This seems to be the fatal flaw in your argument, because you aren't recognizing the duality inherent in it.
Apple 1) created a class of evidence 2) that cannot be searched. That class of evidence didn't exist in 1776 or 1976 or 1996. The police can solve crimes without it as they've been doing for hundreds of years.
> "Sorry, there's nothing we can do. It looks like your spouse was shot with an iGun."
Sorry, there's nothing we can do... except interview witnesses and suspects, check alibis, investigate the crime scene, autopsy the body, look for motive, review surveillance footage, etc. etc.
To continue following that logic out, neither phones in general nor surveillance existed in 1776. Does that mean the police shouldn't be able to get warrants to read someone's phone records or see surveillance footage because they could still gather evidence just fine before those existed?
Searching a cell phone is much more than what they would get from searching a home. Twenty years ago if a suspect walked across town two weeks before the crime and had a conversation with someone, there would be no automatic record of it even happening, much less the content of the conversation being recorded indefinitely. Even for written correspondence, people rarely keep every letter they've ever received and even less often keep a copy of every letter they've ever sent.
People have no obligation to carry around a tracking device that records everywhere they go and everything they say in a format understandable by the government.
> To continue following that logic out, neither phones in general nor surveillance existed in 1776. Does that mean the police shouldn't be able to get warrants to read someone's phone records or see surveillance footage because they could still gather evidence just fine before those existed?
You keep conflating the question of whether they can get a warrant with the utility of doing so. Encryption has existed longer than the United States. A warrant grants them the ability to look at your stuff, it doesn't imply that they'll be able to understand it, or even that you'll have kept any stuff worth looking at.
For example, shouldn't you have the same objection to Snapchat as you have to encryption? The government's warrant gives them even less if the content no longer exists than if it exists encrypted. But the idea that people should be prohibited from automatically deleting old information is pretty clearly ridiculous.
What I was trying to get at was that we interact with other people in a very different manner than we did two decades ago. I don't see any reason that the means through which police gather evidence shouldn't reflect such a change. Is it your opinion that searching a cell phone is so invasive that we shouldn't allow it with a warrant?
> Encryption has existed longer than the United States. A warrant grants them the ability to look at your stuff, it doesn't imply that they'll be able to understand it, or even that you'll have kept any stuff worth looking at.
Back then, if I wanted to keep my correspondence secure I'd pull out my disappearing ink and Vigenere ciphers and actively go about protecting what I wrote. This isn't a case of people taking steps to protect their data, it's someone else (Apple) stepping in to encrypt their data, and changing the way that they were encrypting it so as to actively prevent cooperation with law enforcement. They were cooperating before with cases involving encrypted cell phones, now they are not. This isn't a decision that a criminal suspect made to protect their data - this is a decision that a tech company made on their behalf. I don't have a problem a problem with people actively encrypting their own data, I have a problem with a tech company making a purely political decision to change their encryption algorithm which has the potential to impact any criminal investigation that involves a new iPhone.
> For example, shouldn't you have the same objection to Snapchat as you have to encryption?
Was Snapchat assisting law enforcement with criminal investigations before?
You're conflating whether they can get a warrant with whether the warrant produces anything again.
> This isn't a decision that a criminal suspect made to protect their data - this is a decision that a tech company made on their behalf.
What significance are you attributing to that distinction? Encryption on devices with the relevant hardware instructions is basically free; the user receives no practical benefit from not using it. What purpose is there in presenting the user with a choice that every rational user will make the same way?
> I don't have a problem a problem with people actively encrypting their own data, I have a problem with a tech company making a purely political decision to change their encryption algorithm which has the potential to impact any criminal investigation that involves a new iPhone.
What does it matter what they were doing before? You seem to be saying that whether Snapchat should be allowed should be based on whether or not the same company had a previous product that stored messages indefinitely. That makes no sense.
> Encryption on devices with the relevant hardware instructions is basically free; the user receives no practical benefit from not using it. What purpose is there in presenting the user with a choice that every rational user will make the same way?
It's not free - encrypting data always comes with the risk that you're going to lose the means to decrypt it. I can think of two people I know who in one case put full disk encryption on their cell phone and in the other case put full disk encryption on their laptop. After rebooting a week or two, both had forgotten the passwords they used and lost all of the data on them. Neither of them encrypt their devices anymore.
