The Talk Show

00:00:00 ◼   ► the dulcet tones of your sweet voice, Glenn.

00:00:02 ◼   ► Glenn

00:00:07 ◼   ► I have a poem. I wrote a poem, by the way.

00:00:08 ◼   ► Oh, well, let's hear it. I'm trying to guess what it's about.

00:00:09 ◼   ► I was moved by the ending of the Apple filing, and I've been listening to Hamilton way too much.

00:00:14 ◼   ► Are you a fan of Hamilton, and you've been listening to it?

00:00:16 ◼   ► I have not. I am aware that it exists, and I'm aware that it's a sensation.

00:00:20 ◼   ► And I agree that the premise sounds, it sounds fascinating,

00:00:25 ◼   ► but I've actually not watched or listened to any of it yet.

00:00:28 ◼   ► It's kind of a brain virus.

00:00:29 ◼   ► Like I'd heard about it.

00:00:30 ◼   ► I sort of was like, well, maybe I'll wait.

00:00:32 ◼   ► I'll see it some, I don't want to.

00:00:33 ◼   ► And then I was like, well, listen to a song and then you just spiral down.

00:00:36 ◼   ► So this is, this is my poem inspired by the end of the Apple brief

00:00:40 ◼   ► with apologies to Hamilton.

00:00:42 ◼   ► Uh, your honor, we must have, in reading Brandeis government, zeal's a danger,

00:00:46 ◼   ► not understanding the scope of their pleading, the danger to Liberty lies

00:00:50 ◼   ► within mistreating American's rights.

00:00:52 ◼   ► We posit they're exceedingly well meeting, but insidious encroaching.

00:00:56 ◼   ► There we go.

00:00:57 ◼   ► Pete: Very well said.

00:00:58 ◼   ► Pete: Nipsey Russell for the ages.

00:00:59 ◼   ► [Laughter]

00:01:00 ◼   ► I've also been reading Aaron Burr papers because, you know how the government cited-

00:01:09 ◼   ► Pete; Yes, yes I do.

00:01:10 ◼   ► Pete; I've been actually going back and reading some of the historical documents,

00:01:13 ◼   ► including some books from the 1800s and some later books written about it.

00:01:17 ◼   ► Found an interesting article from 1982, have been looking at the original ciphers that,

00:01:23 ◼   ► the codes and ciphers they used.

00:01:24 ◼   ► It's a very fascinating thing to see what the state of cryptography was in the late

00:01:28 ◼   ► 1700s, early 1800s.

00:01:29 ◼   ► It all comes back to Hamilton.

00:01:31 ◼   ► It kind of does.

00:01:33 ◼   ► It's really kind of funny.

00:01:39 ◼   ► This is a tweet from my pal Buzz Anderson last night.

00:01:41 ◼   ► Who would have thought Aaron Burr would get so much attention in 2016?

00:01:47 ◼   ► Is a little weird.

00:01:48 ◼   ► And then they did a Hamilton performance at the White House, like not long after the FBI

00:01:53 ◼   ► citing the Aaron Burr. Aaron Burr ostensibly wanted to become the Emperor of Mexico. He had a plan.

00:01:59 ◼   ► American history is kind of awesome and strange, let me tell you.

00:02:02 ◼   ► Pete: The Emperor of Mexico.

00:02:05 ◼   ► Pete and Jono.

00:02:05 ◼   ► Jono.

00:02:05 ◼   ► The Emperor of Mexico! He was going down the Mississippi to try to schedule some kind of

00:02:11 ◼   ► event and a general who didn't want to get caught up with it, who had been corresponding with him

00:02:14 ◼   ► for years, turned over the ciphered letter and there's a trial and he was found innocent of

00:02:21 ◼   ► treason because the justice in the case, I'm blanking, his name is famous justice.

00:02:27 ◼   ► Pete: Marshall.

00:02:28 ◼   ► Ben, Jr. Marshall, thank you, said that no actual, like, event had occurred. So it wasn't

00:02:33 ◼   ► treasonous to discuss this, even if that's what was discussed. So he was-

00:02:36 ◼   ► Pete; Well, how would it have been treason to become the Emperor of Mexico since it's

00:02:39 ◼   ► not, it wasn't trying to become the Emperor of the United States?

00:02:41 ◼   ► Ben, Jr. He was trying to raise armed forces to fight against a separate, another nation

00:02:47 ◼   ► without the support and authority of America. So there was some like, I'm losing the detail

00:02:54 ◼   ► there, but it was treason because he was acting against the interest and stated policy of

00:02:59 ◼   ► America and waging war, or that was the intent, but without actually doing it. So, yeah, Burr

00:03:04 ◼   ► wound up living for decades after that and never quite got back to the same position

00:03:08 ◼   ► he had when he was vice president, between the duel and then treason trial and then just

00:03:15 ◼   ► kind of people not really wanting to be...

00:03:17 ◼   ► is the story of the duel? That's just one of those things that it's like you file it under your head

00:03:21 ◼   ► that the revolutionary times were crazy and that they were, you know, like the remnants of the

00:03:26 ◼   ► medieval era was still, you know, floating around. Well, it's complicated. Most things, dueling was

00:03:32 ◼   ► mostly banned. It was, and it was, you know, I believe it had gone out of practice in England.

00:03:36 ◼   ► I think it was practiced in the barbarous colonies, right? And I am reading the Chernow

00:03:41 ◼   ► biography of Hamilton now, so I haven't gotten to the intricacies there. I recall from my past

00:03:45 ◼   ► reading some things after the play sort of become popular, I

00:03:48 ◼   ► went back and reread, and they had to go to New Jersey, and

00:03:51 ◼   ► there's a line in the in the musical, you can do anything in

00:03:54 ◼   ► New Jersey, right? Everything's legal in New Jersey, it's a

00:03:57 ◼   ► joke. And they had to go to New Jersey because it was still

00:03:59 ◼   ► ostensibly legal, but you know, manslaughter was and murder

00:04:02 ◼   ► still illegal. So you could extensively in some states, you

00:04:06 ◼   ► could duel and if no one was injured or killed, you might

00:04:09 ◼   ► just walk away from it. But not much, not much of a duel though,

00:04:13 ◼   ► a duel though if nobody's injured or hurt.

00:04:15 ◼   ► Pete: Well, it's to satisfy honor. I mean, that's the thing. It's funny, ritualized

00:04:21 ◼   ► violence. There's a really great essay in the New York Times from a few days ago, these

00:04:25 ◼   ► philosophers talking about what violence is, and they argue that violence isn't an act

00:04:30 ◼   ► in itself, it's a, violence has a cycle. You know, there's an attack. You attack

00:04:34 ◼   ► someone that's not per se violence in their definition, it's that you're dealing with

00:04:38 ◼   ► a cycle that perpetuates itself. That is violence. And it's a great discussion that deals with

00:04:43 ◼   ► sports as a representation of force and violence in a controlled fashion and violence at the

00:04:49 ◼   ► Trump rallies. And it's, I was blown away by it. But dueling is part of that tradition

00:04:54 ◼   ► is, yes, it's overt violence, but it is also under very specific constraints. And a lot

00:04:59 ◼   ► of the time, duels didn't result in anyone being hit. And that was the point. But everyone

00:05:04 ◼   ► got to satisfy the fact that they expressed a form of ritualized violence without actually

00:05:07 ◼   ► killing someone. But you could also kill somebody.

00:05:10 ◼   ► So why did Burr and Hamilton get in a duel?

00:05:13 ◼   ► Burr was, well let's see, this is, well you have to watch the musical, there we go, got

00:05:19 ◼   ► a good ticket somehow, spent $5,000 to get tickets.

