> “If I didn’t do that, I ought to be fired, honestly,”
There is a serious problem here. If you ask me any government official who forces a backdoor down the throat of a private company ought to be fired, yet he believes he should be fired if he DOESN'T do it.
There's a very big divide happening right now in the US. This is going to be a rough time.
I disagree. The FBI's job should be to pursue any and all opportunities at gathering evidence for its cases, within the bounds of the law. It is the job of the courts to sketch out those boundaries by interpretation and precedent. If everything is working properly, the courts will decide that the All Writs Act does not grant the Government this power. Then this matter will be settled and the FBI will have to find some other avenue.
Looking at it from the other angle, I think it's a bad precedent if the FBI were to refrain from pursuing an avenue which it believes it may have legal standing to pursue. At that point, it runs the risk of a downward spiral of second-guessing and apprehension.
I don't have a problem with the FBI making a request that is in accordance with their jobs. Let the courts sort it out.
What I do have a problem with is this little fucking PR parade Comey's going on to try to lobby the public against Apple in particular, and privacy and cryptography in general. He's been completely rhetorical this whole time, ignoring the fact that what he's asked for is a huge fucking deal, and forcefeeding "terrorism", "public safety" and other trigger words to get the public to rally behind something they couldn't possibly understand.
Make the request and shut your stupid mouth, Comey.
Consider the Geneva Convention. It's every combatants' obligation to see that the Convention's requirements are upheld. Disobeying direct orders to the contrary is a requirement.
This ... creates certain elements of friction and pressure.
In no world can the FBI be viewed as 'combatants.' They're a civilian law enforcement agency, and the Geneva convention definitely _does not_ apply to them. Ethically, yes, they shouldn't be doing this, but we can't pretend rules of war apply to a civilian agency with 0 role in combat.
My point is that high-order directives -- to obey the terms of the Geneva Convention, or to uphold the rights enumerated and limits of government stated in the US Constitution -- can and do in fact devolve upon all whom they govern.
Not merely courts.
Yes, I expect that courts would be tasked with drawing boundaries where extraordinary discretion is required. But throwing up your arms and saying "hey, we're the executive branch, not my problem" doesn't cut it. In fact that can very well land your ass in gaol or at the receiving end of a civil rights lawsuit (modulo limitations on liability for government officials, but that's another worm of cans).
Incidentally, I strongly recommend developing at least one or two abstract thinking skills if you're going to play around here. Helps smooth things along.
I strongly recommend you learn to debate without resorting to ad hominem attacks. Helps keep things thoughtful and productive, and not just here either. :)
An ad hominem isn't a random insult. It is a dismissing of an argument because of an irrellevant personal trait. E.g., yo're double jointed therefore you know nothing of erlang lathe forming.
Relevant personal attributes, especially those which address credibility, are generally in bounds (see also "the asymmetry of bullshit", a/k/a Brandolino's law).
And observations of personal character not used as basis for argument aren't ad homs. Full stop.
If you're going to use logical fallacies, try to use them correctly.
And while the initial comment whose tone you disagreed with, and the paragraph above may not be seen as acceptable on HN (I tend to feel they skate within bounds), both point out a category of error, and steps a person might take to correct them. Insufficient abstract interpretation in the first case, incorrect use of specific terminology in this case.
Of course, you could simply insist on being wrong. But that's your call.
Yes, I agree it wasn't ad hominem, but you should really back up your insults. You just threw that out of left field, and provided no evidence that I lacked 'abstract thinking skills' or how they related to the rest of your comment at all. If the 'abstract thinking skills' was about inferring the context of your previous comment, I really hope you never accidentally miss some context in your life.
You can prove your point without being a dick, especially when being a dick does nothing to help prove your point. A little politeness goes a long way.
The parent comment was not making that comparison. They were not trying to imply that the FBI is a combatant on a battlefield. It was meant to be an example of friction caused by multi-directional pressure (in the FBI's case, to strictly obey the law and yet to be aggressive in solving crimes by any means within the law).
I guess I'm confused then, because that's precisely what the FBI is doing, and that's exactly what the grandparent comment is doing. The FBI didn't try to side-step the courts, it brought it to them directly and is indeed strictly following the law.
> it brought it to them directly and is indeed strictly following the law
If this is your definition of "strictly following the law" imagine yourself in a scenario where the FBI brings a lawsuit against you: risk going to court, losing, and going to jail, or hiring a lawyer and fighting something with dubious constitution grounding.
