Category Archives: Law

You’re Going to Hate the Next President

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I think we all need to just admit that there will be policies that the next US President will implement that we will hate. It doesn’t matter if you support a Republican or Democrat candidate. You may even like some of their policies, but you’ll probably hate a handful and those may define what you really think about that President.

In my case I was an Obama supporter. I think overall, he’s done a pretty good job, but I hate his Mid-East policies, many which Clinton was the architect. I also hate his current stance on encryption, because I think it’s incredibly short sighted.I think we need our leaders to be long in vision, because it’s impossible to know who is going to be sitting in that chair when they finish. This is exactly the case we’re seeing with people incredibly alarmed about the policies that Obama has implemented in Donald Trump’s hands.

Techdirt raised this issue a few days ago in an article called “Abuse Of Power: Laws Should Be Designed As If The People We Distrust The Most Are In Power“. In the simplest terms the author calls for all laws to be written as if the people in charge right now expect to be replaced with people that are the polar opposites of them. In our current political climate that would be the conservatives being replaced as soon as they finish their terms with the most liberal democrats conceivable.

This is essentially how the Bill of Rights were written. Basically, the framers had a clear understanding of what the worst tyrannical  rulers in the world do to their subjects. Consequently, they could immediately imaging what would happen if that person became the ruler of the United States, but still bound by the laws of the new constitution. In that case, they could see that the tyrant would be constrained by these laws in such a way as that they would be “comfortable” with them leading the country.

In our case, we have continually eroded the defenses in the Bill of Rights over the past 200 plus years. So now, we have many policies that a great deal of Americans don’t really trust either political party with the powers they’ve been entrusted with. This is further complicated by the fact that our intelligence agencies don’t magically realign with the wishes of a new elected official. Similar to any entity, they continue to pursue their overarching objective and changes in those behaviors require massive changes. In the case of the NSA/CIA it may require changes in laws restricting them from behaving in certain ways with very serious repercussions to those that don’t change their behavior.

As a result, Techdirt is correct. We need to develop our policies with the assumption that “the other” is going to be in charge at some point in our lifetime. The group that we don’t ever want to be in power, will be. We have to admit that. To ensure that they are never able to abuse fellow Americans is to ensure that we do not ever abuse Americans nor other international actors. This then must be codified into law, thus when the most unsavory candidate you can image has a solid chance of winning an election, they will not have powers that we would abhor in their hands. That’s what we need to be thinking about.

Apple v FBI – What supporters are saying

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I’m a big fan of Techdirt, I think that they do some really great work in digging into the shit going on around technology, policy, and laws. They put together a nice read through of the amicus briefs supporting Apple in the case against the FBI. They read through the 20 briefs and pulled out some really interesting gems, such as the fact that this software the FBI is trying to force Apple to produce will likely be flawed and insecure because it won’t go through all the proper QA processes that normal software will go through. They will likely try to just break the part that the FBI is requesting without changing much else, which means they won’t really thoroughly test the impacts on other parts of the OS.

Techdirt also has looked through the briefs supporting the FBI. These ones actually undermine the FBI in a few ways. First, other law enforcement groups essentially throw out the illusion of one phone. In fact the Manhattan DA is planning on using the compromised iOS to get into something like 120 iPhones. They will likely use this precedent to force Apple to write comparable versions of the OS for the newer versions of iPhones that this break isn’t expected to work on.

The last brief is from the DA in San Bernardino which really shows that this truly is a fishing expedition. They are worried about a “cyber pathogen” which is pretty crazy, because there is no reason to really believe anything like that would even exist. The DA also raises the specter of a third shooter even though there no evidence of it and there’s clearly never been a third shooter. Simply speculating that these things are there and making up more reasons to break the encryption of the phone when there is no evidence to support any of these speculations doesn’t provide more weight to the argument. In fact, it likely casts further doubt on the likelihood of finding anything useful on the phone. Truly showing that this is a waste of time and effort.

 

Government Policy and Technology Innovation

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In a way that mirrors yesterday’s court ruling, the FCC announce they were going to investigate and likely force serious changes in the world of set top boxes. The FCC, at one point, forced and supported the cable industry in controlling the types of set top boxes (Set top boxes are cable boxes – Roku and AppleTV are cableless competitors) available to consumers. Since then, we’ve suffered with mediocre and extremely expensive boxes. Boxes that cost $16/month and over time you end up paying for a box 10 times over. The gist of this issue is whether or not to allow companies to make “soft” cable cards. Right now, if you want to decode any video from a coax cable from Comcast, you must have a physical card to do the decoding. There’s nothing preventing this from being accomplished entirely using software once you get the signal into the box and that’s what this is trying to encourage.