00:05:23 ◼   ► The subject of the duel was that basically Hamilton was talking smack about Burr and

00:05:28 ◼   ► probably rightly so, Burr really shifted to whatever he needed to do, he had done a lot

00:05:32 ◼   ► of double dealing, Hamilton was not a pure character either necessarily, but he had been

00:05:39 ◼   ► speaking publicly and privately and I believe there was a specific dinner that

00:05:43 ◼   ► Some comments came through so Burr wanted him to apologize and Hamilton said I'm not saying anything. That's not true and

00:05:50 ◼   ► Even though his son Hamilton's son had been killed in a duel not many years before

00:05:55 ◼   ► And both he and Burr had seconded

00:05:58 ◼   ► This is part of the musical to had seconded another duel when they were younger. They were the seconds and

00:06:05 ◼   ► In a case that involved, I think it was George Washington being insulted.

00:06:09 ◼   ► George Washington wasn't one of the parties of the duel.

00:06:11 ◼   ► Even with that, they went out there and there's this long-running debate.

00:06:14 ◼   ► The musical is part of the channel biography is whether Hamilton intended to shoot Burr

00:06:18 ◼   ► or not.

00:06:19 ◼   ► Whether Burr was reacting with intent or thought he was about to be shot and fired directly,

00:06:26 ◼   ► but never quite known.

00:06:29 ◼   ► And we're talking about it 200 plus years later.

00:06:31 ◼   ► It's amazing.

00:06:32 ◼   ► (laughs)

00:06:34 ◼   ► - The takeaway I took from school when I learned about it

00:06:37 ◼   ► was that, and again, who knows how accurate it is,

00:06:41 ◼   ► but it seems as though most of the Founding Fathers

00:06:45 ◼   ► were genuine statesmen, and then a couple of them

00:06:48 ◼   ► were real hotheads.

00:06:51 ◼   ► - Oh yeah, yeah.

00:06:52 ◼   ► Well, and they were all, I just watched the musical 1776

00:06:56 ◼   ► with my kids, so my kids are all head up about Hamilton now,

00:06:58 ◼   ► and we're on the other coast and tickets are a fortune,

00:07:01 ◼   ► So we will hopefully see it when it tours,

00:07:03 ◼   ► you know, in a touring company to Seattle,

00:07:05 ◼   ► we'll probably be a B company in like four years

00:07:08 ◼   ► or three years and we'll go pay too much to see it here.

00:07:11 ◼   ► But so I'm like, hey, look,

00:07:12 ◼   ► there is a musical about the founding fathers.

00:07:13 ◼   ► Like really, really let's watch 1776.

00:07:15 ◼   ► So we did that.

00:07:16 ◼   ► I'd watched it for the incomparable.

00:07:18 ◼   ► We did an old movie club a couple of years ago

00:07:21 ◼   ► and watched it then.

00:07:22 ◼   ► So I rewatch it with them.

00:07:22 ◼   ► They loved it.

00:07:23 ◼   ► It's all sort of focused on John Adams,

00:07:25 ◼   ► primarily also Jefferson and Franklin.

00:07:27 ◼   ► And that I always, whenever I see these things,

00:07:30 ◼   ► "Oh yeah, I could go read some more stuff about Adams."

00:07:33 ◼   ► They're really interesting people.

00:07:35 ◼   ► They had rich lives.

00:07:36 ◼   ► They were involved in all kinds of stuff.

00:07:39 ◼   ► And they weren't, they, you know,

00:07:42 ◼   ► they were all people who had their own lives

00:07:44 ◼   ► and Congress was another thing.

00:07:45 ◼   ► Wasn't, you know, it was one period in their life,

00:07:49 ◼   ► the Continental Congress particularly,

00:07:50 ◼   ► but I don't know, it's a fascinating,

00:07:52 ◼   ► I mean, you know, Franklin, of course,

00:07:53 ◼   ► is the fascinating one.

00:07:54 ◼   ► He lived a long life and liked sex workers and mistresses

00:07:58 ◼   ► all kinds of people and lived in France and came back and anyway it's a great

00:08:02 ◼   ► they're a great bunch that's the musical John Adams apparently late in life wrote

00:08:07 ◼   ► about how he was obnoxious and disliked and late in life he lived quite a long

00:08:11 ◼   ► time he and Jefferson died on the same day they're bitter enemies and they died

00:08:15 ◼   ► many miles apart in the same day which is one of those little and the day was

00:08:19 ◼   ► July 4th yes that's right I forgot you're right

00:08:22 ◼   ► it's a while but Adams criticized his own personality late in life and the

00:08:26 ◼   ► takes it up there's this recurring line "you're obnoxious and disliked" you know

00:08:30 ◼   ► that sir and but apparently Adams was actually quite well liked and he was

00:08:35 ◼   ► viewing himself too harshly late in life so he wasn't as obnoxious as the musical.

00:08:40 ◼   ► Also brings to mind from a comment you had a couple minutes ago at the Dylan

00:08:44 ◼   ► song from the Traveling Woolberries "In Jersey everything's legal as long as you

00:08:49 ◼   ► don't get caught." See Hamilton is great it actually pulls from musical theater

00:08:54 ◼   ► modern musical, rap and hip hop.

00:08:57 ◼   ► I heard like echoes of poems where like all of you,

00:09:00 ◼   ► there's a, if you go to Genius, they annotate it

00:09:03 ◼   ► and people have found it's not a pastiche, but he pulls.

00:09:06 ◼   ► So Lin-Manuel Miranda is an excellent,

00:09:09 ◼   ► in terms of taking your ear and letting you hear an echo

00:09:13 ◼   ► of something if you're tuned in.

00:09:14 ◼   ► If you're not, it sounds good.

00:09:15 ◼   ► But if you're a big hip hop fan, you will hear, you know,

00:09:18 ◼   ► rhythms, patterns, lines, the kind of characterization.

00:09:22 ◼   ► If you're a musical theater fan like I am, you

00:09:24 ◼   ► hear all kinds of things throughout.

00:09:26 ◼   ► You're like, wait, oh, you know, there's that

00:09:28 ◼   ► reference to 1776.

00:09:29 ◼   ► There's that reference to South Pacific, this

00:09:31 ◼   ► Rogers and Hammerstein and Sondheim references

00:09:34 ◼   ► throughout Sondheim loves it apparently, which

00:09:36 ◼   ► is great.

00:09:36 ◼   ► He loves to play.

00:09:37 ◼   ► Um, it's funny we're talking about the 1700s,

00:09:40 ◼   ► but it's not right.

00:09:41 ◼   ► 1800s because so is Apple and the FBI.

00:09:43 ◼   ► This is what's cracking me up.

00:09:44 ◼   ► Like, what is the deal that this musical is

00:09:47 ◼   ► sweeping the nation and then suddenly FBI is

00:09:50 ◼   ► like, well, they all ritz act.

00:09:51 ◼   ► Act hasn't been modified for 250 years but anyway it's just the way it always

00:09:55 ◼   ► works out you know these things these things happen it's it's Gilead eyes the

00:09:59 ◼   ► millenists it's all right serendipity is a real it's like almost like a force it

00:10:04 ◼   ► is pretty amazing now the details of it though it's kind of interesting we'll

00:10:07 ◼   ► get into it again but so last week the federal government filed a their final

00:10:14 ◼   ► brief which Apple initially took I think it's fair to say took um bridge to

00:10:21 ◼   ► (laughing)

00:10:23 ◼   ► to several of the angles that the government took in it.

