Saturday, February 20, 2016

Normally I'm a PC, Today, I'm An Apple!

(In which we learn that our labor belongs alone to ourselves, that a collective lacks moral authority to demand that we produce for them, and that they lack the moral authority to demand that we create that which we have not, ourselves, chosen to create.)

Consider a scenario:
The Bureau of Prisons publishes an invitation for bids to construct a prison. ACME Builders places the winning bid. ACME completes construction on, or just ahead of schedule. The new facility opens on time. The federal government places several hundred convicted prisoners in the facility. 
A few years into operation, the Bureau realizes that, had it thought to do so, it would have designed the Prison’s medical wing to have a negative pressure air system, with filtration, so that risk of transmitting infections within the wing would be reduced. 
The cost of reverse engineering and installing the system is estimated at 5 Million Dollars. 
Rather than publishing another invitation to bid, the Bureau of Prisons goes to court. It sues to coerce ACME Builders to provide the reverse engineering and installation of negative air pressure systems. ACME does not currently provide that service on any other contracts in its portfolio. 
A federal court orders ACME to create a plan for the reverse engineering of the medical wing, and installation of the negative air system with filtration. 
Rather than comply with the court’s order, ACME goes public with what has happened. 
Some who learn of what has happened agree with the court’s order.  
After all, why shouldn’t ACME be made to do this job? They had the benefit of the contract, and with any insight, they could have foreseen that the omission of this feature would risk greater medical costs for the Bureau as it cares for the prisoners under their charge. 
Some who learn of the court order cheer ACME for its defiance and refusal of the court order.  
Compelling a company to invent something it hasn’t invented, build something it hasn’t built, give away its valuable professional and trades services, all these things strike at personal autonomy and individual liberty.
Of course, I'm not actually addressing a dispute between the Bureau of Prisons and ACME. 

Instead, in this post, I am addressing the federal government's decision to coerce a private company, Apple, Inc., to create a non-existent operating system and provide that system for use by the Federal Bureau of Investigation to unlock an iPhone found among the possessions of the deceased San Bernardino Islamic terrorists.

The FBI wants to obtain access to information on the iPhone. The encryption of the phone, designed by Apple, Inc., is preventing the FBI from gaining access to that information. The US Attorney's Office in California filed a request (a motion) for a court Order compelling Apple, Inc. to cooperate in their investigation. The US Attorney based its request on an ancient (relatively speaking) statute, the All Writs Act. There are relatively few decisions of the Supreme Court on the application of the All Writs Act, and no decisions in which a similar Order was sought and granted.

The US Attorney submitted a legal memorandum with the request for the Order. Motions are, typically, supported by legal arguments in that way. In this case, the Government argued that forcing Apple, Inc., to cooperate with its investigation was indistinguishable from other, previous court orders. In particular, the Government claimed that a prior Supreme Court decision forcing a telephone company to cooperate with a criminal investigation into an illegal book-making operation -- an Order that forced the phone company to install a "pen register" on a criminal suspect's telephone -- was analogous and justified the requested Order.

But, and an appeals court and probably the Supreme Court will have to decide whether forcing a phone designer and a computer programming company to craft an all new program that does not currently exist actually is analogous to installing a pen register. Remember, a pen register was a technology already in existence at the time that the Supreme Court upheld an Order compelling the installation of that particular device in that particular investigation. The lower court concluded, and the Supreme Court agreed, that little to no additional effort or inconvenience resulted to the telephone company from being forced to cooperate with the investigation. So the question remains, is forcing a company to write a new program that does not currently exist result in unreasonable inconvenience and harm to the company.

Here's exactly what the Government wants from Apple, Inc.:

The answer seems obvious.

Coding is labor. Labor costs money. Creation takes thought and design, testing to insure that the coding does as required. Sure, the iOS system from Apple is different from the old Fortran and COBAL programming I did thirty years ago. But the basic principle of logic and commands does not change. The creation of such a program and its attempted use by the FBI, if it resulted in permanent loss of the information that may be on the phone requires care, thought, work. It is not the mere attachment of a pen register.

The Government's motion was decided by a magistrate. That magistrate struck out the word, "Proposed," at the top of the Government's proposed order, and signed it as filed. The order compels Apple to devise a program that would allow the FBI to gain access to that information. 

Apple posted an open letter to Apple users on its website, advising them of the issue and of their response. You can read that message here.

Apple's Tim Cook goes on to explain the problems with the FBI's request and the Magistrate's Order:
We have great respect for the professionals at the FBI, and we believe their intentions are good. Up to this point, we have done everything that is both within our power and within the law to help them. But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone. 
Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation. In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession.
Now, at this point, maybe you disagree with my decision to salute Apple for refusing to cooperate with the FBI-won court order.

