving cam in all public toilets to catch gay and pedo-fondling crims;
2. An FBI kid-saving cam in all motel rooms;
3. An FBI kid-saving cam in all residential bedrooms;
4. An FBI kid-saving cam in all residential toilets;
5 An FBI kid-saving cam in all church toilets and offices;
6. And finally, an FBI kid-saving cam in all FBI toilets and evidence rooms to monitor potential perverse evidence viewing and lustful reactions to same.
All for the sake of " ... I'd hate to have people look at me and say, 'Well how come you can't save this kid,' 'How come you can't do this thing.'"
Gray, except for the inclusion of "gay and" in item No. 1 you almost got an upvote. the "pedo-fondling" types deserve to be caught and punished under the child abuse laws, but anyone else having sex in a public toilet should be subject only to the law regarding sex in a public toilet no matter if gay or straight.
i'm just an old straight guy but even i know that the perception that "all gays are pedophiles" has no basis in reality. the percentage of pedophiles is the same across both populations.
It's kinda hard because the various TLAs seem like the bad guys now.
I am sure some do genuinely good work but the scale of the stuff that came out in the Snowden leaks is what scared/shocked me, like I thought they would be able to do some of it, but not to an entire nation (or indeed world).
As there is ABSOLUTELY no data for how many things were foiled by the spying (a lot of things being tip-offs -an impression I get just from reading, I've yet to see otherwise - for example; remember that British guy who searched for the pressure cooker thing and got a knock on the door, that was someone tipping off) I will just dismiss this.
Take the kidnapper example, what could they get from his phone that'd help the situation? If the idiot didn't put a contact number on the ransom note....
Oh also worth noting that it could be a bluff "ah, foiled!" to lower guard, or something. TBH you can encrypt stuff but angry birds (I always used this as an example of why you should cyanogenmod+firewall (Droidwall - frontend for IPTables) because of its really weird list of permissions, like contact list, GPS position.... ) will still give it away, but it's a step I suppose.
"I just want to make sure we have a good conversation in this country before that day comes. I'd hate to have people look at me and say, 'Well how come you can't save this kid,' 'How come you can't do this thing.'"
Oh, now you want a conversation.
All these government agencies (perhaps the FBI less-so than others) have been the equivalent of bad house guests. Is it really any wonder that people are trying to shut the door on them?
Anyone who uses the ". . . but terrorists" or " . . . but kids" lines are, essentially, saying that they want to take away the liberties and privacy if hundreds of millions of people to slightly lessen the already minute chance that they or their friends/family will be the victim of a crime.
The only way that avoids a charge of utter selfishness is due to the fact that it is so far beyond what we normally consider selfishness as to require a new word.
Makes the "little potatoes" in our society EQUAL to CONGRESS!!! - Yes? Yeah! Sure! Terrorist! Everything is to protect us from Terrorists!! OH! And protect our children! That's a good play on emotions too! Next "they" will be calling (no pun here) to PROTECT our pets because their cute as are children!!! What about the TOBACCO companies. NO PROTECTION THERE! Or alcohol! What's the use?! I feel like I'm in a barber shop talking about solving the world's problems! Do you read sarcasm? Gee!
"What I'm worried about is, this is an indication to us as a country and as a people that, boy, maybe that pendulum swung too far."
No. As long as metadata remains trivially easy to gobble in massive quantities without legal oversight, the pendulum has not swung too far. Just the opposite--it hasn't swung nearly far enough.
The providers better damned well provide what the customers want or they will be losing them. And they may not be losing them to a competitor but losing them out of the pool of potential prospects all together - people will just unplug. Uh, well, that's what the criminals are already doing. It makes operations somewhat slower but infinitely more secure.
Perhaps they need the authority to kick in doors and shoot everyone in sight. After all they might be terrorist/pedophiles? Perhaps the torture of suspects is a good thing? These are all done in the name of doing good. Since only bad people will encrypt their data.
These are all things once done in the name of the law. We just need more law?
"Why baristas need to encrypt stuff is none of your business. That's the whole point, really." Au contraire, my dear Manual Abuser, I couldn't give a fig about the content they might want to encrypt, I am more amused that they are consumed by the idea anyone would want to examine their content. I'm guessing this is just another desperate attempt by Apple to fight off the Android juggernaut, by appealing to the tinfoil-attired and criminal market segments.