00:10:27 ◼   ► I thought this was interesting,

00:10:28 ◼   ► 'cause I was invited to the conference calls

00:10:31 ◼   ► that reporters were on, both last week and this week.

00:10:34 ◼   ► And it was a real interesting difference, like last week,

00:10:40 ◼   ► and they do them very fast, and it's obviously,

00:10:43 ◼   ► and I enjoy thinking about this strategically,

00:10:46 ◼   ► because I don't work fast, right?

00:10:50 ◼   ► "The Ring Fireball" is not a source of breaking news.

00:10:54 ◼   ► The talk show certainly is not a source of breaking news.

00:10:57 ◼   ► I tend to take my time, and not because I want to,

00:11:02 ◼   ► but because I have to.

00:11:03 ◼   ► My brain just doesn't work quickly.

00:11:05 ◼   ► But it's fascinating to me to look at the meta angle on it,

00:11:12 ◼   ► which is that when these briefs drop,

00:11:15 ◼   ► Apple reacts very quickly.

00:11:17 ◼   ► So last week's call, I think that it was on Friday,

00:11:20 ◼   ► maybe it was Thursday, Thursday or Friday last week

00:11:22 ◼   ► when the government put their proof out.

00:11:25 ◼   ► And Apple held the call with the reporters an hour later.

00:11:30 ◼   ► So I certainly hadn't gotten through the brief.

00:11:36 ◼   ► I guess Apple had, you know, Apple's attorneys

00:11:39 ◼   ► had the full hour before they started the call.

00:11:42 ◼   ► - Wow.

00:11:45 ◼   ► And I guess the strategy there is that they know

00:11:49 ◼   ► that once the brief is out, the news media is,

00:11:51 ◼   ► some of them in the news media are gonna

00:11:53 ◼   ► start writing takes and Apple wants to get their spin on it

00:11:58 ◼   ► out as quickly as possible, otherwise it's too late.

00:12:01 ◼   ► That they have to have, if they have to do something

00:12:03 ◼   ► press relations-wise quickly.

00:12:07 ◼   ► But I thought the difference between their,

00:12:11 ◼   ► their, what would you call it, a hot take last week

00:12:14 ◼   ► this week is so different. Like it's, I detect a very cool confidence in their current argument.

00:12:22 ◼   ► But anyway, one of the things the government put in their brief last week was a reference to,

00:12:26 ◼   ► and this is again, this is back to what's the year seven 1807 Chief Justice Marshall that the

00:12:34 ◼   ► government claims once ordered a third party to, quote, provide decryption services. I've,

00:12:39 ◼   ► I went and read the original transcripts of that trial, by the way.

00:12:42 ◼   ► Okay. That's, I cannot, I did not, so I want to hear about it. But the government said that

00:12:48 ◼   ► here's some precedent for compelling somebody to decrypt something that we can't decrypt,

00:12:54 ◼   ► is that Chief Justice Marshall had Aaron Burr's secretary decrypt a ciphered note. And Apple,

00:13:00 ◼   ► in its response, was it yesterday or was it Monday? Monday?

00:13:04 ◼   ► Uh, yeah.

00:13:05 ◼   ► Monday.

00:13:06 ◼   ► No, yesterday.

00:13:08 ◼   ► Was it yesterday?

00:13:09 ◼   ► It's all a blur. It's all a blur. Says that they got, the government got it wrong, that Marshall

00:13:21 ◼   ► did nothing of the sort, and that the All Writs Act had nothing to do, was not even an issue in

00:13:26 ◼   ► Burr. And what actually happened, according to Apple's brief, is that Aaron Burr's secretary

00:13:30 ◼   ► declined to state whether he, quote, "understood the contents of a certain letter written in cipher

00:13:36 ◼   ► on the ground that he might incriminate himself. So in other words he was invoking the Fifth

00:13:39 ◼   ► Amendment to decline to say whether he understood a ciphered message. And what the court decided was

00:13:46 ◼   ► that he could answer that because simply answering whether he understood the cipher would not

00:13:51 ◼   ► incriminate him. Which is fascinating if you're, you know, sort of a, you know, like I am,

00:14:00 ◼   ► just sort of like at broad strokes, like interested in civil liberties and cases like this. Like edge

00:14:05 ◼   ► cases around the Fifth Amendment can be fascinating and that's an interesting

00:14:09 ◼   ► one here's you know and it's again what over 200 years ago it's a sophisticated

00:14:14 ◼   ► question yeah I mean this is what's I love living in 2016 and being able to

00:14:18 ◼   ► pull up instantly transcripts of trials that happened over 200 years ago but the

00:14:23 ◼   ► court anyway the bottom line this is from Apple's brief in a footnote the

00:14:26 ◼   ► court did not require the clerk to decipher the letter that's correct

00:14:31 ◼   ► That's correct. It was, it was, it was the, there are two questions being put. One was,

00:14:36 ◼   ► do you understand the cipher of that paper? Did the paper come from Colonel Burr? Was it written

00:14:41 ◼   ► by him or by his direction? The last question, this is me reading it, last question ought to

00:14:45 ◼   ► have been first stated. The witness does not say why the answer to the question will the tendency

00:14:49 ◼   ► to incriminate him. And so it goes back and forth because the judge, ultimately the issue is if,

00:14:57 ◼   ► He didn't have to decipher it.

00:14:58 ◼   ► They're asking him if he knew the contents of the letter

00:15:01 ◼   ► not to provide the cipher key.

00:15:03 ◼   ► And in fact, just to be pedantic here,

00:15:05 ◼   ► it was both a code and a cipher.

00:15:07 ◼   ► They had a code book, actually two,

00:15:09 ◼   ► that Wilkinson and Burr and others had been using.

00:15:12 ◼   ► Well, the first one since the 1790s, I think.

00:15:15 ◼   ► And then the later one they'd modified

00:15:16 ◼   ► that had codes for like president and vice president

00:15:18 ◼   ► in France and so forth.

00:15:19 ◼   ► And then there was also a simple replacement cipher

00:15:22 ◼   ► that used a rotating letter scheme.

00:15:23 ◼   ► So you'd have letters at the top like Cuba or France,

00:15:26 ◼   ► You'd take the letters, following them down, assign them numbers, and then you

00:15:29 ◼   ► could read across the row to pick the numbers corresponding.

00:15:33 ◼   ► So, um, you know, complicated for the day, uh, because you could work out simple

00:15:37 ◼   ► site substitution ciphers are relatively easy to work out easier with computers,

00:15:41 ◼   ► but definitely doable, uh, in the day.

00:15:43 ◼   ► And, um, that's not that protected, but codes are very difficult.

00:15:46 ◼   ► So with that knowledge of the code, uh, you can determine it from

00:15:49 ◼   ► frequency of appearance and other characteristics.

00:15:52 ◼   ► You can sometimes, uh, retrieve those, but he wasn't asked, you know, the

00:15:55 ◼   ► He wasn't asked, "Do you know the cipher?"

00:15:57 ◼   ► It was, "Do you," or it wasn't for the cipher.

00:16:01 ◼   ► He was asked, "Do you know what it said?

00:16:02 ◼   ► Do you understand the contents?"

00:16:04 ◼   ► And he was concerned that any statement would allow him to,

00:16:09 ◼   ► it would provide,

00:16:10 ◼   ► it would put him in a position of incrimination.

00:16:12 ◼   ► - Right, fascinating.

00:16:13 ◼   ► But I have to say, it sounds to me like Apple

00:16:17 ◼   ► is exactly right that it's no precedent whatsoever

00:16:19 ◼   ► for compelling somebody to decode and encrypt it.

