Apple's on the right side of this one

"There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all."

Antonin Scalia

A quote from a Supreme Court Justice known for being so conservative that Pat Buchanan looks like flower child by comparison. 

He got it, so why doesn't the FBI?

Yes I'm talking about Apple and more specifically Tim Cook's refusal to assist with the unlocking of an Iphone connected to the San Bernardino terrorist case. 

Over the past week or so I've watched as the FBI, Justice Department and other members of law enforcement trot out the same tired straw man of national security that gave us the Patriot Act.

Their argument is still just as flawed.  Worse it's still based on a fundamental misunderstanding of technology that heralds from the days of floppy disks and dial-up modems. 

The media coverage hasn't helped either by incorrectly framing the controversy as the loss of a "back door" in the previous incarnation of IOS ( IOS 7).    "Back doors" are the stuff of 80's flicks like Wargames and Tron not 21st century mobile devices.

Before IOS 8 it's true that Apple did have the capability to unlock an encrypted phone after being presented with  the proper legal documents.  Which was exactly the position Apple didn't want to be in.  By which I mean being constantly pestered by requests to invalidate Apple's own security features. Not exactly good for business and definitely counter to a more progressive view of the world.

So with the advent of IOS 8 Apple removed this capability (and themselves) from the equation by eliminating the code that allowed them to unlock an encrypted phone.  Well, at least that's what they thought until San Bernardino happened.

Law enforcement has long wished for a more "limited" interpretation of the fourth Amendment.  In their view we'd all be so much safer if only they could just flip a switch and listen in on the bad guys at a moment's notice. 

"The nine most terrifying words in the English language are: I'm from the Government, and I'm here to help."

Ronald Reagan

They stop just short of levying charges of treason when denied such powers but never miss an attempt to try to shame Apple (or anyone else that offers some deference to privacy rights) into compliance by claiming such defiance of the "Rule of Law" only helps criminals and terrorists.

"If Apple wants to be the official smartphone of terrorists and criminals, there will be a consequence"

Bill Montgomery, Maricopa County Attorney ( AZ.)

Here's the core of the problem....

"Power tends to corrupt and absolute power corrupts absolutely"

Lord Acton

Nobody is suggesting that criminals or terrorists should be allowed to run about unhindered.  But what happened to good old fashioned detective work?  Edward Snowden's revelations may now be called "exaggerated" but the fact remains that there's ample resources available to law enforcement without potentially short circuiting the 4th Amendment.

The country was founded on a system of checks and balances for a reason.  It extends not only to the three branches of government but little stuff like trial by jury and the right to not incriminate one's self.

You're a fool if you believe that anyone with unfettered access to your private data isn't going to abuse the privilege. 

Remember Richard Nixon?  He had to leave the presidency precisely because of just such an abuse of power.  He felt benevolent leadership required keeping tabs on everybody.

Nobody thinks about individual liberties until their own is threatened. 

Hey, I'm not a big fan of Apple or their products.  Personally I don't care much for benevolent overlords that reign over walled gardens.  So I find it ironic that Tim Cook is on the right side of this issue.

Perhaps it's because he understands the difference between selling products and selling out civil liberties.

A distinction the FBI chooses to ignore.

Your Hard drive is a snitch

Article first published as Your Hard Drive is a Snitch on Technorati.

About a year ago a case involving a Colorado woman , Ramona Fricosu, made tech news when the judge overseeing a mortgage fraud case forced her to decrypt her hard drive.  Apparently the prosecution was tipped off that the drive contained incriminating evidence that only she could provide access to.

The Internet went wild when it seemed the 5th amendment had apparently gone out the window.      Now before you go running off to Wikipedia, it's the one that says you don't have to incriminate yourself in a court case against you.

This week we had another example of the 5th amendment running headlong into an encrypted hard drive but this time things went a little differently.  It seems Judge William E. Callahan wasn't going to force a defendant in a child pornography case to decrypt several of his hard drives. 

The judge wrote, "ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination."

The difference between the two cases seems like nothing more than semantics but there was one critical difference.  In the Fricosu case, investigators had prior information that the contents of her hard drive contained evidence.  In this week's case, investigators were only guessing when it came to the contents of the defendant's multiple hard drives. 

If you've ever watched Law and Order or CSI with any regularity you've probably seen at least one episode where the bad guy's lawyer tells the cops, "You're on a fishing expedition."  It usually comes up  when the defendants lawyer discovers that the police have no proof and are trying to trick the bad guy into incriminating himself.

That's exactly what was going on in Judge Callahan's court this week and the lesson learned was simple.  If you've got something to hide don't tell anyone what it is or where it's located.  Otherwise, don't bother encrypting your hard drives.

For some, this week's ruling may seem like nothing more than a question of semantics and to some extent it is.  Then again, that's what the entire legal profession is built upon.  Most criminal law deals with the concept of "intent" and intent is all about semantics.  

While the possibility that an accused child pornographer may evade justice due to a technicality we can't forget the importance OF that technicality.

The 5th amendment ensures that anyone who accuses you of breaking the law has the burden of proof.  It's the foundation of "Innocent until proven guilty" and law enforcement shouldn't be allowed to take shortcuts because it's convenient.