Apple vs the FBI

[grumbler]

I think it affects the ability of Apple to resist such demands from other countries.

I disagree.  i don't think that Apple has ever had the power to say to the government of the PRC "the US government doesn't require me to do that, so you cannot require it, either."

Basically, Apple has to make a choice at that point - either give up the value of that market, or give in to the demands.

Absent this action from the US (and the US clearly has the power to compel Apple since they cannot give up this market), it would harm Apple to give in to such demands because it would damage their brand globally.

If the US forces them to do this to begin with, it becomes much harder for them to justify resisting others - the damage has already been done.

I think that "the damage to the Apple brand globally" will be near-nil.  Apple (and others) have cooperated with court search warrants for decades and Apple grew all of that time, global brand undamaged.  Apple (and others) have provided technical assistance required by search warrants for decades and Apple grew all of that time, global brand undamaged.  I suspect that complying this time will not damage their brand any more than it has the last 100 or 200 times.

Now, you can make the argument that Apple would have to expend too much effort cracking the phone software to make that technical assistance a "reasonable burden," but there seems actually nothing new in this case beyond the scope of the technical challenge.

[The Brain]

Because the power here is whether or not Apple should bow to a demand that they actually help a government break the security on their product. If in fact a government has that power, then surely that is a power derived from the nature of sovereign governments, rather than the specifics of particular governments.

Are we saying that Apple then has the right to decide which governments they will listen to and which they will not? If so, then aren't we saying that they have the right to refuse the US government?

I don't understand the argument that Apple does NOT have the right to say "No" to the FBI, but does have the right to say "No" to the SVR. Either they have the right to make that evaluation themselves, based on the circumstances (in which case we should support them saying "no" to the FBI) or they do not have that right (in which case we should demand that they should be compelled by the FBI and their views on the matter are not relevant, because they are not the determining body, it is the courts).

The question isn't different policies in different circumstances, the question is what are the range of powers that exist absent the specific circumstances.

Whether they have a right to say no or not depends on the law in the specific country.

[alfred russel]

I see it as an issue of relative bargaining power. Countries with lots of it will always be in a better position to force Apple's hand. I don't think countries will be able to rely on some notion of basic fairness between nations (as in 'you did it for them, why not for us?'). The answer, though no doubt put more diplomatically, is likely to be "they are the freaking US, and you are Upper Slobovia. Do the math."

Yeah. Realistically, there are two major entities in the world that have a lot of weight to throw around: the US and the EU. Maybe you could also lump Japan in there. But otherwise, if a country tries to push around a US company like Apple, it is likely to have two problems:

-the people will be quite upset if Apple pulls out and the government will look bad (every other country gets apple products, why are we the asses that ran them out of the country?)
-the US trade representatives will put a ton of pressure on the country to back down, start laying out a case of protectionism and possible human rights infractions, etc.

[The Brain]

For all I know Apple maybe already lets some governments have back doors of various kinds. I don't assume privacy when I use Apple products.

[Berkut]

No, there is something new, very specifically new in fact from a technology standpoint.

Apple set out to create a encryption scheme that even they could not really break, and they sold that very intentionally.

This is not about realizing that a given product CAN be hacked by the government, because nothing is really secure. This is about Apple being forced to actively break their own technology which they designed so that they could not reasonably do exactly what they are being asked to do.

Previously, everyone knew that there was a key, and that Apple had that key, and that the government could get the key as needed. Indeed, the technology was such that it was necessary to create the key in order to create the technology to begin with...

This product is one where Apple very specifically created a device for which there is no key, and the FBI is demanding that Apple create one where it never existed before at all. That is different.

[Malthus]

Because the power here is whether or not Apple should bow to a demand that they actually help a government break the security on their product. If in fact a government has that power, then surely that is a power derived from the nature of sovereign governments, rather than the specifics of particular governments.

Are we saying that Apple then has the right to decide which governments they will listen to and which they will not? If so, then aren't we saying that they have the right to refuse the US government?

