I'm seeing a lot of comments to the effect that the government will just try again at some point.
Well, welcome to life in a democracy. Nothing is ever settled with finality because there are plenty of ways for future generations to change the laws we cherish today--for good or ill.
We could revoke the 13th and 14th Amendments and have slavery again--there is no legal impediment to that. That we don't do that is a reflection of our cultural values--today--which we continually discuss and reinforce.
We could abolish the EPA, or the IRS, or the NSA. We don't because these have enough supporters who value what they do, today. The 2nd Amendment remains strong today because millions of Americans work every day to keep it that way.
So, the long-term solution for strong encryption must be a cultural one. We have to be prepared to fight the crypto wars forever, like unions are still fighting the labor wars a century later. Like civil rights activists are fighting racism even today--and will be for the foreseeable future.
Is that depressing? Not to me; I find it inspiring, much better than a world in which government decisions are truly final. Beware that level of power IMO.
The problem is not that things change in a democracy. The problem is that the change we get does not represent the will of the people.
A majority of Americans is dissatisfied with the Patriot Act [1] yet it keeps getting renewed.
A majority of Americans thinks political spending is corrupt [2] and that the political system is rigged, yet we get Citizens United to pour even more corporate cash into the machine.
A majority of Americans voted for the Democrat in 2000, but the Republican was installed instead [3].
People overwhelmingly disapprove using public funds to bail out reckless bankers [4], but somehow it happens anyway.
There was a global uproar over SOPA and PIPA which shut down this draconian legislation. But you can't kill the zombie, and it keeps coming back, now in secret trade agreements like TPP and TTIP that citizens aren't even allowed to read.
The Total Information Awareness program was suspended in 2003 [5] after a public outcry over warrantless mass surveillance. Naturally it was all reincarnated into secret NSA programs.
We'll see the same thing with devices and personal encryption. This is only a temporary setback for the powers that be, they'll be back with another sensational, emotional case soon enough.
The current system does not represent the will of the people. It's an oligarchy supported by a security apparatus run amok.
The American government is not supposed to be a direct representation of the will of the people, but let's go through this anyway.
On the PATRIOT Act, the link you provided shows that 63% of Americans either want to keep the entire thing or make minor changes.
Citizens United came from the Supreme Court, an institution that is explicitly designed to be shielded from the will of the people as much as possible.
The 2000 election was a clusterfuck, but it has happened exactly once since 1888. Besides, if a few hundred votes go the other way in Florida then we wouldn't even be talking about it.
On bankers, 60% isn't overwhelming, and the government decided to go against the will of the people because they thought it was the best course of action. Most experts agree that it was the lesser of two evils.
You can go read the TPP for yourself. It's been out for three months. [1]
Americans are divided in their opinions on NSA surveillance. [2]
None of this matters though because the will of the people is not supposed to be the final say in government action. There founding fathers did not believe in direct democracy.
100% of Americans have been specifically lied to by the government about those issues.
The best thing about Snowden's leaks is how the release has continually shown the government to be lying, and lying in response to the last batch of lies.
As such, opinions based on those lies aren't really valid.
If they got to a voting booth and saw a General Alexander's taped confession for treason they'd (probably) rethink those opinions.
> Americans are divided in their opinions on NSA surveillance.
Again, only because the NSA has spent our tax dollars on specifically telling us things that they know to be untrue. These people don't support the NSA, they just don't want to die in terrorism and don't know enough to know how unlikely that is, or how useless the NSA is in that regard.
> You can go read the TPP for yourself.
Oh great, now that it's too late and it's technically impossible for it to change.
> Citizens United came from the Supreme Court, an institution that is explicitly designed to be shielded from the will of the people as much as possible.
The people have nothing to do with that decision. It is just plain unconstitutional. The framers of the constitution never meant for personal rights to be applied to corporations.
The framers of the constitution never meant for government to have so much power that lobbying it would be able to buy much influence. Beyond that, considering that the vote was restricted to landed elites and mercantile class, there's more credence to the idea that the framers never meant for the government to stifle the speech of anyone (whether corporations or not) than there is to suggest they had any idea on corporate personhood.
Regardless, corporate personhood has existed since colonial times, and the framers didn't do anything to stop it. Meanwhile, the McCain-Feingold act that Citizens United overturned had only been on the books for 8 years before much of it was overturned.
> never meant for government to have so much power that lobbying it would be able to buy much influence
I don't think lobbying is a problem because the government has too much power, but rather because of the electoral system.
When voting is voluntary elections are won by the party that is best able to get out the vote. In order to get out the vote huge sums of money must be spent on political advertising and organization. When political parties are desperate for money it requires them to devote a lot of their time to fundraising and it makes them vulnerable to special interest groups with deep pockets (aka lobbyists). Voluntary voting means more opportunity for money to buy influence.
Compulsory voting, in contrast, means that almost all eligible voters will vote. Political parties can spend less money on advertising, less time fundraising, and more time developing policy and doing the job. Because the electors have to vote they're more likely to take an interest in the election, more likely to listen to the ideas being presented and vote accordingly. The only downside of compulsory voting is that there are more votes to count, but that cost is worth paying.
Compulsory voting is a practical step towards getting the money out of politics and improving the quality of a democracy.
I disagree. I think government authority is the sole foundation upon which all lobbying is built.
If the government has no authority over something, there is no value in lobbying the government for help with that something.
Example: The government has subsidizes and regulates farming. Therefore there is a powerful incentive for agricultural interests to buy special treatment. Add ethanol considerations, and you have oil interests at work too.
Before they introduced compulsory voting in Australia voter turn out had fallen below 60%. So with compulsory voting the "true vote" if you like is total votes minus informal votes minus donkey votes. Voter turn out for Australian elections these days is greater than 94%. If 5% of those votes are informal or donkey votes then that's still 89% of voters completing "true votes". A 30% non-vote has a far greater influence over an election than a 2% donkey vote.
The framers never intended for individuals to give up their rights just because they form corporations.
I have the right to freedom of speech.
You have the right to freedom of speech(assuming that you're an American citizen).
If you and I form a partnership with the express purpose of working together to combine our voices and speak together, we retain that right to freedom of speech.
That was what Citizens United held.
Beyond that, you're just plain wrong. Corporations are legal persons. Only persons can be parties to legal actions. If your neighbor's dog escapes and bites you, can you sue the dog? Of course not. You sue the neighbor, the person responsible. If your neighbor kills your dog, can your dog's puppies sue your neighbor? Of course not. Again, non-persons cannot be party to legal actions. A corporation can own property, pay taxes, sue, be sued and as a legal person, corporations have rights. They don't have all of the same rights as people, that's why I find it so frustrating when people conflate "people" with "persons". Legally, they are different concepts.
> Corporations are legal persons. Only persons can be parties to legal actions.
True, only due to bad precedent. "Should they be?" is a question we the people should have had a chance to argue and debate. Instead, it was by a judicial fiat that made a new type of citizenry. And honestly, they are pretty fucked up, with requiring their primary focus to be "Make money at all costs". A human with a similar 'ethics' would be called a sociopath.
Better yet, I'll believe corporations are legal people when Texas executes one.
> A corporation can own property, pay taxes, sue, be sued and as a legal person
But it can't go to jail, and fines that are levied for wrongful behavior are often less than the profits obtained from said behavior and come about through settlements with no admission of wrongdoing, and without any executives being held responsible.
A person never lost their individual right to freedom of speech if they formed or became a member of a corporation.
That was precisely the issue before the court in this case. Did the individuals who formed the corporation Citizens United retain their right to freedom of speech as it related to releasing a documentary about Hillary Clinton near an election, in violation of McCain-Feingold?
The court ruled that they did not lose their right to freedom of speech.
Let's make sure we know what we're talking about here. The CU decision was over a bunch of people who made a movie that was critical of a political candidate, and aired that movie not long before the election.
Is it your contention that we really should prevent this kind of thing from happening? Because to me, it seems like the very cornerstone of the democratic system. The minute such activity is illegal, the people have lost and we've become an oligarchy, unable to provide information to our fellow citizens necessary to cast informed votes.
The CU decision was over a bunch of people who made a movie that was critical of a political candidate, and paid a TV station to air that movie not long before the election. Congress had restricted spending on political advertising and it was this restriction that CU overturned. You're arguing that the cornerstone of democracy is the ability of the wealthiest to spend unlimited amounts on propaganda to convince citizens that they should vote for the candidates that benefit the wealthy the most.
I'm arguing that the incumbents have a built-in, guaranteed communications channel. Any obstacle to speech by the people (whether they're rich or poor) leaves no response to those in power. In effect, then, the rules enforce an oligarchy.
In fact, your argument that the CU decision only benefits the wealthy is precisely the opposite of the reality. In fact, the wealthy don't need to cooperate in corporate bodies to finance public speech: folks like Donald Trump can get up on a pulpit with their own personal wealth. It's only us regular people who have the need to cooperate (i.e., to incorporate into a body to handle the demands of our effort).
Thus, CU is a benefit to the regular guy, without having much effect on the opportunities available to the rich who can go it alone.
> The minute such activity is illegal, the people have lost and we've become an oligarchy, unable to provide information to our fellow citizens necessary to cast informed votes.
'The people' aren't the ones 'providing information', campaigns full of biased individuals trying to beat a competitor are. The system and its 'elections' has nothing to do with the people, it has to do with a few powerful wealthy entities struggling for power.
Yes, we should definitely prevent a very small minority of political Übermenschen with more money than God from being able to control the system for their own aims.
Campaigns are actually explicitly prohibited from coordinating in any way with the so-called SuperPAC's that have unlimited fundraising ability.
As the parent said, how would you propose to limit political speech in a meaningful way without infringing on the free speech rights of the public at large?
I admit I haven't read the CU decision, but whatever else it is, it has apparently opened the door to no-limit campaign financing. Which is bad for democracy.
There are already laws protecting freedom of expression, so I think it's disingenuous to suggest that CU is all about freedom of expression, and therefore good for democracy.
If you're interested and opinionated, you should read the decision. It's mostly in plain English and the reasoning can be understood by someone who is not a lawyer. It's not long and can be found with Google, probably as a PDF from the Supreme Court site.
It doesn't really open the door to no-limit campaign financing. It says that the government can't put a limit on how much money a person or group of people (like the "Citizens United" nonprofit--hence the name) can spend to promote their OWN opinions.
There is a difference between 1) giving a political candidate $1 million, and 2) spending $1 million to shoot, print, and promote a documentary movie about a political candidate.
#1 is still illegal. And it's hard to imagine a way to limit #2 without giving someone the power to determine which movie (or website, or podcast) is "legal" and which is "illegal" speech about a candidate.
If we can't speak freely each other about candidates, how can we hope to have a valid political process at all?
Freedom of speech doesn't disappear as soon as people band together in an organization or corporation. The free speech of the corporation is simply the aggregate free speech of the shareholders in that corporation, and that's what Citizens United held.
The framers of the constitution never intended for the United States to become a massive welfare state, either. There's absolutely nothing in there covering programs like universal healthcare, social security, food stamps, et al. The framers very blatantly would not have supported such vast tax based subsidization of entitlements in which one citizen is forced to pay for another. They also would never have supported the total government cost in the US being equal to nearly 40% of the economy. Does that mean the US should end those programs and slash the government down to a fraction of its current size?
