EFF On Why FBI Can't Force Apple To Sign Code (boingboing.net) 252
New submitter Kurast writes with this article at Boing Boing: Code is speech: critical court rulings from the early history of the Electronic Frontier Foundation held that code was a form of expressive speech, protected by the First Amendment. The EFF has just submitted an amicus brief in support of Apple in its fight against the FBI, representing 46 "technologists, researchers and cryptographers," laying out the case that the First Amendment means that Apple can't be forced to utter speech to the government's command, and they especially can't be forced to sign and endorse that speech. In a "deep dive" post, EFF's Andrew Crocker and Jamie Williams take you through the argument, step by step. (You can follow along by reading the brief itself (PDF), too.)
"deep dive" (Score:3, Informative)
so that's what their calling 50 page walls of text these days, eh?
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I think that more reading would be good for you.
Right Answer, Wrong Method (Score:2, Insightful)
It is true that the FBI cannot force Apple to produce new code that does not today exist.
But, code is not speech.
What the FBI cannot do is force a company to do something that will cause it irreparable harm and devalue its entire business model. Forcing Apple to produce this code goes against Apple's right to be free of unreasonable seizures, as the FBI would in effect be seizing 80% of the value of the company, if not more, to get a backdoor into all iPhones.
First, the FBI does not have a right to a backdo
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> But, code is not speech.
Yes, of course it is. It's been found that way in court, and what the fuck ELSE would it be? Wait, don't answer that: every other possibility is terrifying.
Re:Right Answer, Wrong Method (Score:5, Informative)
But, code is not speech.
Yes it is. This is a legal question that's been settled already by several cases. Here's a quote from one of them (Universal City Studios vs Corley)
Communication does not lose constitutional protection as “speech” simply because it is expressed in the language of computer code. Mathematical formulae and musical scores are written in “code,” i.e.,symbolic notations not comprehensible to the uninitiated, and yet both are covered by the First Amendment. If someone chose to write a novel entirely in computer object code by using strings of 1’s and 0’s for each letter of each word, the resulting work would be no different for constitutional purposes than if it had been written in English.
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AC or court system. Who do I believe understands the law as a practical matter?
Face facts, you are wrong in any way that matters.
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But I'm sure AC has a very valuable legal perspective which will changed case history!
I'm just sure of it!!
All code is instructions (Score:2)
Code that is instructions to tell a computer what to do is not "communication.
ALL code tells a computer what to do. This argument fails right out of the gate. There is no such thing as computer code that doesn't tell a computer what to do.
There can be "communication" embedded within computer instructions, and that is certainly protected.
Not only can there be, there routinely is. The argument that code is not speech as a blanket assertion is demonstrably nonsense. If you want to argue that all code is instructions but not all code is speech then you'll have to dig a little deeper.
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I'd agree, it's even more evident for //commented out code
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So if I'm telling you how to do something it's not speech? You've just destroyed education, the government can control who teaches and what they teach.
Code is speech, it has an artistic component and is primarily functional but it's still speech. The courts have already rules on this several times with good precedent.
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You've just destroyed education, the government can control who teaches and what they teach.
Welcome to government control of standardized testing and standards for graduation, along with hiring criteria for teachers. By the way, controlling what they CANNOT teach means you are effectively controlling what they CAN teach, too.
Government can, indeed, force certain "speech" upon corporations against their will. Find a pack of cigarettes and see if you cannot find some "speech" that the cigarette company might not want to put on that package. Or almost anything sold in California, where we learn tha
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I disagree with this reasoning. A business doesn't have an inalienable right to make money. If I run a child pornography store, the government can, will, and s
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If I run a child pornography store...
Your argument doesnt have to go to such extremes.
... we know that the progressives are fully willing to force you to make cakes for homosexuals..
If you ran a Heterosexual Wedding Cake Bakery
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... as the FBI would in effect be seizing 80% of the value of the company, if not more, to get a backdoor into all iPhones.
Are you seriously claiming that more than 80% of the value of Apple is the ability of users to encrypt data on iPhones? Seriously?
The EFF brief claims that Apple "signing" the code it could write to break into the one phone in question would apply to "hundreds of millions of people". Except hundreds of millions of people would never see or even have access to that code. As for it breaking the trust in Apple, some of us already know that Apple can quite easily break into secured systems on behalf of third
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Actually, Bernstein v. United States put forward the argument that human readable source code IS protected speech under the first amendment. Several courts agreed with that argument although the government loosened the restrictions on encryption before it got all the way to the supreme court.