I don't understand the argument that Apple does NOT have the right to say "No" to the FBI, but does have the right to say "No" to the SVR. Either they have the right to make that evaluation themselves, based on the circumstances (in which case we should support them saying "no" to the FBI) or they do not have that right (in which case we should demand that they should be compelled by the FBI and their views on the matter are not relevant, because they are not the determining body, it is the courts).

The question isn't different policies in different circumstances, the question is what are the range of powers that exist absent the specific circumstances.

It isn't a question of rights. A sovereign government has the power, be it the US or Upper Slobovia (absent a treaty it has signed to the contrary effect, or some purely internal constitutional limitation) .

The question is one of consequences. Should Upper Slobovia make demands that Apple finds unreasonable, even though it has every "right" to do so, Apple always has the option to cease doing business there - meaning no more iPhones, no more local contracts for Apple suppliers, etc. Also meaning Apple starts putting political pressure on Upper Slobovia via friendly countries, the press, etc.

Who will blink? Upper Slobovia presumably doesn't want to become an iPhone-free zone and international pariah/laughingstock, and neither does Apple want to lose the market.

[The Minsky Moment]

Now, you can make the argument that Apple would have to expend too much effort cracking the phone software to make that technical assistance a "reasonable burden," but there seems actually nothing new in this case beyond the scope of the technical challenge.

It requires them to create a set of code that didn't exist before.  That is something new as the prior precedent involved things like pen registers that phone companies already had and used for similar purposes.  It raises a question different from the one B is asking - namely whether the US govt actually has the legal authority to do this in the first place.

[Berkut]

I see it as an issue of relative bargaining power. Countries with lots of it will always be in a better position to force Apple's hand. I don't think countries will be able to rely on some notion of basic fairness between nations (as in 'you did it for them, why not for us?'). The answer, though no doubt put more diplomatically, is likely to be "they are the freaking US, and you are Upper Slobovia. Do the math."

Yeah. Realistically, there are two major entities in the world that have a lot of weight to throw around: the US and the EU. Maybe you could also lump Japan in there. But otherwise, if a country tries to push around a US company like Apple, it is likely to have two problems:

-the people will be quite upset if Apple pulls out and the government will look bad (every other country gets apple products, why are we the asses that ran them out of the country?)

The problem is that it is easy to imagine that governments can then use this against Apple. IE, if the US gets to demand that Apple violate their principles, then why is it fair that Apple doesn't help us against OUR terrorists?

It feeds right into the nationalism and xenophobia of countries like Russia and China, and you are right that the domestic pressure is the primary check on these governments making such demands now. Apple rolling over for the FBI will greatly undermine that check.

-the US trade representatives will put a ton of pressure on the country to back down, start laying out a case of protectionism and possible human rights infractions, etc.
[/quote

How in the world could they make any such claim if the US already opened the door to this? I would think it would be pretty hard to argue that some country doesn't have the same power as the US within their own borders.

[Malthus]

Now, you can make the argument that Apple would have to expend too much effort cracking the phone software to make that technical assistance a "reasonable burden," but there seems actually nothing new in this case beyond the scope of the technical challenge.

It requires them to create a set of code that didn't exist before.  That is something new as the prior precedent involved things like pen registers that phone companies already had and used for similar purposes.  It raises a question different from the one B is asking - namely whether the US govt actually has the legal authority to do this in the first place.

That's a purely internal matter, dealing with US law. Assume some country with a set of laws and constitution that was totally silent on the matter passed a law "no devices may be sold with unbroken encryption, and if any have been sold, the manufacturer must break the encryption when required by warrant; ps. this law has retroactive effect".

[Berkut]

Because the power here is whether or not Apple should bow to a demand that they actually help a government break the security on their product. If in fact a government has that power, then surely that is a power derived from the nature of sovereign governments, rather than the specifics of particular governments.

