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Crypto and the Second Amendment
In the Crypto Wars, arguments have occasionally been made that there is a constitutional right to cryptography. Most recently, Apple made that argument in trying to fend off the FBI’s request to help break into an encrypted phone. It went roughly as follows: writing code is an expressive act, freedom of expression is protected by the First Amendment, and so they can’t be forced to express themselves in ways they don’t want.
I don’t think this argument would have fared well in the courts. Corporations (and individuals) are regularly forced to express themselves in ways they don’t want. Enviromental regulations force them to write MSDSs (among many other things). Tax regulations force them to fill out tax forms, and the ways they do so can be, uh, highly creative. Being forced to express themselves in such ways doesn’t prevent them from making whatever arguments they want in public.
But there is an amendment in the Bill of Rights that really is a good match: the Second. The Second Amendment is about private possession of weapons of war; crypto has eminently been a weapon of war. It is about preserving the ability to resist tyranny; and if the government were to have the power to snoop on every communication in a modern computerized society, it would enable a level of tyranny so oppressive as to make every tyranny in history seem mild in comparison. It is also about self-defense against criminals; and there too the fit is good — not just because cryptography is essential for protecting such things as online banking transactions (though it is); it also ties in to personal self-defense, as might be performed with a firearm. To assassinate someone, a key piece of information is where they will be in the future; a good defense against assassination is to vary one’s schedule in an unpredictable manner. If you can read a person’s communications, you can predict where they will be; and if you can predict where they will be, you can put a bomb there or send a gunman there. If they will be wearing a bulletproof vest or bringing a bodyguard, you can get that piece of information too from their communications, and choose your weapons so as to pierce that vest and your team so as to outnumber any bodyguards.
To return to Apple’s argument, firearms design can be quite an expressive act too. The designs of John Moses Browning are said to have a distinctive character, and are revered by many; one of his designs, the M2 heavy machine gun, recently completed its hundredth year in active duty with the US Army. But people would think a gunsmith was out of his mind if he proclaimed that he had a First Amendment right to make whatever firearm he wanted, and would tell him: no, whatever rights you do or don’t have in that regard come from the next Amendment in the list.
To say that the Second Amendment covers crypto is admittedly a completely novel interpretation of it; but much is said about the need to interpret the Constitution in accordance with the needs of modern society, and this is a lot more natural than many of the reinterpretations that have been foisted on us under that argument. Technological change means that cryptography isn’t, as it was in the era of the Founding Fathers, just something done by hand; now it’s weaponized, so weapons freedoms apply. The First Amendment protects discussions of weapons; the Second Amendment protects actually fielding them.
This is not to imply that all the present rules for firearms would apply without change to crypto, or that they’re even really the right rules for firearms. It’s too easy to use crypto without knowing it, and too much of modern society depends on doing so, for there to be much sense in, say, prohibiting it for convicted felons. It’s also a lot easier to download a program than to make or buy a firearm, which weighs strongly in favor of having the laws looser: a law that’s too easy to flout is best not made at all. Also, there are many sillinesses in weapons law, and it would not do to duplicate all those for crypto. But making use of the Second Amendment would still be better than not making use of it.
The FBI’s next move
As this is being written, a judge is considering competing briefs from Apple and the government on the question of whether Apple should have to comply with the FBI’s request to help it brute-force the passcode of an iPhone which had belonged to one of the terrorists who did the San Bernardino shootings, and are now dead. (Update, May 10: the FBI withdrew its request a while ago, saying that they had found another way into the phone. But nobody doubts that they’ll be back at some point with another phone; so this article still represents what could easily be their next move. I’ve also edited this article for clarity, and to make some points more explicit.)