"Tell me more about your experience with barristers." Sorry to disappoint, but not for criminal matters. Not wanting to give too many details (after all, I might need the contracting opportunities again in the future), I have worked with several large law firm in the past, including two multinationals. In each case, whilst all very intelligent people, I found the average barrister and lawyer to be surprisingly technically-illiterate compared to other professionals. For example, when espousing the possible choices of one email system over another, and trying to explain why one had advantages with smartphones, I was astonished to find a large number of partners actually 'didn't do email' but had their secretaries or juniors 'look after that'. One partnership went as far as to have the partners' emails all printed out by their secretaries for the partners to read so it was more like the postal mail they were used to. 'Retention' was covered because they printed out and filed paper copies of all emails without pausing to think about the increased burden of searching for and recovering items. The one area they did have an interest in was security. Trying to explain the possible advantages of tablets required Herculean patience. TBH, it was quite shocking, but made the recommendation of Blackberry BES and BBs an easy pitch to their boards (which were usually more of the same tech-illiterate partners).
If they had behaved in such a was as to earn our trust, I might have sympathy with this view. No-one likes terrorists. Sadly, the exact opposite of this has proven to be the case. We clearly cannot trust them even a tiny bit and so we must all take measures to protect ourselves from unwarranted intrusions. Apple and Google are only giving us what we want and deserve.
As it says in the Good Book, whatsoever a man soweth, that shall he also reap.
and in a democracy, they are supposed to be king.
The argument for police states is always to 'protect the citizens'
audio quid ueteres olim moneatis amici,
"pone seram, cohibe." sed quis custodiet ipsos
custodes? cauta est et ab illis incipit uxor.
Nothing changes in two millennia.
"The people it seems, want privacy more than they want security......" No, a large number of the posters in the fruitcake echo chamber The Reg forums have become want privacy more than they want security. As shown by general elections and the policies of all the main political parties, in the US and UK, the majority of the electorate think the opposite. Enjoy!
before your very eyes.
We're on a tech site here, so have a fairly good grasp of the issues involved. That leaves the other 95% of society (who, for better or for worse have been allowed the vote) who, when pressed, would probably tell you that Encryption is in New Jersey, and no one made salted hashes like Grandma.
If people like Comey raise the "encryption is bad" meme, and use it in proximity to words like "child porn", "paedophiles", "terrorists", "islamist" enough times, he might just get enough support to get his way.
"....That leaves the other 95% of society (who, for better or for worse have been allowed the vote)...." Ah, the old Communist mantra - 'the people are too stupid to be allowed to vote, we who know best should make all decisions for them'. And of course, as with all wannabe-dictators, you assume you are somehow better equipped to make all judgements than Joe Public despite you being unable to convince Joe Public you are 'right'. I assume your ego got in the way of your seeing that maybe you lot need to work a lot harder on your arguments if you want Joe Public to swing to your point of view.
Moral panics over such as child porn, sexual abuse (think "rape crisis in colleges/the military"), and terrorism have been and are endemic. They are not materially different from the ongoing moral panic about government surveillance. All are exploited by law enforcement and other government officials, and by the press wherever it is free enough to do so.
It would really be useful if an attorney with actual knowledge of constitutional and criminal law would comment. The huge majority of the comments are pretty worthless and display substantial lack of knowledge of those subjects.
Comey, for discussion purposes, having convinced a judge with proper jurisdiction that a particular cell phone contains specified data pertinent to a criminal investigation, and on that basis obtained a search warrant, wold like to have the actual power to execute the warrant and obtain access to the data. (Note that Comey, here, is a stand in for all law enforcement officials, and that the overwhelming majority of search warrants are issued at the state or local level).
Too bad for him. Encryption algorithms in common use do not have known back doors and are believed to be infeasible to crack without the key, including by government cryptographic agencies. And use of such encryption is as close as anything to a natural right.
That said, we have governments, and in democratic regimes we grant them authority in certain areas of activity, one of which nearly always is protection of life and property, along with identifying, charging, trying, and punishing those who violate laws. The U. S. Constitution is quite clear about that; it is far more than the Bill of Rights, as important as it is. The Bill of Rights, and som later amendments, limit what both federal and state governments can do, but the protections in them are limited as well. The Fourth Amendment prohibits unreasonable searches and seizures, not all; and it requires that the government establish probable cause to obtain a warrant and to describe in some detail what the warrant is after. (The latter is part of the argument against general communication metadata collection). The Fifth Amendment, in part, relieves those charged with crimes of any requirement to give testimony against themselves, but that is not leave to hide or destroy evidence, even evidence they own, that supports the charges against them.
That the FBI and other law enforcement agencies sometimes exceeded their authority does not invalidate a claim, fully justified by the Constitution, that they can, subject to limitations and procedural requirements, properly obtain information from individuals' cell phones and other computers, just as they can from houses and file cabinets within them. It probably also does not mean that the government cannot punish refusal of a person served with a warrant to reveal the contents of an encrypted cell phone or other computer.