The absence of these items from the Constitution does not imply their opinions on the matter. The Constitution sets out a system of government, not a definition of how the economy should be run.
As to what you assert their opinions would be, you'd have to look at their own writings and find something to the effect; noting what many of the constructs you described wern't even being considered during that time. But that evidence won't be in the Constitution.
The Constitution lays out who's responsible for what, and who can make what decisions. It is not a bible stating the mores of the nation.
>There founding fathers did not believe in direct democracy.
Do you know why they didn't? Because it wasn't feasible to do so when information was traveling at the speed of the horse drawn carriage.
>In a large society, inhabiting an extensive country, it is impossible that the whole should assemble to make laws. The first necessary step, then, is to depute power from the many to a few of the most wise and good. But by what rules shall you choose your representatives? Agree upon the number and qualifications of persons who shall have the benefit of choosing, or annex this privilege to the inhabitants of a certain extent of ground.
-John Adams, Thoughts on Government
The limitation or assumption that "it is impossible that the whole should assemble" is no longer true.
There's also a philosophical reason for the adoption of an indirect, representative democracy. One specific example is to protect against Tyranny of the Majority [1].
I'm dubious that a country where most issues are voted on directly by the people could function with any significant amount of participation, mostly because people are not experts in most fields, and don't necessarily understand e.g. the macroeconomic effects of letting the largest banks in the world all go bankrupt. We elect representatives because there is a lot of work to do governing a country thousands of miles wide with over 300 million people, and I want people who can devote their profession to improving government in charge. Ones that we get to vote for regularly, of course.
"Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. "
The context of your Federalist Papers quote is in regards to separation of powers (legislative, executive, judicial) and not indirect vs. direct democracy.
Tyranny of the majority and mob rule are just pejorative synonyms for democracy. Which would you rather have, tyranny by the majority or tyranny by a minority (i.e. monarchy/oligarchy/dictatorship)? Personally I'd argue for something else altogether.
At one end of the debate was the likes of Thomas Jefferson and John Adams who argued for the "tyranny of the majority" (democracy) and at the other was the likes of Alexander Hamilton, who wanted Oligarchy:
>I believe the British government forms the best model the world ever produced, and such has been its progress in the minds of the many, that this truth gradually gains ground. This government has for its object public strength and individual security. It is said with us to be unattainable. All communities divide themselves into the few and the many. The first are the rich and well born, the other the mass of the people. The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give therefore to the first class a distinct, permanent share in the government. They will check the unsteadiness of the second, and as they cannot receive any advantage by a change, they therefore will ever maintain good government.
-Alexander Hamilton, Farrand's Records of the Federal Convention, v. 1, p. 299.1787-06-19
It would indeed be nice to delegate to the experts (i.e. scientists, engineers, psychologists etc.) on relevant issues, rather than having climate change deniers[1] on the Environmental Committee and people who have never sent an email[2] in their life on the Committee for Privacy and Technology.
> A majority of Americans is dissatisfied with the Patriot Act [1] yet it keeps getting renewed.
First, what polls say is not the same as what the electorate believes. Actual voters skew older and more conservative that the general public. Second, your poll doesn't show that Americans are dissatisfied with the Patriot Act. 63% of those polled think it requires no or only minor changes. 62% think it's about right or doesn't go far enough.
Those polls also have some very interesting statistics. 30% of those polled think that the government should take all steps necessary to prevent future terrorist attacks, even if that means violating basic civil liberties. 65% think otherwise, but 55% of those polled do not think the government's programs violate civil liberties. 55% of those polled in 2006 were okay with the Bush administration's wiretaps. 53% of those polled in 2006 thought that the Bush administration was about right or did not go far enough in restricting peoples' civil liberties to fight terrorism.
> A majority of Americans thinks political spending is corrupt [2] and that the political system is rigged, yet we get Citizens United to pour even more corporate cash into the machine.
In a 2010 poll, 68% of those polled thought the government should be able to prevent the sale of violent video games to minors: http://www.gallup.com/poll/1588/children-violence.aspx. Yet in 2011, the Supreme Court struck down a California law doing precisely that (Brown v. EMA). I think few people on HN would say that was wrongly decided. Given that the Supreme Court reviews laws that have been passed by elected legislatures, it is almost guaranteed that when it strikes down a law, it will be going against popular opinion.
> A majority of Americans voted for the Democrat in 2000, but the Republican was installed instead [3].
Frankly, I think we should not only abolish the electoral college, but the states as well. But in the meantime, who the "majority of Americans voted for" is not how we decide the election of the President.
> Frankly, I think we should not only abolish the electoral college, but the states as well.
I was with you until this part.
States gave us a path to gay marriage, and allow people to move to different areas that hold different values than the whole nation.
I'd suggest trying instant runoff voting before moving to something as drastic as abolishing states. I think IRV would allow people to express their votes and opinions more clearly than the system we have today.
In Australia, which has IRV, it's not clear to me there's much difference. Candidates are still elected to single-member constituencies, and we still get a two-party system little different from the US.
Do you think IRV alone helps? What exactly do you propose?
Aside: in Australia, which has IRV, gay marriage is still not legal. Yay democracy. /s
> In Australia, which has IRV, it's not clear to me there's much difference. Candidates are still elected to single-member constituencies, and we still get a two-party system little different from the US.
How long has Australia had IRV? I don't think it's a magic solution on its own. But I do think it allows voters to more clearly express their wishes without playing as many games wondering what the rest of the voter base will do. That's not democracy.
Anyway, IRV does not guarantee your favorite will win and it only gives different results in certain situations, such as close elections. Maybe Australia hasn't had the right circumstances come up yet. There are still a lot of barriers to becoming a presidential candidate, and many good people just don't want that job, like Biden. I'm sure that's true at other levels of government too. I know I would not like to be in a room arguing for gay marriage against some Christians. Or discussing budget for things I don't understand. Or any other number of boring things. And at the end of your term, if you aren't reelected, there's a good chance many people don't like you. Public office isn't glorious while you're there. It's only glorious after you're long dead, and even then you probably had to do something hugely important to be praised.
> Do you think IRV alone helps? What exactly do you propose?
A good government is made up of active voters. I propose making good use of your voice through the internet, in person, and on the phone and in letters to your representatives. Inspire others to do so, keeping the focus on supporting issues you care about, and less so much about people or particular candidates. Share facts. Don't try to brainwash your fellow citizen by convincing them to vote in your man. Discuss and debate with mutual respect for everyone you meet, because we are all equals, you, me, the president, and those natives in Brazil who don't want to meet anyone from outside their jungle village. The more you can discuss without disrespecting someone's right to their own opinion, the more trustful and open our society will become, and we will advance to use technologies you can't imagine today. I know this because we're living in that future that people from the 1950s couldn't fathom. Use your vote and your voice, or risk losing it. It's your choice.
Okay, so there can still be two main parties, but isn't the idea to allow third party candidates to run without taking votes away from the most similar candidate? I haven't studied all the different forms of voting [1]. I know there isn't one that's perfect, I just think we can make some improvements on what we have now. I am not ashamed to admit most of my understanding of this comes from CP Grey's animal kingdom =).
EDIT: Just read a bit about approval voting and score voting. I guess I'll suggest those next time instead of mentioning IRV.
Talking about criteria with voting methods is like comparing weight and horsepower of race cars. That's the wrong approach. You want to put them on the track and get average race times. You can do this with voting methods too.
I think 'rayiner' might just have meant "it would be preferable that the President be elected by popular vote of the entire nation without regard to state boundaries". While it's possible he was suggesting that the States themselves should be abolished, I think it's just awkward phrasing.
Nope, I think we should get rid of the states and turn them into administrative districts of the federal government. The state governments are hotbeds of corruption, ruled by minority interests because state elections have low voter turnout, and add an enormous administrative tax to pretty much every economic or legal transaction that happens in the U.S.
> The state governments are hotbeds of corruption, ruled by minority interests because state elections have low voter turnout, and add an enormous administrative tax to pretty much every economic or legal transaction that happens in the U.S.
Maybe that needs to happen once in awhile for us to wake up and start exercising our rights again.
I don't think the world has gotten any easier to administrate. If anything it's gotten tougher. I like the idea of allowing smaller areas to administrate themselves outside the national constitution. The world is changing more quickly every day, states have worked well for 240 years at preventing dissolution, and if we consolidate more power we risk creating a majority who is unhappy enough to revolt, in my opinion.
Our goal is not to become all powerful and ignore citizens who aren't making use of their right to vote. Our goal is to be balanced, and in doing so we find strength as a byproduct. When you seek power as a goal, you have already started down the path to failure when someone inevitably usurps your authority. Sustainability is our goal, and balance is the way.
Technically, the states have only prevented dissolution for a bit less than 151 years. The previous streak lasted about 79 years.
Surely, the Confederate secession qualifies as a dissolution.
I am of the opinion that the U.S. would fare better with more states, rather than fewer. If Los Angeles, New York City, Chicago, San Francisco, Dallas, Houston, Miami, Philadelphia, Boston, and San Diego all became city-states, the usual civic corruption would have less impact on the statewide governments of the donor states.
One could say the same about cities and counties, except in LA, where they call them parishes, or AK, where they call them boroughs.
But I don't expect that change anytime soon. It was after all the states who gave up some of their sovereign powers to form a federal system after breaking free of British rule.
Here's my problem with Approval Voting: Let's say you are left-wing, and there is a left-wing, centrist, and right-wing candidate running. Do you approve the centrist candidate? If you approve the centrist candidate, you may block the right-wing candidate, but you also may block the left-wing candidate. There is no clear and obvious way for the voter to translate their preference into an approval vote.
This isn't a problem. Numerous contentious Approval Voting elections and exit polls have been held with Approval Voting, showing voters can certainly cast a vote without being paralyzed by indecisiveness.
If YOU can't make up your mind, then just don't vote. Seriously. You can get Approval Voting and just not even show up and vote. You'll still get massively better election outcomes because of all the people who do show up to vote are using an objectively better decision-making algorithm. Yes, objectively better.
I didn't intend to suggest someone wouldn't vote because they are "paralyzed by indecisiveness." My concern is that people will vote sub-optimally due to poor information about other voters preferences and poor understanding of the strategy involved.
An honest vote in first-past-the-post, say for your awesome friend Bob for President, would give you approximately 0% return compared to the proper strategy of voting for the lesser evil of Clinton.
Suppose Approval Voting gives you a utility ("happiness") of 10 if you're tactical, or 9 if you're honest.
Now suppose Voting System X, in which a sincere and tactical vote are obviously identical (ignore the fact that this requires the system to use randomness), gives you a utility of 7.
Now do you _really_ want to take the latter system because there's no disparity in your happiness based on whether you knew the best strategy? Or would you rather take the system that gives you a better result?
More details here.
www.electology.org/topic/tactical-voting
I'm sorry, but you've completely missed the point. Nobody is talking about the "disparity in your happiness based on whether you knew the best strategy."
Obviously, if the honest approval ballot give me 9 utility points, and the strategy approval ballot gives me 10 utility points that's better then the system that always give me 7 utility points.
However, it seems to me that the situation is much more along the lines that an honest approval vote gives me 2 utility points, and a strategic one gives me a utility of 9.
