On 22 February, Robert Graham posted on his blog in response to a Tweet by Professor Orin Kerr.
If you were a crime victim and key evidence was on suspect’s phone, would you want govt to search phone w/ warrant?
Orin Kerr (@OrinKerr) February 22, 2016
Mr Graham raised some points that need to be explored. I offer this commentary to clarify these points as they relate to arguments commonly found in this debate. If left unchallenged, they can distort the debate, which would undermine the potential for democratic policy making.
If the police are against you, who are they for if not the public?
Mr Graham starts with a strange situation. The FBI is against you. If the FBI is against you, then you are likely on the wrong side of the law and by extension society as the law expresses the public morality. In a decent society, the rule of law means that the public consent to the laws as they help shape. Moreover, those who shape the laws or make the laws have to live under them. Thus, they rule and are ruled in turn. No one is above the law. The FBI as the highest law enforcement body within the United States carry a special status so to be against them is to be against the most visible representation of the rule of law. Leaving that issue aside, Mr Graham moves on to a related issue.
When the FBI is equated with ISIS are we even talking to a reasonable person?
Mr Graham suggests that Apple resisting the FBI’s legal request is like responding to an ISIS kidnapping. In doing so, he conflates a number of different ideas and issues. First, responding to a legal warrant from a duly convened court, served by a legitimate law enforcement agency, in a democratically elected regime, is not the same as receiving a ransom note from ISIS. Second, kidnappings are not always or only to obtain funding. The kidnappings also serve a political purpose, to show that the loved ones can be taken. Instead of a ransom they may be part of a larger bargaining or negotiating strategy that is part of international politics. Third, a kidnapping is a crime, it is a coercive act without legitimacy. Serving a search warrant or responding to a search warrant is not coercion. The search warrant expresses a legal system, to which a citizen consents as it is both reasonable and legitimate. The law enforcement agency has to convince another agency, the judiciary, which is also accountable to the public through the democratic process. The police have to have enough reason to search the premise. Thus, the decision has to be justifiable in the court of reason and public opinion. The political system that shapes the laws and the law enforcement agency is based on consent. As the US Declaration of Independence explains a government derives its just powers from the consent of the people. The people consent to the law and the way the law is made, which is what gives its legitimacy. To equate ISIS, which is based on force and fraud, the antithesis of consent, with a lawful order from the FBI seems deeply confused at best and deeply ingenuous at worse if not downright dishonest.
Could America exist if we passed laws no one obeyed?
It appears Mr Graham does not understand the American idea, the experiment in self-government’s intrinsic greatness. He argues that he would pass laws he would not obey. Such an approach suggests he lacks the ability for self-government, which would make him a worthy slave. To be generous, we can accept he would disobey a law he felt threatened his family. Yet, if he were to accept that, then why make the laws in the first place. He seems to want to have his cake and eat it too, which is what Apple wants. They want the protection of the law, the rule of law, so long as it applies to their patents, their physical safety, the enforcement of their credit notes. As long as the law benefits them, they follow it. If it does not benefit them, regardless of what society needs, they will not obey it. To put it crudely, it is Epicureanism. If it feels good do it or obey it. If it does not feel good, don’t do it or disobey it. If all of society worked on that principle, what would America look like? America’s founding transcended the age old problem of one party ruling and the other being ruled, having your cake and eating it too, as we designed a system in which people ruled and were ruled in turn under the law. No one is above the law as all were equal before the law. Curiously, Mr Graham does not want to be equal before the law and neither does Apple. Why?
Apparently Spartans were wrong to sacrifice themselves to resist slavery.
Mr Graham curiously believes that no one would sacrifice their loved ones, or themselves, for the law. He believes that death is worse than dishonour or the fate of the community if the law is forsaken. If this were the case, then we would be slaves for no one would prefer to die than fight for freedom. Fortunately, American history and world history are full of examples of men and women who made the sacrifice for the law. In some cases, they had to sacrifice the ones they loved.
xein’, angellein Lakedaimoniois hoti teide
keimetha tois keinon rhemasi peithomenoi.