Re:Right Answer, Wrong Method (Score:5, Insightful)
Code is text that conveys meaning, which is one possible definition of "speech" in written form, but it really carries two purposes: to instruct a computer to behave in a certain manner (in which sense, code is a machine) and to convey the intent of the program to humans.
You can write a functional equivalent of any program with meaningless identifiers, variables like x, y, z, functions like func1, func2, etc. Yet we don't do that, and there's a good reason. Computer languages are meant to be read by humans as well as computers.
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Code is text that conveys meaning, which is one possible definition of "speech" in written form, but it really carries two purposes: to instruct a computer to behave in a certain manner (in which sense, code is a machine) and to convey the intent of the program to humans.
You can write a functional equivalent of any program with meaningless identifiers, variables like x, y, z, functions like func1, func2, etc. Yet we don't do that, and there's a good reason. Computer languages are meant to be read by humans as well as computers.
Hmm. That seems like a slippery slope.
If the defense is entirely on free-speech grounds, then perhaps the government could compel Apple to introduce a certain functionality to the iPhone. They just couldn't tell them how to do it (choice of variable names, etc.)
I'm reluctantly on Apple's side on this issue. But I'm not sure free speech is their strongest defense.
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Computer languages are meant to be read by humans as well as computers.
Signing of code in this context does not sign the original source, it signs the binary machine representation. It is not the source that the iPhone OS/hardware would test for validity and authenticity and authentication, it is the binary version prior to being executed.
You can write a functional equivalent of any program with meaningless identifiers, variables like x, y, z, functions like func1, func2, etc. Yet we don't do that,
Yet for the most part that is exactly the kind of meaningless labels that will be applied to variables that a decompiler creates and would be what a human who wanted to inspect the signed code would see. The wonderful prose that early poster
Code absolutely can convey ideas (Score:5, Insightful)
Code is instructions to a computer to do something.
Agreed.
The computer cannot interpret code as an expression, because computers are not sentient. Code cannot therefore be considered expression, as it is not being written to convey ideas to other people.
Your argument goes off the rails here. I absolutely can convey ideas to other people through code. You are making the mistake of presuming the computer is the audience for the ideas being conveyed. That is incorrect. Other people are the audience, the computer is merely the means. Saying code cannot be used to convey ideas is as absurd as saying written music cannot convey ideas because you need a musical instrument to play it.
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Precisely, and something that most who didn't pay much attention to the first crypto war don't recall.
Perhaps one of the greatest examples of this were the export controls over higher encryption, including source code... which eventually saw the PGP source code getting published into a book as part of a dare towards the government to see if they would actually seek to ban a book.
Thankfully, the government lost that battle.
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I remember my "this T-shirt is a munition" shirt.
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A great semantics versus pragmatics debate ensues. What is language... oh the hell with that, we're not liberal arts majors here.
A sentence is a set of glyphs strung together, in such a way as to approximately obey the diction and grammar of the language it is delivered with. It is protected expression, however, when its author or speaker delivers it with the intention of conveying information that is not deliberately intended to mislead or cause harm.
Isn't that exactly what source code does? It is a langua
Computers run executables, humans read languages (Score:2)
> Code is instructions to a computer to do something
That's what your fourth-grade teacher told you with the sandwich- making demonstration, but that's not really true of most languages used since about 1978.
Most languages today include a lot of stuff for humans, and also tell the compiler / query optimizer / etc which RESULT the program should ACHIEVE. The process the computer uses, the steps it takes, are not in the code. This is blindingly obvious if you compare 1960s cursor-based database code (whic
Code is Speech. Code is Math. (Score:5, Insightful)
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The US is at war with Terrorism. That's why it can invade afghanistan. America is not at war with Terrorism. That's why the geneva treaty doesn't apply for gitmo inmates.
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Maybe next time try and not get your talking points from Huff Po or Mother Jones m'kay?
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No, Geneva doesn't apply to the detainees as unlawful combatants are expressly not protected, same generally goes for spies and saboteurs.
The EFF positions are consistent (Score:5, Insightful)
And I see EFF lawyers saying code is math and is not eligible for patent protection and sometimes not even eligible for copyright protection.
Some code cannot be copyrighted, though this is the exception rather than the rule. For example I can write a hello world program but I can't copyright it because it is too basic to be considered a creative work but I can write a word processor and I can copyright that. In principle no code should be eligible for patents because the code should be adequately protected by copyright. You shouldn't be able to patent math. Patents should only be for tangible goods. But there is a sufficient level of creativity in coding that allowing a copyright is reasonable. (presuming we think copyright itself is reasonable which is a separate discussion)
I don't think the EFF is being inconsistent at all in their stance on these issues.
