Playing “Gotcha” With Privacy

The game of pointing to hypocrisy must be great fun, as it’s being played everywhere you look. Why is it cool for the Senate Judiciary Committee Republicans to refuse to consider a Supreme Court nominee?  Because Democratic Senator Chuck Schumer and Vice President Joe Biden played the same game years ago. Gotcha!!!

Except it’s a false argument. Two wrongs don’t make a right. That the other team is full of shit doesn’t make you any less full of shit. You’re all full of shit. Just because you’re not the only one covered in shit doesn’t mean you smell any better.  Yet, people seem to adore this argument as it makes them feel as if they aren’t nearly as full of shit as they are. Or perhaps it’s just people full of shit love company. Either way, it’s unavailing.

At Volokh Conspiracy, government apologist Stewart Baker tries to play this game as well. He’s not very good at it, and apparently, isn’t much of a lawyer either, as reflected in his peculiar vision of how real lawyers ask questions. But he tries despite his challenges.

To avoid helping the FBI search the San Bernardino terrorist’s phone, Apple and its CEO, Tim Cook, are going to spend weeks in court, and probably on Capitol Hill.  That means that for the first time the government will have a chance to use subpoenas and discovery to judge the truth of the claims that the famously secretive Silicon Valley company and its allies have been making.  This should be fun.

That Baker sees anyone arguing in support of privacy as Apple allies is intriguing. A buddy of mine noted the other day that when you’re a goniff, you think everybody is a goniff. So will this be as much fun as Baker claims?

Apple’s story is that helping the FBI would require an “unprecedented and unreasonably burdensome” code-writing exercise and that once the code is written, authoritarian regimes like China’s will demand that Apple use the code to help them spy on their citizens.

Yes, Baker calls Apple’s assertions its “story,” but don’t get bent about his use of childish rhetoric to be dismissive. So what if he employs rookie tricks to try to make his case?  Rather, it’s his lame attempt at playing “Gotcha” with Apple to deflect your attention away from the government’s being covered with shit that stinks up the joint.

Dear Tim Cook,

In court, you’ve said that it would take two to four weeks to write the code the FBI wants, using a small team of 6-10 Apple employees.  This is too much work, your lawyers told the court, especially since it might end up helping repressive regimes surveil their own people.

What I’d like to know is just how much work you’ve already done for repressive regimes surveilling their own people:

One repressive regime in particular, actually.  China’s.

So the message is that Baker has never done a deposition, has never crossed a witness, is incapable of asking a decent question? Well, that’s a shock. After all, it’s not like Baker was first Assistant Secretary for Policy at the United States Department of Homeland Security under the Presidency of George W. Bush. Oh wait.  Anyway, it’s not like the position required someone competent in the skills of lawyers. Or logic.

For those who want desperately to rationalize the unpleasant odor of the government’s “story,” this “hint” of hypocrisy will win the “Gotcha” game.  For those who are capable of both seeing through this lame effort to suggest that Apple is a nefarious hypocrite, and realize that regardless of what Apple does/did in China, it fails to provide any solace for what the government demands of it here, Baker’s ploy evokes a shrug.

But that’s not where the “Gotcha” game ends.  While the New York Times’ Farhad Manjoo may not know squat about law, he’s got a pretty good idea about how technology has infiltrated our world.

“The court left open the door to surveillance as long as the primary function of the device was intact,” Mr. Soghoian said. “So as long as Amazon Echo can tell you what temperature it is or can still play music, that case seems to suggest that the government might be able to force Amazon to spy on you.”

Mr. Soghoian was referring to Amazon’s handy digital assistant, a device that is constantly listening to your household conversations to try to offer you friendly help. The Echo listens for a keyword — “Alexa!” — which prompts it to start streaming your voice to Amazon’s servers to decipher your request. Amazon, which declined to comment on how the Apple case might affect Echo users’ privacy, has said it is not constantly recording people’s voices, and that it keeps voice recordings only to help the system learn to better understand you.

There are people who bought an Amazon Echo within minutes of its going on the market. And it’s just one of the wealth of devices we willingly bring into our homes that promise internet connections to make our life wonderfully convenient. Like refrigerators and thermostats. And smartphones.

But the Apple case threatens to undermine those promises. If a court can get Apple to hack into an iPhone, why couldn’t it also force Amazon to change the Echo’s security model so the Echo can record everything you say? Mr. Soghoian believes the Apple case could set that precedent.

“What we really need for the Internet of Things to not turn into the Internet of Surveillance is a clear ruling that says that the companies we’re inviting into our homes and bedrooms cannot be conscripted to turn their products into roving bugs for the F.B.I.,” he said.

We’ve planted the bugs that will allow, no, cause, our being under constant surveillance. By Apple. By Amazon. By Google. The ACLU’s “chief technologist,” Chris Soghoian, says that we will be saved from our own folly by a “clear ruling” that these devices can’t be “conscripted to turn their products into roving bugs for the F.B.I.”  Which ignores that they’re already roving bugs for tech companies, and that a “clear ruling” will surely prevent the government from doing so as well. Because . . . rules.

As much as Baker is shooting blanks in his lame game of “Gotcha,” the fact that we are as guilty of hypocrisy when crying about the government’s effort to infiltrate our world by the forced abuse of technology as Baker is plain.  We complain about the government trying to steal our privacy, while we willingly give it away to anyone with a shiny toy. And we pay for the privilege!