Go, tell the Spartans, stranger passing by
That here, obedient to their laws, we lie.
The Spartans understood there were things worse than death. They believed slavery was worse than death for they would be dishonoured. More importantly, they would have dishonoured their ancestors and shamed any descendants.
Is one personal experience a good basis for changing the law?
Mr Graham now turns to the crux of the matter, his personal experience with the FBI. He has my sympathy as it is never pleasant to deal with the power of the state. The experience can be frightening and deeply traumatic. My comments are not intended to downplay the incident or the effect it may have had on him. What I do want to discuss is whether he has drawn the correct conclusions or lessons from the experience and whether these are applicable to the Apple case.
For example, in 2007 (before iPhones became popular) the FBI showed up at my business and threatened me in order to keep something quiet. Specifically, I was to give a talk at a conference on how, contrary to what the company “TippingPoint” claimed, it was easy to decrypt their “signature” files. That company convinced the FBI that it was important to “national security” that I keep such information quiet. So the FBI came to our offices, and first asked politely, then started threatening me, in order to keep the information quiet.
The key passage is that the company convinced the FBI that the issue, the talk, was a national security issue. If the company was able to convince the FBI, it would suggest that there was some evidence for such a claim. Unless, the FBI simply does whatever anyone asks whenever they asked. However, as that is not the lament anyone has ever made about the FBI, I think we can dismiss that possibility.
Instead, we have to consider the FBI are dealing with what they believe, believed, to be a national security threat. The question for Mr Graham is whether he would prefer that the FBI not investigate such claims? More to the point, when the FBI arrive at the target should the FBI simply take them at their word that it is not a threat? We would have a scene off the Simpsons.
FBI: “Excuse me Fat Tony D’Amico we understand you have been beating a man over an unpaid loan. Is that correct?”
Fat Tony D’Amico: “No. We are upstanding citizens. We have always paid our taxes and whoever told you that is lying. We are just minding our business helping someone to understand their sums.”
FBI “Thank you for clearing that up. We will be on our way. Sorry to disturb you.”
No. The scenario is far-fetched. Instead, the FBI would be acting in good faith as they have a responsibility to investigate such matters. If the target is no cooperating they will escalate. It would be strange for them to take an initial no for the final answer.
I had a bad FBI experience so authority is never to be trusted not even the law
Here though Mr Graham extends his story. Unlike the two earlier references on his blog, 2012 and 2015, he now adds an extra dimension threats of blackmail and bribery. Mr Graham raises a question, could a warrant for his phone be obtained based on an allegation of blackmail. He seems to believe that such warrants are granted instantly and without due concern. He assures us, without any evidence, that the warrant would have been easy to get. I struggle to understand how one goes from a claim of potential blackmail to an immediate warrant on a phone. He adds that the company were claiming he was trying to blackmail them. Yet, the FBI, were they to seek a warrant, would need more evidence than a claim that the company was being blackmailed. I appreciate that judges can be considered sympathetic to law enforcement yet even they insist on the rule of law so would require evidence to justify the warrant. Unless Mr Graham is suggesting that the criminal justice system and justices in particular are biased against computer companies. The reality is that we do not find such bias. If anything we find a bias to uphold the law. Perhaps it is that the FBI are visiting people who appear to be breaking the law and the law is the thread that connects these situations. The situation, as described, does not suggest that there is probable cause, which would be needed to justify the search warrant.
Going dark or going light. Why not just make sure everyone obeys the laws?
Mr Graham will not part with his smart phone. He will not reduce his online activity nor will he limit the electronic devices in his home or his property. Instead of changing his habits, his property, his way of life, he wants the community, its fullest expression in the laws, to change to suit his needs. We have a strange inversion of the American idea. Instead of a people obedient to a law they consented to create, we want the law to obey our desires. Why not make laws limiting the use of such cameras? Why not limit the electronic devices? The Amish seem capable of living without technology. If privacy is so important why should we sacrifice the laws, when we can achieve the same effect by limiting our use of devices designed to capture our personal data?