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I can write a hello world program but I can't copyright it because it is too basic to be considered a creative work
False.... you can write a hello world program and copyright it. You might have some trouble enforcing that copyright, particularly if someone else already wrote an identical one.
With some minor tweaks/additions to your Hello world program, then it will be subject to the full protections of copyright.
I don't think the EFF is being inconsistent at all in their stance on these issues.
Re:Code is Speech. Code is Math. (Score:5, Informative)
Look. I see EFF lawyers saying code is speech and is protected. And I see EFF lawyers saying code is math and is not eligible for patent protection and sometimes not even eligible for copyright protection. I want an EFF lawyer to explain their stand on how these three mechanisms apply to code before this story gets posted AGAIN and it had better be consistent.
It's not the EFF that's inconsistent, it's the law. Things that are patentable (functional devices or systems) are not copyrightable (creative works of expression), and vice versa. The two systems are inherently designed not to overlap. That's why the EFF and others are upset about the apparent overlap in practice with respect to software. The EFF's perspective is that treating software as a functional device is wrong. It's speech, math, creative expression, a literal set of instructions, but not a "thing" which "does" something itself. Therefore, it is inappropriate to handle software through the patent system. To put a finer point on it, patents cover implementations of ideas, not the ideas themselves. You can't patent the idea of a new invention - you can only patent an actual implementation of it. The EFF's position is that software is strictly an idea, a communication of instructions. The instructions themselves are not functional or even tangible and therefore should not be patentable. Just like any other written information, it should be copyrightable if and when it constitutes a creative work. That's the EFF's argument, and it's a good one. And it is entirely consistent with their position in this amicus brief.
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Math is the Universal Language used to convey ideas.
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Well, speech isn't eligible for patent protection, so maybe math is speech, and code is math?
Interesting. wrong on law and facts (Score:2)
That's an interesting thought. I know less-informed Slashdot commenters, who have never read the relevant law, make those claims. I would be surprised if an EFF lawyer made those claims about code. They might say that about one specific algorithm, which can be expressed in English, code, or hardware.
You mention two mistakes, wrong about both the law and the facts.
The statute on patentability says:
The laws of nature, including the laws physics and the laws of math, aren't patentable
That makes sense
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"Hello, how are you". or "2 + 2 = 4"
Speech, yet I'm not allowed to copyright it. Why is that? How does that interplay with their arguments?
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You cannot patent the discovery that 2 + 2 = 4.
You can certainly copyright your presentation of it if it is in anyway unique especially from previously written forms. Other people can present it differently or use previously non-copyright versions.
Comment removed (Score:5, Insightful)
Actually, slippery slope argument. (Score:5, Insightful)
The government can mandate you buy a product, why not a mandate to open a product. If you believe the government can force you to do an action, why not another? What makes this any different than any other government force?
They already dictate your 4th amendment rights, so restricting your 1st for the "public good" is no stretch.
Just trying to make you think about the scope, that once you start giving up your rights for something you want, the government can limit your other rights.
Don't being a hypocrite when it comes to picking and choosing which rights you want to defend, defend them all.
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The government can mandate you buy a product, why not a mandate to open a product. If you believe the government can force you to do an action, why not another? What makes this any different than any other government force?
Agreed. Government can do whatever we agree government can do (and, unfortunately, sometimes a good deal that we don't agree government can do, but that's a topic for another discussion). We've agreed that government can make us buy a product (I presume you're talking about medical health insurance here), and we can similarly agree that government can make us open a product (I presume you're talking about the iPhone here). We haven't yet agreed on that point, though. I think that's the issue.
Don't being a hypocrite when it comes to picking and choosing which rights you want to defend, defend them all.
Disagreed. Supp
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I completely agree with your overall premise, of course, but I wanted to nitpick about your opening statement.
The government can mandate you buy a product, why not a mandate to open a product. If you believe the government can force you to do an action, why not another? What makes this any different than any other government force?
Two reasons, both related:
1) If the government is going to mandate us to do something, it's the legislative branch doing it. The judicial branch gets to interpret and apply the laws (and possibly toss them out as contradicting higher laws), the executive branch gets to enforce them, but neither gets to mandate things without a law backing them up. Or at least that's how it's supposed to work, of cou
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I'd like to add a butchered quote that is relevant:
The price for having freedom and presumption of innocence is the fact that guilty men may roam free and evil men may do harm before they can be stopped.