The person may have a natural right to encrypt the data and refuse to act to decrypt it, but the government has the authority and power, under some circumstances, to punish him for that refusal.
"The person may have a natural right to encrypt the data and refuse to act to decrypt it, but the government has the authority and power, under some circumstances, to punish him for that refusal."
And the 5th Amendment, for us Americans, means what?
Are you saying that the Constitutional right NOT to incriminate oneself is now void?
Actually, yes. Constitutional rights have been eroded, and exceptions have been made and upheld by the supreme court.
1st amendment - Holocaust denying can be punished by law.
2nd amendment - Owning unregistered firearms or automatic weapons is a felony in many places.
4th amendment - Police stop-and-search checkstops have been deemed "technically unconstitutional but we'll let it slide" by the supreme court.
5th amendment - People have been charged with obstruction of justify for refusing to decrypt their own devices.
- Citation for claim that holocaust denial can be punished by law in the U. S., keeping in mind that legislators sometimes pass some pretty foolish laws that courts sooner or later overturn.
- The Second Amendment allows for regulation. As far as I know, not even the NRA does claims registration laws violate the Second Amendment, however much they dislike and oppose such laws. Whether private ownership of machine guns can be banned (or for that matter tanks and artillery) seems an interesting question despite the fact that nearly everyone would agree that some limits are appropriate.
- Police stops do not by their nature violate the Fourth Amendment, even when a search is done, as long as consent is given. A forced search would require a warrant or reasonable presumption that a crime was immanent or underway. Lawyers make a substantial income handling disputes about this.
- The Fifth Amendment provides a number of safeguards against arbitrary government action, including that no person "shall be compelled in any criminal case to be a witness against himself". That does not mean those charged with criminal offenses are entitled to conceal evidence that might be used against them. Cell phones are no more immune in this respect than houses or their contents.
@Cipher: The Fifth Amendment means what it says. A person (not only a citizen) cannot be compelled to be a witness against himself. He can be compelled to give up things that may be used in evidence against him. Gambling records, owned and maintained by a person charged with running an illegal gambling enterprise would be fair game for a warrant, but the accused could not be compelled to testify about his alleged gambling activity. That doesn't seem too difficult, or suggest any reason to treat the records differently when they are on a cell phone from when they are in a little black book.
puts you in contempt of court. If you are ruled in contempt then you are imprisoned until you comply.
The refusal to comply with a warrant has severe penalties by itself.
Basically a cop's view of a civilian is they are guilty of something I just need to find out what.
And fortunately that is not justification to get a warrant.
Cops need to stop watching cops on TV solve crimes in 45 minutes, often by trying to find a way around the law. Cops have become lazy.
IIRC France classified unauthorized use of encryption as deserving of same penalties as unauthorized military-grade firearms, well into early 90s.
Warrants already exist to compel decryption. Apply the damn laws, stop inventing reasons why the state needs unfettered access all the time.
France, and the US, have both had cases where spy services started spying on opposition politicians. That's the scary risk to democracy, rogue spies serving incumbents and what's to prevent it without judicial oversight?
Without absolving the US one bit, almost none of our Western countries have avoided this post 9/11 hysteria. Even granting the need for intensified counter-terrorism intel, we should at least get transparency and sunset clauses.
Thank you, again, Mr Snowden.
In the US there is a thing called 'civil forfeiture' where goods - including dwellings with contents - can be seized and sold on the basis of suspicion of crime, no proof.
Philadelphia (a city BTW) seizes about 250 houses a year, police simply turn up and force people out of their home. That's it. Then everything is sold.
Small town police size the car and contents of people travelling through and sell them.
It's usually poorer people who can't afford to fight back and the Attorney General refuses to do anything about it because it would cost the police too much money.
Civil forfeiture and its close relative criminal forfeiture are abominations, but have little to do with search warrants. The main connection is that in many cases, police intimidate people into allowing searches, or use pretexts to compel searches, that reveal questionable things like large amounts of cash, which they then take into custody and charge with such crimes as being proceeds of illegal drug commerce
I believe that in some exceptional circumstances there can be powers which are not normally exercised and I also believe we generally already accept that in the west and it's measured using 'for the greater good' principles.
The covenant between us is that we allow those powers on the understanding they will only be used in genuinely exceptional circumstances.
