Apple vs the FBI

[dps]

I agree, but as I said in the other thread, primarily on the basis that being compelled to assist is a violation of the 13th Amendment.  I don't expect any court to actually endorse my view.  That seems to be fairly similar to what you are saying, but you're not putting it in such stark terms.

There are separate constitutional arguments even if All Writs Act applied.  But those don't even need to come into play if the statutory authority doesn't exist in the first place.

Good point.

[Admiral Yi]

Hmm let me retry.

The argument against is the government doesn't have the power, period.

But in 1977 the Supreme Court ruled the government could nonetheless exercise the power, where the impact on the company was "meager"

Given that ruling the boundaries of "meager" have to be carefully policed.  Not because of financial impact on corporate America.  But because we are already in constitutionally dubious territory and thus the exceptional authority needs to be contained.

Right.  Meager means insignificant time and resources, no?

BTW, what exactly is a pen register?  I'm watching The Wire and it always comes up.

[The Minsky Moment]

Meager means insignificant time and resources, no?

Yes.  Court's language, court's standard.  Not mine.

BTW, what exactly is a pen register?  I'm watching The Wire and it always comes up.

It's a doodad that can be installed on a phone line that records the numbers dialed.  In the old days by monitoring the electrical impulses from the rotary dial. 

[Admiral Yi]

Yes.  Court's language, court's standard.  Not mine.

Miscommunication.  To clarify, my original question meant the main argument against Apple complying with the writ is time and resources.

[DGuller]

Berkut's argument in OP is a a rather simple one, I don't understand why so many here seem to skip past it.  Yes, other governments technically have the power to compel Apple to hack their own phones.  But Apple, being a huge corporation, has some real power as well, though not codified, which allows them to put up resistance to governments and make them weigh the pros and cons of exercising their power. 

Apple will be better able to resist governments if they have an unbroken principle to rely on.  If they say yes to US but no to Russia, wouldn't it make it that much easier for Putin to say "Apple is obviously a tool of US imperialism, their resistance is motivated by their allegiance to their master rather than their principles".

[Admiral Yi]

How hard is it for him to say that right now, and what changes when he does?

[DGuller]

How hard is it for him to say that right now, and what changes when he does?

Legitimacy of said statement.  Maybe Russia is a bad example, it can create whatever reality it needs anyway, but still.

[grumbler]

Berkut's argument in OP is a a rather simple one, I don't understand why so many here seem to skip past it.  Yes, other governments technically have the power to compel Apple to hack their own phones.  But Apple, being a huge corporation, has some real power as well, though not codified, which allows them to put up resistance to governments and make them weigh the pros and cons of exercising their power. 

Apple will be better able to resist governments if they have an unbroken principle to rely on.  If they say yes to US but no to Russia, wouldn't it make it that much easier for Putin to say "Apple is obviously a tool of US imperialism, their resistance is motivated by their allegiance to their master rather than their principles".

Apple isn't saying "yes," it is (potentially) saying "if I must."  It would be absolutely improper for Apple to volunteer to turn over the data from any iPhone the government wanted data from, so them saying "yes" is neither prudent from a business sense nor ethical.

Russia wouldn't find it easier or harder to make Apple say "if I must" in the event the US government makes them say "if I must."  I'm not sure on what basis you are arguing that.

[Admiral Yi]

Legitimacy of said statement.  Maybe Russia is a bad example, it can create whatever reality it needs anyway, but still.

Kind of a catch 22 for you, isn't it?  Your hypothetical only works in places where legitimacy is not valued to begin with.

[viper37]

How hard is it for him to say that right now, and what changes when he does?

it could forbid Apple to access the Russian market, for example, pushing its own OS based on Android, but free of Western imperialist's spying tool.  Only good old russian spycraft involved.

So, Apple loses a market, an existing competitor fills the void, or their products get pirated and they can't do shit about it or something entirely new appears.

For the average russian it wouldn't change much, since there's nothing exclusive about intelligent phones, Android, Blackberry, iOS or other, we can all communicate together.

Apple could resist one country, but then China would join, then Saudi Arabia, then United Arab Emirates, than many other countries, and eventually, Apple would have the US market, with a "broken phone", meaning local customers would turn to other providers, and Apple would lose domestic market share + international market share and that would be very bad for shareholders.

[Admiral Yi]

He could do that now.

[Razgovory]

I doubt Russia or Saudi Arabia are vital markets.  China may have more sway, google has given into the Chinese before.  The big dog is of course the US, where their biggest market is and where they are based.

I still side with the FBI.  I don't think lawful investigations should be halted because, "it's Apple!".

[Siege]

With the rise of distributed encryption this is a moot point. In a couple years nobody will be able to decrypt our personal shit.

[Berkut]

He could do that now.

Of course he could, but he won't, or he hasn't. We know that because he hasn't done so.

But the ability for Apple to resist that is based on there being a credible claim that they cannot really do so in a reasonable manner (which they very intentionally created), and they haven't done it for anyone else, so why would they do it for Russia?

Yes, they *can* just make those same demands anyway. But we all know that public opinion and public perception is what drives these issues in large part. So Apple being able to maintain a consistent standard of response is critical.

And that is my point. We all know that at the end of the day any sovereign nation can make any demand they like of Apple as a condition of Apple doing business in their country. But Apple can and will resist such demands when they are not reasonable. They are doing so right now, in their opinion.

My point is simply that you cannot argue that Apple has no right to resist such demands in this case, but does have the right to resist such demands in other cases. Either the decision is based on agencies outside of Apple, or not. If you argue that Apple has no decision to make here, that the US DOJ said to do it, so they should do it regardless of what they think, then that standard is based on some foundational idea that Apple has no say in these matters, and ought to just do as the sovereign demands.

That presumption is not unreasonable in the case of the US, where we accept that there is some presumed reasonable due process involved.

But you cannot argue that Apple gets to have a say in evaluation the reasonableness of the demand in some cases, but not in others. If you accept that Putin demanding that Apple crack the iPhone of some political target, and getting the Russian legal apparatus to go along with it and issue some ruling instructing Apple to do so, is something that Apple can and should refuse, then you have to accept that they can and should refuse the FBI making a similar demand.

They have the right to evaluate themselves, or they do not.

If they do, then you can argue that in this particular case their evaluation is wrong and they should re-think their position. But that is also arguing then that the FBI does not have the power to compel them, only to convince them.

If the FBI does in fact have the power to compel them, then you have to argue that the SVR does as well - that Apple is simply the recipient of such demands and has no right to evaluate their merits themselves.

The ironic thing is that that is exactly what Apple was trying to prevent. They tried to simply create a system where they cannot be asked to do that, because they don't have the ability to do that. We are seeing this with telecoms as well. Many of them do not save the content of text messages anymore at all. You cannot subpoena what doesn't exist.

To Minsky's point, this is clearly a unreasonable demand, since it is demanding that Apple do something they set out to make as absolutely difficult for themselves as possible, and by doing it will actively destroy the very security functionality they set out to create in the first place.

[The Brain]

The demands of the sovereign don't have to be reasonable. Only legal.