00:16:24 ◼   ► pretty clearly, pretty clearly.

00:16:26 ◼   ► Anyway, so one of the interesting side effects of all this and of invoking things like these, this Burr case, is this, I

00:16:33 ◼   ► did not know that the Founding Fathers took, were so commonly in use of codes and ciphers and stuff like that, and apparently

00:16:40 ◼   ► one of the things I read was like the first

00:16:42 ◼   ► Postmaster General was like a political enemy of a

00:16:47 ◼   ► couple of them. I forget which one, I forget, you know, there's the way that their political

00:16:53 ◼   ► things are, I get it mixed up. But long story short, that they really felt, some of them really felt like they needed to because they knew that this Postmaster General was reading their mail.

00:17:02 ◼   ► Oh yeah, that was a con—right, mail was often open. It's an interesting thing that our current mail system—I've forgotten how far back the law goes, it might be the 18th and 19th century—that it's illegal for any party to open the mail. Like, including the post office, except with like specific warrant or subpoena.

00:17:19 ◼   ► Another Hamilton musical reference, by the way, is Hercules Mulligan, best name in the world.

00:17:23 ◼   ► He was transporting messages. He was not a loyalist, but he was sort of a spy, going back and forth to New York.

00:17:30 ◼   ► He was a textile importer, ran a clothing shop with Taylor, and he and his slave, whose name was Cato,

00:17:36 ◼   ► were sending messages back and forth, often in code or in other, you know, trying to hide the meaning of it, eventually became too dangerous.

00:17:45 ◼   ► dangerous but he's one of the reason that they were able to, to, Hamilton was able to assist

00:17:50 ◼   ► General Washington in some of the battles around Manhattan. It's amazing, it is an amazing name.

00:17:56 ◼   ► Hercules Mulligan. Hercules Mulligan, it's awesome, it's a great part in the play. But yeah,

00:18:00 ◼   ► I mean, code's been an important part. I think I forget what the earliest cryptographic stuff is,

00:18:04 ◼   ► there's the, there's a thing of wrapping a strip of paper around a cylinder of a certain dimension,

00:18:10 ◼   ► like a pencil sized thing that was used so you could write across it and then unfurl it

00:18:14 ◼   ► unless you knew the dimensions,

00:18:15 ◼   ► you wouldn't be able to figure it out.

00:18:16 ◼   ► - Oh yeah, I've seen that, I've seen that.

00:18:17 ◼   ► - Yeah, and that's, I think,

00:18:19 ◼   ► one of the earliest uses of crypto,

00:18:21 ◼   ► and simple cipher substitution,

00:18:23 ◼   ► if you don't know what it is.

00:18:24 ◼   ► And it's only become more complicated over time,

00:18:26 ◼   ► but code has a, code an interception of code,

00:18:29 ◼   ► and people being executed for possession

00:18:33 ◼   ► of what was seen as code, that was never deciphered.

00:18:35 ◼   ► All big issues for thousands of years.

00:18:38 ◼   ► - When I was a kid, I spent a couple,

00:18:40 ◼   ► I mean, it's been a long time,

00:18:41 ◼   ► I was truly like grade school age,

00:18:42 ◼   ► but I spent like, you know,

00:18:44 ◼   ► at one point one of my obsessions became codes

00:18:46 ◼   ► and stuff like that.

00:18:47 ◼   ► And I very, I specifically remember that one

00:18:50 ◼   ► where you wrap the paper around like a ruler type thing

00:18:53 ◼   ► of a certain known width.

00:18:56 ◼   ► And then when you unwrap it, it just looks like gibberish.

00:19:01 ◼   ► And again, like you said, that's not the most secure.

00:19:05 ◼   ► - Nobody else knows it though.

00:19:06 ◼   ► You don't have sophistication on the other side.

00:19:08 ◼   ► It's people are like, why does someone write gibberish?

00:19:11 ◼   ► I have a very vivid memory.

00:19:14 ◼   ► I'm almost certain I was in first grade,

00:19:17 ◼   ► but it was certainly like first or second,

00:19:20 ◼   ► that Kellogg's had a campaign and that three or four

00:19:26 ◼   ► of their flagship kiddie cereals had little plastic things

00:19:34 ◼   ► in them.

00:19:35 ◼   ► So like the Toucan Sam one might be blue,

00:19:38 ◼   ► and the Frosted Flakes, Tony the Tiger one was yellow

00:19:42 ◼   ► and maybe the Sugar Smacks one was red,

00:19:45 ◼   ► with the Ribbit Rabbit or whatever his name was.

00:19:48 ◼   ► Ribbit the Frog, you know what I mean?

00:19:50 ◼   ► But there'd be, so there'd be different colors

00:19:52 ◼   ► and then you would, they were all just a different

00:19:55 ◼   ► like 26 character cipher,

00:19:59 ◼   ► where it would just be a different rotation,

00:20:02 ◼   ► sort of like rot, it was like a rot 13,

00:20:04 ◼   ► but Tony the Tigers was rot 17

00:20:07 ◼   ► and the frog one was rot 11 or something like that.

00:20:10 ◼   ► But I was fascinated, like A, as a first grader,

00:20:13 ◼   ► I felt pretty clever that I figured out

00:20:15 ◼   ► the differences between them.

00:20:16 ◼   ► But then it was cool because then it was,

00:20:20 ◼   ► like with friends at school,

00:20:21 ◼   ► we could send coded messages to each other

00:20:23 ◼   ► and it took so long spinning the disc,

00:20:25 ◼   ► it would just be like.

00:20:27 ◼   ► - Then ultimately, drink your Ovaltine.

00:20:30 ◼   ► - Yeah, exactly, exactly.

00:20:33 ◼   ► - God damn it.

00:20:33 ◼   ► I found, it's called the scriptali,

00:20:36 ◼   ► It's the Greek rod that was used for encryption

00:20:39 ◼   ► with a substitution stifer.

00:20:41 ◼   ► I knew there was something, that's not the earliest.

00:20:43 ◼   ► Egyptians were maybe a thousand years before for that.

00:20:47 ◼   ► There's also a famous story of the word shibboleth.

00:20:50 ◼   ► You know, it was a great story.

00:20:51 ◼   ► It's not about code per se, but it's spies

00:20:53 ◼   ► in a camp, some might camp, and the leader says,

00:20:58 ◼   ► say you now shibboleth, and the spies were unable

00:21:01 ◼   ► to pronounce the sh sound, and they said,

00:21:03 ◼   ► shibboleth and were put to death.

00:21:05 ◼   ► So a shibboleth is like that passphrase,

00:21:07 ◼   ► like a thing you say to be shown

00:21:09 ◼   ► that you're a member of a tribe, always like that.

00:21:11 ◼   ► - Hmm.

00:21:12 ◼   ► - These divisions go back thousands of years,

00:21:14 ◼   ► so from probably the origin of being able

00:21:16 ◼   ► to put words on paper, people were figuring out ways

00:21:19 ◼   ► to make other people not be able to read those.

00:21:21 ◼   ► - Right, well, to communicate at length, right?

00:21:23 ◼   ► - Yeah.

00:21:24 ◼   ► - Because you could always communicate in private.

00:21:26 ◼   ► Well, I mean, obviously, if your room is bugged or whatever,

00:21:28 ◼   ► there's ways around, but if you're reasonably secure

00:21:32 ◼   ► that the room you're in is not being bugged,

00:21:35 ◼   ► you can have a private conversation with somebody.

00:21:38 ◼   ► The trick is how do you have a private conversation

00:21:40 ◼   ► with somebody at a distance?