At first, when considering the software changes the FBI demanded, I was sympathetic: the main point is to remove a couple of features from the code. These features are (to quote from Apple’s brief) that the code “imposes escalating time delays after the entry of each invalid passcode”, and “includes a setting that—if activated—automatically deletes encrypted data after ten consecutive incorrect attempts to enter the passcode”. Commenting out the lines of code that do these things is, for someone who knows the code, a five-minute task. Just the administrative overhead of sending the resulting code through Apple’s safeguarded signing process would be more work than that. (I don’t know the details of how that is done, and those who do know shouldn’t say; but such master signing keys are corporate crown jewels, and it is not to be expected that handling them is quick or easy.) Even that, though, doesn’t seem like an inordinate burden, in and of itself.
But then the FBI added on more requirements which make the job considerably harder, to where Apple’s estimate of the work involved (two to four weeks by a team of six to ten people) seems reasonable. One demand is that Apple give them an electronic interface for entering in passcodes, so that an FBI technician doesn’t have to sit there tapping in thousands of passcodes by hand. Another is that this new version of the software must be capable of running in RAM rather than being installed on the device, so as not to destroy any data.
What nobody seems to realize is that the FBI already has an electronic interface for entering passcodes; it’s staring them right in the face. It’s called a “capacitive touchscreen”. Such touchscreens work electrically; they send out signals (voltage) through the air to sense the capacitance of the fingers above them. Many eco-nuts would no doubt be horrified to know that Apple’s devices are sending electricity through their fingers — indeed, through their whole body — whenever they get their fingers near the screen; but it’s true. And it isn’t hard to make a circuit that connects a capacitance to a point on the screen, and which varies that capacitance under computer control. Nor is it hard to expand that circuit to several points on the screen, as would be required for entering a PIN code. (As an alternative to just varying a capacitance, the circuit might sense the voltage waveform that the screen puts out and apply a deliberately spoofed response to mimic a finger; but that is a bit more complicated and I doubt it would be necessary.) Nor is it difficult to write a piece of software that looks at the screen via a video camera and senses the difference between an unsuccessful passcode entry and a successful one. Combine those two tools, and you get an automatic PIN brute forcing machine.
Indeed, for previous versions of iOS, such a device exists, by the name of the IP-Box, though it seems to somehow enter the PIN via USB. (I am not sure how; a bit of searching makes it seem like this is not a normal feature for the iPhone.) It also has the feature of cutting the power to the phone after PIN entry failure but before the iPhone writes the record of that failure to flash memory, so that thousands of PINs can be tried. This requires that the phone be disassembled so that the battery connection can be cut and rewired to go through the IP-Box. It also doesn’t work with recent versions of iOS, which Apple has fixed so that they write the record of failure to flash memory before reporting it to the user.
So here’s what the FBI could do. First, build the above-described automatic PIN brute forcing machine. (Don’t look at me that way, FBI; yes, I know your specialty is law enforcement, not building electronics; but you at least should have enough of a technical clue to know whom to hire. Though it would help if the community of people who can build this sort of thing would acknowledge that law enforcement has legitimate needs, rather than responding in a tribal fashion. The world really does need people whose job description is “the bad thing that happens to bad people”. But these days they can’t be cavemen; they need to understand something of computing and electronics.)
The second step would be to hack Apple’s code via binary patching, to remove the two features that prevent brute-forcing passcodes. Probably they would just have to overwrite two machine instructions with NOP instructions. The hard part would be finding those two instructions, and it probably wouldn’t be that hard for a good reverse engineer (though I’m guessing here; the difficulty of such tasks can vary quite a lot, depending on things like the availability of a symbol table, and I’m very far from being an iOS expert). Having done that, they could go to Apple with a much simpler request: we have this hacked code; sign it for us so that it will run on the terrorist’s phone.