But if stopping them means risking the loss of freedom and the punishment of the innocent, then tolerating such men is the cost that we must accept for
all the treasures a free society offers. A saboteur, terrorist, or criminal can only destroy objects and harm lives.
But they are incapable of touching the foundation on which that freedom is founded. Only our fear and paranoia can do that.
Maybe not the strongest argument (Score:3)
I think the First Amendment argument is not as strong as the argument against the government forcing a company to build something that it does not normally build. Should the government be able to force Black and Decker to build firearms? Should they be able to force Dupont to manufacture napalm? Now, if these companies WANT to manufacture these goods, that's one thing, but forcing them to do it is quite another.
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Well, I have my doubts (Score:2)
I'm not altogether I'd call source code "speech", but I'm pretty sure that object code isn't speech. If Apple wanted to use a binary editor to change the number of tries in the object code from 10 to 10,000, then sign the result, they haven't been forced to utter speech.
Yeah, it's a stupidly legalistic approach, but what we're talking about is corner cases where every interpretation of the rules is stupidly legalistic.
Let me be clear I think Apple shouldn't be forced to do this -- or at the very least they
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I'm not altogether I'd call source code "speech", but I'm pretty sure that object code isn't speech. If Apple wanted to use a binary editor to change the number of tries in the object code from 10 to 10,000, then sign the result, they haven't been forced to utter speech.
There is no fundamental difference between source code and object code, aside from the level of abstraction. Both are lists of instructions and associated data. Both can be read and understood by both computers and (properly trained) humans.
The signature, however, is the bigger issue. Forcing Apple to sign a compromised build of the software with their code-signing key is exactly equivalent to forcing them to publicly attest that the compromised build is approved by Apple for operation on the iPhone 5C. Tha
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Exactly. Being able to force Apple to sign code allows for weaponized updates. Custom versions of code that can be covertly placed into a targeted phone (either black box or via normal update). Think of phones that simply send the GPS tracking data continuously to the relevant authorities in real time. Or have the microphone recording audio and forwarding in real time.
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Well, object code has to be directly executable by a processing architecture.
Putting aside the fact that the source code and object code may be identical—as humans can, and sometimes do, write object code directly—there is no reason that high-level source code, e.g C# or JavaScript, could not be executed directly by the hardware with no intermediate translation step. The boundary between hardware and software is a flexible one; anything you can do in software (like interpreting source code) can also be realized with special-purpose hardware, just as the vast majority of
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No, object code is not source code even if you write it by hand.
Whether it is technically "source code" is debatable, but not really relevant. The point is that it is in the original (source) language and does not require translation to any other language.
Implementing your translator in hardware doesn't mean it's not a translator.
Right, but you don't need to implement a translator at all, hardware or software. Interpretation (which is what a CPU does with ordinary object code) is not translation. Any programming language can be executed directly by hardware without first being translated to a separate object code language; it just requires a mu
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Even if code isn't speech, wouldn't signing the code with Apple's certificate be considered speech? It's Apple certifying that this code passes their standards. By being forced to sign code, they are being forced to declare code as acceptable to Apple because the government told them to say it was acceptable.
So maybe Apple is forced to write the code but can't be forced to sign it. Good luck running that code on the iPhone, FBI!
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First, there are tools to translate from source code to binary and binary to source code. Merely a mechanical translation. Object code is provably equivalent.
Second, if they made change to the binary with a binary editor, the signature would no longer be valid and it would not work. It would need to be resigned which as explained is speech and also cannot be forced (hopefully.)
code is speech? just speech? (Score:2)
Only when it isn't functioning (when it is printed, on the disc, etc).
When it works, it is more than speech. It can kill people, direct missiles, etc after all.
If it was just speech, then an execution order is free speech too.
First Amendment rights and Citizens United vs FEC (Score:5, Interesting)
It would seem to me that EFF's line of defense is dependent on the Citizens United vs Federal Election Commission, where it was ruled that corporations have the same constitutional rights to free speech as people. If Apple did not have such a right, then the government could force them to produce and sign code. I personally was unhappy with the Citizens United vs FEC ruling, but this is an area where it could have a positive impact on me.
Disconcerting (Score:2)
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As much as I'm on Apple's side on this, what might be technically possible for Apple to do might be near-impossible for the FBI to accomplish. Should Apple decide tomorrow to comply with this demand and assuming that this isn't 100% impossible to to, Apple has the technical know-how to figure out how to code it and have the ability to sign the code as being from Apple (and thus being allowed to run on iOS devices). The FBI, on the other hand, has no experience writing software for iOS devices and so would
No, no, no! (Score:2)
If writing the software is possible, then the FBI can do it themselves.