Perhaps we need to look at our laws instead of encryption.
Mr Graham seems to get to this point with his next statement. The warrant upon probable causes has served us well for a long time. What has changed, though, is our expectations regarding privacy. We have willingly accepted the commercial trade off of privacy for convenience and access yet we balk at the same effect done with legal powers derived from the consent of the people. The limit is not on law enforcement. The limit is on what people want in the public domain and what type of society they want. They can forgo some convenience, as many have already, by refusing to provide personal data for access or to use systems they believe harm their privacy. However, none of this matters if the issue remains one in which privacy is seen as a higher priority than the law.
There ought to be a law about that, a political not a technological question.
Mr Graham, like many technologists, seems to be believe that technology is the answer even as he seems to show some understanding of the political element when he talks about what the government “should not be able” to do. He seems to believe that the FBI, and one would imagine by extension the NSA, would want to end encryption. Do police want houses without locks? No. What the FBI want is for the law to be complied with so they can extract the necessary information associated with a crime. What seems strange is why Mr Graham does not believe the government can conscript someone to help it. In the United States there is still the Selective Service Act as a way to draw on the public for help. If the government could not draw on specialists it would be unable to function and the rule of law would be imperilled. If the law could not be defended, then the US Constitution would be in jeopardy. Are we saying that privacy must be protected even at the price of the US Constitution?
Thomas Jefferson understood this issue clearly as he dealt with it 1803 regarding the purchase of the Louisiana Territory.
“[a] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.”
The issue was necessity. It is rare that necessity emerges so clearly. In the Apple case, the necessity is 14 dead Americans in a terrorist attack. What necessity would Mr Graham accept for Apple to obey the law if he is unwilling to accept 14 dead Americans? Would 100 be sufficient, 1000? 10,000?
How far will Mr Graham roll back the state, what would Flint residents want?
Perhaps Mr Graham would like to roll back the Environmental Protection Agency (EPA) for it too infringes on the rights of companies by requiring them to take on greater regulations which limit their ability to operate effectively and turn a profit. However, I think he would agree that the people of Flint Michigan would rather the EPA were as robust, proactive, and feared as the FBI appears to be in the technology world.
If all cops are criminals, who protects us? Apple? Google?
Finally, he closes with what would be known as a “clap trap.” A suitably rousing closing to his post with a charge that would likely elicit applause from libertarians. We have to fear the police, lawful authority deriving their just powers from the consent of the people, more than we have to fear criminals who act with no authority, no legitimacy, and no restraint. Mr Graham’s sentence reminds me of the lyric in the Rolling Stones Sympathy for the Devil
But what’s confusing you/
Is just the nature of my game/
Just as every cop is a criminal/
And all the sinners saints/
As heads is tails/
Just call me Lucifer/
I trust that Mr Graham is a successful security expert. As a political theorist, he has a long way to go to reassure me that he understands enough of the law or the nature of political consent and obedience to exercise his rights as a citizen. The public domain already shows that it suffers from a collective miseducation in civics as the public appear to believe that the government and the laws are our enemies.
 The story is told different by Mr Graham in some of his earlier blogs. http://blog.erratasec.com/2015/01/a-call-for-better-vulnerability-response.html#.VsuQ6dDLPIU (Monday, January 12, 2015)
and here http://blog.erratasec.com/2012/09/icymi-0day-leaks-from-ips.html#.VsuRedDLPIU (Friday, September 21, 2012)
 Brest, Paul; Sanford Levinson; Jack M. Balkin; Akhil Reed Amar; Reva B. Seigel (2006). Processes of Constitutional Decisionmaking: Cases and Materials (Print) (6th ed.). New York: Aspen. pp. 65–67. ISBN 978-0735550629. ISBN 073555062X.