White House Begins To Realize It May Have Made A Huge Mistake In Going After Apple Over iPhone Encryption

Senator Lindsey Graham Finally Talks To Tech Experts, Switches Side In FBI V. Apple Fight

from the a-road-to-Cupertino-conversion dept

Tue, Mar 15th 2016 9:28am — Tim Cushing

On February 18th, Senator Lindsey Graham had this to say about the FBI v. Apple court battle.

Our nation is at war and this iPhone was used to kill Americans. We need to protect our homeland, not terrorists. To Tim Cook and Apple, cooperate with the FBI.

As surprised as we were to learn it was an iPhone that killed 14 people in San Bernardino, rather than the attackers and the weapons they wielded, Graham had yet another surprise in store for us.

Sen. Lindsey Graham (R-S.C.), who last December called on Silicon Valley to stop selling encrypted devices, expressed serious concern on Wednesday about the precedent the Department of Justice would set if it successfully compels Apple to break iPhone security features.

“I was all with you until I actually started getting briefed by the people in the Intel Community,” Graham told Attorney General Loretta Lynch during an oversight hearing in the Senate Judiciary Committee. “I will say that I’m a person that’s been moved by the arguments about the precedent we set and the damage we might be doing to our own national security.”

This is what happens when legislators stop following their gut instincts on subjects they know little about and actually seek input from those who do know what's involved and what's at stake. Graham -- without speaking to "people in the Intel Community" -- originally presented terrorism as Apple's problem. With the benefit of technically-adept hindsight, Graham is now seeing this for what it is: a push for a dangerous precedent that won't end with this one iPhone and Apple. It will move on to other manufacturers, service providers and communications platforms. Because this one iPhone (which is actually twelve iPhones) is just the foot in the door. Apple does not hold a monopoly on encrypted communications.

“One of the arguments Apple makes is that there are other companies that make encryption,” Graham said to Lynch during the hearing. “So from a terrorist point of view, you’re not limited to Apple’s iPhone to communicate are you?”

“I think the terrorists use any device they can to communicate,” the Attorney General responded.

“So this encryption issue, if you require Apple to unlock that phone that doesn’t deny terrorist the ability to communicate privately does it, there are others ways they can do this,” Graham noted.

The FBI -- which sees any communications it can't access as nothing more than a collection of smoking guns comprised of 0s and 1s -- will not stop with Apple. It already has its eyes on WhatsApp, one of the biggest messaging apps in the world -- one that also features end-to-end encryption.

The underlying point Graham is making -- having now spoken with those with the most at stake -- is that a successful push to force American companies to provide unprecedented access to law enforcement does little to stop global terrorism, while causing tremendous damage to those forced into complicity. If the FBI manages to pry open the front door, every other nation in the world is going expect Apple to hold the door open for them as well. And if they can't find a way to force Apple to do that, they may block it from selling its products in their countries. Or Apple may decide the market isn't worth the security hit. Either way, it hurts Apple, and terrorists will just move on to the next service/platform/manufacturer.

It's heartening to see Graham come around on this, especially considering he's spent the last few months coming down harshly on phone manufacturers for refusing to immediately comply with every ridiculous government demand.

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Filed Under: doj, encryption, experts, fbi, going dark, intel community, lindsey graham
Companies: apple

55 Comments

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Violynne (profile), 15 Mar 2016 @ 7:38am

Politician talks to a constituent and makes rational decision.

Whatever he's drinking, make damn sure it's passed around to every politician in office.
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yankinwaoz (profile), 15 Mar 2016 @ 9:44am

Apple could really help themselves by stop parking profits offshore and paying US taxes. That would give them a lot more leverage with Congress.
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Anonymous Anonymous Coward, 15 Mar 2016 @ 9:48am

There's that word again.

"Our nation is at war..."
Please cite the bill or resolution passed by Congress that names the enemy and declares war.

Along with the 'war' on drugs, the 'war' on poverty, the 'war' on crime, the 'war' in Vietnam, the 'war' in Korea, all of the middle and far east 'wars', etc., there has not been a declared war since WWII. Either commit to a war or stop calling it a war, otherwise it is just propaganda.

Oh, and while you are at it, find a diplomatic way to resolve conflicts, even if you have to eat a little crow (or a lot).
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Jason, 15 Mar 2016 @ 9:51am

"people in the Intel Community"
Almost as impressive to me as his turnaround on the issue is that he managed to do it without being insulting. No "nerd" or "geek" references anywhere, or at least that I noticed.