Right now, to get to the contents of a phone, the FBI must use the courts to get a warrant. This at least provides a little bit of a check on what they are doing. If they write their own code, this removes this last vestige of oversite and they will be free to get into any phone they please (just like the NSA that wrote their own software). Is that really what people want?
OK, but what happens when... (Score:2)
Let's say this argument succeeds. Then the FBI just asks for the signing certificate, and letting the FBI have the certificate is worse than what they were asking for before.
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Except they already do in other forms... and no I'm not talking about *falsely* yelling fire in a theater.
Pictures & drawings are also avenues of free speech... and while the government prohibits some expressions, it actually mandate others.
Should a car company be compelled into having to add government mandated components (air bag, seat belt, side mirrors, headlights, etc) to their designs which are eventually made into real and tangible objects?
It's about constitutionality (Score:3)
Should a car company be compelled into having to add government mandated components (air bag, seat belt, side mirrors, headlights, etc) to their designs which are eventually made into real and tangible objects?
I don't think there is any debate that the government can mandate companies follow regulations. I think the point here is that the government is attempting to mandate Apple perform an action that is arguably unconstitutional. You can make reasonable arguments against the FBI's actions under at least the 1st and 4th amendments. The FBI's actions would have all sorts of negative knock on effects if they get their way.
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Even if that fell under "free speech", you are completely free to design and even BUILD a car without that stuff. What you can't do is drive it on public roads with other drivers.
Re:YES!! (Score:4, Interesting)
Even if that fell under "free speech", you are completely free to design and even BUILD a car without that stuff. What you can't do is drive it on public roads with other drivers.
Applying the car analogy back to the current topic: perhaps Apple can create an unhackable iPhone, but would they be allowed to let it emit radio signals?
The radio spectrum, like most roads, is public property.
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The radio spectrum, like most roads, is public property.
Yes, but the FCC still regulates its use "for the public good" like the Dept. of Transportation and state DMVs regulate road use.
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The radio spectrum, like most roads, is public property.
Yes, but the FCC still regulates its use "for the public good" like the Dept. of Transportation and state DMVs regulate road use.
That's my point.
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No 'but', just because property is public doesn't mean it is free from law or control.
If the FCC decides (or is required to by an act of congress) that an allowing unhackable phones to be emit radio signals is not (to use your words) "for the public good", just as simple as the National Highway Traffic Safety Administration decreeing that all new cars after 86 must have a center high-mounted stop lamp.
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The 14th amendment would prevent the government for retaliating at apple by revoking their use of unrelated public property. Talk about an abuse of power the court would absolutely stomp.
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If congress passes a law that says all phones have to be crackable, then the answer is no. Until there is a law or regula
Re:YES!! (Score:5, Insightful)
Should a car company be compelled into having to add government mandated components (air bag, seat belt, side mirrors, headlights, etc) to their designs which are eventually made into real and tangible objects?
Free speech is not absolute and courts recognize the need to balance freedom of speech with public interests. In the case of safety regulation, you'd be hard to find any judge who thinks that requiring safety devices is violating free speech. Now if the government mandated what specific colors a car company could use, that is different. The government can regulate the type of paint (lead-free, anti-corrosive agents, chemical base) but not the color.
Free Speech vs Copyrights (Score:2)
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None of your examples are even remotely close to being compelled to say something that you don't approve of, and especially forcing you to sign it in a manner that uniquely ties it to you.
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They don't HAVE to. They could bolt them on ad-hoc later if they wanted.
Or they could just not make cars.
What could Apple just not do in order to avoid following the contested order?
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Since DaHat was born an idiot.
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The airbag itself isn't... however it's inclusion in the design plans could be argued as compelled speech.
I agree, it's a stretch, which is my point. We accept compelled/banned speech in some areas but not in others.
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The airbag itself isn't... however it's inclusion in the design plans could be argued as compelled speech.
All industries have some sort of regulation they must follow. Coca-cola can't include rat poison into their secret formula. General Foods cannot say their cereal contains unicorn farts and rainbows. And so on.
kick. ass! (Score:2)
the most logical and clear defense I've yet seen. good job.
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Well it can still be good, without being the complete solution.
