Category Archives: The Media
The government’s attempt to get Apple to build a bespoke operating system so they can brute force access to an iPhone without it erasing its data has led the media to some of us who were in the first round of the crypto wars. Today was my turn. A few seconds on CBS in the Morning, ink in a nice explainer by Steve Lohr in the New York Times. I also spoke to the LA Times and the Wall St. Journal, but I haven’t seen what if anything they made of it.
I presume they found me because I wrote the first US legal article on law and encryption: The Metaphor is the Key: Cryptography, the Clipper Chip and the Constitution. There’s also a shorter sequel that some find easier to read, It Came From Planet Clipper.
The Apple case potentially raises at least these major legal issues:
- To what extent the government can use the All Writs Act to compel people unrelated to a case to provide unwilling technical support–here, Apple says, 12-40 man-weeks of expert engineering–to the government’s efforts to disable a security system in order to effectuate a search warrant or similar court order;
- Whether ordering a firm to write code (here, a bespoke phone OS), is a form of compelled speech violating the First Amendment
- Whether ordering a firm to digitally sign that code (or anything else) is an impermissible form of compelled speech
- Whether if a court can issue this order requiring assistance to disable a security system without violating the Constitutions, it follows that Congress could also legislate to forbid people from building strong security systems that the government cannot break into unassisted — and, most critically, whether that would mean the government could forbid the deployment of strong cryptographic tools without back doors. (This last issue was the main subject of the two articles I linked to above. It’s not a simple question.)
Although the Apple issue likely will be decided on non-constitutional grounds, the parties are making a record on the constitutional issues with an eye to a set of appeals that could go as far as the Supreme Court. The issues are important and interesting, so the media is right to treat this as a big deal.
I was interviewed today by @pfunkmedia about #We_Robot. You can hear the podcast — I’m the second half.
This doesn’t happen very often — well, ever, actually — a staff writer on the Wall Street Journal Editorial page just quoted favorably from one of my articles.
Lest the quote make me sound like more of a jingo than I actually am, let me explain the context. The US Department of Commerce (DoC) has been gradually extricating itself from management of the Internet domain name system (DNS). Until a few weeks ago, the major recent step in that distancing process was the so-called “Affirmation of Commitments” between the DoC and the Internet Corporation for Assigned Names and Numbers (ICANN) which I wrote about in Almost Free: An Analysis of ICANN’s ‘Affirmation of Commitments’, 9 J. Telecom. & High Tech. Law 187 (2011). That paper updated my original ICANN paper, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 DUKE L.J. 17 (2000), in which I explained the complicated web of relationships between DoC, ICANN, and other major players.
But ten days ago, everything changed again — sort of. In response to international political pressure that intensified after the Snowden revelations, the DoC announced that it planned to let go of its major remaining lever over ICANN, control of the so-called IANA function, as soon as the international community could craft a suitable transition plan. ICANN of course rushed to suggest that the transition should be to ICANN, but DoC (via the NTIA) has quite properly suggested that this isn’t quite what it had in mind.
Governments around the world are thought to prefer a system like the ITU or the UN (although not those bodies themselves) which are primarily controlled by governments on a one-sovereignty, one-vote system. And now we come to the part of this which I oppose. As accurately quoted by the WSJ, I believe it would be a mistake to give despots a say over the communications of democracies. Thus a fully world-wide international body dominated by governments seems like the wrong tool to me. It could be international but non-governmental. It could be run by a committee of democracies. We could give the whole thing to Canada (my favorite, but alas unlikely solution). Fortunately the US government has clarified its original remarks by saying it isn’t signing a blank check, and there are also ambiguities in what exactly got promised. So everything remains to be decided. But there are many interest groups that want this to happen as quickly as possible — before the US changes its mind, and before opposition groups wanting structural separation from ICANN or more accountability get organized. So we could be in for a wild ride.
Pierre Omidyar’s new venture, First Look Media, has its first online ‘magazine’ up and running. It’s called The Intercept. First big story is The NSA’s Secret Role in the U.S. Assassination Program.
It does go a little beyond what we already knew–that the US can use voice recognition to ID a cell phone user, then use geo-targeting to send a drone strike aimed at the phone–to discuss how the program works in practice (hint: not so great, especially once targets started adopting counter-measures).