00:21:41 ◼   ► And it's like you said,

00:21:43 ◼   ► it's long as we've been communicating at a distance,

00:21:45 ◼   ► even if it's like just by dispatching a messenger,

00:21:49 ◼   ► there have been codes.

00:21:51 ◼   ► - Yeah, I mean, you're saying there might be

00:21:52 ◼   ► warrant proof spaces is--

00:21:55 ◼   ► - Exactly.

00:21:56 ◼   ► - Possibly in our minds.

00:21:57 ◼   ► My grandparents, my family was furniture,

00:22:00 ◼   ► ran furniture stores for many, many years,

00:22:02 ◼   ► and my grandfather developed a code,

00:22:04 ◼   ► a number code, 10-letter code,

00:22:05 ◼   ► based on our last name and his mother's initial,

00:22:08 ◼   ► so they could put the retail,

00:22:09 ◼   ► or the wholesale price of things in the tags

00:22:11 ◼   ► without customers knowing.

00:22:12 ◼   ► So when they negotiated,

00:22:13 ◼   ► they knew exactly how low they could go.

00:22:15 ◼   ► - Ha, see?

00:22:16 ◼   ► - Clever fella, my grandpa.

00:22:18 ◼   ► - Very, very clever.

00:22:19 ◼   ► Boy, that's the type of thing that nowadays,

00:22:22 ◼   ► people, you know, it's eventually some consumer website

00:22:27 ◼   ► would come out with the--

00:22:28 ◼   ► - Oh yeah.

00:22:29 ◼   ► - Yeah, go into this mattress store

00:22:30 ◼   ► and here's how you decode the thing.

00:22:31 ◼   ► Exactly. You know, they can go. Yeah. All right.

00:22:34 ◼   ► Let me take a break here and thank our first sponsor.

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00:23:19 ◼   ► the right size.

00:23:21 ◼   ► And as crazy as it sounds, I know I've said this every time they sponsor this show, it

00:23:24 ◼   ► sounds crazy to buy a mattress without like trying it out, but what kind of a tryout do

00:23:28 ◼   ► you actually get in a retail store anyway. It's actually kind of gross because other

00:23:31 ◼   ► people have slept on it. And just like being there with all of your clothes on and laying

00:23:36 ◼   ► on a bed for two or three minutes isn't going to tell you how you sleep on it. So actually,

00:23:41 ◼   ► the way that Casper does it, if you think about it, it's a traditional but it makes

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00:23:49 ◼   ► for 100 days. And if you don't like it, up to 100 days, they'll just call them up, go

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00:23:59 ◼   ► right back. No, no questions asked. I've even heard from a

00:24:03 ◼   ► listener of the show, sent me an email and said that, that they

00:24:08 ◼   ► did it and that they bought it because it was on the show. And

00:24:11 ◼   ► it was like for whatever reason wasn't wasn't to their liking.

00:24:14 ◼   ► And it and and said it just wanted to say, I know you keep

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00:25:04 ◼   ► So I guess we should talk in detail

00:25:09 ◼   ► about the Apple FBI case.

00:25:12 ◼   ► - Yeah, you're gonna jump into that.

00:25:13 ◼   ► - And then we can speculate.

00:25:14 ◼   ► 'Cause I feel like this is the one thing.

00:25:15 ◼   ► This is the thing, I mean, we can talk about

00:25:17 ◼   ► next week's event and what our last minute speculation is,

00:25:19 ◼   ► whatever, but that's,

00:25:21 ◼   ► know it's interesting but it's of the moment whereas that this Apple FBI thing

00:25:25 ◼   ► is is truly I don't think it's hyperbole I think it's genuinely important to the

00:25:30 ◼   ► future of the Republic. I am absolutely I think it's actually one of the most

00:25:35 ◼   ► fundamental issues of privacy we could possibly be facing now and we have the

00:25:39 ◼   ► best advocate on our side and the government is and extremely disappointed

00:25:45 ◼   ► the Obama administration's stance I feel like we're we're being sold out because

00:25:51 ◼   ► He says, it's not on my watch is the, is what

00:25:54 ◼   ► is driving it.

00:25:55 ◼   ► He says he's worked with law enforcement a lot.

00:25:57 ◼   ► He has a lot of good takes on this subject.

00:25:59 ◼   ► And he said, nobody wants to be the guy when

00:26:02 ◼   ► the event happens and you could have done

00:26:04 ◼   ► something else and you didn't do everything.

00:26:06 ◼   ► So the FBI is doing this scorched earth policy

00:26:08 ◼   ► to break apart this thing.

00:26:10 ◼   ► They try to find a test case because James

00:26:12 ◼   ► Comey and a few other people are saying, this

00:26:14 ◼   ► is not going to be the thing where we lose.

00:26:16 ◼   ► Not, I am not going to be the person responsible

00:26:18 ◼   ► for this thing, but I am not going to be the

00:26:20 ◼   ► I'm going to do everything, even if potentially it threatens liberty, that's not my concern.

00:26:24 ◼   ► My concern is preventing this attack.

00:26:26 ◼   ► And I think it's true, too.

00:26:27 ◼   ► I think they're being such bulldogs about it.

00:26:29 ◼   ► But I agree with you.

00:26:30 ◼   ► I think this is a -- you've been writing about this, I think, in a wonderful way.

00:26:35 ◼   ► The warrant-proof spaces is a big issue.

00:26:37 ◼   ► And Comey said that.

00:26:39 ◼   ► And then Jonathan Zdravierski has been writing about this, too.

00:26:42 ◼   ► He just wrote recently about how there are many warrant-proof spaces in America, American law and the Constitution.

00:26:48 ◼   ► Uh, state laws carve out lots of places in which

00:26:51 ◼   ► warrants aren't allowed.

00:26:52 ◼   ► Great post.

00:26:53 ◼   ► But, uh, are we allowed only the privacy of our

00:26:57 ◼   ► own mind?

00:26:57 ◼   ► What, here's the thing, you know, you and I were

00:26:59 ◼   ► talking about this on Twitter is there's all

00:27:01 ◼   ► these natural extensions.

00:27:02 ◼   ► Should ISPs preserve every email you ever sent?

00:27:04 ◼   ► Like, can we delete email permanently?

00:27:06 ◼   ► Um, what if there were brain scanners?

00:27:08 ◼   ► What if brain scans existed tomorrow?

00:27:09 ◼   ► There's technology starting to be able to pull

00:27:11 ◼   ► images out of people's heads.

00:27:12 ◼   ► Right.

00:27:13 ◼   ► Is that, I mean, would they be allowed to

00:27:16 ◼   ► Is that private?

00:27:17 ◼   ► Would they be allowed to use that on a suspect in custody?

00:27:21 ◼   ► Like if you're arrested?

00:27:22 ◼   ► Yeah, it's not science fiction.

00:27:23 ◼   ► It's not science fiction.

00:27:24 ◼   ► We're seeing, I mean, people are showing, they're actually like having some glimmerings

00:27:26 ◼   ► of this where it's real.

00:27:27 ◼   ► It's something that's not telepathy.

00:27:28 ◼   ► It's science in a lab that they can show.

00:27:30 ◼   ► And so, holy cow, you know, this isn't impractical, theoretical.

