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.

If technology is the tool, why am I the one getting used?

Technology's great isn't it. 

"There's an app for that" and increasingly there's hardware for it. too.  The next decade promises an explosion of technical doodads that will be able to do anything from having your favorite latte' ready when you wake to alerting you to failing health.

Ain't it grand.  Our entire lives, every need, every whim, every action collected, recorded, monitored and stored.  Today, a newborn baby can expect a record of everything they've ever done from cradle to grave.

How convenient, how secure, how exciting this gilded cage we're making for ourselves.  Until we found out about the antics of the NSA recently, the concept could be brushed off as the ramblings of a crank.  Regardless of the level of technical expertise governments may or may not have, the event shocked a technology addicted populace even if only for a moment.

For the next few months at least, anyone selling anything with the word "privacy" is sure to do well until the next shiny bauble comes along.

Short of an EMP pulse from space knocking us back to the 19th century, change never happens overnight.  It's gradual no matter how exponential Moore's law becomes.  Today it's a fingerprint reader on an Iphone or the convenience of storing your private data in the cloud.  Most people wouldn't give a second thought to what it really means to swap out an Android phone and find all their personal data and settings automatically downloaded to its replacement. 

It's just  cool because it's so convenient.  Never mind someone else has control of your stuff...

All you have to do is stress the utility of that new toy and privacy goes out the window.  That anyone who uses a  Smartphone expects the data on it to be private in the first place is laughable but they do. 

 You can choose not to participate but soon find yourself ostracized.  Socialization, personal economy and even careers increasingly demand you jump on the bandwagon.

Technology isn't a bad thing so long as it remains a tool but it seems we're moving toward an age where the tool is used against us.

Consider a world where your smartphone snitches to your health insurance company via its NFC payment capability while your car verifies your location via GPS.  There's no denying it, you got the supersized fries and your health premium is going up because of it.

Consider your car insurance company monitoring every mile and basing your premium on what they find out.  It's already happening with at least one major insurance carrier.

Maybe you get a discount for driving 5 miles under the speed limit and ordering the salad instead of the burger.  That makes it all ok, right?

It's the small changes in what is considered acceptable that gradually erode personal freedoms and liberties.  Consider that for your discounted premiums you've essentially subjected yourself to a set of values you may not share.  As it becomes a more accepted practice you become more powerless.

Companies are essentially demanding compliance from their customers.  What happened here?  Since when does a customer have to justify themselves to  the cashier?

It's simple really. 

You're a prisoner, worse, you pay dearly for the privilege while the whole time doggedly defending your right to treated as such.

Technology is seductive, slowly evolving our dependency to the point where it's inconceivable for most to live without it.  We're convinced we need it even if we don't.  We must be continually connected and have instant access to everything.

We even create workflows of nonsense just to justify having it.  Is it really that important to be able to talk to Google?  What if all your queries were recorded, compiled and used to create a profile about you that you knew nothing about?

The sad fact is that the services we rely on often don't have our best interests at heart.  Profit and  Philanthropy make poor bedfellows.  So does power.

Once governments discover this voluntary abdication of civil liberties it's nothing for them to exercise control over our cherished providers of our technological fix.

And it is a fix.  If you can't imagine a day without your smartphone you're just as addicted as anyone on crack cocaine.  You think you need it but in reality you don't.

Technology is a tool but there's no reason you should allow yourself to be used by it.  Get your context straight and you won't have to worry about privacy or security.

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.  

Your Anonymity is showing

There is no anonymity, at least not on the Internet.  Or at least that's how Google and Facebook want it.  It's likely that just like me you have multiple Google accounts and now the parent company of anything that matters on the Internet wants to you to come clean.

Log into YouTube and you're constantly prodded to use your real name on your YouTube channel.  Want to log in using your channel alias?  Forget it, they want the email address you used to sign up with.  Just like Facebook, Google Plus doesn't allow aliases either.  In fact they want more information than I provided the bank to finance my car. 

Want to start a Facebook page for your business?  Be prepared to provide everything short of your articles of incorporation and 5 years of tax returns to do it. 

Contingent on using any of these services is the requirement to reveal more information about yourself than anyone should be comfortable with.  Thing is, for most, it's no big deal.  For the generations that came after mine it's nothing to "Broadcast Yourself" for all the world to see.  As some have found, to their own peril when that party video posted to your Facebook page gets in front of a potential employer.