See, I hold to political positions that almost always put me in the minority. If I only approved those candidates that that I actually liked, I'd only approve candidates with effectively zero chance of winning. This would let my least favorite candidate win, thus granting me very little utility.
Hence, I'll probably take System X, even if approval voting might, in theory, do better if everyone applied the strategy correctly.
Approval Voting is Score Voting on a 0-1 scale. I tried to be clear about the distinctions as they apply. If you can cite any specific sentences that you think could be made clearer, please let me know.
If you want your site to be usable for drive-by-quoting in an Internet discussion, perhaps you want to make two copies of that text, one specifically for Approval Voting and one for score voting in general?
Thanks. We've changed platforms a couple of times and have lost some pages and introduced some broken links and "CSS" issues along the way. We need more manpower to make it pretty, but no one cares enough about democracy to give us the millions to invest in such things. :)
Ironically, my startup just got through YC and my fingers are crossed that we're successful enough for me to one day fund such reforms, so we'll never be threatened by a Trump again.
I wonder what the right strategy would be? I guess start small and introduce sensible and simple voting everywhere you can:
- Shareholder votes in a company
- Where to go for dinner
- Vote for mayor in a small town
- ...
Most people don't even know that there are different voting systems, yet alone that some of them are vastly better than others. (It's like watching people play Monopoly, when they are much better games around these days.)
For what it's worth, voting system changes typically result from a two-party system splitting: http://repositori.upf.edu/handle/10230/506. When countries end up with more then two parties, those parties suddenly have an incentive to institute better voting systems. That would suggest you'd have to take out the Republican/Democrat duopoly to change the US system, but perhaps Trump will do some good after all.
Interesting. They had some changes in party systems in the US over the course of the country's life, but did they change the voting system?
Britain also had some changes (with labour replacing liberal at the beginning of the 20th century).
I hail from Germany, which traditionally has a more proportional system. (It's a weird mix that seems to do reasonably well in practice. They could replace the first-past-the-post of the `Erststimme' with a score voting system, but the Erststimme isn't that important anyway.) They never had less than three parties in the federal parliament after WWII, even with a 5% threshold needed to move in.
The UK had three somewhat relevant parties in the 20th century (though only two relevant parties per county). Why haven't they changed electoral system? (And when they had a referendum about it, why did they suggest the dreadful IRV?..)
The USA has had changes of party systems, but never in a way that resulted in a lasting third party.
Certainly there are places like the UK, or my homeland, Canada, that have had three relevant parties for a while without changing the system. Although both UK and Canada have forces pushing for reform. The recently elected government of Canada gave an election promise to change the system, but, well, I'm not holding my breath.
But I'm not saying at all that any country with multiple parties will enact voting reform, but statistically, it seems that voting reform is often brought about that way.
I suspect IRV was brought to vote in the UK, because that was deal that could be reached between the Conservatives who didn't want change, and the Liberal Democrats who did. However, I will note that IRV isn't so bad when selecting members of a legislature. Approval/Condorcet elect compromise candidates, but we don't want to simply have a legislature of compromise candidates, but rather representative of how people voted. But some from of proportional system is probably better.
That's a common logical fallacy. What's important is not "how much utility did I lose by not casting the most optimal vote in Voting System X?" What's important is, "how much utility did I lose by not _using_ Voting System X?"
Explained here with a simple graphic to visualize it.
www.electology.org/topic/tactical-voting
That's an interesting point. Yes, approval voting, like all other voting systems, requires voters to not only know their preferences, but also to play a little `game' (in the game theory sense of the word).
The optimal strategy on who to vote for depends not only on preferences, but also on what you know about the other voters. Polls help here.
The nice thing about approval voting is that, even though their might not be one single, clear and obvious way to translate your preference into your vote; but there is a clear and obvious family of ways to do so. And they have nice properties.
In-first-past-the-post, people often elect to give their vote to the lesser evil, instead of their preferred (third-party) candidate.
In approval voting, you will never have to give a compromise candidate more `vote' than any other candidate you prefer.
Ie all families of sensible voting strategies for approval voting look like this:
- sort candidates in order of preference
- figure out a cutoff
- approve anyone above the cutoff
The optimal cutoff depends on the peculiarities of the election (polls etc).
In practice, people manage this quite well intuitively. (I have run approval votings for small things, like which restaurant to take the team to.)
I like the idea but don't agree that all you do is vote above the cutoff. If there are 10 choices and I approve of 3, but I know my 7 and 9 are the only possible winners, I'll likely vote 1 2 3 7.
I don't think that works. Polls tell you the levels of support of the candidates, they don't give you the probability of each candidate winning which is what you need to figure out the expected value of the winner.
I don't think other system require "playing the game" in the same way as approval voting. You can game any voting system by voting strategically, but approval voting seems unique in actually expecting people to have to vote strategically.
You can vote strategically in any deterministic voting method. There's nothing special about Approval Voting. People can vote honestly based on whether they approve (have a favorable opinion of) a candidate. Or they can be tactical and base the decision on probability of winning.
> I don't think other system require "playing the game" in the same way as approval voting.
You must be joking? Almost no one ever votes their true preference in first-past-the-post. People usually vote for the lesser evil of the top two candidates, because any other strategy (like voting for who you'd actually like to win the election) just wastes your vote.
In any case, check out eg https://en.m.wikipedia.org/wiki/Approval_voting for other people's thoughts on the system. There's much more online about all aspects and pros and cons that we don't need to rehash.
Sorry, I tend to think of FPTP as being so messed up it doesn't qualify as a voting system. I was comparing approval voting to alternatives like Ranked Pairs/IRV/Borda etc.
The simulation uses random utility generators, which sometimes create situations where two candidates are highly similar and thus "partially" clones. The point is to model reality.
Other systems might be slightly better. But Approval Voting is dead simple to explain, and you don't even need new ballot papers compared to plurality.
Consider the example with A, B, and C at the end. It claims that approval voting would probably elect C, but why? If the voters apply perfect strategy, B supporters won't approve C, and B will win. The same is true of range voting, where B supporters will give C a rating of zero.
It does not seem escapable that a majority voter block can dictate their wishes on the whole population by exaggerating their stated preferences.
Maybe, but it would not have stuck if passed unilaterally. When we collectively decided to legalize gay marriage, it was very clear there was a majority in favor. This came about by pockets of the government trying it out first.
You're overlooking the fact that people and politicians need time to grow and hone their skills. Without states, without giving them some ability to be corrupt, there is no testing ground. Politicians at the national level would not be experienced negotiators because the first step in being a politician would be joining the federal government. And I don't think forcing gay marriage on the US would've been a good idea any sooner even if we'd had a sufficiently progressive president and congress. I have deep sympathy for all the people who had to wait so long for society to officially accept them, but I think even they can respect that we might not be as strong of a unified society if gay marriage had become legal in, say, the 80s, rather than today. A unilateral decision by a president and majority congress could have set the issue back even further.
> First, what polls say is not the same as what the electorate believes. Actual voters skew older and more conservative that the general public.
It seems to me that minority interests have a disproportional influence on policy decisions and that a single issue may not have a high enough priority to get elected representatives to change policy on that issue.
For example, if you look at the the NMSL (National Maximum Speed Limit) that was in effect from 1974 through 1995, it was quite obvious, based on traffic speed measurements, that almost no one was complying with the law on interstate highways, yet it took 13 years before it was modified to allow for 65 mph speed limits and another 8 years before it was repealed entirely.
So, it's entirely possible that the electorate was not in favor of that particular law long before 1995, but that single issue wasn't important enough for congress to vote on for around a decade.
Why is the 2000 election a disingenuous example? Bush lost the overall popular vote and it is almost certain that a majority of people tried to vote for Gore in Florida.
We also don't elect presidents based on who people "tried to vote for." Bush won the first count, and he won the automated recount. It should never have progressed further than that. 7 of 9 justices agreed that the ad-hoc recount that applied different standards to different counties violated the equal protection clause.
Moreover, we have no way of knowing whether Bush or Gore "won" Florida. Voting is a mechanism for measuring something. Like any method of measurement, it has a margin of error. The margin between Bush and Gore was so close that it was almost certainly smaller than the error in the voting mechanism itself. The scientifically right answer would have been to exclude Florida (and, in fact, several other states decided by very small margins) from the sampling process.
An electoral college winner losing the overall popular vote has happened much more than once. Florida was more or less a coin flip that landed on its edge and stayed that way.
It's happened four times, of which the first went to the House to decide, and the 1876 and 1888 were in a time of widespread corruption, but nonetheless it's still very rare, especially in the modern day, and I wouldn't expect it to happen again in our lifetimes.
The system is designed specifically to thwart the majority sometimes. Sometimes the majority is wrong. Now, the thwarting doesn't always happen when the majority is wrong, but we might be grateful for the electoral college for instance, this time around.
The breadth and complexity of the issues the government has to deal with are far beyond what any one citizen could keep track of, that's why we don't have a direct democracy.
It's not a direct democracy. That didn't mean it's not a democracy.
If you redefine democracy to be the narrowest possible interpretation, you eliminate every government in the world. You also make the word pretty much useless.
It might be fair, though, to exclude governments whose founding documents and the position papers written to advance them expressly eschew and prohibit democratic rule, in favor of a limited and enumerated republic.
There are some governments who claim authority to take any action authorized by the democratic process. The US government is not among them. Ergo, it is not properly classified as a "democracy."
You're defining "democracy" more narrowly than is reasonable. The 2nd definition at Merriam-Webster, for example [0], is "a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections". "Republic" and "democracy" are not mutually exclusive.
Reducing the discussion to a dictionary definition is emblematic of many of the problems in today's political discourse. This pithy, literal definition of a term is not relevant, especially when that same term, in the same context, is discussed at length, in light of various philosophies on the matter, in the Federalist Papers.
I don't think there's a better source of information about whether the government of the united States of America is a democracy than the position papers written to advance the four corners of its founding instruments, and they deliver an unambiguous "no."
Let's say, for a a moment, that your definition, which seems to conflate these two distinguishable scenarios (one in which a government's power is strictly limited and enumerated, and another in which that power extends to the bounds of whatever a voting majority or their representatives might desire), is a reasonable one.
How, then, do you discuss this distinction?
...and even by your definition, while an individual state might quality, the government of the USA does not: "supreme power" is wholly unavailable through the US government, at least in its legitimate purview (of course it exceeds this boundary frequently and flagrantly). It has dominion only over the specific areas outlined in the constitution; those not mentioned are reserved for the states or the people.
> I don't think there's a better source of information about whether the government of the united States of America is a democracy than the position papers written to advance the four corners of its founding instruments, and they deliver an unambiguous "no."
I'm not a constitutional scholar, so forgive me. What exactly do you think unambiguously demonstrates that the United States is not a democracy?
> ...and even by your definition, while an individual state might quality, the government of the USA does not: "supreme power" is wholly unavailable through the US government, at least in its legitimate purview (of course it exceeds this boundary frequently and flagrantly)
I feel like the definition addressed this. (In fact, given that this is Webster's, I'd expect that the definition was written to specifically include the United States government.) The definition says "the supreme power is vested in the people and exercised by them directly or indirectly". The fact that the Constitution reserves nonenumerated powers for "the states or the people" indicates a recognition that the power is vested in the people. The "legitimate purview", as you put it, consists of powers granted by the people who hold "supreme power".