00:27:34 ◼   ► Could they compel a criminal suspect to have like a brain scan and ask them questions,

00:27:41 ◼   ► sort of like where today it's a lie detector test, but just imagine like, what is the pass

00:27:46 ◼   ► code to your phone? What's the passcode to your phone? And if they read a number out

00:27:50 ◼   ► of the guy's head and try it and it works, is that admit? No, but I mean, I don't think

00:27:55 ◼   ► that that's it. I know they, I don't think they can do that today. To my knowledge, there's

00:27:58 ◼   ► no such device today, but that does not seem like it's unreasonable, even within the scope

00:28:03 ◼   ► of your, my lifetimes. I mean, in terms of the way that, that, that we're starting to

00:28:08 ◼   ► understand the brain. And I've said this before, I said this on the show and I really, it,

00:28:12 ◼   ► To me it really, it's interesting.

00:28:15 ◼   ► What if, what if some future computing device

00:28:20 ◼   ► that provides capabilities like what we use today

00:28:23 ◼   ► with an iPhone, what if it's embedded in your body?

00:28:27 ◼   ► What if it's something that you place in your wrist?

00:28:30 ◼   ► What if it's something you do put in your head, right?

00:28:33 ◼   ► What if it's, and again, I'm not an expert on Alzheimer's

00:28:38 ◼   ► and I know that there are some biological,

00:28:41 ◼   ► you know, the solutions or improvements to Alzheimer's research going on. But what if,

00:28:47 ◼   ► you know, somebody 10, 15, 20 years from now invents some kind of very small system on a chip

00:28:53 ◼   ► that can be embedded in somebody's brain to help with the cognitive decline and the dementia that's

00:29:03 ◼   ► caused by Alzheimer's. Would that device then be susceptible to the government reading the

00:29:12 ◼   ► contents of it? To me, it's not preposterous to pose hypotheticals like that. And my answer

00:29:21 ◼   ► would be no. There's not that much difference and there's going to be less as time goes

00:29:27 ◼   ► on between artificial digital devices and our capability of reading the, you

00:29:36 ◼   ► know, the mechanic, you know, treating our brains as the mechanical devices they

00:29:40 ◼   ► are at a certain level. It's also, I think the warrant proof space is a great

00:29:45 ◼   ► metaphor because in fact every place we have in our brains and in reality that

00:29:50 ◼   ► we own are all warrant proof spaces until a warrant is produced and I think

00:29:54 ◼   ► there's this interesting thing where the view of the FBI,

00:29:57 ◼   ► as they've expressed at the Department of Justice,

00:29:59 ◼   ► is that all spaces are open to the government on demand.

00:30:02 ◼   ► And that is simply not, I mean, it's both true and not true.

00:30:05 ◼   ► People can also express civil disobedience

00:30:07 ◼   ► and be jailed for contempt or for violating court orders

00:30:09 ◼   ► or other charges.

00:30:10 ◼   ► They can go to jail for refusing.

00:30:12 ◼   ► You have a lot of people who have nobly in the past,

00:30:15 ◼   ► sometimes nobly, gone to jail,

00:30:18 ◼   ► rather than give up information

00:30:20 ◼   ► or access or locations of things.

00:30:22 ◼   ► I think by default we should assume that all places are private.

00:30:27 ◼   ► I think this notion, I think Zdravinsky wrote about this also, is that the Bill of Rights

00:30:31 ◼   ► is not instructions on what the government can do.

00:30:35 ◼   ► It's instructions on what citizens' rights are, and it prescribes the government from

00:30:40 ◼   ► doing so much.

00:30:41 ◼   ► So it's not a plan to use to circumvent rights.

00:30:45 ◼   ► It's a giant wall to prohibit the government from excess.

00:30:49 ◼   ► And so the idea that every space we own is really owned by the government is terrifying.

00:30:53 ◼   ► I mean, that's really, you know, it's a very much a conservative and far right view that

00:30:57 ◼   ► the government, you know, any Democrat elected government would be, have that in place.

00:31:03 ◼   ► So the government owns all spaces.

00:31:04 ◼   ► So they're playing into the hands at some point of that.

00:31:06 ◼   ► And I think people who are on the left of the spectrum would say also that even if they

00:31:11 ◼   ► believe in a bigger role for government or different nature of government regulation

00:31:14 ◼   ► and control, that the government having sort of a de facto right to all of our private

00:31:19 ◼   ► our homes, our computers, and by extension our minds.

00:31:22 ◼   ► That that also is not in keeping with the nature

00:31:26 ◼   ► of what civil human rights are and it would be

00:31:30 ◼   ► in the nature of our country.

00:31:32 ◼   ► So, I mean, you come down to this,

00:31:35 ◼   ► it's like what percentage of iPhones are used for crime?

00:31:38 ◼   ► It's .00 whatever percent.

00:31:41 ◼   ► And the idea that all iPhones have to be open to inspection

00:31:44 ◼   ► at any time, like bags going through an X-ray machine

00:31:47 ◼   ► machine or the TSA with their locks that have now been duplicated because they allowed photos

00:31:51 ◼   ► to be taken of the master keys. Like that's what the FBI is proposing is we'll have a way for,

00:31:57 ◼   ► you know, the TSA style investigators to get in, which means everyone can get in.

00:32:01 ◼   ► Right. And there's a, um, the part that to me is the most disappointing,

00:32:06 ◼   ► single most disappointing in, in, in the Obama administration. And, you know, I'll just admit it.

00:32:14 ◼   ► and Hillary Clinton has espoused the same opinion,

00:32:17 ◼   ► is a belief in this magical thinking

00:32:19 ◼   ► that if we just put smart enough people

00:32:21 ◼   ► into a room together, that they can come up with a way

00:32:24 ◼   ► that this backdoor solution would only be available

00:32:28 ◼   ► to law enforcement.

00:32:29 ◼   ► That we're not asking you to make a backdoor

00:32:31 ◼   ► that anybody could get into,

00:32:32 ◼   ► we just want a backdoor that law enforcement can get into

00:32:36 ◼   ► when we have a warrant.

00:32:37 ◼   ► Which sounds reasonable,

00:32:39 ◼   ► and in some fictional other universe

00:32:43 ◼   ► where that's mathematically possible, that might be great.

00:32:46 ◼   ► I actually, I think that there's good reasons

00:32:48 ◼   ► why a civil libertarian would be opposed even to that.

00:32:52 ◼   ► I'd like, like, let me just put this out there

00:32:54 ◼   ► that and I tend to lean that way.

00:32:57 ◼   ► I would listen to the argument,

00:32:59 ◼   ► but I tend to lean towards even if that were possible,

00:33:02 ◼   ► I don't think it's a good idea.

00:33:03 ◼   ► And I think it's contrary to the values

00:33:05 ◼   ► that are already in our Bill of Rights, but it is an idea.

00:33:09 ◼   ► But the simple truth is that it's math, all experts agree.

00:33:12 ◼   ► everybody who understands encryption. I mean, this is it. I don't think that you it's more than even

00:33:18 ◼   ► like, I mean, it's, it's, like, provably incorrect, you know, like, as opposed to, let's say, climate

00:33:25 ◼   ► change, where you can say, you can argue that only 98 or 99% of expert climate scientists agree that

00:33:32 ◼   ► the, you know, what we're seeing is manmade. I mean, with with cryptography and backdoors, it's 100%

00:33:38 ◼   ► agreement, because

00:33:40 ◼   ► You're totally right. I just realized I haven't seen any, um,

00:33:42 ◼   ► any crypto deniers out there saying this is possible.

00:33:44 ◼   ► I've only seen politicians and law enforcement. Right. It's, well,

00:33:49 ◼   ► that's part of the beauty of trying to convince my 12 year on son of it.