Let's face it, Apple was always free to sell us out. What kept it from doing so is that people might not buy their phones as often if Apple was selling your data to the highest bidder (or the guy with the gun). What this says is that the government can't force Apple to go against its own self-interest by limiting its speech or putting words in its proverbial mouth.
You are right, Apple then becomes responsible and capable of turning around and
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The day the government controls your speech, democracy is dead.
A true statement, but impractical in terms of governments. Just look at what happened in Europe during the enlightenment. A more powerful medium is controlling the media and affecting the majority, as opposed to direct oppression.
I've always been wondering where the extremism expresses itself in the US. In Europe you get the surges in radical groups in the government positions, but mostly failing deliver and falling into obscurity. Maybe give the plebs more sugar?
For a long while I've wondered what would ha
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The day the government controls your speech, democracy is dead.
Different people have different ideas on what "speech" consists of. EFF makes a good lawyerly argument in favor of the position that the cryptographic key signing an application is "speech", but it is certainly not "speech" of any kind that would have been recognized by the founding fathers. It could also be argued that the cryptographic key is simply the key to a lock, and the govenment most certainly can demand, with a court order, that a lock smith open a lock.
With that said, I'm completely on Apple's
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Not our coinage!!! Nooooooooooo...
Now I can't hoard gold! Oh wait, yes I can.
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Not our coinage!!! Nooooooooooo...
Now I can't hoard gold! Oh wait, yes I can.
Well sure, today you can... but in 1964 you couldn't.
Private ownership of gold was illegal back then. It wasn't legalized again until 1974.
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It died in 1913 with the establishment of the Federal Reserve but few were willing to accept the fact until '64, when we enjoyed a coup and had our coinage debased.
Indeed.
For those who do not understand, try reading "The Creature From Jekyll Island" by G. Edward Griffin.
https://archive.org/details/Cr... [archive.org]
Strat
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Re:Code is not speech (Score:5, Funny)
for one in aSetWithOneMore {
change(one).intoOneWithPlus(4)
if ( one.isNot(five) ) {
print("The numbers don't jive!!")
\\/* At this point increase players score. */
}
}
Re:Code is not speech (Score:5, Interesting)
Have you never seen COBOL?
PROCEDURE DIVISION.
Calculator.
PERFORM 3 TIMES
DISPLAY "Enter First Number : " WITH NO ADVANCING
ACCEPT Num1
DISPLAY "Enter Second Number : " WITH NO ADVANCING
ACCEPT Num2
DISPLAY "Enter operator (+ or *) : " WITH NO ADVANCING
ACCEPT Operator
IF Operator = "+" THEN
ADD Num1, Num2 GIVING Result
END-IF
IF Operator = "*" THEN
MULTIPLY Num1 BY Num2 GIVING Result
END-IF
DISPLAY "Result is = ", Result
END-PERFORM.
STOP RUN.
Re:It doesn't matter (Score:5, Interesting)
Ultimately it shouldn't matter...
Because the next version of all smart devices should not update unless unlocked.
Let the FBI put that in their pipe and smoke it.
Re:It doesn't matter (Score:4, Interesting)
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Impossible to enforce.
Just sell the secure device and let Amazon or E-bay worry about (re)importing them. Watch the law change once they start losing tax revenue.
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Emissions regulations are impossible to enforce on domestic vehicles.
Once every other year I bolt the cats (actually the whole back of the exhaust) back on my car and remove the visible race parts without CARB#s. No big.
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If Code and software are speech, then such "law" would be a prior restraint on free speech. Highly unconstitutional.
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Sure... Unless laws are passed that outlaw the sale or import of any devices that the manufacturer or service provider cannot unlock upon request with a warrant.
Yes, I'm sure that'll be popular and defensible - especially in an election year.
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Even if this did happen, it would come encrypted, and they would no basis to then unlock that code. It would be wholly independent from the case it is pertaining to, and no court would push for Apple to do anything further.
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They can't because Apple's encryption system will only accept 10 PIN attempts. If you don't get it right within 10 times, it'll wipe the phone. The FBI isn't really saying "decrypt this phone for us." What they do want is for Apple to push an update (remotely and with the phone still locked) that will 1) disable the 10 time limit and 2) allow them to key in the PIN attempts via a computer (simulating a keyboard connected via USB).
All this being said, Apple is right to resist this because, despite the FBI
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This skirts on free speech. That includes signing a document and there is jurisprudence on digital signing. Forcing someone to hand over the magic pen or stamp that is used to sign is equivalent to forcing them to sign.
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Which would require an intermediate update which trusts the new signature but is signed with the old one.