Please note, "the United States" isn't just the federal government, but the federal government as well as the governments of the 50 federated states of the union (and tributaries/territories).
> in which the supreme power is vested in the people
We don't have that. We get to pick from a closed set of possible representatives and they aren't bound to follow our desires. (Or even check...)
It's not the indirection of the representative, it's that they aren't required to even try to represent. Your vote in the USA essentially elects a mini-tyrant who theoretically wants to be elected again so much that they'll pander to you in exchange for that but only so far as they can use you. As soon as they'll get enough money by selling you out to compensate for your lost vote, they will.
Democracy is a term which refers to both republics and plebiscites. The word you are looking for is "plebescite". Plebescite is widely believed to have been problematic in ancient Greece, which is why it's relatively rare.
Yes, though you must consider that if your representative isn't bound to vote to represent you (even in general) the word is pretty watered down already.
Absolutely it is. Google the difference. A democratic republic ultimately derives power from the people. There are more checks and balances in place in America than one person one vote. More info [1]
No, but I think Americans want a semblance of representation. When The People have close to 0% sway in Congress' opinions on bills, and corporations have like 70%, I'd say that's a pretty big freaking deal, no?
Every time there's an argument about wanting more democracy in the US, it seems someone always appears to say "but that's mob rule!". No, nobody wants mob rule. But there's a canyon between what exists now and what a more representative government could look like.
> When The People have close to 0% sway in Congress' opinions on bills, and corporations have like 70%, I'd say that's a pretty big freaking deal, no?
There's plenty of time to undo the actions of the past 10, 20, even 30 years.
If you sit back on your heels, throw your arms up in the air, don't vote and say nothing, then you won't be participating in democracy. But if you do use your voice and vote then at least you can say you tried. Everything won't always go your way and we don't have a perfect system. But given our diverse population it is a pretty good one. I say that while in full agreement that there are a lot of laws that need to be reversed or undone.
You'll never entirely remove money from politics. And, we should keep trying to remove it even though we know we won't end up with a perfect solution. That said, lobbyists aren't inherently evil and many share our viewpoints (for example, the EFF)
I did not say anything about morals. I'm not superior to you. I'm just stating my opinion. Choose to do as you wish. If you choose to not participate in the formation of this government, you are free to continue living in the US or live elsewhere. You could even try to start a revolution though I wouldn't recommend it. It is entirely up to you.
The US is a plutocracy. It's in no sense a working democracy. There's a public voting circus every couple of years, but policy - which is the only thing that really matters in politics - is largely defined by Wall St, the Fed, and by mil-ind corporate lobbying groups.
All of the above are politically unaccountable and legally untouchable. See for example the ridiculous excuses made to prevent the passage of:
This sort of thing is said all the time, but we do see significant policy changes based on voting, such as the switch to Barack Obama from George W. Bush. It's not clear to me that the corporations drove that in a major way. Another example is Herbert Hoover to Franklin Roosevelt. I imagine you wouldn't suggest that the corporations wanted the Socialist ideas proposed by Roosevelt.
Just because an election or a vote doesn't go your way, or the government doesn't shift dramatically every election, doesn't mean the nation does not have a working democracy.
The problem is that "governance by ordinary people" is not really on the table as an option. Governance by popular vote might be, but given how short-sighted and easily swayed the average loosely aware citizen is, the result is more likely to be "governance by demagogues and whoever has the most advertising dollars".
Is your point that people who believe in angels have no capability to govern themselves, so they should be grateful to their corporate overlords?
Or is your point that people who believe in angels need to be surveilled without warrants and have their meager earnings confiscated to enrich the elite?
My point is that the current popular opinion based on a casual response to an (unbiased?) question should not necessarily be used to determine the policy of a nation.
All of those things are real problems. But it sounds like you're looking for an excuse to throw up your hands and give up. That's not going to make things any better.
Sometimes the will of the people prevails, and sometimes it doesn't. When it doesn't, it's really disheartening; sometimes all our effort is for naught. But if we don't even try, it will always be for naught.
If there has ever been a time to illustrate that our country is an oligarchy and not a Democracy, this has been the year. There is a non-zero chance that even in our rigged, broken system that the candidates that are recognized in one or both parties will be ones that received less voter support and were chosen by the wealthy.
>We have to be prepared to fight the crypto wars forever, like unions are still fighting the labor wars a century later.
Just like the war against CISPA, which was lost to attrition.
>We could revoke the 13th and 14th Amendments and have slavery again--there is no legal impediment to that
What does the Constitution matter at all? Our system of checks and balances is beyond broken - its gone. Not to be disrespectful, but anyone who thinks that the Constitution is recognized by the government is delusional or worse. The 1st, 4th, 6th, and 9th amendments have been rendered basically moot by recent government action and court inaction. The truth is that you can't have a functioning democracy without the informed consent of the governed. When the majority of the population lacks the capacity to generate informed consent and those in power work actively to suppress that capacity you end up with the authoritarian oligarchy that we have today.
>We could revoke the 13th and 14th Amendments and have slavery again--there is no legal impediment to that.
Actually, I think this is the genius of the amendment system.
You are correct that it could happen. But unlike laws that can be passed or revoked by Congress by political whim, the barrier to creating or overturning Constitutional amendments is much higher and more difficult to pass.
There's a famous story about the logician Kurt Gödel related to this.[1] In preparation for the US citizenship test, despite assurances from his friends Albert Einstein and Oskar Morgenstern that the test was a mere formality, he studied assiduously all sorts of details about local and national government, including the US Constitution.
He quite excitedly told Einstein and Morgenstern that he had found a weakness in the Constitution that would allow the US to become a dictatorship. They were horrified and tried to tell him not to bring up such ideas at the hearing, but the judge happened to note that it was a good thing that in the US, unlike Gödel's native Austria, we were not a dictatorship -- which prompted Gödel to begin explaining his discovery...[2]
Unfortunately, no one ever bothered to write down what
Gödel's idea was! But it has been speculated[3] that it is this: that the Article V provision for constitutional amendments does not exclude that provision itself from amendment -- so it is possible to first pass an amendment making it easier to pass amendments, after which it could be a short trip to dictatorship under the right conditions.
Fanciful, but a fascinating story. Picturing Gödel, Einstein, and Morgenstern hanging out and being playful with each other is a treat.
The Constitution is pretty much only as strong as the institutions that interpret and enforce it. It's all sort of a collective hallucination that the Constitution has any power in and of itself. "Godelian" defects seem a lot less dangerous to me than plain-old human factors.
The UK manages to be a Parliamentary democracy without having a single coherent constitution at all, let alone one free of logical defects- so having a perfectly consistent and "loophole-free" constitution doesn't seem particularly important in practice.
The easiest way to wholly undermine the US Constitution is to just expand the Supreme Court bench and then pack it with your cronies, who will then let you do whatever you want and call it constitutional. No amendment needed!
Sometimes I think there's just as much, if not more, leeway in interpreting the "God Document" that is the constitution, than in not having one and relying on what is essentially "prior art".
Plus the point of our system is to allow both good and bad ideas to be discussed openly so everyone can decide their merits. We haven't seen the likes of Trump since Nixon, and he won't be the last, but we are stronger for giving him room to speak. The bad ideas will hang themselves, even if he becomes president. The US president is not all powerful. There are many limits in place.
I feel like we're more immunized against religious flavors of crazy. Like, Cruz is probably further from mentally balanced than Trump even, but if he became president he probably wouldn't cause the same level of trouble.
Trump's ideas are "new" in that he does say them first. They appeal to many because we all know the old ideas aren't great, from painful experience. Trump's brand of crazy hasn't hurt us in a long time so we don't see it.
As an example: Bush senior said he didn't even think atheists could be considered citizens. But there's 0% chance that he'd try to enact that, or that it'd pass. Trump's ideas have the veneer of "business decisions" and seem more likely to get enacted.
> Trump's ideas have the veneer of "business decisions" and seem more likely to get enacted.
All the more reason to start being active in discussions about his ideas.
The most compelling for me is he is okay with arming Japan with nuclear weapons.
Trump claims China is tipping the balance of power by building tiny islands in the South China Sea. These are relatively close to China and far from the US. He claims this could kick off WW 3 if not properly off set by adding something to the other side of the scale. He says he'd be okay with arming multiple new nation states, including South Korea and Japan, to balance things again.
But arming new nation states with nuclear weapons would severely throw things out of balance. It'd take years for these countries to ramp up the skills necessary to handle nuclear weapons. And during this time, China could build a decent PR campaign in their country encouraging citizens to come together to fight Japan. Japan has still not apologized for all the atrocities they committed in China during WW II, and some Chinese people do not like that. Pour some gasoline on that small fire and it could spread.
Knowing China's feelings towards Japan after WW II, China's population would certainly not accept Japan having nukes. They might come together to fight a war. Even though China is not a democracy, they still need their people to unify around a common cause in order to choose war over revolution.
I doubt many of Trump's supporters would agree that giving Japan nukes is a good idea. They're the one country we used nukes against. So, it's a good point to bring up with potential Trump voters. I'd like to see that idea of his get more attention so people can see just how impractical he is. Giving SK and Japan nukes isn't just a matter of the US President signing a piece of paper. There are international treaties, diverse governments and populations in place, and as far as I know, Trump has not been to any of those places.
One of the problems that many people have with what the federal government has done in the course of the 20th and 21st centuries is how they have completely ignored the 10th Amendment. I am not sure that the Constitution is an effective protection for civil liberties (or other rights), and I do not know what recourse the citizenry has when the government does ot abide by its own rules.
It's not that the federal government has ignored the 10th amendment, it's that it doesn't really mean anything.
Here is the text:
> The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
So take something like the ACA individual mandate. Does that violate the 10th amendment? Well, it was held to not be a valid exercise of the commerce clause power. But it was held to be a valid exercise of the taxing power. So it cannot violate the 10th amendment, because the taxing power is one of the ones "delegated to the United States by the Constitution." Say the Supreme Court had held it wasn't valid under the taxing power either. Would it violate the 10th amendment? Technically, but the Supreme Court wouldn't invoke the 10th amendment to strike it down, because a law not supported by one of the enumerated powers is invalid anyway.
The 10th amendment, by it's very language, cannot serve as any sort of independent check. If government action passes muster under one of the enumerated powers, it is by definition "delegated to the United States by the Constitution" and cannot violate the 10th amendment. If it doesn't, it's invalid by reason of not being within the government's enumerated powers--no 10th amendment necessary.
The problem is that the Federal Government has effectively nullified the tenth amendment, because I can't think of anything reserved to the states anymore, except perhaps the police power, though I'm not sure the police power has any meaning left, as every specific action by Congress or the Executive seems to be justifiable. I have never Verrilli say that the government lacked any power it desired, though some of the members of the Supreme Court seem to think the Federal Government only gets those powers after a balancing test (which the Government wins if it is not being overtly capricious).
If you read the enumerated powers broadly enough, you are correct, but I find the 'generosity' of these interpretations to be quite disturbing. Commerce within the states is inter-state commerce, the Federal Government has a compelling governmental interest in your treatment of your neighbors, and whatever you produce or consume in your home affects the Federal Government's compelling interest in a regulatory scheme; everything not otherwise explicitly prohibited is fair game. Even the rights explicitly protected in the Constitution are subject to different levels of scrutiny, (i.e. rational, strict, etc. depending on how much the Judicial branch cares,) even when there was no provision for the Government ever violating them.