00:33:53 ◼   ► I'm trying to convince when I talked to my 12 year old son,

00:33:56 ◼   ► it does not have the enthusiasm for mathematics that I did,

00:33:58 ◼   ► that that's the beauty of mathematics. It's, it's, you know, and,

00:34:03 ◼   ► and in a,

00:34:04 ◼   ► in a way that computer science sort of falls out of mathematics,

00:34:08 ◼   ► I could go on a long run here.

00:34:09 ◼   ► Like when I went to Drexel and got my degree

00:34:12 ◼   ► in computer science, it was from the department

00:34:13 ◼   ► of math and computer science.

00:34:17 ◼   ► It was one department for mathematics and computer science.

00:34:19 ◼   ► And well, they've since broken it out

00:34:21 ◼   ► and now computer science is often,

00:34:24 ◼   ► I don't know what they did, but it's--

00:34:25 ◼   ► - An expensive new building probably.

00:34:27 ◼   ► - Yeah, I think that what happened is that politically

00:34:31 ◼   ► the computer science department grew to,

00:34:34 ◼   ► used to be like, it was the math department

00:34:36 ◼   ► a little kooky computer science group of professors and then computer science got so popular and

00:34:43 ◼   ► so important to our society that it grew off. But anyway, I just thought, and it's not just

00:34:48 ◼   ► because I went to Drexel where they put them together. It just made sense to me though,

00:34:51 ◼   ► that when you type a computer program and it either works or doesn't work, there's a

00:34:56 ◼   ► certain beauty to that. And I think a lot of the people who listen to the show are probably

00:35:00 ◼   ► nodding their heads like that's why they got into this racket because there's a statistics

00:35:05 ◼   ► statistics lie, math doesn't. Right, correct. And it's, you know, it's just disappointing to me that

00:35:13 ◼   ► they keep, you know, pushing back on that. There was a, there's a line that Apple's attorneys used,

00:35:19 ◼   ► it was in the sort of off the record. You can paraphrase, you know, the rules were from the

00:35:25 ◼   ► call that you can paraphrase it, not quote it directly, but the gist of it was that, that they

00:35:31 ◼   ► talk to US law enforcement frequently and they are happy to do so and happy to

00:35:37 ◼   ► work with the government and that they are of course you know opposed to

00:35:43 ◼   ► terrorism and crime and all this stuff and that they are also happy to you know

00:35:47 ◼   ► willing and happy to comply with warrants and provide information that

00:35:51 ◼   ► they have but that every time they meet with law enforcement about this issue

00:35:57 ◼   ► law enforcement, US law enforcement, comes at the discussion with the angle

00:36:03 ◼   ► of how can you let us into the iPhone and never wants to discuss the question

00:36:09 ◼   ► of should we be able to get into the iPhone. It's just not it they're

00:36:16 ◼   ► intransigent and transigent on the point of how do we get into the iPhone.

00:36:21 ◼   ► Oh here let me give you a good thought experiment because I think there's this

00:36:25 ◼   ► issue where people, I want to say that I keep stating on the Macworld podcast

00:36:30 ◼   ► everywhere, I keep saying look I absolutely support the right of a legal

00:36:33 ◼   ► warrant. I don't like extrajudicial stuff, I don't like the FISA Court, I don't like

00:36:36 ◼   ► extra constitutional things, illegal rendition, all that stuff. I like the

00:36:41 ◼   ► legality the constitutionally created warrants, right? And I think the FBI

00:36:46 ◼   ► should be seeking every available reasonable means and sometimes even

00:36:50 ◼   ► almost unreasonable with a court holding them in check so they don't violate the

00:36:54 ◼   ► I am absolutely a, I want to trust the government.

00:36:57 ◼   ► The government isn't always trustworthy, but I believe it's the best system we have to

00:37:00 ◼   ► ensure justice.

00:37:01 ◼   ► We need to improve the quality of justice as opposed to constraining them from being

00:37:04 ◼   ► able to use tools that are legal and courts oversee in a public way that is fair and whatever.

00:37:09 ◼   ► So here's the thought experiment.

00:37:11 ◼   ► I was reading a paper, a academic paper a year or so ago.

00:37:15 ◼   ► You know that cameras and cell phones and DSLRs are so good now that they can extract

00:37:21 ◼   ► that they can extract a face from the reflection

00:37:25 ◼   ► in an object in the subject.

00:37:27 ◼   ► So you're taking a picture, you're behind the camera,

00:37:30 ◼   ► a reflection, even minute in anything

00:37:32 ◼   ► you're taking a picture of, can be reconstructed

00:37:35 ◼   ► to provide a decent facial match against you.

00:37:38 ◼   ► And this is today, right?

00:37:39 ◼   ► This is a couple of years ago, actually.

00:37:40 ◼   ► So when we have 20 megapixel or 50 megapixel

00:37:43 ◼   ► or photographic, computational photographic equipment

00:37:46 ◼   ► in everything, our iPhones will have seven cameras on them,

00:37:48 ◼   ► whatever, right?

00:37:49 ◼   ► So, here's the picture, here's the scenario, and this is where I think we would agree on, but let's find out.

00:37:53 ◼   ► Is that FBI, or law enforcement says, ah, we know there were several people in the vicinity of this event and they were taking pictures.

00:38:02 ◼   ► We believe we could recover the face from a reflection of the actual criminal and they subpoena the phones or they, you know, they demand them.

00:38:08 ◼   ► They want the abuse of mis-evidence.

00:38:10 ◼   ► In my view, I think that's totally legitimate.

00:38:13 ◼   ► Now, could those people be compelled under All Rights Act to provide it?

00:38:16 ◼   ► Maybe not. Maybe they would say yes, maybe they'd say no.

00:38:19 ◼   ► that request to want those photos

00:38:21 ◼   ► and people handing over those photos

00:38:23 ◼   ► thinking they were legally obliged to aid in this,

00:38:26 ◼   ► that seems reasonable to me,

00:38:27 ◼   ► where the line would be crossed as if,

00:38:29 ◼   ► like in this case, they said,

00:38:30 ◼   ► "Oh, we need to use the All Writs Act

00:38:32 ◼   ► "to break the encryption,

00:38:33 ◼   ► "'cause some of the witnesses

00:38:34 ◼   ► "refuse to turn over their phones

00:38:35 ◼   ► "where we think there's a picture

00:38:37 ◼   ► "of the killer in that scene."

00:38:38 ◼   ► What do you think? - No, I agree.

00:38:40 ◼   ► That's exactly what a warrant is, in my opinion.

00:38:43 ◼   ► You ask for permission to search whatever,

00:38:48 ◼   ► a room, a house, a filing cabinet, a digital device,

00:38:53 ◼   ► and what they can get off it, they can get off it.

00:38:57 ◼   ► But if all they get off it is a strongly encrypted jumble

00:39:02 ◼   ► of ones and zeros, that's tough.

00:39:06 ◼   ► - Yeah, I mean that's, and I, yeah, so that's the thing.

00:39:09 ◼   ► I mean this is a different, it's a sort of parallel case,

00:39:11 ◼   ► you know, where it's, but I think we're gonna see,

00:39:13 ◼   ► I think based on this, we're gonna see a lot more use

00:39:16 ◼   ► of the All Rights Act, and I think they're gonna be

00:39:17 ◼   ► And I think a lot of citizens or small companies

00:39:20 ◼   ► or even bigger companies are gonna feel compelled

00:39:22 ◼   ► to do it to obey.

00:39:24 ◼   ► And I think the precedent set here

00:39:25 ◼   ► will affect things like that.