As much as we can appreciate the risks that guys like Baker, Comey, Vance, Bratton and others deny, we cover ourselves in shit when we place Amazon’s listening device in our homes without any government agent putting a gun to our heads or court order compelling access. Gotcha.

H/T Rick “Mr. Facebook” Horowitz

15 comments on “Playing “Gotcha” With Privacy

  1. delurking

    I find the comparison of the Apple iPhone issue to the Amazon Echo surprising. Why compare to the Echo, which only a tiny percentage of people actually have. Why not point to the more obvious comparison – if a court can force a phone maker to hack your phone to access data in it, why can’t it also force a phone maker to hack your phone to record all the time? It’s not like phones don’t have microphones.

    1. SHG Post author

      If you read the linked story, you wouldn’t have written this comment, knowing that the analogy was already in there, but that the echo was the further extension of the problem for those capable of thinking beyond their nose. But that would have required you to put in effort before commenting and I would never expect anyone to do that and risk the potential of a serious thought-induced headache.

  2. Patrick Maupin

    We complain about the government trying to steal our privacy, while we willingly give it away to anyone with a shiny toy. And we pay for the privilege!

    We also complain about people stealing vegetables out of our garden, yet hand bags of food over to homeless people.

    “It’s mine to do with as I please, and you’re stealing it from me” may sometimes be illogical, inconsistent and idealistic, but I’m not sure that hypocritical is the correct adjective.

    1. SHG Post author

      Hypocritical may not be the correct adjective, but only if we recognized what we were doing. And some do, and still make the decision to do so. But others, not so much. but it doesn’t stop them from screaming about it.

  3. Lee Thompson

    The fact that we voluntarily put the means of surveillance in our homes is irrelevant to the government’s right to co-opt it. I can hire an exterminator to come out every month and comb through my house for (actual) bugs, but the police can’t say “Hey Mx. Exterminator, next time you’re in there, look through the medicine cabinet for illegal drugs and let us know.”

    Or maybe they can, and I should just never let anyone in my home ever.

    1. SHG Post author

      You’re absolutely right, that we do so voluntarily is hardly the same as govt compelling us to do so. But that’s not the point of this post, and that distinction provides little comfort to net outcome when we complain of the loss of privacy. There are plenty of reasons why the govt is wrong here. Denial of the harm we do ourselves, however, doesn’t strengthen the claim.

      1. Patrick Maupin

        It doesn’t strengthen it, but does it really weaken it? Yes, Amazon’s Alexa or Google’s Nest has the potential to be intrusive, as does Google’s gmail, and as does the exterminator.

        Given that the exterminator could easily plant bugs as well as eradicate bugs, the biggest differences between the govt coopting the exterminator and the the govt coopting Amazon or Google would seem to be the number of reachable targets and the ease of data collection.

        But the same attributes that make these large corporations juicy targets for government pressure can also make them more resistant to the pressure than the lowly exterminator. They can afford lawyers, they can afford top-notch security people, and they probably don’t have a brother-in-law who will avoid prison if they only do this one favor for the cops.

        Yes, I give google some of my most sensitive information. But I do it with my eyes open and my skepticism intact. So far, I have seen nothing credible to indicate this trust is misplaced. (OTOH, that’s probably because they also filter my news for me.)

        The government yearns for the old days, when the biggest, juiciest corporate target, AT&T, was in its back pocket. Those days are long gone; the question is if we allow the government to bring them back or not.

        1. SHG Post author

          As long as your overlords give you convenience, you have nothing to fear. Welcome your overlords. Thank them for the convenience they bring to your world. It’s so wonderful and shiny. And they would never abuse their power. Never.

          Of course, if they did, would that change your willingness to let Bezos listen to your every private utterance? Asking for a friend.

          1. Patrick Maupin

            Hey, I still carry a flip-phone, and I haven’t upgraded my printer in a long time because all the reasonable candidates are web-enabled. I don’t do my banking on a phone or a tablet, and I certainly don’t have Alexa or a smart TV, much less a smart refrigerator or web-connected thermostat.

            Technology is ripe for abuse. In fact, you might be surprised at all the queries about SHG that some “big data” programs could answer properly, based on a combination of public records and your thousands of posts and comments.

            But just because I can see enough potential problems that I am seldom an early adopter doesn’t mean that I am unsympathetic to the idea that the government should be helping, rather than hindering, us to reach the utopia where our electronic gadgets are our servants rather than the dystopia where they are our overlords.

            And the people who think they already live in such a utopia? Foolishness still isn’t necessarily hypocrisy, but I will certainly grant you it’s past annoying — there are too many people exhibiting the cognitive dissonance required to believe that their iPhone is their own personal servant, yet Apple ought to be able to co-opt that other guy’s iPhone in service of the government.

            To your point, whatever you call it, those fools certainly don’t help the rest of us feel that we are approaching the utopia rather than the dystopia.

            1. Patrick Maupin


              But please give me a trigger warning before the next time you conflate verbosity with assassination.

  4. Dragoness Eclectic

    So, we’re going back to the days of having household servants, where those “above the stairs” pretended servants were mobile furniture that saved them labor, and said servants made money on the side selling information about their masters to professional blackmailers or spies?

    What’s the legal latin for “Nothing changes…” again?

    1. SHG Post author

      Isn’t there somewhere between the Victorian era and echo? Maybe, I dunno, the 70s? Or the 50s? Or 90s? Or anything in between?

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