You still have the right to speak up about it in any manner that is not violent. You can say Obama sucks or should resign. That's a right many people in the world do not have. Your voice and vote are more powerful than you think, even when things seem to be going against what you believe in. You can still find a glimmer of hope, like how Lindsey Graham changed his mind in the Apple case.
If a well-funded superpac would systematically and indefinitely try every legal exploit to re-enact slavery you'd be grinning each attempt because "democracy"? ....
The idea that our form of government allows us the freedom to resist predatory laws is inspiring, the necessity to fight that fight... over and over again... is the best representation that true freedom is delicate.
To protect that freedom we need to hold critical thinking above all else to guard ourselves against the faux intellectualism of statements like yours.
I don't think the parent comment is "grinning," just reiterating the unfortunate reality. Democracy doesn't inherently produce morally laudable outcomes; it just reflects the will of the majority.
If everyone in the US strongly valued privacy, then our government would have to behave very differently. The US government's lack of respect for personal privacy merely reflects the apathy towards the issue held by the American voting public.
I agree with the parent, that if we want progress, there is no easy path. The only long term solution is to educate the voting public as to the value of privacy. Anything else is just a band-aid.
I really fail to see what that has to do with living in a democracy.
No matter which system of government, rules (in the broadest sense) can always change. Democracy is just the attempt to better align those rules with the interests of the people (in the broadest sense).
As long as the FBI keeps within the rules they can obviously try again. And that’s got very little to do with democracy and much more with the rule of law which is really central here.
Everyone – even and especially the government – has to adhere to the law, but there are mechanisms to act within the law or to settle questions or even to change the law, all through some sort of proper and defined process. That’s just what the rule of law is.
However, within the system of rule of law (and the particular implementation of that system in the US) there are certainly ways for questions to be more or less settled. Things that are easy to change (e.g. executive orders) and things that are hard to change (e.g. constitutional amendments). There are graduations to this – and graduations that exist on purpose.
Behind that is also the realization that quickly changing things – while sometimes necessary – is not really always desirable. So there is a certain sluggishness built right into the system on purpose. And achieving constitutional amendment levels of sluggishness is actually pretty hard to overcome in the US. It’s hard to get an amendment, it’s hard to remove it. Quite on purpose. It’s for settling questions for years.
(All of this is not to say that some states don’t try to have some core values enshrined for all eternity. The German constitution has such an article that explicitly forbids amendments of two other articles. No amendment can change that Germany is a democratic and social federal state, that there are elections and three branches of government, that there is rule of law, that every German has the right to resist against anyone attempting to remove that order, that human dignity is inviolable, that human rights are the basis of any human society and that the basic rights defined in the constitution bind as law all three branches of the government. Even if you agree that there is really no way to amend this in any way – something which constitutional scholars aren’t super-decided on – there could still be a revolution of some sort that just abolishes the old constitution … things can always change, also in technically illegal ways.)
> ...much better than a world in which government decisions are truly final. Beware that level of power IMO.
That is certainly a valid point in the case of laws that expand a state's authority, but I don't think that is true where explicit restrictions on the state's authority are put in place (ex: bill of rights). I doubt anybody (outside of the Brady Campaign) will ever look over the bill of rights and think that we would have been better off without the explicit restrictions made clear.
I think that your comment, while true in spirit, misrepresents some of the mechanics in play here.
> We could revoke the 13th and 14th Amendments and have slavery again--there is no legal impediment to that.
Of course there is - the constitutional amendment process is designed precisely to be an impediment. Unlike a legal proceeding, where courts can create case law essentially at a whim by legal means alone, the constitutional amendment process is a complex and different political process, requiring quite a few procedural stars to align.
One of the problems is that the courts (and, for that matter, Congress and the POTUS) tend not to abide by the text of the constitution, preferring to usurp the political process with their own legal, legislative, or bureaucratic one, respectively.
> We could abolish the EPA, or the IRS, or the NSA. We don't because these have enough supporters who value what they do, today.
I don't think this is true, but I concede that it's not really measurable. What I mean is: the reason that these methods of control persist is not that they have made a convincing case to the public that their mission is laudable and faithfully executed (environmental protection, accurate and fair taxation, and security for US persons vis a vis international dealings). In fact, it's quite plain to see that all three of these agencies have, from time to time, failed spectacularly at these missions, with some incidents attributable to incompetence and others to misconduct.
Instead, I want to suggest that the reason they persist is that they provide convenient mechanisms for exacting power and that they are controlled by people who desire that capacity.
> The 2nd Amendment remains strong today because millions of Americans work every day to keep it that way.
While I agree with this statement, I think that it is somewhat contrary to your previous one. Here you are talking about the preservation of protections offered by the text of a document, which I agree can only be protected by political vigilance. This is fundamentally different from (and perhaps the opposite of) the assertion by entrenched agencies that they operate by political will.
> So, the long-term solution for strong encryption must be a cultural one. We have to be prepared to fight the crypto wars forever, like unions are still fighting the labor wars a century later. Like civil rights activists are fighting racism even today--and will be for the foreseeable future.
Here's where I start to agree with you. This is beautifully put.
Well, welcome to life in a democracy. Nothing is ever settled with finality because there are plenty of ways for future generations to change the laws we cherish today--for good or ill.
Some thing seem to be permanent. High priority lobbying goals for big corporations. (Examples: Disney & copyright extensions. Corn & corn subsidies. Car dealerships.)
That stuff is not going to change over night, and lobbyists aren't inherently bad. It takes other lobbyists to educate Congress and the public about the flip side of the debate. Tesla is working on that now. If you yourself feel passionately about any issue, nothing is stopping you from launching your own website and campaign. You don't even need to be registered as a non profit. You can say whatever you like. Many countries' populations do not have the wealth and freedom to do what US citizens can do.
nothing is stopping you from launching your own website and campaign
Nothing except the fact that we don't have a multi-billion-dollar interest group paying us to do so ;). I agree with you that things can sometimes be done at the grassroots level, but there is simply no comparison to the tenacity and endurance of influence available to the big players. Any grassroots effort must find a way to surmount that obstacle, not ignore it.
Sure. But collective votes trump money every time. And your voice is part of getting that collective going. It isn't easy. You need to be an active speaker to participate. You need to be good at presenting facts and convincing people. But with the right to free speech, this is something anyone can practice and learn, even computer scientists. As hidden as we liked to stay behind our monitors growing up, it is time we start coming out from under our shells.
True, but to be fair, their power has GREATLY diminished from what it was back in the days of the Robber Barons. It seems like they have a lot of control because we get to see behind the curtain now more than ever, but it's way less horrible now than then.
Remember, at one point, there was an entire plot by businesses to basically take the entire country over, and it was highly supported by members of congress and others.
So yeah. It's gotten better, but it's still way too pervasive.
> We could revoke the 13th and 14th Amendments and have slavery again
No. You can't roll back a human right. If you did it wouldn't be a valid law and people would be justified in armed resistance to it.
> We could abolish the EPA, or the IRS, or the NSA. We don't because these have enough supporters who value what they do, today.
Well, in the case of the NSA it's more because we suspect they'd commit treason and bring down the country if we tried.
(ie, pull out an old tape of Obama and frame him with something, etc.)
> Well, welcome to life in a democracy. Nothing is ever settled with finality because there are plenty of ways for future generations to change the laws we cherish today--for good or ill.
Yes, things can always be screwed up. But it should be illegal for a government worker (ie FBI) to specifically try to undermine existing decisions by, for instance, lying in court, or paying for propaganda they know to be untrue. Both things we know they do.
I feel like cases shouldn't be droppable unless both parties mutually agree, and the courts also must first agree.the courts should not agree if it's a case that could set a precedent that can have far reaching implications.
What if next time, a smaller player than Apple was caught in this sort of case, and they can't fight back as easily? Then it'd be easier to setup a precedent favourable to one party. This seems like a way to legally manipulate the common laws, and I think courts should put in place measures to prevent such manipulation.
One of the reasons that courts do not allow cases to continue when a party loses interest in the dispute (for whatever reason) is that the court can no longer trust that party to continue making a forceful case. You can end up with situations where the party refuses to spend money on making good arguments and finding evidence, then make very bad precedent because of it.
That's actually a good point, setting precedent by one side not being represented properly.
Thinking further, one company could easily setup another and sue it for one thing or another. The set-up company presents a believable but purposefully flawed case and voilà: legal precedent.
Some have made the argument that certain government agencies are participating in this sort of sham arrangement, under the guise of 'consent decrees' where an interest group sues an agency, and 'forces' the agency to assume a new (or expanded) power. This is a contentious issue (as you might have imagined).
This could happen in our current system. For example, if the DoJ in Apple had a side agreement that Apple would lose the encryption case. Obviously that's not what happened, but your conspiracy scenario isn't any more likely if courts forced a case to continue.
That seems like a massive failing of our legal system when one party "refusing to spend money on making good arguments and finding evidence" can lead to bad legal precedents. Money should be irrelevant to it, especially because most parties can't afford to spend that money. But back in reality, you're absolutely right :(
Yes, absolutely - and another reason is that it forms a sort of "de facto precedent". Even though there isn't a USSC judgment, in future people will (hopefully) refer to "the time the DoJ tried to do X" and the theory is this is citation enough.
Speeding can be civil or criminal based on the speed in relation to the posted limits or other parameters...
Example Arizona
Most cases of minor speeding are civil speeding violations.
However, criminal speeding tickets can be issued in these common cases:
When a driver exceeds 85 mph anywhere in the state
When a driver exceeds 35 mph while near a school crossing
When a driver exceeds a posted speed limit by 20 mph in a business or residential area
When a driver exceeds 45 mph when no speed is posted in a business or residential area
Big companies can still buy little companies to take on their lawsuits, or they can provide funding & resources to fight a legal battle as part of an investment.
I suspect that Google bought YouTube in part to avoid precisely this situation. If Viacom had won their lawsuit against YouTube, it would have endangered Google's core business: they would become liable not just for copyrighted material that they know about, but any copyrighted material on their servers, which encompasses the whole web. So they pay $1.6B for a tiny startup and a big lawsuit, and then use their full legal resources to fight (and eventually win) the lawsuit.
(There is possibly an interesting get-rich-quick hack in there: do something in a legal grey area that lots of big companies are doing too, as part of their core business, and then get sued. It is then in the big company's interest to acquire you and fight your legal battles, lest they get put out of business by an unfavorable precedent. You're playing with fire in this case, though, since if the big company doesn't come to your aid you have a multi-hundred-billion dollar lawsuit hanging over you.)
Also, big companies won't necessarily be your ally in this case either. Instead of being sued, large companies may be able to come to an agreement with the plaintiff where they pay some fee to continue doing what they are doing. The size of this fee or the risk of a lawsuit may be enough to discourage small startups from entering a market while just being another cost of business for the established large players. This could hurt competition in the long run as well as allowing the status quo, which perhaps should be challenged, to persist.