Related question, though; did he really say "Intel(TM) Community" or was it an implied "Intel(ligence) Community"?
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Ninja (profile), 15 Mar 2016 @ 9:52am

At least he listened to the experts and changed his position based on the facts presented. However there are way too many politicians like our own whatever that won't accept the facts whatsoever. Either because they are like our troll or because they have intere$$$$ts behind them.

In any case it's good to hear somebody actually listening to the ones that know what they are talking about.
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DannyB (profile), 15 Mar 2016 @ 9:53am

Computers CAN be used as weapons
Just ask anyone who has been hit over the head with a laptop.
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baditup (profile), 15 Mar 2016 @ 9:53am

Re: "people in the Intel Community"
probably implied intel(ligence) community....
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Ninja (profile), 15 Mar 2016 @ 9:54am

Re:
Must be one hell of a weed I tell you. We have plenty of examples of why you shouldn't smoke dollar bills so he is a rarity.
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jupiterkansas (profile), 15 Mar 2016 @ 9:59am

Re: There's that word again.
The problem with having the largest military force in the world (by a large margin) is that it's usually the easiest way to fix a problem. Just kill it and be done with it.

Of course that often causes more problems, but that's why you have the world's biggest military.
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Anonymous Coward, 15 Mar 2016 @ 10:01am

Re: There's that word again.
Please cite the bill or resolution passed by Congress that names the enemy and declares war.
Wikipedia says Pub. L. 107-40, codified at 115 Stat. 224. Not going to bother to check the cite, since the basic facts are well-known and not open to reasonable dispute.

As a matter of constitutional law, nothing at all requires Congress to use any set formula or “magic words.”
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Anonymous Coward, 15 Mar 2016 @ 10:03am

Re: Computers CAN be used as weapons
Bah! that's nothing. Try a model M keyboard...
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DannyB (profile), 15 Mar 2016 @ 10:06am

Government trying to avoid an open conflict
NY Times:
Many senior officials say an open conflict between Silicon Valley and Washington is exactly what they have been trying to avoid
But it was the FBI that brought this argument into the public, when Apple wanted it under seal.

And the government has been working to alienate the tech industry while saying they want to avoid a conflict. The NSA secretly tapping intra-data-center communications. Remember how extremely pissed off Google and others were about that? And started encrypting everything! (oh my!)

Hey, I don't want an open conflict with you. I just want to slander you in public, tell lies about you, accuse you of helping terrorists for marketing reasons, etc. I want to force you to expend engineering resources that take away from your next product development cycle. And of course, without any compensation. But I don't want an open conflict, I swear. Oh, and now I might want to force you to give me your source code AND private keys. But really, I don't want a conflict.

Oh, and Mr. tech industry, please, please be my friend. Come work with the government and help us.
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Anonymous Coward, 15 Mar 2016 @ 10:08am

Re:
I'm willing to bet he had a discussion with some people in the "intel(ligence) community" and was acutally scared out of his mind at their opinions on this topic.

I'm guessing it went something like this:

"Oh yeah, we'll definitely weaken the privacy of the entire nation, but that's a small price to pay for the brand of security we're selling, right? - and you know we're the good guys, right? Certainly not all those iPhone-toting sheeple out there. So yeah, we gotta get Apple and every other company doing business in this nation to open up security holes in their products and let us in, or the bad guys will win, and your family could be next."
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Anonymous Coward, 15 Mar 2016 @ 10:09am

Re: There's that word again.
1) The War Powers Act passed by Congress and signed by President Nixon grants the President limited authority for using military force (and yes that limited authority has been abused);

2) "Authorization for Use of Military Force" resolutions passed by Congress for Desert Storm and other actions. Yes, not all campaigns of the last few decades had such 'authorization' - Vietnam a good example.

What you're asking for - and AFAIK has not happened - is a constitutional challenge for both given the US Constitution expressly states that Congress shall declare war. Many of the AUMFs started out as so-called peacekeeping missions or responding to a request for assistance, but ended up effectively in a war scenario.
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DannyB (profile), 15 Mar 2016 @ 10:11am

Re: Re: There's that word again.
That is a very neat way of having an undeclared war that never ends. With goals that are unclear. Against an enemy that is difficult to precisely identify.

We have always been at war with Eastasia.

Followed by...

