Bar Chatter

Bar Chatter #34

Sometimes it's not enough for a post...so it's just bar chatter.  

Cleaned my fridge out last night, all the stuff I'd wrapped up or put in something that I swore I was going to eat later went in the garbage. I need to do better. Looked in my freezer. I have two and half pounds of shrimp, three steaks, and two pounds of chicken.  

I had popcorn for dinner twice this week. Twice! 

Oh, yeah. I have to clean up after. Ugh. Now I remember.

But I really, really, like not joking, need to do better.

Apple vs the US Government

This is a political post.

I spotted in the news that Apple has decided to fight a court order to assist the government in unlocking an iPhone. This on it's face would be wrong, privacy and all that, except the phone belonged to the man who killed fourteen people at the San Bernardino County Department of Health, and may be instrumental in figuring out what happened. What you might call, mitigating circumstances. Even if the phone contains nothing, and that is a possibility, it behooves the investigators to check and be sure.

Then there is what the government is asking for, which Tim Cook seems to want to categorize as a backdoor, but when you look at it, probably isn't. I understand why they're 'standing' up to the government. In the hyper competitive business environment they exist in, they're in an extremely vulnerable position as the perceived luxury brand. Other firms can do what they do, and charge less for it. But, they can work there luxury hook by exploiting their also perceived existence as the one major tech giant who is NOT packaging and selling your personal data to make its profits. We're the good guys, do business with us! And Cook has mounted his argument the idea that this is a slippery slope involving phone security that we shouldn't start down.  

Only there is a problem. Technically, and since this really is a technical issue this is important, Tim Cook's argument is wrong. 

Now, let's be clear here, I believe in consumer privacy and would not want a backdoor or master key created which would allow someone to access my phone without my permission. Ever. And since this is the one phone the alleged shooter didn't try to destroy, there probably is little evidence here that might be useful. But even so, I think the government has a reasonable interest in the contents of the phone if only out of procedural and professional thoroughness. And maybe that Apple is being just a bit oversensitive.

Okay, to explain myself, when I say Tim Cook's argument is wrong its that he makes it sound like the government is asking for a backdoor to built into all future Apple devices so that they can access them when they need to, hopefully meaning only when they have a court order. But this isn't what the government is asking for. And Cooks more nuanced "actual argument" that the government would use this single copy of the software to reverse engineer their own master key...like they couldn't just buy a phone and do it if they really wanted to...is just hyperbole. Actually considering what they're asking for, they should have just requested an actual backdoor. It would be simpler.

You see, what the government IS asking Apple to do is to build a custom version of their 9.0 software to use on that single phone that disables two security features, but don't actually unlock the phone. The first feature the government is trying to circumvent is the auto erase after ten unsuccessful access attempts. The second part is the time required between entry attempts, which increases after five tries. What this will allow the government to do is essentially try every combination until they get it, a brute force solution. By the way, if the phone has an eight digit code it could still take years. Many, many hundreds of years. For some reason, Apple and Cook want to classify that as a backdoor. It's not. It's not even a particularly effective access tool. And the other weird part is, this requested version of software that might still take hundreds of years to work is only that little tiny bit of effective on this particular older model of the phone, not the newer products. A change in the architecture of the iphone 6 (which certainly also will exist on the iphone 7) makes this particular method which is already just about useless, the argumentative equivalent of railing against not giving a spoon to somebody hoping to empty the Atlantic. This particular technical question isn't even really a question going forward. Makes you wonder what this argument is really about.
  

Is this really a corporate defense of an unsettled privacy issue caused by advances in technology that the law hasn't had time to adapt to? As we go forward, and with our growing reliance on technology - specifically cell phones - we should be drawing bright lines where possible as to what can and cannot be searched without just cause. Only narrow slice of law doesn't really apply here. Is this an attempt to check the limitations of court powers on trade secrets and intellectual property? We already have legislation and precedent here. Maybe it's addressing a future collision of two areas of law that will only get worse as our lives get more intertwined with technology going forward? Striking a balance between the new services business model technology is moving towards with police power is important with regards to individual privacy, but I'm not sure this is the case to attempt to prove a point.  Or is it a marketing ploy to help polish the company image? Very likely.

Because this story still has a number of things which make the larger arguments seem like distractions, not legal thought abstracts.