It's gotten so easy to lay ourselves bare (in some cases literally) that many don't even think about the consequences of our cavalier attitude toward online privacy.   That is, until something happens that makes you regret clicking "I Agree" to the 10000 word terms of service.

It's not simply a question of privacy, for the most part that's gone if you leave your house.  It's a question of giving away the power of your own predestination.  I have no doubt that being a private investigator is no longer as lucrative as it once was.  What used to take them weeks is offered up freely under the guise of being "social"

Just ask the unfaithful spouse who found out just how much power they'd given away when their Facebook exploits were admitted as evidence in the legal proceedings that followed.

You may feel that it's a good thing that it's harder for those with something to hide to retreat behind anonymity.  Well Mr. Public Parts, we all have something to hide even if we haven't broken any laws.  Nobody should demand we reveal it just to be online.

What happens, for example,  when an author can no longer write under a pen name?  What about the  corporate whistle blower exposed by a change in some online service's privacy policy?  Should they have to sacrifice a career because an entire industry can now blackball them for it?

If you're Jeff Jarvis I suppose everything's a Public Part so it shouldn't matter what gets revealed.  In the real world where people can't afford to have their every action judged it becomes a problem.  I'm not in favor of the merging of private and public and stay off of services like Facebook and increasingly Google because of it.

Now, I may be running contrary to the Internet punditry proclaiming the glories of the new social construct that's arisen out of our constant connectivity in what I'm about to say. 

In short, I think it's Bull. 

I'd rather not be sitting in a job interview at 40 years of age having to explain something stupid I did in my teens to a potential employer.  It'd be nice if the world was populated only by the open minded with no personal agendas but that's just not how it works.  Experience has taught me the better parts of human nature rarely come into play in a job interview.

Think about the now common practice of job applicants having to submit to a credit check at the application stage.  I usually give them the "I'll show you mine if you show me yours" response in which I agree to allow the check only if I can have the same information from every member of the executive staff and the board. 

People usually just think I'm being a wiseacre and look at me as though I should be wearing a straightjacket when they find out I'm being serious.  Funny, I feel the same about them.

I think more people need to do that, actually.  In fact, I suggest it be the basis of a new movement.  A friend of mine is fond of saying corporations will keep pushing the boundaries until someone pushes back.  This can be where it starts.  After all, nobody has any right to know how timely I pay my debts unless they're loaning me money or I'm in charge of the keys to the bank vault.

It's exactly because of how the world works that we need to retain control of our own personas.  Making your new job contingent on a good credit score is just one symptom of the problem.

Look at it this way.  Do I really want to find out that my trusted mechanic of decades is a cross dresser on the weekends? 

Now I can care less if he is or not but some people might which could have consequences to his livelihood. 

The reality is that it's not critical information to know if he's just fixing my car.  If you think it is you're just being nosy and bigoted.    

That's what I mean by public and private.  I don't want to know any more about you than I need to know and what I need to know has limits. 

Say my mechanic is going to get married soon, I'd fully expect his potential bride (or groom) may want to know about such things but I don't.  If he's installing a supercharger on my Mustang, I could care less about his fashion adventures.

He shouldn't be required to expose that information and I shouldn't have the opportunity to pass any judgment on anything not directly related to him fixing my car.

That also means he should have the freedom to indulge in a private online existence apart from his public one.   Being online shouldn't have to mean that you abdicate your right to withhold information people don't need to know about you. 

In fact, knowing too much about a person can lead to even more discrimination simply because it becomes easier to apply our own personal biases based on irrelevant information.   Even if what we find has nothing to do with why we were interested in the first place the damage is done and our world grows a little colder.

We're all so concerned about safety these days and it's sure to come up whenever someone's abdicating the requirement to vomit up even more private information.  

Someone will always bring up the child molester, terrorist or bank robber that might have been stopped if we just had more information about them earlier.  Perhaps so but is it worth the whole of humanity living under a microscope to prevent it?  At what point does civilized society fall victim to Orwell's "thoughtcrime" ?

 The question you have to ask is if everyone's going to eventually be required to lay themselves bare online then who's qualified to sit in ultimate judgment of your actions?  You're tried, convicted and sentenced before you even realize you've done something wrong.

That sounds a bit "Minority Report" to me.