Slightly less Random Ramblings

March 18, 2016

The Process or the Product?

Filed under: crime, encryption, Police, Technology, terrorism — Tags: , , , , , — Robert Wicks @ 5:29 pm
codebook

Cipher for Telegraphic Correspondence — a code book used by Union General Joseph Hooker’s code clerk

When I was younger, I often heard people debating whether the state should attempt to ensure equality of opportunity for people or equality of outcome. This has generally focused on areas associated with race or gender. Libertarians have consistently maintained that equality of opportunity is all that the government should properly enforce. The most progressive people push for equality of outcome in some situations, though many will say that historical biases are being overcome, so it is meaningful equality of opportunity that they seek. It strikes me however, that the recent public confrontation between Apple and the FBI provides us with similar arguments being made.

The state has long had the recognized authority to seize property and search it with a warrant. Many of the discussions surrounding the iPhone in question mention that the government can issue orders to look through private property and that the iPhone in question is no different. I’ve seen comparisons, for example to breaking into a home and taking papers for examination.

This is where I think the parallels to civil rights situations can come into play. If the police take your papers, do they have the right to the intelligibility of those papers and effects, or simply to the effects themselves. That is, if the papers are in some language or code that they do not know, do they have the right to force someone to translate it or to teach them the language? In the cases of both plain English papers and the iPhone, they have the same opportunity to examine, but the lack of knowledge (of the pass code, password, or encryption key) may make the outcomes very different.

Another analogy I have seen is that of a safe. Imagine a safe with a completely impregnable lock. What does the state do? Well, there are ways to get into safes without using the lock. You could cut your way in, or blow it up. However, it is at least possible that these other methods may destroy something of value within the safe. Does the government have the right to force the  to come up with a method for opening the lock? Further, do they have the right to force  to only make locks which can be opened without the owner’s consent? In the case of the confiscated iPhone, there may well be ways to “open” the data without the owner’s consent, but those methods may destroy the information which is sought.

It is entirely possible that this case may have effects which reach outside of the world of technology. The most fundamental of notions being examined are whether the state is entitled to a process or a product? The process is the issuing of warrants and the collection of property. The seizure of property is no guarantee of specific uses of that property. And it is the specific uses that the state demands. Is it appropriate for the state to insist on a specific outcome for a policy or is it appropriate that an agreed upon process be followed? In the justice system, I have heard many times over the years that the purpose is to follow the process. Justice is the ideal outcome, but a particular outcome is not what the state promises citizens. It promises them a process. Yet, it appears as though the state is not satisfied to have the same situation in cases involving itself: it demands an outcome. As we move forward and various technologies are developed, this guarantee of outcome will necessarily create greater and greater burdens on hardware and software developers. It may be effectively illegal for a small independent developer to create an encrypted product, for example, because the day may come where each instance of a product will require some sort of individualized method for accessing whatever data is held within it. That implies a substantial data handling infrastructure which companies, and individuals, may soon be required to maintain.

 

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