Granted, this has taken a while for the FCC to wake up and look at the competitive landscape and see that this isn’t in the public interest. Defining exactly what is in the public interest is a difficult because everyone sees this in a different light. However, it’s pretty obvious that something that you end up paying $1,920 over span of ten years isn’t in the public interest. The competition, Roku and AppleTV, each cost between 100-200 one time and you can use it until it dies which will probably be something like 10 years. I’ve had my Roku HD for 5 years now and it still works great. It would make perfect sense for me to buy a version, assuming I had cable at all, that would allow me to watch cable through it. Everything all in one place.

This is the type of regulation that government should be celebrated for encouraging. Granted they screwed it up to begin with and they are only righting a wrong now, but they’re on the right path. Regulation like Net Neutrality is a similar decision that can spur innovation. Looking at T-Mobile’s binge on plan, you can see why we need this. If I’m a small streaming company or, ya know, YouTube, I look at this platform and see how it’s slanted against me and limits what I’m capable of delivering on T-Mobile’s network.

in the case of the FBI and forcing technology companies to change their technology to reduce security, it’s nice to see an organization that’s willing to at least consider improving opportunities for innovators. Sure it may look like picking winners and losers – but when most policy is driven by current winners picking them to lose sure looks more like balancing the playing field to me.

Privacy, Government, and Business

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This week there were two big moments for privacy. First, was a ruling by a court that Apple had to unlock in some manner, call it decrypt or creating a backdoor into this specific phone. Second, was the fact that Apple, and now Google, has given the state a big middle finger saying “No!” These are important because of the gravity of both of these. The FBI is using “The All Writs Act” something from the 18th century and definitely not written to support dealing with difficult technological issues on technology that would appear to be magic to the author’s of the act. This is definitely stretching this law to its limits and likely beyond what is realistic, but it sets a precedence which is dangerous. The second part is important as both of these companies have been working with the government to provide data to them in the past.

While both of these companies are standing up to the government is great, it’s not enough. With a limited number of powerful players, it’s only a matter of time before they lose to the government or be threatened in some way that will require them to play ball with the government. On the other hand, smaller companies won’t have the money to fight the government, so even if you want to support a smaller company with privacy as its core values, there is no guarantee that they will be able to follow through. Furthermore, if the government forces the company to re-write its operating system, like Apple effectively has to do, the company might go bankrupt. With a precedence set by the Apple decision, a small phone company like Silent Circle and their Blackphone, would be forced to capitulate unless they were able to show that this was unduly burdensome.

The other issues with this case is that businesses are only fighting for what is “right” here because it will help them improve their bottom line. Of course, they are also fighting for their own personal privacy as an employee of the company and consumer of its products, but the goal is to improve profitability. Across the world it has been shown that privacy and protection from agencies like the NSA (US) and GCHQ (UK) is something that people are willing to pay for. Apple learned this from Blackberry during the Arab Spring – they emulated the encryption of the Blackberry Messenger with their iMessage application. This help transition some of the last hold-outs to Apple and eventually spurred other similar apps.

I believe it is likely that the Electric Frontier Foundation will be a strong advocate for Apple, so if you want to support Apple in their battle with the government I recommend donating to the EFF, especially if you don’t support Apple for its other business practices. I know I will.

On Justice

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Justice means many things to people across the world. In many cases it means equality, getting what is just based on social norms, or ensure the rule of law is truly followed. None of these are easy. Each one is complicated and these ideas of justice really only scratches the surface. In the US there are further complications on the second point, as these social norms vary widely throughout the socio-economic spectrum.What may seem just to a white man will seem cruel and unfair to a black man in the inner city.

Over the past few days at my in-law’s I’ve had a lot of conversations about justice, politics, and what is the right thing to do. The death of Supreme Court Justice Antonin Scalia has only added fuel to this fire. While I didn’t agree with much of his politics and was ready for him to retire, many people needed his voice on the Supreme Court to validate their perspective and social norms. Whoever is nominated and confirmed will have a huge impact on the future of Judicial decisions in the US. They will either tip the scale to entirely Liberal with a lot of cases going 6-3 or at “worst” 5-4.

This impact will go beyond social issues such as abortion, LGBT rights, and government healthcare. It will have repercussions in cases devoted to privacy, new technologies, and likely most important for certain communities, police department and District Attorney behavior around police killings.

Justice doesn’t always come through the court though. In rare cases there are politicians that stand up and actually push for what they believe in is justice. In cases like income inequality or political access, there are a few politicians that are willing to stand up and say “No.” Standing up against corruption in a leadership position is vital to ensure the health of any community. I think this important to support even if you don’t support that person’s overall political views. The only way to improve politics is to get as much money out of it as possible – which will begin to enable justice across the body politic.

Justice isn’t just for the white majority, it’s for everyone.