If you force parties to fight cases that are moot, cases where both parties' interests aren't affected, then you're deciding cases based on arguments from people who don't care about winning. That's sort of antithetical to the adversarial system, where a basic premise is that the best way to make a decision is to hear parties on each side of the issue.
If a similar case occurs, then 3rd parties (Apple, ACLU, etc) may be able to submit amicus briefs to help the defendant. Apple might also be able to intervene and become an actual party in the case, if it can convince the court that the case's outcome will harm its interests (see Rule 24 of Federal Rules of Civil Procedure).
I feel like cases shouldn't be droppable unless both parties mutually agree
So if you made a bad decision to enter into litigation with someone, you're held to the consequences of that even after you've changed your mind? Unworkable in practice, and even in theory it's bad because you might wind up setting a precedent for someone whose case was similar to but better founded than yours.
> I feel like cases shouldn't be droppable unless both parties mutually agree, and the courts also must first agree.the courts should not agree if it's a case that could set a precedent that can have far reaching implications.
But what if both parties mutually agree, but the courts don't agree? Then we get a precedent set where one side doesn't see any reason to bother to try to win. That's a horrible way to set precedent. And that's how horrible precedents get set.
The All Writs Act basically demands that the FBI drop the court order if they can find another route to achieve the goals of the writ. By many reports, the FBI was no happier than Apple about the case being dropped.
I would treat this claim with a great deal of skepticism. However, this is by far the smartest play for the government. Had they gone to court and lost (probably after an appeal), they would have set a precedent that would be very problematic for them going forward. By claiming this, falsely or otherwise, they hurt Apple's security reputation (most consumers will not understand or care that this happens to be an old iPhone with an old version of iOS - they will just hear or read that an iPhone was cracked), and they avoided a potentially problematic legal outcome.
The DOJ came out on top here, whether they are lying or not.
The hearing was before a federal magistrate judge and was largely administrative. Binding precedent wouldn't have been set until the case hit a higher court on appeal (which would have been inevitable regardless of who won as both sides had significant incentives for appeal). The DOJ could have dropped the case at any point before then to avoid an undesirable precedent. Until that point, a negative ruling wouldn't have been an insurmountable problem even if other, similar cases were brought. At worst, it could be pointed to as a point of persuasive authority ("here's what another judge did, your honor - doesn't that sound grand?"), but that's not binding. A lot of coverage and discussion confused an eventual precedent with the magistrate hearing.
The most likely reason for dropping the case would have had nothing to do about precedent and everything to do with the fact that they couldn't proceed without lying to the court. The entire basis for the case was that the government had no other choice but to compel Apple to build "GovOS." The moment they became aware of the existence of an alternative method, they had a duty to update their brief and inform the court. And at that point, with the entire basis for their case effectively gone, they were pretty much out of options.
From the FBI's perspective, that was rather unfortunate. They probably figured this was the perfect case to pursue to try and gain the sort of precedent they wanted (an instance of Islamic terrorism on American soil? It checks all of the boxes for manipulating the public into supporting the FBI). Most likely, they never expected Apple to fight back for fear of the PR consequences of impeding a terror investigation. Minor miscalculation, that.
>a negative ruling wouldn't have been an insurmountable problem
It was setting them up for a precedent-setting legal decision in a higher court that may very well have not gone the government's way.
>they couldn't proceed without lying to the court
You're assuming that this mysterious third party that showed up the day before the initial hearing with a method to crack the phone actually exists, and that this method was successful. That is certainly a possibility, but it is also possible that they never intended to see this through and hoped that they could intimidate Apple into doing exactly what they wanted.
There were rumblings about a company that could do this weeks ago. Snowden brought up it was possible, and likely even hit upon the method.
I think the "mysterious third party" absolutely exists. I just think that the plan all along was to compel apple to do this, and then fall back on this if Apple pushed.
As to the possible lying, English isn't my native tongue, but I found the use of the phrase "without compromising any information on the phone" in this statement:
“Our decision to conclude the litigation was based solely on the fact that, with the recent assistance of a third party, we are now able to unlock that iPhone without compromising any information on the phone,” Eileen Decker, the U.S. attorney in Los Angeles, said in a statement.
at least curious. Googling "no data was compromised" gives me only links that use that in the meaning "third parties did not get access to the data".
So, if that really is what Eileen Decker said, what exactly did she mean?
No, it just means they could unlock the phone without triggering an auto-wipe after 10 incorrect entries. Keep in mind I don't think any way to know if auto-wipe is even enabled on a locked phone... For all we know, they finally tried entering the PIN '1234', and the phone unlocked.
If you did a complete wipe and reset of the phone, you could unlock it but the data would all be gone. Obviously that's not a very useful outcome for them, but it's still "unlocking" the phone.
Maybe, but they didn't actually accomplish any of their real goals—making it easy to force Apple to break their security. This particular phone is immaterial, and Apple can always talk big later about how they patched any of the security holes that the government used, to recover face.
>Maybe, but they didn't actually accomplish any of their real goals—making it easy to force Apple to break their security
Unless one of their real goals was to get the conversation going about creating new laws that would make uncrackable products illegal, without actually testing the limits of existing laws. Because that is what they achieved.
> This particular phone is immaterial, and Apple can always talk big later about how they patched any of the security holes that the government used, to recover face.
That is a nuanced understanding of this issue that most consumers simply do not and will not have. Most will hear nothing other than "the feds can now crack iPhones" and will assume that government will be able to beat any future improvements too.
> Unless one of their real goals was to get the conversation going [...] Because that is what they achieved.
I suppose, but the conversation definitely wasn't moving in their direction. More like they beat a hasty retreat.
> Most will hear nothing other than "the feds can now crack iPhones"
I assume that most people already believe that they can crack iPhones. And it's not like they came out of this process looking good; they created a huge media circus about how they needed Apple to unlock the phone, beating their chests, only to come back with "uh... well, I guess we didn't need to do any of this at all".
There seems to be much more to this beyond the actual capabilty and it doesn't seem the spin 'apple fighting for our rights' which mainstream media loves is the most likely, so I wpuldn't say FBI hasn't accomplished its goal - especially if it was to cast doubt on Apple security, as they're now basically advertised they can do it no matter what. Unless FBI agreed to previous apple request and they did it togheter under cover.
On the other hand, many smaller companies could not have afforded to take this dispute as far as Apple did, so the FBI proved they were willing and able to cause significant final injury to anyone trying to protect their users' privacy. One could look at this case as proof of the ability for the FBI to extort information and cooperation.
>>they hurt Apple's security reputation (most consumers will not understand or care that this happens to be an old iPhone with an old version of iOS - they will just hear or read that an iPhone was cracked)
And? What makes you think most consumers will care that the government cracked an iPhone?
Exactly. At _best_ most people will just say "well, it's the government, _of course_ they can crack it". If it was some 15 year old kid in his bedroom, then that's a different matter...
It stinks that the case ended like this — without setting a sensible precedent — but I think there is still some upside:
FBI director Comey's "Going Dark" narrative no longer holds water with anyone who's paying attention. He cried wolf so loud he's been heard on every continent. If and when he tries this again, he'll get a ton more blowback.
Similarly, Obama's jibes about security "absolutism" now appear ridiculous. As are his criticism of impenetrable black boxes protecting child molesters. What he really wants is for the Emmental-like extensions of our brains to have even more holes. That's an obviously un-winnable argument.
Also, the bar for proving you've tried all possible alternatives for gaining access just got a lot higher in applying the All Writs Act. It took three months plus a month of major international news stories specifically about this court case to gain entry — something that might really be impossible to achieve next time. But now everyone knows when they swore under oath many times in multiple public venues that they couldn't gain access, what they really meant was "not yet" and not "it's impossible".
Finally, Apple should now be motivated to remove themselves as the weak link in their security ecosystem. System updates shouldn't be possible without first wiping the information needed to derive the encryption key or first supplying that key. I can also dream about them open sourcing their code to allow security researchers to bug hunt (an impossible dream). And maybe they'll change their minds on bug bounties. Whatever happens, it's now beyond doubt that foreign entities are exploiting vulnerabilities in the iPhone and we all expect Apple to beef up their security accordingly — regardless of how this may hinder law enforcement.
You could say they dropped it because they accessed the phone.
You might also say they dropped it because going to court and losing would greatly narrow the scope of the All Writs act. Then the "maybe illegal" spying coersion becomes "actually illegal"
To which it would be reasonable to ask, "so why did you hold this whole case in public, against Apple's wishes, if it is now so secret you can't even comment on it?"
To which they will reply, "we would not have commented on what we found on the device if Apple had been compelled to help us break in to it, and we will not be commenting on what found on the device now"
Holding the case in public, and publishing the contents of the phone in public are very different things
> Holding the case in public, and publishing the contents of the phone in public are very different things
And saying they "can't comment" as the GP suggested is different to publishing contents of the phone. They could easily comment on whether they found anything or not, whether it had any importance to the case, the nature of what they might have found without revealing specifics.
If they do simply say they "can't comment" then we will know they are lying, because because they already did comment, quite voluntarily: they just held a whole court case in public about it which revealed all kinds of gory details. A court case which Apple asked to seal and the FBI said "no, we want this to be public".
That's why you should ignore the media reports on any legal case and read the actual court filings, or at least follow coverage written for lawyers instead of the general public, which has little interest in learning anything about how public institutions actually function.
Farook and wife smashed their personal phones yet left his work iphone untouched.
Investigators seized Farook’s work iPhone from a black Lexus IS300 parked
outside his residence in Redlands, which authorities obtained a warrant to
search, and two personal mobile phones were found smashed and discarded in a
dumpster behind the residence, court records show.
It'll be easy enough to infer which it is later because if they have actually got data out of the phone then they'll amend the complaint against the co-conspirator(s) with the newly available information.
It was always known that the 5c, which is the device the FBI accessed, was less secure because it does not contain a Secure Enclave like later iPhones.
Is there anything state actors can't break into? There will always be vulnerabilities to fix. Apple's and other companies' hope is not to fall too many steps behind the state actors.
Snowden had the element of surprise. They weren't actively trying to monitor his comms because they didn't know he was a risk until after the leaks. If the state wants to decrypt your messages badly enough, they have resources that they can devote to that (as well as multiple side channels that are probably easier than forcibly decrypting, including the infamous "beat with a wrench" trick). It's not trivial to defeat strong encryption, but it is doable given sufficient interest.
Is there any evidence that any actor in the world is (in general) capable of figuring out the contents of e.g. an AES-encrypted message with the key unknown, assuming good opsec and a good implementation? I agree with your statement that state-level actors have strong capabilities, but this seems like a blanket statement which is likely untrue.
I know it's not worth anything, but I used to work with an ex-NSA cryptographer (whom I personally knew in meatspace and yes, actually had worked at the NSA) who claimed that they could create purpose-built machines to factor out keys and read the contents of encrypted messages. The target would have to be high-value as this was a costly exercise. He may have been yanking our chain, but for what it's worth, that's what he would claim. He didn't specify which individual ciphers this applied to.
However, there are so many ways to circumvent encryption that it seems that there aren't a lot of cases where a hard decryption of a previously-coded message would really be required (the target can often be compelled or tricked into giving up his keys, a plaintext version may be intercepted at some point, etc.).
Almost certainly not. Most likely no one in the world has that capability, at least as far as I can tell. It would be extremely surprising if any government somehow broke AES without researchers around the world figuring it out within the same general time-frame given some new advancement.