Encryption can make data recovery a pain in the butt. I've had encrypted e-mails in my mail archives that I've discovered that I no longer have the private key for - it got replaced a year prior, the new key got migrated to a new computer without the old one, and the old computer eventually got wiped and repurposed.
Yeah, it was my mistake for not backing up my old GPG key. I'd put a hefty share of the blame on my two friends as well for their encryption woes as well. But that's the point - we make mistakes, and strong encryption isn't very forgiving. It's a trade-off that not everyone is going to make, especially for data they don't consider sensitive; I've lived with people who have to go through password recovery every two weeks or so. Personally, I wouldn't encrypt something that I'm only going to access once every 5 years or so; I'd use some other solution like making an unencrypted backup on some removable media and storing it in a secure place.
You keep saying these things but I don't see how they're relevant. Are you saying that if the original iPhone had the same encryption as the current one then there would be no issue for law enforcement, but because it didn't now there is? Why is that?
If your logic is to stand, doesn't that mean that all new device manufacturers need to make everything difficult for law enforcement by default or else lose their ability to decide otherwise later? Is that really the incentive you want?
I would ask why they're specifically designing their devices to make it impossible for law enforcement to collect evidence. In general, I want to be secure from people who would do me harm, and at the same time I want law enforcement to be able to bring anyone who does do me harm to justice. Preventing the police from lawfully collecting evidence shifts the burden entirely on me to defend myself and allows criminals to act without repercussion. I like to read cyberpunk, but I don't want to live it.
It's my firm opinion that it's possible to design systems that adequately secures a user's data from unauthorized access (to include both criminals and law enforcement acting without warrants) but at the same time allows access by law enforcement under lawful conditions (i.e. a warrant). When a major device manufacturer like Apple claims that the inability of law enforcement to access your data is a feature, I think that sets a very dangerous precedent. I want to make sure my data is protected from criminals; I don't want criminal evidence protected from the cops.
I'll turn the question around - is it right for a major consumer device manufacturer like Apple to decide that the police should not be able to collect evidence from their customers?
Of course with iPhones we are still encrypting the data ourselves. You choose to apply a PIN lock (or not). If you choose to allow a fingerprint to unlock the phone from a cold boot, then the government can collect your fingerprint and decrypt your files (fingerprints are not testimony). If you choose a weak PIN, the government can guess it and decrypt your files.
All Apple has done is choose to design a secure encryption library, one where there is no obvious backdoor, and one where they cannot be co-opted into secretly disclosing your personal data to the government through a 3rd-party warrant. The fact is, Apple is not in possession of your data, and they don't want to be in possession of your data.
If somehow Congress manages to pass CALEA-type laws requiring Apple to maintain a backdoor into our data, we'll just bypass Apple and keep the data safe ourselves. It might take a few more years for the technology to become equally usable, but the 1st amendment guarantees our right to develop and publish and freely license the software necessary to achieve the end goal, namely, that people have the ability to control access to personal data that they themselves collect and maintain.
Thankfully Tim Cook has the experience and unique perspective on these matters to truly understand the value and necessity of being able to keep personal data private. I'm sure the path that brought him to these strongly-held personal beliefs was not easy, but I believe the world actually is a better place because of it. I am also very thankful to live in a country where Tim can help craft a device which upholds his beliefs, and it would be a sad day indeed to see that freedom stifled.
You're argument about "an encryption system installed by the manufacturer that the manufacturer itself cannot decrypt" does not make any sense. It sounds like an argument against functional encryption, which is an argument against functional computers. Please try following your thought to its logical conclusion, and consider if it's really a country you would want to live in?
That backdoor can then be used to acquire my encryption key and decrypt my data, so I think it's still entirely relevant. Less relevant but still entirely reasonable is my concern that compromising hardware during a border crossing should be considered even remotely acceptable!
> It's the difference between a 4th Amendment issue and a 5th Amendment issue. Whether or not the police could search your phone used to fall squarely within the bounds of the 4th Amendment. If you encrypted it yourself, it would then be a 5th Amendment issue - you have a right to not self-incriminate.
