Category Archives: ethics

Government Arrogance Should Disqualify It

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…in its case trying to force Apple to disable encryption on its iPhones.

Rather than assist the effort to fully investigate a deadly terrorist attack by obeying this Court’s Order of February 16, 2016, Apple has responded by publicly repudiating that Order…Apple has attempted to design and market its products to allow technology, rather than the law, to control access to data which has been found by this Court to be warranted for an important investigation.

Never mind that under free American jurisprudence, Apple is allowed to appeal the lower court’s order to a higher court and to seek relief from complying—irreversibly, mind you—with the lower court’s order until Apple’s appeals are adjudicated. No: Apple disobeyed the high and mighty and must be punished for its impertinence.

Never mind that Apple is rightfully concerned with the sanctity of its customers’ privacy and with the ability of Americans generally to be free of the prying eyes of government. Apple disagrees with the awesome personages of FBI agents, and so it cannot possibly be behaving honestly.

DoJ’s lawyers are projecting their own failings.

Where Apple designed its software and that design interferes with the execution of search warrants, where it manufactured and sold a phone used by an ISIL-inspired terrorist, where it owns and licensed the software used to further the criminal enterprise, where it retains exclusive control over the source code necessary to modify and install the software, and where that very software now must be used to enable the search ordered by the warrant, compulsion of Apple is permissible under New York Telephone Co.

This is plainly, dishonestly specious. Apple designed its software and…manufactured and sold a phone used by…millions of American citizens, where it owns and licensed the software used to further the private affairs of American citizens…. It is plain from the careful construction of the government’s argument that it intends to expand it to pry into all of our private affairs whenever it takes a notion to.

…the Order will facilitate only the FBI’s efforts to search the phone; it does not require Apple to conduct the search or access any content on the phone. Nor is compliance with the Order a threat to other users of Apple products. Apple may maintain custody of the software, destroy it after its purpose under the Order has been served, refuse to disseminate it outside of Apple, and make clear to the world that it does not apply to other devices or users without lawful court orders….

This is deliberately disingenuous. No one is arguing that Apple is being required to conduct the government’s search. Of course, compliance with the order is a threat to other users of Apple products: the encryption, once broken or a way once found to bypass entry controls, is permanently and everywhere defeated. The FBI’s IT personnel know this. So do the government’s NSA personnel. Neither can Apple make clear to the world that it does not apply to other devices or users without those personnel making such statements being guilty of lying. Breaking an encryption algorithm or producing a way past its entry controls permanently and everywhere destroys the security of that algorithm. Without lawful court orders is just as disingenuous, as the second quote above demonstrates.

Apple is not above the law in that regard….

[M]arketing or general policy concerns are not legally cognizable objections to the Order…. This Court should not entertain an argument that fulfilling basic civic responsibilities of any American citizen or company—complying with a lawful court order—could be obviated because that company prefers to market itself as providing privacy protections….

Neither is the government above the law, and these government lawyers know full well that Apple is engaging in purely legal, solely legal, behavior in appealing the court’s order. That this is inconvenient to the government’s lawyers is their problem. Furthermore, here is the government’s lawyers repeating their reprehensible, not to say unethical, claims that because Apple is so impertinent as to dispute with them, Apple cannot possibly be acting entirely honorably and entirely out of valid concerns for Americans’ privacy—especially when that privacy is at risk of so blatantly arrogant and overreaching a government as this one is presenting itself to be.

The government’s case should be dismissed in its entirety and with prejudice over this arrogance.

Security Tradeoffs

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Here’s one.

A federal judge has ordered Apple Inc to provide software to the Justice Department to help it unlock a phone used by one of the suspects in the San Bernardino, CA, terror attack because investigators suspect the device may hold critical details of the plotting behind the mass murder.

The government’s justification is this:

Law-enforcement agencies say companies such as Apple make it harder to solve crimes including terrorist attacks, child abuse and murder by putting security measures on phones that make it difficult or impossible for investigators to open them and examine data inside.

That’s an entirely valid concern.

The problem, though, is that forcing a back door into citizens’ communications encryption utterly destroys citizens’ privacy and security. There’s nothing to prevent Government from abusing that back door to engage in snooping on general principles and then actively and maliciously snooping in order to preserve the power of the men then in Government. The lawlessness of the present administration demonstrates that progression.