You may take the view that it is Apple's and Cook's duty to cooperate in the matter and make recovery of information from that iPhone possible.

Past decisions of the Supreme Court sustaining plainly unconstitutional actions of the federal government -- the creation of internment camps for Japanese Americans, for example -- have always been justified by the claim, "The Constitution is not a suicide pact." That, of course, expresses the Court's decision, and the Government's argument in such cases, that if the Government were compelled to comply with the Constitution's requirements, it would put the Nation in too great danger.

While that is quite possibly true, I am not alone in concluding that there is a deformation of our character as a freedom-loving Nation to tolerate disregard of the boundaries of the Constitution by the government. We have allowed large deformations -- imprisoning Americans because their ancestors were Japanese -- and smaller ones -- compelling a company to assist the FBI in jail-breaking the iPhone of a deceased Muslim terrorist. The question is just how comfortable we will allow ourselves to become with the Government beginning every action with an assumption that the boundaries of the Constitution exist to entertain the masses with thrilling stories of the glory of America, but not to restrain their actions.

The Engrossed Resolution Proposing the XIIIth Amendment
So now we have an Order compelling Apple, Inc., to create something it has not previously created. Is there a word in the English language for a condition in which the law permits one person to coerce the labor of another? (Oddly, many who, like me, are disturbed by the Court Order here are perfectly fine with compelling Christian bakers that have never made same sex marriage cakes to begin to do so, or to lose their businesses. Their hypocrisy on such compulsions doesn't stop me from recognizing this wrong and that wrong.)

I'll give you a minute to think on it what word is used to described to force labor from another.
You know the word.  
You probably think it reeks of histrionics to invoke the word here. 
Yes, the word is, Slavery. Coercion of the labor of another is slavery.
So, I start by objecting to the idiot order of an idiot federal magistrate judge in California because I object to coercion of labor from others.

The Federal Bureau of Investigation could get the same outcome by letting out a bid for a programmer to design a program like it needs here. (Literally in just the moments that passed after writing those words, I saw a headline online that John McAfee, antivirus pioneer and Libertarian Party candidate for the Presidency, had announced that he would decrypt the iPhone and could do so within three weeks.) Instead, having failed to crack the security of the phone at issue here, the FBI and the Office of the US Attorney applied for an Order compelling Apple to invent a new program allowing the cracking of the security on the phone.

Fourth Amendment
Beyond the direct coercion of the labor of another – a form of slavery – there is the entire issue that the program the FBI wants and the Court has ordered Apple to create is capable of being taken from the current investigation to other uses.

Imagine that the FBI possessed a Bluetooth enabled decryption device capable of invading your iPhone (or, for that matter, your Android phone). Walking down the road, hurting no one, having committed no criminal offense, you have no idea that the FBI just swept your phone, using Bluetooth technology and a backdoor program created by Apple because of an order issued by some federal magistrate (not even a real district court judge).

Of course, some folks will instantly say, "what are you afraid of, if you have nothing to hide?"

What I am afraid of, friends, is living in a collective where the love of liberty has not merely faded to a warm ember, but has gone right cold.

The "needs of the Nation" do not justify the violation of rights of life, of liberty, and of property. The Fourth Amendment prohibits invasion of the rights of property and personal physical integrity in the absence of a judicial search warrant based on probable cause to suspect criminal violation of the law. State constitutional warrant requirements likewise prohibit warrantless searches. But why do these provisions interpose to prevent warrantless rooting about in the private property of citizens?

There is a history to this Nation.

Understanding that history enables a considered discussion of the problem with this Order.

Under the rule of the Crown and Parliament, individuals could be pressed into service to the Crown without compensation. One example of that was the quartering of troops in homes. It was the colonial revulsion to quartering of the very troops that would oppress their liberties as Englishmen that led to the Third Amendment's prohibition on nonconsensual quartering of troops in homes during times of peace, and in times times of war except as provided for by law. General warrants are another example out of our history, in which the Crown's courts issued warrants that were not supported by sworn evidence and did not provide express descriptions of places and people to be searched, and things to be seized.

We revolted from England over these kinds of abuses. We drew careful constrictions around our governments, in the States' and federal Constitutions. I view this Order as a direct intrusion on those rights and liberties.

Liberty seldom dies on the field of battle. So much more often, liberty expires while watching television, playing Call of Duty, gardening, crocheting, or picking the kids up from soccer practice. Nothing wrong with TV, COD, gardening, crocheting, or parenting, but when diligence is dulled, liberty is lost.