No, and I doubt that this capability would be revealed for something at the level of San Bernardino, or anything short of "ISIS is going to do a WMD attack against Manhattan".
> It's not trivial to defeat strong encryption, but it is doable given sufficient interest.
That is as wrong as saying that, given enough effort, you can make 1 + 1 = 3. Cryptography deals with unimaginably large numbers, to the point that for some algorithms and keylengths an exhaustive bruteforce attack would require more energy than exists in the universe.
You don't do brute force. And any information you already know about the message can theoretically help you decipher it. In fact, there is no such thing as unbreakable encryption, even if you disallow brute force methods.
One time pad using a TRNG - impossible to break, even in the case of chosen plaintext attacks. Now you could argue that having a key as long as the plaintext is impractical, but if that is your concern then let me direct your attention back to my original point. There is a big difference between what is mathematically possible and what is possible within the constraints of thermodynamics.
That isn't an attack on the encryption, which is a very important distinction to make. But I'm curious what exactly you have in mind - we are repeatedly performing the same xor instruction, so power analysis won't work, and there is no branching, so timing wouldn't work either.
So in the last week, a lot of media reports around the Brussels attacks have focused on how, in the immediate aftermath of the arrest of an alleged Paris conspirator, the Belgian authorities were premature in announcing that they were learning information about his co-conspirators, which caused those people to bring forward their attack plans.
Now, the FBI has just announced to the world that any information locked up in the San Bernardino iPhone is now in their hands. Presumably any co-conspirators who thought their contact details might be in that phone are now aware of that.
Now, on the other hand, for the past month or so, the FBI has on the contrary been doing a very good job of informing the world, with to some extent Apple's help, that they did not have access to the information in that phone. That may have served to reassure those same conspirators that the FBI was not onto them.. When perhaps they had actually cracked the phone some time ago, and were in fact in the process of employing that intelligence.
Too charitable to suspect the FBI of having pulled that off?
AFAIK didn't the San Bernadino person not use their work phone for this? The iPhone the FBI wanted into was their work phone, already Government-controlled. Not their burner phone, which was destroyed.
As far as you know. Now consider that the FBI statements about what evidence they gathered from San Bernardino (evidence which is largely not part of a criminal prosecution so not subject to defense discovery) as part of a vector of information which the FBI might choose to manipulate to better enable their ability to exploit the intelligence they have. So what do you really know about work phones and burner phones?
I wish Apple would be able to recoup their legal costs from the DoJ -- the government shouldn't be allowed to force a company to spend money on defending their rights (using our "unlimited" tax dollars to do so), only to drop the case at the last minute making the entire case moot.
Apple should be able to recover their legal costs.
Somewhat agree, but Apple DID have a court order they were fighting. They did choose to fight this legally adjudicated and issued order. The owner of the phone and the law enforcement both wanted the phone decrypted.
FWIW, I agree that privacy is ignored and should be respected, but apple chose this fight. I'm glad they did, but they knew it would cost them.
If the DoJ ultimately won the case, then it's fair that Apple should have to pay their legal costs.
But since using a 200 year old law to force Apple to do work they don't want to do was a legal stretch, if the DoJ lost the case then again I'd say the DoJ should pay Apple's legal costs.
Yes. The same week that the fourth amendment -- which is what provides us with strong protection against unreasonable search and seizure -- was approved by Congress.
Or do you refer to that as a stale 200 year old law, too?
> They did choose to fight this legally adjudicated and issued order.
IIRC, but wasn't the order issued with only one side present at court (i.e. without Apple's attorneys being present to raise issues before it was issued)?
While I agree, the counterargument will likely be that all of Apple's lawyers are on salary and as such Apple's legal costs would be no different with or without the court proceedings.
That's kind of like saying that all of Apple's engineers are on salary, so even it it takes a team of 100 engineers 6 months to write the software the DoJ asked for, there's really no cost to Apple.
Businesses don't often pay employees to do nothing, that legal team would be doing other corporate legal work if they weren't working on this case, and I'm sure they paid outside consultants to help with the case.
That is a fair point. I will reiterate that I agreed with the original poster and was positing what the counterargument presented from the courts/3 letter agencies would be.
We'll never see that counterargument regarding the cost of engineering FBiOS, since the case was withdrawn.
[Edit: we'll never see it because I believe that the FBI will not likely go after Apple again, specifically because they put up a much more forceful fight against it than the FBI ever thought they would. Admittedly I'm speculating, but I don't think I'm being unreasonable]
I don't think this is a question particularly about Apple, but more so around the system. If it were another entity without the same financial backing how would they be able to handle it?
Who wants to take bets on how? My bet is they copied the flash, and are iterating passcode guesses until it slows down too much (or implodes, however it's configured) and then they reflash and iterate again. And it was only a 4 digit passcode, so it was pretty easy to do this.
The next bet is whether they find anything relevant? My bet is no. Next bet after that is whether they admit it? My bet is they won't.
But the more important one is if they tell Apple or open a CVE for the exploit they used if it's not a flash and guess technique they used? Is it ethical for FBI to sit on an exploit?
Yea I'm wondering the same thing. They should be bound by a public records request as the methods aren't related to national security (once the investigation has been deemed closed). Also, they should be required to disclose the amount of taxpayer money used for this workaround...
> My bet is they copied the flash, and are iterating passcode guesses
Sounds reasonable. No trivial task I bet, but with the world's attention on the case a lot of kids would be having a crack at the trendiest break-in job going right now.
The guys who cracked the iPhone probably earned the equivalent of signing a record label deal. At the very least, the FBI liked and subscribed.
The person in question had an iPhone 5C, which is very similar internally to an iPhone 5, and it doesn't have the Secure Enclave because it lacks Touch ID. The 5's successor, iPhone 5S, has it, I think.
This is possibly the worst outcome. The tide of public opinion was turning towards Apple and privacy, and away from the FBI; for it to enter the court under this pretence there was a strong argument to be made against the latter. With this announcement, for the many, this matter will now be "resolved". When it inevitably rears its ugly head again, the same pretence may no longer be true.
I think I know what you mean but don't forget there is a specific and horrible case here too. Many people died and now the FBI has access to the phone. I don't know what the odds are that they will find anything useful in way of easing the pain of the victims or preventing an occurrence, but certainly it seems highly plausible. And at the very least a lot of resources going into this part of the investigation can now be used elsewhere. They were able to access the phone and (hopefully) it required some expensive physical+software breaks, which seems to be a reasonable compromise in the privacy vs security debate.
Odds may be slim of there being anything newsworthy on the phone but do you think that it wouldn't be of value to the investigative team, who probably has to chase down hundreds of leads, contacts, and so forth? Unless the phone was wiped, I would be 99% confident that the team doing the actual investigation will get immense value from this phone, even if it's just tying up many loose ends.
They already had the 6-week-old iCloud backup from the device. Don't forget as well that this was a work phone, the personal phone was destroyed, which suggests there's nothing of interest on the work phone (presumably just info related to work).
There are a huge number of side effects that would have to be dealt with, but this case has made me think that Apple should have the option to say, "changed your mind? Nooo, that ship (which you, the FBI, built and christened) has sailed, buddy, and you're on board. This is going before a judge, like it or not, and we're doing it now."
Except that's not how courts work. Apple is the defendant, the government is the plaintiff. The plaintiff should always have the right to end a case/action. Allowing defendant's to continue cases allows for highly malicious actions to occur.
More malicious than being forced to defend yourself, at significant cost, only to say "Nah, changed our mind"? So, plaintiffs can force issues, defendants cannot. And to let them would be malicious?
Give a specific example of something the defense could do that is malicious to the plaintiff?
Did I not say that there were side effects? :-) I realize this has problems, and I'm not the one to be providing solutions. However, "nuisance lawsuits" are a thing, and this case is probably the poster child. Only instead of "pay me and I'll go away", it's "we'll keep trying until we feel the tide of public opinion turns against us, then we'll pull out and try again...repeatedly." I don't know, just doesn't seem like the way things should work. You either have a case or not, public opinion be damned.
So fine, defendant doesn't get to push continuing the case. Then how about FBI doesn't get to try again? Of course, problem there is that the next will be ensured to be just different enough to not fall under whatever regulation or law is set up to deal with such a thing.
The reality is that the FBI accessed it, so they no longer required Apple's help.
"The Justice Department said Monday it has accessed data on the iPhone used by a shooter in last year's San Bernardino, California, attacks and no longer needs Apple's help in cracking it."
Apparently a 3rd party from Israel (http://www.cellebrite.com/) helped the FBI which begs the question, how did they do it? Do they have universal access to all iOS devices or just this particular device? This really makes me start to think there is a backdoor.
I think they (apple) might send a specially prepared iPhone undercover with some verbose logging enabled and ask to have it cracked by such a company, and try to locate the breach.
The FBIs motives have always been nakedly transparent in this case. They had no interest in the specific phone, they wanted to use it as a wedge issue to force a precedent. Once they figured out this avenue was a bust, they withdrew to find a different angle. Since everything is classified anyway, it's irrelevant if they actually cracked the phone or not but if they did, it was probably by buying an exploit from the NSA TAO store [1].
So what happens to the other 200+ iphones that law enforcement needed opened?
It seems like there are at least certain iphones that can be opened using this method and similar hardware based approaches. Are the feds going to move forward with that? It seems like accessing this particular phone wasn't trivial or cheap. So I'd imagine that it will come down to whether or not it's "worth" the cost of flashing individual chips for each of the other devices.
And what happens if there is potentially exonerating evidence on one of those phones? Does the defense team have to come up with the money to pay for a lab or outside company to open the phone? And also, is an encrypted phone going to be the new 'dna evidence'? Like, will a brand new iphone that's linked to a major crime be held away for years until the security community can hack it, potentially setting people free or sending them to jail?
Sorry for all the interrogatives. Even though this particular case has been settled, there are still a lot of questions surrounding default device level encryption.
Am I thinking right when it seems to me like the feds are kicking the can down the road?
Even though the feds found an exploit that allows 'em to decrypt the current iOS, Apple's response is undoubtedly gonna be much-improved security in the next version.
So in a few years when the feds demand that an iOS 10.x device be decrypted, this whole pageant will start over again.
OK. But what does it say about the scant majority of the country that at least tacitly (through polls) supported the FBI in this?
I think this whole thing is every bit as much a trial balloon to see how the public accepts the various arguments. And I think that's still unclear. The polls suggest a scant majority supported the FBI, but not enough to get Congress to change the law make it clear companies can be rolled over by the government.
Yes. AAPL has averred to the judge that they in fact accessed the phone. I was skeptical over the last 72 hrs whether that was a ruse or not. I now think it is not.
"The government has now successfully accessed the data stored on Farook's iPhone and therefore no longer requires the assistance from Apple Inc. mandated by Court's Order Compelling Apple Inc. to Assist Agents in Search dated February 16, 2016."
The government also gets to use the same logic regarding the power of the court to compel at some time in the future, when this assuredly comes up again.
So, the US DOJ has in hand an exploit which allows them to access protected data on an iPhone, access that Apple and the phone's designers clearly did not intend to be allowed. Ethical behavior would have the US DOJ describe the exploit to Apple immediately so that the flaw in the system can be repaired. Publishing the exploit in publicly available documents would speed Apple's efforts to repair the fault.