Unfortunately the powers that be - particularly during the last decade - have come to a completely different view of what exceptional circumstances are, circumstances which suit them rather than suit us. In fact that it has become 'us' and 'them' shows the degree of the problem; they no longer work for us but are a law unto themselves and that's the root problem
It is worthwhile to keep in mind that nearly all warrants are issued by state and local courts. The skew probably is less for warrants seeking cell phone or other computer-stored data, but the great majority still would be issued by state and local judges.
To estimate the magnitude of the "warrant problem", consider the disclosures made by Apple, Google, et al. of court demands for customer data disclosure - in the tens of thousands per year for all courts, even assuming the highly improbable, that orders issued to different providers do not duplicate targets. Assume, for discussion, that ten times as many cell phone searches are done, a total of perhaps a million. The number of such searches doubtless has begun to drop following the Supreme Court decision in Riley v. California and United States v. Wurie that cell phone search requires a warrant. In a country with perhaps 200 million adults or near adults this seems a bit shy of providing evidence for a budding totalitarian dictatorship
The ability of authorities (and others) with suitable technical capabilities, including the cryptographic agencies, probably depends on the quality of the passphrase or other information used to protect the encryption key. A four digit PIN probably is useless, 8 character complex passwords might not be enough, and biometric items like fingerprints and iris scans are subject to spoofing or forced use. And cloud backups, unless encrypted by the owner may be available the provider - not quite a back door, but maybe nearly as useful.
Comey's concerns, while not fundamentally unreasonable, probably are overstated, especially when one considers the likelihood that the true need for cell phone search is rare.
Laws change (albeit slowly), therefore "the rule of law" of any given nation is subject to the culture of the nation's government at any given point in time.
Rights trump the law, governments and law-enforcement ignore this at their peril because history shows that it will eventually bite them on the behind.
Many atrocities have been comitted within the rule of law.
Unlike a law, a right can not be taken-away, oddly enough IMHO neither can they be granted (although they can be taken for granted). Priviliges are granted, rights are not. For example no one has the right to subjugate another, but everyone has the right to place themselves in subjugation. This brings up the interesting question of how to maintain subjugation of someone once they have placed themselves in that position, because there is no right to do this. That would be a contract.
I used subjugate in the above example because of the image it conjures up, We're not talking enslavement, that is the extreme; we're talking about turning over control, piecemeal-like, of your daily existence-activities into the hands of others. The treatise-length (which this post is in danger of becoming) EULAs are good examples.
Encryption of personal information is keeping that information under your control, that's why it is called "personal" information. If it was written down on paper and stored in a safe in your house the law-enforcement agencies would not be able to go to the mortgage holder (which might be you), demand a key to your home, contact the maker of the safe, demand a master-combination/key, drive to your domicile, and search the premises at any time they pleased, for any reason they can think of.
Law enforcement is the immune-system of civilization, if it becomes cancerous it can kill both itself and the body in which it lives.
Rule of law, yes; but not to the detriment of civilization.
".....Unlike a law, a right can not be taken-away....." No. Rights are human constructs created by societies and enforced by laws, and changes in societies can take away rights just as they can create new ones. The definition of what are rights changes with societies as they develop just as their laws do.
"Rights are human constructs created by societies and enforced by laws". That incorrect opinion runs against a good deal of mainstream political philosophy, including much of what motivated those who participated in writing the Constitution and Bill of Rights, as well as a good deal of the English common law as widely understood by those who approved them.
I'd hate to have people look at me and say, 'Well how come you can't save this kid,' 'How come you can't do this thing
Please provide statistics that indicate that the FBI has saved hundreds of kids based on evidence found on other persons phones.
Ahhhhhhhhhhhhh. I see. Never happened. Okay.
".... the NSA was breaking every wiretapping law in existence...." And once again, please do supply any proof that the NSA have been found in breach of any law (as a clue, please start by reading up on the FISC before frothing further). Oh, and if you're a Merkel fan you may want to ask why she was moaning about the NSA when her own BND spooks were using all the NSA's tools to spy on Germans. Enjoy!
This fascist fanatic regards everyone as a criminal. The Constitution and the principle of "Innocent until proven guilty" means nothing to him. All this means is one more proof that the USA is no longer a free country.
It isn't as if any rational person still believes the USA is a free country.
Think about it. No-warrant wire taps, indefinite detention of citizens without charges, approval of rendition of prisoners and torture, stop and frisk without probable cause, search and seizure without a warrant, no-knock entry, confiscation and destruction of cameras that might have been used to film police acting illegally, police brutality, police shootings that go without investigation, managed news, and the civil-rights destroying "Patriot" Act.
Acts of police behaving illegally, with shootings, Tasers, and unwarranted violence now appear almost daily. Rarely are these offenses punished. Most often "an investigation" is claimed, but soon forgotten.