We have always been at war with Eurasia.

A defense contractor's dream come true.
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DannyB (profile), 15 Mar 2016 @ 10:13am

Re:
I think what would get Apple better leverage with Congress is to promise congress a cut of the money Apple saves by avoiding US taxes.

Everyone is doing it.

I wonder why Congress has not fixed it.

I also wonder why Jack Valenti was allowed to write the actual text of the DMCA before Congress rubber stamped it?
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Anonymous Coward, 15 Mar 2016 @ 10:14am

Re: Re: Re: There's that word again.
That is a very neat way of having an undeclared war
By Congressional declaration?

Get it through your head that Congress does not need to use magic words.
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Anonymous Coward, 15 Mar 2016 @ 10:15am

Re: Re: "people in the Intel Community"
Yeah I'm betting he didn't listen to the tech community. He listened to the NSA which is telling him the FBI is off their rocker on this one. Even Michael Hayden has gone public saying that the FBI is acting like idiots.
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SteveMB (profile), 15 Mar 2016 @ 10:25am

Re:
Politician talks to a constituent and makes rational decision.

So, when's the Techdirt Deal for a reinforced umbrella strong enough to withstand falling pig poop?
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SteveMB (profile), 15 Mar 2016 @ 10:28am

Re: Government trying to avoid an open conflict
The TL:DR version of the government's position: "Mommy! He hit me back!!"
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Ryunosuke (profile), 15 Mar 2016 @ 10:29am

imagine, if you will, Apple pulls out of the US phone market because of our govt. 2 things WILL happen.

1) there WILL be such a massive backlash against the govt. that the whole issue will become as toxic, if not more so, than when SOPA was first defeated. NO ONE in the govt is gonna touch that subject with a 20 ft pole.

2) That whole TTP/TTIP issue, and at large ICSID (International Centre for the Settlement of Investment Disputes) Basically, Apple COULD sue the US Govt over lost profits (which is not a small number last I recall) and future profits, because of a govt action against it.
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Avatar28 (profile), 15 Mar 2016 @ 10:34am

Re: Government trying to avoid an open conflict
I will just point out here that the government HAS offered reimbursement for the development costs. What they WON'T reimburse is the massive loss of goodwill and likely market share if it happens.

Also Apple didn't necessarily WANT the case under seal, they were just okay with fighting it under seal. It's the FBI that decided to make it public thinking the public would be like, "ooh, terrorism!"

Now if I were really conspiracy-minded, I would expect there to be ANOTHER terrorist attack soon, this one much worse, and the government really MUST get at that data because they were part of a group planning more.
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wiserabbit, 15 Mar 2016 @ 10:34am

Re: Government trying to avoid an open conflict
I think what we all miss with these theatrics is that there's Washington D.C. and then there's the rest of the world. The language and culture of D.C. is different than the rest of the world (possibly with the exceptions of other seats of power).

Hurling words is not open conflict in D.C. It probably isn't even conflict at all. It is just a press release to them. Normal operating procedure. Throw and insult and then everyone goes out for a beer afterward. It is just part of "the game".

The same goes for "having a conversation". Everyone in D.C. wants to "have a conversation" with Silicon Valley. Silicon Valley (and the rest of us who aren't in Silicon Valley) have already explained this numerous times. But "having a conversation" means something different to them. It means that you go in and tell them what they want to hear that they can sell. If you haven't done that (and clearly, we have not) means that the conversation has not happened.

It is kind of like when they talk about "the people". They aren't actually talking about us.
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Ryunosuke (profile), 15 Mar 2016 @ 10:34am

Re:
Also, Whenever I hear Congressmen or Comey/etc. talk about computers, This Is what I imagine: https://www.youtube.com/watch?v=H2uHBhKTSe0
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Anonymous Coward, 15 Mar 2016 @ 10:52am

Given all the BS that politicians have been into since back in the days of Reagan, one thing that has ear marked them has not been listening to the people they are making laws against unless it involves a paycheck. This effectively ruling out listening to the voters.

With today's sentiments displayed by the voters one has to ask, when does Senator Lindsey Graham come up for election? If it is this coming year, then the reason for his turn around may have nothing to do with what the security branches want but rather with saving his own political hide.

Even if his reelection is another 3 years away, there is still his own party to consider in this. Pushing the unpopular and much unwanted by the public won't endear his party to the voters either.