There are so many different ways to lose when the FBI plays this game against private companies or individual. They sue you because they want to put you in jail, not clarify the law.
If you're a strongly opinionated CEO of a company with a war chest you fight it and at the very least stay out of jail. If you're the CEO of a small ISP/web hosting company you suck it up, do what they say, and follow the gag order.
What would you propose then? Obviously someone needs to fight the law enforcement agents making these requests; we can't just tell the FBI "you just have to follow the law exactly as it's written, you can't challenge anything" because that would severely tie its wrists.
I do agree it's not quite fair to put defense costs on the company/individual that needs to fight it, but the alternative I can think of is a public defender type system that I don't think many people would be happy with for corporations.
> "you just have to follow the law exactly as it's written, you can't challenge anything"
Isn't that what we expect from all people and institutions? moreover, we expect the people to be in control of "challenges" to the laws, and the laws themselves. Much of what's wrong with government comes from government creating self-serving laws.
Laws are rigid and don't keep up with the changing times. You might argue that that's the government's fault for not passing new laws, and that's a fair point. However, the judicial has set a precedent over the past 200 years or so of interpreting laws to fit with changing circumstances. Given that's the case, it's hard to blame the FBI for taking advantage of that.
The laws are what the courts interpret them to be; no more and no less. Like it or not, strict interpretation is a fantasy and has been since the late 1700s.
The FBI is part of the executive branch, as such we expect it to do the bidding of the government, which in turn we expect to the bidding of the populace. As such, no, of course the FBI should not pursue every legal opportunity when that would run counter to the governments intentions or beliefs.
> FBI's job should be to pursue any and all opportunities at gathering evidence
That's only true in a vacuum. In reality, every tinpot tyrant on the planet would like to have the US set a low bar so they can insist that US tech companies agree to their similar demands.
True but irrelevant. It isn't inherently law enforcement's job to probe constitutionality. That's like saying law enforcement should probe just how much force they should use against you before they get sued by the DoJ.
It's just as valid an argument to say they should be cautious about constitutionality and still get their job done.
It's hardly irrelevant. The parent post said "every tinpot tyrant on the planet would like to have the US set a low bar". In this case, it's important to remember that the executive isn't the only branch of government to have an opinion here.
No one said anything about probing constitutionality. There is a legitimate question about the limits of the All Writs Act. So they asked a court to issue the request.
Law enforcement must work within the confines of the law, but when there is a question of what those confines are -- and in the legal sense, that is most definitely an unanswered question here -- they ask the courts to decide.
Once the courts rule, I expect for the FBI/etc... to act in accordance with the ruling. And if you don't like the ruling, talk to Congress.
But, it's not the role of law enforcement to interpret the Constitution. So in cases such as this, where there isn't really any precedent or the law is ambiguous, the proper location for the decision is the courts.
> But, it's not the role of law enforcement to interpret the Constitution
You are correct that law enforcement does not provide the authoritative interpretation of the Constitution, but you seem to imply that they should operate under ignorance of the Constitution. This is wrong.
Law enforcement must have an understanding of the Constitution, and they must uphold it. For example, it's a dereliction of duty to always argue that any search is reasonable.
I implied nothing about the ignorance of the Constitution.
Law enforcement must have an understanding of all laws (for their jurisdiction), including the Constitution. However, when there is a legitimate question, it's not up to law enforcement to make the final judgement calls. It's for the judiciary to make that call.
It's fair to say that this is an argument that has been building for a while.
As such, it's very appropriate for the courts to make this call. And once that decision is made, it's up to law enforcement to act accordingly.
Note: I think the California court will reach the same decision as the Brooklyn court. But I don't have an problem with the DoJ/FBI raising the issue.
> However, when there is a legitimate question, it's not up to law enforcement to make the final judgement calls. It's for the judiciary to make that call.
That's not actually true. The executive and the legislature all have to swear to uphold/defend the constitution and it takes all three branches of government to violate it. If Congress says that something is unconstitutional and refuses to pass a law permitting it then the executive can't do it. (The FBI is nowhere in the constitution, its very existence is at the will of the legislature.) If the executive branch says that something is unconstitutional then they can refuse to do it. Nobody can force the executive to prosecute someone under a law they think is unconstitutional.
People only see the courts as the arbiters of the constitution because they're last. You only get there if the legislature is willing to pass the law and the executive is willing to enforce it. But that is a piss poor excuse for the other branches of government to neglect their oaths.