In addition, the USA, with 5% of the world population, has 25% of all of the prisoners in the world. That means the USA has the most people in prison of any nation in history. Even by percentage of residents incarcerated, not just sheer numbers, USA is # 1
Does any of that sound like a free country?
As Dwight D. Eisenhower said about communism, "It's like slicing sausage. First they out off a small slice. That isn't worth fighting over. Then they take another small slice that isn't worth fighting over. Then another and another. Finally, all you have left is the string and that isn't worth fighting over, either.
Wise men have said:
Any society that would give up a little liberty to gain a little security will deserve neither and lose both.
When governments fear the people, there is liberty. When the people fear the government, there is tyranny.
We have allowed our representatives elected by "we the people" to take our liberty by using the now over used excuse of terrorism as the reason. It is time to shake off the shackles of tyranny and restore our liberty. I am a 57 year old male and for the last few years I have suffered under the terrorist activities of our government(s) in the forlorn hope that the situation would get better. What a foolish optimist I am, err was. My only course of action is to make sure the spy agenises data storage devices contain so much of my online presence that is will consume immeasurable amounts of their time filtering my key words and flood their data capacity where they will require a continual expansion cycle. My only real question is who supplies the secret squirrel data storage devices so I can but shares in those companies. Might as well make some coin as one contributes to their chaos.
Let the civil cyber disobedience BEGIN! (or perhaps gain additional momentum). We can drown them with our metadata and consume their clock cycles as they try to break our encryption. It may take me 60 seconds to type my passwords but I SHALL smile as I do it.
There is the constitution that does protect one from self incrimination. Also, this is what they get for going too far. The government has grossly overstepped their bounds and now people and companies are allowing people to protect their data. Please air your complaint with the NSA and now you must live with the consequences.
Cry me a river Comey you dog tosser. Get a bloody warrant like every other law enforcement agency.
You're probably just upset that you can't ogle our personal pics and videos. Not much in the way of AQI or ISIL in most of the data you collect. Cnut!
If people really value privacy above all else - including law enforcement agents with warrants - then fine. But realize that there will be a cost. My neighbor is a fed who does internal affairs - he investigates and arrests corrupt agents and officers. He said he couldn't remember the last time his IA agency did a case where it didn't have to get into an agent's personal computer or cell phone for evidence. That's where everything's stored now. If that weren't possible, a lot of those guys would've walked. But, if people are willing to put up with more corruption, organized crime, corporate crime, etc., because it becomes impossible to gather the evidence needed to prove those cases beyond reasonable doubt, then fine. But please don't say, "well, the FBI just needs to work harder, " like I've seen on some of these forums. The price of unbreakable privacy is that some much needed prosecutions will no longer be possible. Ben Franklin never saw this coming when he gave his much overused quote.
""I am a huge believer in the rule of law, but I am also a believer that no one in this country is above the law," Comey moaned today.
If the FBI wants access to my encrypted personal files then they can get a warrant.
I am sorry to have to inform Mr. Comey but that's what the law says he must do. Afterall who does he think he is? The NSA?
"If the FBI wants access to my encrypted personal files then they can get a warrant."
Those who bothered to read the article know that Mr. Comey's explicitly stated concern was that having obtained a warrant, the FBI (and the local or state police who obtain nearly all the warrants) may find the warrant difficult or impossible to actually execute.
He is overstating the need for these warrants rather badly, but has a point. Before iOS8, law enforcement officials could obtain warrants for Apple devices, deliver them along with the phone to Apple, and obtain the data. With the change, Apple, like Google, cannot satisfy those requests and the government will be forced to deal with the device owner, presenting several problems. First, the authorities might not know who the owner is. The second is that it may tip off the owner before they wish, and the owner might, even at risk of punishment for contempt of court, refuse to comply with the warrant.
Even with a warrant, you are not required to provide passwords. That has been ruled as a violation of your 5th amendment rights to self incrimination.
A warrant provides law enforcement the right to gan entry and search.
But you as the defendant do not have to assist. If you wish to encryt then that is your right.
This is not the right place to place it , but I hope someone takes a good look at the article and if possible , translate , it it's worth it , of course . The lesser ones thank you - http://www.faz.net/aktuell/wirtschaft/fruehaufsteher/geheimdienste-republikaner-verhindern-nsa-reform-13274025.html
pgp for android is not exactly yesterday's invention........
Apple/Google just wanted to get rid of authorities wanting for-free-as-in-beer assistance to catch stupid criminals.
The smart ones encrypted their stuff already by themselves with encryption of their own......
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