ICMC17: Thomas Jefferson and Apple versus the FBI

Daniel J. Bernstein, University of Illinois at Chicago & Technische Universiteit Eindoven

Gutenberg's original printing press was based on a wine press - who knew? If you think beer or wine is dangerous, you may think the best thing to do is prohibit alcohol. In 1919, the Womens Christian Temperance Union requested that the public library to remove books and pamplets on the home production of alcohol for drinks. the librarians would not destroy the books, but did remove them from public access.

Why do censors try to ban instructions? "It might be bad if people follow these instructions" - stop people from acting on information.   We have freedom of speech, though, so we shouldn't accept this. You can try to hide the information, but they will still find it and figure it out. Censorship adds very little benefit, and often causes massive damage.

There are careful exceptions to free speech in the US- you cannot intentionally solicit criminal activity. You also cannot advocate an imminent lawless action if it's likely to produce such an action: "Let's burn down that mosque" - not protected by free speech.  You also can't make false promises (breach of contract), deceive people for profit (fraud), or make false statements that damage reputation with reckless disregard for the truth (defamation).

What about training videos? Is Ocean's Eleven a training video? What about Tom Clancy's Debt of Honor, 1994 that described something very similar to 9-11 attacks. Some people also don't want to see historical documents and books on things like Kamikaze pilots - what if terrorists act on these examples?  It turns out they will come up with it themselves, even without such inspiration.
So, the court has to look at it from the point of view - are you intentionally aiding and abetting criminal activities?

What if a terrorist stays hidden and alive in the woods by reading a book on "how to fish"? It's clearly not intended to help criminals.  That type of book is protected under free speech.

On software - it's usually (always?) something a human could do/calculate by hand, with time, but we're using the computer to help make it faster. If you hear statements from the government that is talking about restricting computers - remove the word "computer" and see if the same rationale for censoring instructions followed by people?

People are using encryption to protect files and conversations, as the FBI calls it "going dark".  So, should we be allowed to publish encryption software?  Imagine if you remove the computer from this situation

Jefferson and James Madison communicated via 'encrypted' messages, encoded. Thomas Jefferson distributed instructions that James Madison used, by hand, to encrypt private letters. No computer involved here, doing it by hand. What if they  published how to do this in a book? And then a criminal used it, and the FBI comes and says you can't publish this. Is that allowed? If the book is intended to help criminals, the government can censor.

Lawyers will claim that free speech needs a software exception. Imagine sw made to destroy navigational systems on airplanes? What if it was a book that described how to do this? The computer is irrelevant to the question. The courts should look at the intent, just like they do when you present them with a book.

According to the FBI, in 1963, the Domestic Intelligence head thought he was a Russian agent. In 1964 he won the Nobel Peace Prize. In 1964 FBI sent King an anonymous letter encouraging him to commit suicide.  In 1967, NSA also started surveillance on King.

As far back as 1977, the NSA (Joseph Meyer) threatened  organizers of a crypto conference with prosecution under export laws.

For Dan himself, he sent a crypto paper and crypto software to NSA asking them for permission to publish. NSA refused, classifying paper and software as "munitions" and subject to export control.  Though in 1995, the NSA told the courts they were trying to protect America - but papers were okay (free speech) and allowed Dan to publish the paper (but not the software).

Unfortunately for the NSA, Judge Marilyn Hall Patel disagreed with them in 1996, and agreed that software was free speech. It's just language. The court of appeals agreed in 1999.

Now back to modern day - Apple vs FBI - but imagine w/out the computer. Imagine the FBI coming to Jefferson and demand that he write a new anti-encryption instructions and falsely sign those instructions as being legitimate.  Jefferson says that the instructions are too dangerous to create. The US Supreme Court notes that freedom of speech includes "both what to say and what not to say".

Ask yourself - what is the software doing in this picture?  What if we were doing this ourselves? The courts know how to handle that and you should, too.