Seems the only time the political gang listen to the voters is when their own jobs are on the line. At this point in time, given past history, I place no faith in Senator Graham suddenly getting religion on this issue.
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Anonymous Coward, 15 Mar 2016 @ 11:18am

Re:
… one has to ask, when does Senator Lindsey Graham come up for election?
Here you are on the internet: an unparalleled source of information. You have Wikipedia and Google at your fingertips— —and yet you— —you have to ask everyone a question like that in comments?

Why does one have to ask?
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Ninja (profile), 15 Mar 2016 @ 11:33am

Re: Re:
Next in the Daily Deals: RSU - Reinforced Steel Umbrella. Because politicians sometimes surprise you by being sane.
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DannyB (profile), 15 Mar 2016 @ 11:35am

Re: Re: Government trying to avoid an open conflict
They also don't reimburse opportunity cost.

That is the loss of money that might have been made by missing a new market opportunity because they are busy writing a new OS for the FBI. That could be a huge cost to the company.

And if not missing a new market, maybe just being a late entrant. Or having a new feature after a competitor rather than before the competitor has it.
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Ninja (profile), 15 Mar 2016 @ 11:36am

Re:
Not happening. They haven't pulled out from China. This is rather telling.
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Quiet Lurcker, 15 Mar 2016 @ 11:43am

Re: Re: There's that word again.
But see https://en.wikipedia.org/wiki/Category:Declarations_of_war_by_the_United_States.

I checked three or four at random. They all contained effectively the same language: that the state of war - and they do use that specific phrse - exists between the U.S. and whichever nation/opponent is intended.

To borrow a turn of phrase from various legal papers I've read from time to time, it stands to reason, if Congress had meant to declare war on [drugs | terror | poverty | whatever else], they would have said 'the state of war exists'.
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wshuff (profile), 15 Mar 2016 @ 12:02pm

Re:
Unfortunately, if he starts making sense then the voters will decide he has to go. People are scared of the unknown.
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Anonymous Coward, 15 Mar 2016 @ 12:04pm

Re: Re: Re: There's that word again.
… it stands to reason…
Did you check the court cases interpreting the language of the operating AUMF?

For example, Hamdi v Rumsfeld (2004)
The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. . . . We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.
(Emphasis added.)

You don't get to “fundamental and accepted [] incident to war” without “war” in a constitutional sense.
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Dingledore the Flabberghaster, 15 Mar 2016 @ 12:05pm

Re:
Why would there be a backlash? Existing iPhones wouldn't stop working.
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Groaker (profile), 15 Mar 2016 @ 12:06pm

Fancy that. Opinion based of fact. What ever will anyone think of next?
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Dingledore the Flabberghaster, 15 Mar 2016 @ 12:07pm

Re: Re:
and considering the best competition to Apple's devices are coming out of China and South Korea...
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John Fenderson (profile), 15 Mar 2016 @ 12:15pm

Re: Re: Government trying to avoid an open conflict
What I find utterly fascinating is that despite all of that, and despite the fact that most people have become aware of all that (and more), those very same people continue to believe that they still have credibility and trust with the actual citizenry.
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John Fenderson (profile), 15 Mar 2016 @ 12:17pm

Re: Re:
Because people who are really into iPhones consider it very important to have the most recent models.
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Anonymous Coward, 15 Mar 2016 @ 1:41pm

Re: Re: Computers CAN be used as weapons
I would except I don't have the Ouija board necessary for contacting someone hit over the head with a model M keyboard.
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Anonymous Coward, 15 Mar 2016 @ 1:46pm

Maybe all those old films like ET where they changed the guns to walkie talkies, they could change them again to iphones to reflect on their dangerous nature.
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Almost Anonymous (profile), 15 Mar 2016 @ 1:56pm

Re: There's that word again.
Totally agree, "war" is way overused and it's meaning has been badly diluted. Similarly, I'm sick of the word "terrorist". It is too grandiose a word for what amounts to nothing more than criminals.
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Anonymous Coward, 15 Mar 2016 @ 2:04pm

Re: Re: Re: Re: There's that word again.
"Get it through your head that Congress does not need to use magic words."

WTF high horse did your constitutional scholar ass ride in on?
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Quiet Lurcker, 15 Mar 2016 @ 2:28pm

Re: Re: Re: Re: There's that word again.
The court in that case gave the imprimatur of legitimacy to not one but many acts which are illegal even under the usages of war.