That would reduce the debate to its essence. Apple would no longer be able to argue that they shouldn’t be forced to create code that was too dangerous to exist, because they wouldn’t be creating it; the FBI would already have created it. Apple would just be signing it with their key. This is why Apple is a fair target for government demands: not because of their license agreement (an argument the FBI made that Apple’s lawyers easily brushed aside), nor because they’re the only ones who know how to program the device, but because they have retained control over the device by their control of the signing key for the operating system. Asking them to use it is a digital parallel to a demand to an owner of a storage locker: we have a warrant for this locker, and you have the key, so open it up for us. The parallel is so strong that Apple’s attorneys might well advise them not to even try fighting, but just to comply. And, for that matter, they might decide they could comply in good conscience: developing the sort of electronic interface the FBI is presently asking for, which could enter passcodes wirelessly (or via the charging cable), really does pose risks that using the touchscreen doesn’t. James Comey, the head of the FBI, has stated that he doesn’t want a backdoor into phones, but rather entrance via the “front door”; and if anything is the front door to an iPhone, it’s the touchscreen. So access of this sort, while it might not be what he secretly wants, is exactly what he has asked for.
As for the FBI demand that the version of iOS which is to be produced for them run from RAM, the basis for the modification could be a version of iOS which already does so; at least I’m under the impression these exist. Even if that weren’t possible, changing just a few bytes of the operating system in flash memory is not really going to alter the evidentiary value of the data there, though there might be problems related to legal requirements for forensic tools.
Now, if Apple signed a version of the code that just had those two changes, it would run on all iPhones of that model. So the FBI might tell Apple that if instead they wanted to make their own version of the hack which would also check the phone’s serial number and only run on that one phone, they would be free to do that instead of signing the FBI-hacked version. (The FBI has been much criticized for saying that this is a one-time request, when inevitably other requests will follow if this one is successful, but they have a point: this isn’t a warrant like the one served on Ladar Levison, which demanded that he supply his private SSL key to them, enabling them to decrypt not just the messages they originally were after but all the messages all of his customers ever sent or received. In this case any further phones to be unlocked would still have to be individually approved by a judge.)
All the same, the FBI could let Apple stew in their own juices a bit here. There are great risks in having a common signing key for all their phones, because if that key ever gets disclosed Apple’s control over hundreds of millions of iPhones is lost. If instead Apple had one signing key per phone, they could, on receipt of this sort of warrant, merely hand over the key for that particular phone and let the government do whatever they wanted with it. The whole drama would be avoided; it would be as routine a thing as court-ordered access to a storage locker. At present, it is as delicate as it would be for a nationwide storage locker chain which had a common master key shared throughout all its facilities, where any use of the master key would mean taking the risk that it might leak out, thus compromising their security nationwide.
In the last couple of decades, cryptographic schemes have been moving away from having a single key for everything and in the direction of having a multitude of keys. Indeed, the possibilities for mischief that a single key opens up are a large part of why everyone with a clue is scared of government-imposed backdoors: such schemes almost inevitably involve a single backdoor key, even if an attempt is made to split that key up for storage. The world has never seen the possibilities that such backdoors would give rise to; fiction offers the only parallel to them. In particular, they evoke the world of The Lord of the Rings, in which the One Ring confers invisibility and vast powers, corrupts its users, and is the centerpiece of various adventures, in which it passes through the hands of all sorts of creatures, from Gandalf to Gollum. The authorities have been remarkably creative in trying to find a replacement word for “backdoor”, calling it “a front door”, “a golden key”, and such; but whatever the word, many knowledgeable people will still think of the intention as being something like forging the One Ring in the fires of Mount Doom:
One Ring to rule them all, one ring to find them,
one ring to bring them all, and in the darkness bind them.
(And to those in the national security establishment to whom that sounds pretty cool: beware! Some hobbit may steal it and run off to Russia with it. Tricksy, those hobbitses.)
Apple has called the software they are being asked to create a “backdoor”, though it is not the traditional sort of backdoor which enables spying on running systems without the user’s knowledge. I do not feel comfortable entirely agreeing that it is a backdoor, nor entirely denying that it is a backdoor; but the weakness that makes backdoors scary is a sort of weakness that is shared by any system that puts too much reliance on a single cryptographic key.
