ppietra

JeffA2 said:

Elspeth said:

I simply do not understand why people cannot comprehend that this is not about whether the police can seize the photo in the first place.

Lets put it in more simply terms.  You are a terrorist.  You want to write secret notes to your co-conspirators that no one but you and they can read.  To do this, you devise a wholly new language that no one but you and your co-conspirators know (lets call the new language gibblefritz).  You write your diabolical plans down on paper in this new language.  You send unencrypted emails in this new language to you co-conspirators.  The police figure out you and your co-conspirators are a terrorists and they decide to arrest you, however, during the attempt to arrest you, all of you are killed.  When the police search your corpse and your conspiracy hang-out, after getting a search warrant, they find your written diabolical plans in your pockets and in filing cabinets in the hang-out.  They also find the emails on your computer. 

There ends the power of a search warrant.

The police are desperate to read your missives to learn whether they killed all the terrorists or if there are others they don't know about...but they cannot because everything is in gibblefritz and the police don't read gibblefritz...no one reads gibblefritz.  Now the police know that over at the University of  Apulosi, Dr. MacIntosh is really really good at deciphering dead languages.  So they take your gibblefritz writings to Dr. MacIntosh and they say "Dr. MacIntosh, please help us, please translate these writings."  Dr. MacIntosh says "I am so sorry, but I just cannot.  I don't have time.  I'll have to write a whole new program for my deciphering computer.  I don't have resources to do that and it will take a really long time to do.  Helping you will sully my reputation.  Helping you will undermine all my other work.  No one will trust me if I help you.  I don't want to learn to read the evil language of gibblefritz, anyway."  So, the police go to to court and the beg the judge "Please, you honor, make Dr. MacIntosh help us read these diabolical writings.  Don't listen to his excuses.  The people are in danger, there may be other terrorists out there.  The world will end if we do not find them.  The world will end if we don't learn how to read gibblefritz.  Give us a Writ to make Dr. MacIntosh do as we want."

This is sort of like your own version of gibblefritz. Dr. Macintosh has no involvement with the case at hand and therefore he cannot be compelled to do anything under the AWA. They can ask but they can't compel. But Apple clearly has involvement with the maintenance and distribution of software on the iPhone. It's their hallmark actually. The DOJ argues that that fact means that they are sufficiently involved in the case to bring the AWA into play. Again, higher courts will decide but to my un-lawyerly mind the argument is clearly correct.

JeffA2 said:

OttoReverse said:

Thanks for that.  Still, no nation should be asking for this in the modern world.  With hundreds of encryption programs available (most based outside the US) for iOS and Android should Apple customers be forced to act like terrorists and criminals in the way we protect our data in order to be safe from government intrusion (rhetorical question)?  It reminds me of gun laws here in Canada.  We are limited to 5 round magazines for centre fire semi autos and 10 for handguns despite our statistically excellent history of generally not being murderers etc.  Yet criminals don't have the same limitations.  Point being it both punishes the law abiding citizen and is completely ineffective in preventing crime.

Let's not get gun control into this! It's an issue that's even more emotional than this one! If we put them together this entire forum will HACF.

But I struggle to understand the sanctity of the phone versus every other form of information storage. With proper judicial review your personal information has always been searchable. That includes bank accounts, phone records, computer hard drives, tax records, business records, email, written correspondence, photographs -- virtually anything. In the US, the only thing that stands between you and a search of any of these items is the 4th amendment which requires probable cause for the issue of a warrant.

So why is a photo stored on my phone unsearchable under warrant, while the same photo in an old-fashioned slide-carousel in my basement can clearly be searched for cause? The only plausible difference between a phone and other media is that modern phones amalgamate a wide variety of information in the same place. But so does my house and, given probable cause, the government can get a warrant to search that. So why not my phone? 

The ability of the government to search -- given probable cause and judicial review -- is not despotism. It's the basis of law enforcement. It's how we catch rapists and killers and financial fraudsters and terrorists too. It's always true that such powers can be seen as targeting the law-abiding as well as the criminal but it's not possible to avoid that. That's why it's always a balancing act between personal privacy and civil society. Advocates for absolute privacy in the digital domain seek to fundamentally alter that balance in ways that are unprecedented.