Are we saying that Apple then has the right to decide which governments they will listen to and which they will not? If so, then aren't we saying that they have the right to refuse the US government?

I don't understand the argument that Apple does NOT have the right to say "No" to the FBI, but does have the right to say "No" to the SVR. Either they have the right to make that evaluation themselves, based on the circumstances (in which case we should support them saying "no" to the FBI) or they do not have that right (in which case we should demand that they should be compelled by the FBI and their views on the matter are not relevant, because they are not the determining body, it is the courts).

The question isn't different policies in different circumstances, the question is what are the range of powers that exist absent the specific circumstances.

It isn't a question of rights. A sovereign government has the power, be it the US or Upper Slobovia (absent a treaty it has signed to the contrary effect, or some purely internal constitutional limitation) .

The question is one of consequences. Should Upper Slobovia make demands that Apple finds unreasonable, even though it has every "right" to do so, Apple always has the option to cease doing business there - meaning no more iPhones, no more local contracts for Apple suppliers, etc. Also meaning Apple starts putting political pressure on Upper Slobovia via friendly countries, the press, etc.

Who will blink? Upper Slobovia presumably doesn't want to become an iPhone-free zone and international pariah/laughingstock, and neither does Apple want to lose the market.

But this is my point. Obviously Upper Slobovia has the *power* to compel Apple to comply or stop doing business.

The question though is whether the US should establish the precedent that said power should be exercised.

Right now, Apple has consistently said "Nope, sorry, cannot be done" and that has stuck...so far.

If the US compels Apple to change that, I don't see how Apple can turn around and say that the rules are different for Upper Slobovia than they are for the US - that the FBI can compel them to change their policy, but the SVR cannot.

This is all about politics at the end of the day, so perception matters. As long as *nobody* gets access to iPhones, then I think Apple can (and will) maintain their policy. Once the genie is out of the bottle, they cannot put it back in for everyone but the US, or everyone but the FBI.

We will see the exact same thing in the US, writ small. If the FBI can compel, then so can the Rochester District Attorney.

[The Brain]

Surely Apple complies with all applicable laws and regulations in all contries they do business in. Those aren't up to Apple, and rarely depend on US law.

[alfred russel]

Berkut, look at the US tax code. We require international banking institutions to report transactions entered into overseas with US citizens to the IRS. For example, a German bank paying interest on a deposit to a US citizen living in Germany (or issuing a mortgage) must report that to the IRS.

We are the only country insisting on such international reporting, and we don't worry about other countries making reciprocal demands, because we are the US and other countries are not. I actually think it sucks, but it is the way we work, and the rest of the world is cajoled into going along with it.

[Berkut]

But in most cases, they don't go along with it - in most cases reciprocity rules the relationships.

Yes, the US is the most powerful, and we get away with using that at times to make the rules different for us, but in most cases, that is not how it ends up. In most cases, what is good for the US goose is good for the EU gander.

I would not assume that any rules we make about compelling Apple will successfully be limited to just Apple.

And there are implications beyond just Apple as well.

You know if Apple gets forced to do this, Samsung won't bother trying to come out with a version of their devices that are truly secure in a similar fashion, for example. Why bother?

[alfred russel]

But in most cases, they don't go along with it - in most cases reciprocity rules the relationships.

Yes, the US is the most powerful, and we get away with using that at times to make the rules different for us, but in most cases, that is not how it ends up. In most cases, what is good for the US goose is good for the EU gander.

In terms of US vs. EU, I agree there is something like reciprocity and equal term negotiation. Of course the EU takes digital privacy much more seriously than we do, so it is something of a red herring.

In terms of the US vs. Upper Slobovia, I don't agree unless we are talking about something covered by a trade treaty or with third party mediation.

[Berkut]

So you are arguing that Apple should say yes to the US, but no to others?

In essence, you are arguing that Apple has the power to evaluate the specifics of a demand, and decide themselves whether or not they should meet it or not?