I don't think the main change between old phones which could be searched under the 4th amendment and new phones which cannot is encryption.
The main change is that an old phone used to be a relatively impersonal tool akin to a car or gun, while a new phone holds an incredible amount of intensely personal information about a person.
Seizing an old phone was no big deal; it would be as if the police wanted to seize the spade in my garage. Go for it. Use it to eliminate me from your investigations. Seizing a new phone, however, gives many of my intimate secrets to LEOs who are probably taking a hostile, confrontational stance towards me. It also gives those people an enormous amount of power over me. They now have access to my email accounts, forum accounts, personal contacts etc and could easily impersonate me or blackmail me. In theory they shouldn't take advantage of that power but I have no doubt that they would do so anyway, in some cases at least.
The reason I mentioned mind-reading (how do I say that without sounding like a kook?) is that it illustrates that point with a bit more impact. At some point it will become possible, and probably even desirable under the right circumstances, but the potential for abuse is enormous and it will need to be governed under far stronger laws than anybody is currently protected by. The 5th amendment might be adequate if it can be used to simply outlaw the practice, but I doubt that will happen. So how do you control what personal data LEOs have access to? And this exact problem exists right now with your smart phone, albeit to a lesser extent.
Another way of putting it would be: LEOs can currently request a warrant for particular searches - phone tap, call records, physical property at a specific address etc. But if they get one that covers "smartphone" (or, later, memories), that basically gives them access to everything, almost all of which will be quite personal and entirely unrelated to the case. So how do you control what they get access to?
Right now, the most secure option is to never record anything personal on any device, but that's harder said than done (and nobody on HN has achieved it!). Another option is to encrypt anything you consider private, and hope that your hardware or encryption scheme hasn't already been broken.
Putting a backdoor on a device is utterly ineffective way of gathering evidence. If I was taken into custody and knew that damning evidence was on my phone, I would want to make sure that it never fell into police hands. The cop's backdoor would see me walk up to my car, place my phone carefully in front of the tire, and subsequently drive over it. $400 for a new phone is worth the price to stay out of jail. That said, this is all hypothetical - unless you have some evidence to show that the cops and border patrol are routinely putting malware on phones in order to decrypt the contents?
> Seizing a new phone, however, gives many of my intimate secrets to LEOs
Which is why they should need a warrant to do so. I'm all in favor of technical solutions to prevent them from decrypting your cell phone without one.
> LEOs can currently request a warrant for particular searches - phone tap, call records, physical property at a specific address etc. But if they get one that covers "smartphone" (or, later, memories), that basically gives them access to everything, almost all of which will be quite personal and entirely unrelated to the case.
Look at your examples again - in all of them (not just the cell phone), there is the potential for the police to collect personal information information that is completely unrelated to the case. That's why the police need to go before a judge and show probable cause in order to get a warrant. I don't understand why the folks on HN think it's okay for the cops to go into your home with a warrant and search through your personal effects (including your computer), but a cell phone is something completely different.
It's the difference between a 4th Amendment issue and a 5th Amendment issue. Whether or not the police could search your phone used to fall squarely within the bounds of the 4th Amendment. If you encrypted it yourself, it would then be a 5th Amendment issue - you have a right to not self-incriminate.
With the new iPhones, someone else (Apple) decided to encrypt your phone for you in such a way as to prevent any searches, regardless of whether or not there's a warrant involved. In doing so, Apple created a class of evidence that cannot be searched. People here tend to frame that in terms of my phone or my data - why should the police be searching me? Most of us will never have a search warrant issued on us - they exist to collect evidence of crimes and we're generally not criminals. If you step back and and look at it from a law enforcement perspective, do you really want companies that manufacture popular devices suddenly deciding that data on their products cannot be used as evidence in a crime? I'll provide my own reductio ad absurdum in response to your brain-scanning argument and ask how you would feel if the cops told you "Sorry, there's nothing we can do. It looks like your spouse was shot with an iGun."
A split key solution would definitely stop a border guard - the data is still encrypted and cannot be decrypted without cooperation from all n parties that hold the pieces of the key. No, it won't technically stop them from installing a backdoor on your laptop, but I think you're kind of shifting goalposts with that argument. We're talking about warrants to decrypt data here.