Of immediate effect, though, is that a backdoor for Government is a backdoor for hackers, whether these be script kiddies, terrorist hackers, financial or identity theft hackers, or any other sort.

The privacy and the security of our private identities, of our finances, of our health records, of any aspect of our lives we find useful to protect from prying eyes are critical to our ability to engage with our neighbors and our businesses and our government free from threats or attack.

The privacy of our communications, the security of our speech, must absolutely be preserved. There is no security at all without our individual liberties, of which speech is one, held secure.

“Law-enforcement agencies” and this Federal judge know this full well. And they know full well the truth of Apple CEO Tim Cook’s statement in his letter posted to Apple’s Web site:

We can find no precedent for an American company being forced to expose its customers to a greater risk of attack.

Agency Regulation

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On Thursday, the House Committee on Natural Resources released a damning report on the EPA and its handling of the Gold King Mine disaster last August. The report detailed how the EPA and the Department of the Interior were inaccurate and misleading in their conflicting accounts of the wastewater spill, which the EPA said last week released 880,000 pounds of toxic metals.

These are the Federal entities that think they know how to regulate our public lands and our pollutants and pseudo-pollutants.

Chairman Rob Bishop (R, UT):

This report peels back one more layer in what many increasingly view as a pattern of deception on the part of EPA and DOI.

Hmm….

State Department Foundation

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Investigators with the State Department issued a subpoena to the Bill, Hillary and Chelsea Clinton Foundation last fall seeking documents about the charity’s projects that may have required approval from the federal government during Hillary Clinton’s term as secretary of state, according to people familiar with the subpoena and written correspondence about it.

No word, yet, on whether or to what extent the subpoena was satisfied.

But contributions from Wall Street entities—no influence there. Mm, mm.

Overbearing, or Justice-Seeking?

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The Federal Department of Justice thinks Ferguson, MO, should make changes in the way it polices itself, and in the main, Ferguson agreed. That’s where the rub is, that “in the main” part.

An agreement was tentatively negotiated between Ferguson and DoJ on what those changes should be, but when it got to the City Council, the Council wanted some changes before they’d sign off. Vanita Gupta, Acting Assistant Attorney General for the Civil Rights Division, said that DoJ would take

necessary legal actions to ensure that Ferguson’s policing and court practices comply with the Constitution and relevant federal laws.

The Ferguson City Council has attempted to unilaterally amend the negotiated agreement.

Of course, Gupta knows better. Nothing was agreed until the city actually agreed—which is what the City Council was discussing when, on its review of the offered settlement, it decided some changes were desirable. The Council, for instance, is concerned about whether it can afford the settlement. Among other things:

The council also wants Justice to cap federal monitoring fees the city must pay at $1 million….

Another concern is how this settlement would affect adjacent government entities. One change requested by the Council was an explicit statement that

the agreement will not apply to any other governmental entity that might take over duties currently provided by Ferguson. That means, for example, that St Louis County would not be beholden to the agreement if it takes over policing in Ferguson.

Because, for instance,

St Louis County police spokesman Brian Schellman said if the county were ever asked to take over policing in Ferguson, “we would consider the implications of the consent decree before entering into such an agreement.”

DoJ’s response? Since you didn’t sit down, shut up, and do what you were told to do, we’re suing you to implement our agreement diktat. The suit was filed the day after the Council voted to ask for these few amendments. No negotiation. Suit.

Attorney General Loretta Lynch said Ferguson’s decision to reject the deal left the Justice Department no choice except to file a civil-rights lawsuit.

Of course, Lynch knows better, too. The Council’s request for changes is not at all a rejection of the deal. In the first place, no deal can exist until it’s agreed by both parties, not dictated by one to the other. In the second place, a request for changes is an implicit agreement to the basic offer, else there’d be nothing to change.

Then Lynch made this entirely disingenuous statement:

The residents of Ferguson have waited nearly a year for the city to adopt an agreement that would protect their rights and keep them safe. … They have waited decades for justice. They should not be forced to wait any longer.

And yet, rather than negotiating these few changes to a reasonably quick resolution, Lynch now seeks years more delay while her DoJ sues to impose her will. This reaction is nothing more than an egotistical, self-aggrandizing move by Lynch and Gupta. Worse, it represents, regardless of the merits of the tentative agreement or of the requested changes, nothing but an overbearing power grab by the Federal government.