But though going to one key per device would solve the problem of how to give law enforcement access to devices as per court order, it would not solve all of Apple’s problems. In particular, it would not much lessen the degree to which Apple is a target for espionage; a thumb drive full of keys is not all that much harder to steal than a single key. If our government were to turn brutal, too, it could about as easily confiscate the one as the other. To seriously reduce their status as a target, Apple would have to give up power over the iPhone. As things stand, you can boot only an Apple-signed operating system on an iPhone, and unless you “jailbreak” it, that operating system will only run Apple-approved software. This is a mechanism of social control which is just begging for governments to start meddling with it for their own purposes. In Android, the same limits are there, but can be turned off by the user (or, at least, that’s the way Google would have it; makers of phones can and do alter Android to lock in users). But the best example for letting people take ownership of their own devices comes from the PC world. PC users can disable Secure Boot, which parallels what can be done in Android; but they can also go beyond that, and replace Microsoft’s signature-checking key with their own, so that they themselves are the only ones who can approve changes to the operating system. Almost nobody actually does this, but it’s a welcome safety valve.
If something similar were implemented for the iPhone, again very few users would take advantage of it, but those few would be the ones who were the most concerned about security, such as investment banks, government security agencies, spies, and terrorists. Even with the vast majority of users still depending on Apple for their security, having the highest-value targets opt out would significantly lessen the degree to which Apple’s signing keys were a target for espionage and for government demands. It is really not fair for one corporation to have to bear such a large fraction of the world’s security burdens, nor should Apple try; they should release some of it to those of us who are willing to shoulder it ourselves. That way they could actually be, as their brief to the court claims them to be, merely a supplier of products and services, not a controlling master.
That’s the name of an exemption from the Freedom of Information Act: government agencies don’t have to reveal records if they are part of “the deliberative process”. Congressional subpoenas are limited by the same or a similar exemption, under the name “executive privilege”. But the reasons for these things are rather mysterious: when government officials are conspiring with each other (“deliberating”), isn’t that exactly the sort of thing the public should know? Or that Congress should know, in the case of “executive privilege”?
For that matter, what exactly these exemptions consist of is not entirely clear. Lawyers would probably tell me that it’s clear, but they would also probably advise me that to determine whether they apply in any given case I should avail myself of the services of a legal specialist who is familiar with the precedents set by a long series of court cases and who would charge upwards of $500/hour.
The general idea, admittedly, is clear enough: the exemptions protect records which are made by a government agency as it tries to decide what to do, and which would be rather embarrassing if released in public. To divulge them would reveal all sorts of floundering around: half-baked schemes, wrong ideas that got shot down, and abuse received by ideas that ended up successful. But pretty much any document an agency creates could be said to feed into its decision-making in one way or another, which yields endless opportunities for lawyers to squabble over the details.
Wikipedia’s stub article says that these privileges are “common-law” privileges, which is lawyer-speak for something that was invented by lawyers and judges rather than something that Congress passed into law (or, in the case of “executive privilege”, something found in the Constitution). “The theory”, it says, “is that by guaranteeing confidentiality, the government will receive better or more candid advice, recommendations and opinions”. Well, certainly there are people who would refrain from telling the government something if they knew it would become public. But that’s often because it isn’t actually true. Being known for saying an unpopular truth can be bad, but isn’t as bad as being known for saying an unpopular lie. (Popular ideas, whether true or false, are going to get heard by the government anyway.) For that matter, in practice these privileges mostly seem to be used to protect government employees, not outsiders offering advice. These people have chosen to be in government, and are being paid to be in government; they can stand a little embarrassment, even if undeserved.
Other arguments might be imagined. But these exemptions aren’t about national security secrets, where it is important that the public should know them but even more important that foreigners should not; national security has its own exemptions. Nor are they about protecting government officials from harrassment; in the case of FOIA that’s done by fees, and in the case of executive privilege it doesn’t really need to be done in the first place, since Congress has a lot less manpower with which to investigate than the executive branch has to respond to its investigations.
So what’s going on here seems to be that in response to lawsuits demanding documents, executive branch lawyers have argued that the Freedom of Information Act couldn’t possibly mean what it actually says, because that would be much too intrusive; likewise for Congress’s oversight powers. And the courts have been weak enough to buy those arguments.
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