Who wants to be there was absolutely nothing on the phone of value for the intelligence community? It's like the Reddit "what's in the safe" threads.
I just wonder what methods they used, I think it'd be pretty interesting to learn just the general strategy, as I assume they would never tell how exactly they did it.
Was I the only one who assumed the DOJ could unlock the phone for a while now, but instead chose to legally force Apple to do it to set a precedence? This news almost seems like a win for Apple; if there was a good chance that the DOJ would have won the case, they probably would have pursued it till the end.
I promise I don't wear a tin foil hat, but it would be great if they proved that they did access it. The cynic in me wonders if they're tapping out because they didn't want to lose in court and set a precedent they don't like.
The case is droppable because it lacks public support. That was clear a month ago. It's an impossible scenario - requiring an engineering effort from a consumer focused company. If Apple wanted to comply, it would have been extraordinarily costly.
What's good about the case is that it brought forth a discussion about privacy. This case coupled with the Clinton email scandal should move a few ideas forward developing solutions that wouldn't otherwise have been profitable ventures. Where Lavabit had a very niche market a few years ago, companies thinking along those lines will have success moving forward.
Nope. The government does not have to disclose investigative techniques. If Apple wanted to help the government, they could have, but they chose not to take that tact. Expecting the government to help Apple now is folly.
Why would the company used have any responsbility? Remember, the phone is owned by San Bernadino county. They wanted it cracked. The holder was the San Bernadino Sherrifs', they want it cracked. The FBI wants it cracked. The judge issued a warrant covering the data on it, and then the all writs act compelling companies to assist if they can.
Apple could not.
Cellebrite could.
I get what you're saying, but this is having your cake and eating it too. Apple chose not to assist. The FBI found someone who could. Why would that company then have to disclose to, basically, a third party (even a third party inventor of the phone) their standard work product and trade secrets?
This doesn't really mean anything. The question is: Does Apple have the right to make an uncrackable phone? We have no resolution on that issue: Only the knowledge that the iPhone 5s is not such a phone.
Hmmm, well, what metaphysical Right does the action of creating such a phone fall under, philosophically speaking?
Which broader Right is this specific activity a representation of?
What does the act of fabricating a secret keeper mean, and does a company gain rights, or are the rights of some set of individuals collectively conferred upon the company by default?
Would making a different object, such as a gun, alter said rights? Pretty sure the constitution says Apple can proceed without interference, but these are questions worth contemplating.
This is a legally naive question, but how does this not run afoul of the Computer Fraud and Abuse Act?
Particularly, how isn't this some violation of section a2 ("intentionally accesses a computer without authorization or exceeds authorized access," the same thing that got Aaron Swartz indicted)? Is it basically, since the feds had a warrant, they can do whatever they want? (And if they don't have a warrant, is it still legal?)
The phone belonged to San Bernardino County, which was quite happy to have the FBI get to work on it. Syed Farook had been authorized to use the phone, but only under the county's terms. If it had been Farook's phone, and if his surviving relatives asserted some claim, that might have made matters a little trickier.
But in this case, Farook is dead. He never owned the phone. The organization that did own the phone wants the FBI to crack it, for easily understandable reasons. On ownership, at least, the facts are unusually friendly to the FBI.
There are really a few sub-questions: Is it legal, and are the results admissible as evidence?
Whether or not it's legal depends on the circumstances. There are many cases in which the police can search something, e.g., if they believe it's critical to prevent an immediate threat. Whether or not it's admissible is more thorny, and something that's still being fought out in the courts. (google: warrantless cell phone search admissible)
There are laws against breaking into people's homes, and yet the police still does it daily. IANAL, but I assume a warrant would apply to this case just the same.
From here, what's stopping the FBI from claiming they found X, Y, and Z on the phone, and further claiming they were all important pieces of evidence, that could possibly have prevented the attack, etc., etc., when they really didn't? Then, use that to bolster their arguments against encryption and privacy?
What means will keep them honest about what they did or did not find?
So, the long-term solution for strong encryption must be a cultural one. We have to be prepared to fight the crypto wars forever, like unions are still fighting the labor wars a century later. Like civil rights activists are fighting racism even today--and will be for the foreseeable future.
So true .. and it up to you to continue our peoples struggle. - I've seen this time and time again .. WTC7 was one of those don't believe your eyes. and Now the Gov. lackeys need your info to sell as so-called information brokers to get you special offers. Based on any and all of your actions. ( think supper cookies ) but moved to a mobile platform you! And you if don't want special offers - then you are a terrorist! - and YOU become the focus. Not WTC7 - Waco or that poor man in the US house who forgot he was 2nd admin C&C denied. But did not get a chance to explain - before the cover up started. I support APPLE & Mr. Snowden vs. the FBI/INFORMATION BROKERS on this hope you do as well.
This claim seems dubious at best. There's no proof that they got access, and it's in their best interest to claim they did. On one hand, I'm not totally sure we should assume that they're not capable of gaining access to iPhones willy-nilly. On the other hand, I'm re-evaluating my security posture...
Lying to an indifferent, disagreeable, and dysfunctional legislature is one thing. Lying directly to a federal judge with contempt power is how one ends up in jail before packing up your suitcase and walking out the courtroom.
Well if they got access and there is any data that helps them bring prosecutions (eg against the neighbor who;s charged with helping the alleged terrorists) they'll have to say where that evidence originated.
^ Link includes an image with 7 other cases where Apple has either objected to warrants, 2 that are still in process.
The most interesting one is the last, which involves an iPhone 6+ running iOS 9.1. It's not yet clear whether the zero day that allowed the government to access the San Bernardino phone also works on the iPhone 6, which has a secure enclave (unlike the San Bernardino phone). There are some other iPhone 6 and iPhone 5S devices in the list too running older versions of iOS.
Congratulations Apple and encryption. A precedent has be set. The FBI can't just bully companies into complying with their requests. Hopefully companies in future will have the integrity and courage to stand up like Apple did.
Hard to verify.
Perhaps if the FBI or other law enforcement continue to use the supposed vulnerability - eventually information obtained from a breached iPhone will appear in court as evidence..
While the claim about accessing the iPhone seems difficult to substantiate, the suggestion that the FBI have dropped the case seems likely. The fact that they can drop the case in this instance, when the wheels had started to come off, smacks of having their cake and eating. Let's hope the next case where they try to get the ball rolling towards the dangerous precedent they are looking to set yields a similar outcry as this one.
Meh. If any of this exposes anything, it is that you do not want your secrets to rest in anyone's hands but your own. Apple may/may-not have managed to protect their keys, but there is no guarantee that is the case.
Meanwhile Joe Public comes away with the idea Apple==SafeEncryption.
If this were some new encrypted messaging service we'd all be ripping the shit out of it just on this basis.
Now does this mean that iPhones can be hacked? The government has said that in the vast majority of cases it will disclose security vulnerabilities, though in a small handful it doesn't. It would be good for everyone’s security if they disclosed, but they probably won’t
It means there is a known & exploitable flaw in one security option on one model of phone running one version of an operating system. Given that a government had to hire a computer forensics company to do it, I wouldn't call this a "hack" (a la the difference between a locksmith and a burglar).
Apparently there is a law (enacted under the Obama) requiring the disclosure of the cracking technique, at least to the manufacturer, precisely to facilitate improvements in security.
Does this disclosure requirement apply when the work is contracted to a third party? I have a hard time believing security companies would ever work for the government if doing so required them disclosing the vulnerabilities they use to the manufacturer. If the disclosure is not required of third parties then all such a policy does is incentivizes government agencies to ostensibly farm out such work to compliant security firms. This is how we end up with private firms as extensions of government a la Blackwater. Seems ill advised.
I'm a little worried now about how long it will be before they come back and claim that there was some critical piece of evidence on the phone and start saying how evil Apple is for not wanting to cooperate because what are they, freedom haters?
As much as I dislike its implications, this is the way the case should have gone. Most of us knew the Feds would eventually crack the iPhone - the attempt to deputize Apple in their investigation was a matter of expedience.
Probably copied phone's memory and implemented a way to restore the state of the phone, then brute force try passcodes? I guess that could take only a week if they had only a 4 digit passcode.
Here's what really happened: they made Apple the offer they couldn't refuse, and Apple unlocked it. The rest is just a PR move for naive people to keep thinking their Apple phones are secure.
Is there any avenue for Apple to begin legal action against the US Gov't for hacking the phone, in order to shine a light on the truth of how the phone was "hacked"?
So, finally, the need for the perception that they can accomplish this on their own outweighed the need for the perception that they can compel this of a third party.
I suspect they didn't actually crack it. I think it's likely that they just realized the losing battle they were fighting. It sounded like a lot of public sentiment was against the FBI and they were unlikely to win the case (and it seemed like the information wasn't vital to them anyway) so they just gave an excuse to drop the case.
This has an additional benefit: rather than having the "boundaries" here be defined by a ruling, now in theory they have more time to work in a "gray area".
You may be right; I have not. I had read that most of the big companies like Facebook and Microsoft, at least, were against the FBI on this issue so that is more of what I meant by "public" sentiment, although now thinking about it, that means I've made a much less compelling argument.
I'm sure Apple already knows how they are doing it.
The tech that FBI is claiming to have cracked is the iPhone 5C which does not have the Secure Enclave hardware that all later iPhones do and which are far more of an actual challenge to crack.
Legally none. Ethically? I think it's worth debating what sort of public trust should be granted to government that sits on an exploit.
But it also requires knowing how they did it. I think most likely they copied the flash, started iterating passcodes, and then reflashed the phone everytime they ran out of attempts. That's sufficiently obvious (to me anyway) that it's not much of an exploit worth documenting and also there's no software fix for such a thing. You'd need to put the passcode attempt counter on some separate piece of hardware that either can't be externally read or reflashed.
Woah, wait a minute. By purposely bypassing security restrictions present on the device via some sort of exploit isn't the FBI violating the iPhone terms of use? Could Apple theoretically sue them for doing this (and most importantly, for not sharing _how_ they did this)?
As I understand it, one is not allowed to sue the government unless the government gives you permission first. I don't know if there are any limitations around this other than public opinion.
But I suspect if Apple attempted this, the FBI would just say they're not allowed to sue.
Just a random thought: Isn't it quite an interesting coincidence that they found a way into the iPhone just as people were reporting problems with iOS 9.3?
Well, welcome to life in a democracy. Nothing is ever settled with finality because there are plenty of ways for future generations to change the laws we cherish today--for good or ill.
We could revoke the 13th and 14th Amendments and have slavery again--there is no legal impediment to that. That we don't do that is a reflection of our cultural values--today--which we continually discuss and reinforce.
We could abolish the EPA, or the IRS, or the NSA. We don't because these have enough supporters who value what they do, today. The 2nd Amendment remains strong today because millions of Americans work every day to keep it that way.
So, the long-term solution for strong encryption must be a cultural one. We have to be prepared to fight the crypto wars forever, like unions are still fighting the labor wars a century later. Like civil rights activists are fighting racism even today--and will be for the foreseeable future.
Is that depressing? Not to me; I find it inspiring, much better than a world in which government decisions are truly final. Beware that level of power IMO.