What the government suggested was that the custom version of the software that Apple would have to build under the court order be constructed to only operate on a single device. It seems a smart compromise. But it's here that Apple raises it very real concern about reverse engineering on the part of the government for future use. Or it would been a real concern about their motives, if the government hadn't offered to let Apple create and install the software, KEEP THE PHONE, and then send their attempts to unlock it to Apple remotely. The company gets total control, and the authorities get the suspects data. But Apple said no. It could be that I'm missing something, but it sounds like the government is trying to be accommodating to industry concerns and just getting stonewalled on principle. I'm starting to kind of get the impression Apple wanted to call attention to this make a philosophical point. Which is weird.

Because our friend Apple uses a closed system, allowing only programs they have taken apart and approved on their company products. This will continue for the foreseeable future. Their products, as a default, track a sinful amount of your data. And so, the company that as a policy disables YOUR phone remotely for using third party repairs, now has the idea that YOUR phone and YOUR data are somehow now sacrosanct in the eyes of the law.

But apparently this idea only applies to the government and not the company itself.

One loathes to use the term hypocrite....but Apple is being a hypocrite here. Which undermines any grand philosophical point they might be trying to make. And while I applaud their effort, and the idea of individual privacy, they may have chosen the wrong horse to ride to glory here.

(Full disclosure: I have an Ipad. And I like it.)

What if the Supreme Court....was liberal?

This is a political post.

As much as I wanted Scalia to no longer be a part of the supposedly non-political court that controls quite possibly the fate of the world, if you read back I just wanted the man to retire someplace quiet. And take Clarence Thomas with him. But I'm ashamed to admit my first feeling was an inappropriate glee at his passing. Two or three seconds, but I would like to apologize because it was just that very, very inappropriate. A man has passed on and his passing should be embraced with the solemn respect of one who has affected so many of our lives.

I just wish someone had told the conservatives. 

It goes without saying that there is a belief on the part of the conservatives that this country is theirs, by right, and those of us who disagree with them but who were also born here and are citizens should have no say in it's running. I'm not sure why this is, or why the version of free they espouse has so many limitations in it for things they don't agree with, but I try not to let the incongruity get to me. Lest my head explode. So, it goes without saying that of all the things that could have happened, the most conservative of the conservatives Supreme Court Justices passing on was not something that was supposed to happen. At least not now.

Because before everyone was even sure the man was dead, the GOP establishment and the candidates running were of the very verbal opinion that Obama was on his way out and the next president should pick the next Justice. Then had the gall to got upset if anyone (else) tried to politicize the man's death. But there plan has an issue. Obama has officially more than three hundred thirty (330) days left in office. A lame duck president he is not. Someone suggested that maybe the Republicans thought because he was black he only gets 3/5ths of a term. But since the average time to confirm a nominee going back to Rehnquist is about three (3) months, let's see, some quick math, let's see carry the week, divide by a weekend...yep, he's got time to get it done. Twice. Maybe three time. It turns out the long thought of as permanent conservative majority of the Court may not be as permanent as they thought.

Which leads us to our next issue: Instead of playing and rigging the game, they ANNOUNCED that they're going to turn the table over, grab all the chips and hide in the bushes until the next election. Not exactly sporting. And it an election year, potentially politically fatal. There plan is already falling part less than a week later, as some Republicans have refused to toe the party line and are saying we should consider one. Of course this might be a ploy - say they'll consider one and then just continue to call them unfit until after the election, but still. And hopefully they realize that even this plan runs the risk of them tagging someone obviously qualified as unfit and making it clearly political. It's a delicate game they're playing, and right this second they're using sledgehammers and baseball bats.

But what if the Supreme Court had a liberal majority? It's had a conservative majority for so long we've all just assumed that it's the normal state of things. But what if it's not. What if the Supreme Court wasn't a ref checking the rule book as the Executive and Legislative branches duke it out, but instead a more of what it was designed to actually be...the third branch of government. While we deride the idea of legislating from the bench, is that such a bad thing? And isn't that within the bounds of the court, with it's intentionally vague constitutional mandate. Could the Founding Fathers who crafted a document that seemed to encompass so many other checks and balances have left that one out...on purpose? One of my law professors, as I've explained here, likes to refer the Supreme Court as American's Counsel of Wise Men. Maybe he had a point.

But, most giddy for me, does this mean the return of....BATMAN Obama.