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Monday, March 21, 2016


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Chanson de Roland

Professor Hartzog's concern that we could progress to an Orwellian world of pervasive, if not ubiquitous, surveillance is important and real. But isn't probably of must use to Apple in its current legal disputed with the U.S. government over whether a court can compel Apple to design software that disables its iPhone and iPads' security devices, which essentially lockout even searches that a court's warrant authorizes. The reason that Apple can't make use of Prof. Hartzog's objections is that the All Writs Act, even given its most expansive reading, would only apply to devices that do record and store data so that there is something to search. If the information on a device is ephemeral so that there is nothing to search, then a search warrant is impossible to execute and is, therefore, a useless and vain thing, and no court has authority to order a vain thing or issue All-Writs orders to aid in execution of a vain act, nor does any person subject to such a vain order have any way of carrying it out.

That is why the DuckDuckGo search engine is immune to a search warrant: it is immune from a search warrant and any All-Writs order in aid of a search warrant because it has nothing to search, because it does not store any personally identifiable information, so a search of DuckDuckGo’s recorded searches for any particular person is impossible.

But Apple’s iPhones do store data, so the issue for Apple is different. The issue for Apple in its dispute with the FBI is whether it may design a device that cannot be unlocked for searching. The FBI wants the answer to that issue to be no for Apple and everyone, and it wants to achieve that by means of orders pursuant to the All Writs Act, without Congress taking any action to prohibit Apple et al. from designing lockout devices that prevent any attempt to search without the user’s passcode.

Now, some in government have been so bold as to suggest requiring that at least some systems and devices be designed and required to store heretofore ephemeral conversations, searches, and other information. Because no court could issue such an order pursuant to the All Writs Act, which isn’t an order to search but an order to design a device so that it stores something which can be searched, it would take an act of Congress to require that makers of smart devices design them to store everything that they are capable of recording and/or transmitting. And Congress, after so dramatically curtailing freedom, would presumably take the next step and order that makers of devices design them so that they can be searched, at least upon issuance of a warrant authorizing that search. That would be the end of legal lockout devices.

I think that Congress doing that would violate the First Amendment right of free speech and the constitutional implied rights of privacy and liberty. But the more important thing is this: Any Congress that would seriously contemplate such a thing, much less attempt it, would show that our progress from freedom to totalitarianism and despotism was at its penultimate stage, if not already consummated. And there Professor Hartzog, like Orwell before him, describes and foresees a danger that we must be forever vigilant against.

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