I [name] do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
In order to support and defend the Constitution, you must have an understanding of what it means (unless you interpret the oath -- itself part of the Constitution -- to mean physical support and defense of the physical document.) To have an understanding, you must interpret. The oath, therefore, requires interpretation.
(Now, the Constitution itself gives the judiciary the role of resolving controversies arising under the Constitution, which includes disputes arising from differing interpretations. But people -- including executive officers -- have to have interpretations before they can get to the point where such a dispute arises for the courts to settle.)
> Technology will always be moving faster than courts can define how the law applies, and thus interpretation is a part of law enforcement's daily job.
Imagine using the same logic in gun control. Imagine there were no laws against certain kinds of ammunition and law enforcement just went around saying certain guns are illegal just because what was in the officer's coffee that morning. People always throw around the phrase "we're a constitutional republic, not a democracy" when I say the Connecticut compromise ought to be scrapped but the same people are for a massive overreach by law enforcement.
Imagine someone shot and killed you in the street for no reason and said they thought it was their right. Would that absolve them? No. Neither should this kind of overreach by the FBI be legal.
There is the situation where defending the Constitutional order against a clear threat most effectively demands actions that are questionable impinge on some rule of the Constitution, in that case, its at least arguable that working right up to the limit -- and perhaps even testing the limit -- is demanded.
Clearly, gratuitously testing the limits of the Constitution is not demanded by the oath, but I don't think that that's the claim Comey was making. (Note, I'm not saying that I agree that this is a case where a rational expectation of the value of breaking into the phone in question to protecting the U.S. and its Constitutional order does justify testing the limits of law enforcement authority, I'm just pointing out that its not unreasonable to think that there are situations in which upholding the oath might reasonably be seen to require testing the boundaries of Constitutional authority.)
> There is the situation where defending the Constitutional order against a clear threat most effectively demands actions that are questionable impinge on some rule of the Constitution, in that case, its at least arguable that working right up to the limit -- and perhaps even testing the limit -- is demanded.
Which, while technically correct (The Best Kind Of Correct), isn't the sort of thing the FBI runs into very often. Because the FBI is not constitutionally obligated to succeed in apprehending every criminal. If the FBI wanted to embody the principle of letting 10 guilty men go free before convicting one innocent then they would in practice run into a lot fewer prickly constitutional edge cases.
I think it's a good thing my doctor doesn't stab me in random places to defend my health. There might be some case where that's good medicine but I'm having a hard time with concrete examples.
It's the role of all three branches of government to interpret and obey the Constitution. The courts are just the ones with the final say on which interpretation gets accepted.
> Honestly, intentionally doing anything that you knowingly believe to be against the Constitution should be a fire-able offense.
Its already not merely a firing offense but a federal felony for law enforcement officers and other public officials, but the FBI is the lead agency enforcing that law, so its probably unlikely to be as effectively enforced when the Director of the FBI is involved. [0]
Not taking sides here, but this view is fine as long as everything is explicitly detailed in unambiguous language.
For example, the 4th Amendment protects against "unreasonable" search and seizure. There is a lot of leeway in what is or isn't reasonable.
If you believe in the system you should be glad it is going to the courts - it is the job of the judicial branch to interpret the law. And however it comes out will be a precedent for the future.
>“If I didn’t do that, I ought to be fired, honestly,”
Let's take this on face value. He's suggesting POTUS would fire him for not fighting for backdoors, when POTUS has publicly come out against backdoors. So what is going on here?
I suspect Comey is just a fucking idiot. He's one of these old school guys who thinks LE should have an endless war on the citizenship. I suspect we're destined to have this fight every so often, and from a more practical perspective, not every company is Apple or has the financial and political power Apple has. How many others have agreed to the terms Comey demands? Perhaps many.
> Let's take this on face value. He's suggesting POTUS would fire him for not fighting for backdoors, when POTUS has publicly come out against backdoors. So what is going on here?
Some people (Comey) believe that what is said in public has no value?
Or that those same people might instead believe that the POTUS is not their boss...
I'd argue that he's being intentionally deceptive. For example, he testified* that "he's not a good lawyer", when in fact he served as the Deputy Attorney General during the Bush administration.
There is a serious problem here. If you ask me any government official who forces a backdoor down the throat of a private company ought to be fired, yet he believes he should be fired if he DOESN'T do it.
There's a very big divide happening right now in the US. This is going to be a rough time.