I refer you to the Geneva Conventions I-IV, to which the U.S. is a signatory.
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Anonymous Coward, 15 Mar 2016 @ 4:35pm

"this iPhone was used to kill Americans" LOL

So were the roads, cars, guns, food, water etc.
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Anonymous Coward, 15 Mar 2016 @ 4:51pm

Re: "people in the Intel Community"
'did he really say "Intel(TM) Community" or was it an implied "Intel(ligence) Community"?'

Is there a difference?

Intel put in AES & random # instructions, but who can trust them? All the AES instruction has to do is squirrel away your private key somewhere. All the random # instruction has to do is follow NSA's backdoor instructions.
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Groaker (profile), 15 Mar 2016 @ 7:09pm

Re: Re: There's that word again.
Convenient to be able to declare war without declaring war. Just is not so. The Congress and the President can pretend to have a war, and indeed may have a defacto one. But not a legal one.

Our government commits an enormous number of acts, but that does not make them legal.
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Groaker (profile), 15 Mar 2016 @ 7:17pm

Don't forget the air as a vehicle for slaughter. The rarefaction and compression of the atmosphere carries and delivers an energy load sufficient to maim and kill.
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That One Guy (profile), 16 Mar 2016 @ 2:26am

Re: Re: Re:
And now for the really messed up part:

If forced to choose between a device that may have been compromised by the USG, and a device that may have been compromised by the Chinese or SK governments, I would choose the latter every single time. If they get their hands on something incriminating or valuable odds are they won't really care as they've got bigger fish to fry in their own countries and what they could gain from me is less than what it would cost them to get it.

On the other hand between good old evidence laundering and sloppy security allowing access to massive treasure troves of personal and valuable data to anyone who cares to make a grab for it, the same data in the hands of the USG has a much higher chance of causing problems for me, which means I'm safer with a foreign government spying on me than I am with my own doing the same.
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That One Guy (profile), 16 Mar 2016 @ 2:29am

Re: Re: Re: Government trying to avoid an open conflict
They're so used to people wanting to curry favor with them by agreeing to everything they say that the idea that someone might not agree with them for reasons that aren't simply political never even occurs to most of them.
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Whatever (profile), 16 Mar 2016 @ 4:30am

Re:
It will be interesting of course to see what his political contributions totals look like next time around. Gotta imagine that some Apple direct money or puppet donations will be in the works.

Money talks, and Apple got a lot to talk about.
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Prashanth (profile), 16 Mar 2016 @ 5:03am

Turnaround, in public too
As shocking as it is for me to see a hawk like Lindsey Graham turn around on this issue, I'm even more shocked that a politician like him is willing to admit that (1) they changed positions and (2) they did so after carefully reconsidering the evidence and talking to experts. Even if it went the other way (going from supporting Apple to supporting the FBI/DOJ), I'd be heartened by the honesty.
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John Fenderson (profile), 16 Mar 2016 @ 7:06am

Re: Re: Re: Re:
Yes, this exactly. I, as an individual, suffer far less risk of harm from foreign spies than domestic ones.
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murgatroyd (profile), 16 Mar 2016 @ 9:58am

I'm still enjoying the mental image of the FBI searching for "the smoking 1s"....
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Anonymous Coward, 17 Mar 2016 @ 3:34am

People don't kill people. iPhones kill people
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General Nobody (profile), 17 Mar 2016 @ 10:32am

Iraqi War Afganistan War Syrian War etc..
How many people have died at the hands of those setting off IEDs with cell phones in these wars and no one decides to eradicate cell phone towers? I was under some impression that military could communicate with the use of satellite phones and could completely destroy an enemy's capability to communicate through cell phones without deprecation to their own communication systems.
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KissMyWookiee (profile), 20 Mar 2016 @ 8:14pm

Devices aren't responsible ... Until they are?? huh?
"As surprised as we were to learn it was an iPhone that killed 14 people in San Bernardino, rather than the attackers ..."

So you aren't blaming the tools used by people ("the attackers") to kill other people?

"... and the weapons they wielded"

Oh, then you are blaming tools used by people to kill other people. - Wait a minute, I'm confused.

No matter what type of tool is used in the commission of crime, ultimately it was a person making wilful decisions and controlling those devices. It is completely illogical to try and blame the crime on an inanimate object(s) - whether the object was a smartphone, a crowbar or a gun - The sole responsibility lies with the one capable of thought.
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