00:39:27 ◼   ► There'll be, you know what it is,

00:39:27 ◼   ► is I think there's gonna be a massively increasing number

00:39:30 ◼   ► of cases in which people who are innocent bystanders

00:39:34 ◼   ► will have evidence that will be useful

00:39:36 ◼   ► because of digital data collection,

00:39:38 ◼   ► audio or video images or anything else.

00:39:41 ◼   ► - But that's also a very different thing

00:39:42 ◼   ► than compelling innocent bystanders to take action,

00:39:47 ◼   ► to say, to, for example, say this,

00:39:51 ◼   ► we have reason to believe that some sort of crime

00:39:55 ◼   ► is gonna be committed in this area,

00:39:57 ◼   ► therefore we, you know,

00:39:59 ◼   ► and I'm telling you, this is exactly the path

00:40:03 ◼   ► that this sort of precedent can go down.

00:40:06 ◼   ► We want the right to turn on the camera and recording

00:40:09 ◼   ► of every iPhone in range of this cell tower.

00:40:14 ◼   ► - Panopticon OS.

00:40:17 ◼   ► - Right, and only here, we're not saying anywhere

00:40:21 ◼   ► and everywhere, we're saying right here in the vicinity

00:40:23 ◼   ► of whatever street and whatever street in whatever city.

00:40:27 ◼   ► But we have good reason for it,

00:40:30 ◼   ► and therefore we require the ability to do this.

00:40:34 ◼   ► - That is very much within the realm

00:40:36 ◼   ► of what people would ask.

00:40:37 ◼   ► I mean, look, that's already happening with cars.

00:40:38 ◼   ► We know that law enforcement wants to get

00:40:41 ◼   ► information on their cars.

00:40:42 ◼   ► Look, I was talking to car makers last year about,

00:40:44 ◼   ► you know, car robots, self-driving cars.

00:40:47 ◼   ► And the deal is, like this is the thing

00:40:49 ◼   ► you keep coming back to.

00:40:50 ◼   ► What we are seeing today is the tip of the iceberg

00:40:53 ◼   ► of data collection, both us watching the watchmen

00:40:55 ◼   ► and the watchmen watching us.

00:40:57 ◼   ► And it seems like it's already ridiculous, right?

00:40:59 ◼   ► In the future, our clothing is gonna be covered

00:41:01 ◼   ► with cameras.

00:41:02 ◼   ► I mean, I'm exaggerating, but like everything,

00:41:03 ◼   ► cars are gonna be festooned.

00:41:05 ◼   ► But one of the limitations, there's a point at which

00:41:07 ◼   ► you can have too many cameras on a car,

00:41:09 ◼   ► you're collecting too much information.

00:41:10 ◼   ► That point has not been hit yet.

00:41:12 ◼   ► I think because of computational photography

00:41:15 ◼   ► where you can combine images from many cameras

00:41:17 ◼   ► or different kinds of imagery from cameras

00:41:19 ◼   ► to obtain more information.

00:41:21 ◼   ► Like, you know, we talk about 3D cameras on cars,

00:41:23 ◼   ► they're really 2D stereoscopic cameras.

00:41:25 ◼   ► They're RGB plus depth,

00:41:28 ◼   ► and they use infrared or laser for ranging.

00:41:30 ◼   ► That kind of information you can also obtain,

00:41:32 ◼   ► in some cases, if you have more cameras.

00:41:33 ◼   ► You don't need the ranging part.

00:41:35 ◼   ► There's all these things that are gonna happen.

00:41:36 ◼   ► So at some point our camera, our car's gonna have--

00:41:37 ◼   ► - Yeah, you can triangulate the three-dimensional aspects

00:41:39 ◼   ► of it from the two different angles.

00:41:41 ◼   ► - Yeah, and I've seen some really,

00:41:42 ◼   ► some really interesting papers.

00:41:43 ◼   ► So at some point, we are gonna,

00:41:45 ◼   ► our phones are gonna be recording 100% of the time.

00:41:47 ◼   ► We're gonna be having wearable devices,

00:41:48 ◼   ► if they're watch or watches or whatever,

00:41:50 ◼   ► they're constantly ready and on recording video and audio

00:41:53 ◼   ► unless we disable them.

00:41:54 ◼   ► And everything is gonna be constantly recording

00:41:56 ◼   ► and streaming terabytes of data

00:41:58 ◼   ► that's actually gonna be processed to pull out information.

00:42:01 ◼   ► So we are going into a future

00:42:02 ◼   ► and with what you're describing as reality,

00:42:04 ◼   ► There could be a continuous 3D-like coverage

00:42:07 ◼   ► in any area of any minimal population density

00:42:10 ◼   ► between Nest Cam-style things

00:42:12 ◼   ► and our phones and watches and cars.

00:42:15 ◼   ► So what if the government wants to compel that?

00:42:16 ◼   ► We need like 10 minutes in an hour.

00:42:18 ◼   ► Hit this button and every camera records that

00:42:21 ◼   ► for the next 10 minutes and they get, you know,

00:42:23 ◼   ► terabyte of information or petabyte from that.

00:42:25 ◼   ► - Yeah.

00:42:26 ◼   ► Could skip over, you know, skipping around a little bit,

00:42:29 ◼   ► but I think it applies.

00:42:30 ◼   ► But one of the highlights I have in Apple's brief yesterday

00:42:34 ◼   ► was from talking about this CALEA law, C-A-L-E-A.

00:42:39 ◼   ► - Yeah, that was really fascinating.

00:42:41 ◼   ► - And the government is sort of arguing

00:42:44 ◼   ► that CALEA doesn't apply to Apple in this case.

00:42:47 ◼   ► And Apple is arguing, yes, it exactly applies to us.

00:42:52 ◼   ► - Yeah.

00:42:53 ◼   ► - It's, and one of them, here's the passage I highlighted.

00:42:57 ◼   ► CALEA's legislative history makes clear

00:42:59 ◼   ► the sound policy reasons behind its specific limitations

00:43:02 ◼   ► on when decryption services can be required.

00:43:05 ◼   ► During congressional hearings on CALEA,

00:43:08 ◼   ► then FBI Director Louis Freeh assured Senator Leahy,

00:43:13 ◼   ► that's Pat Leahy from Vermont,

00:43:15 ◼   ► that CALEA would not impede the growth of new technologies.

00:43:18 ◼   ► When Senator Leahy asked whether CALEA

00:43:21 ◼   ► would inhibit the growth of encryption,

00:43:23 ◼   ► Freeh responded, quote,

00:43:26 ◼   ► "This legislation does not ask companies to decrypt.

00:43:30 ◼   ► It just tells them to give us the bits as they have them.

00:43:33 ◼   ► If they are encrypted, that is my problem.

00:43:37 ◼   ► Which is what I'm saying, is that yes, I

00:43:39 ◼   ► think that the FBI should have the rights

00:43:41 ◼   ► to get the contents of this suspect's phone.

00:43:43 ◼   ► But if the contents of the phone are scrambled

00:43:45 ◼   ► and the FBI is technically incapable of decrypting them,

00:43:50 ◼   ► that's their problem.

00:43:51 ◼   ► And I don't say that to be callous in terms of, wow,

00:43:56 ◼   ► what if in some other hypothetical case

00:43:58 ◼   ► the information would actually prove useful to getting a conviction of someone who actually

00:44:02 ◼   ► did something, or what if it was some sort of information on a phone that they can't

00:44:07 ◼   ► access would have information that could prevent something in the future. I mean, those things

00:44:11 ◼   ► will happen, but there is no perfect solution.

00:44:15 ◼   ► Yeah, I want to circle back about this too, is when we talk about the political spectrum,

00:44:20 ◼   ► it applies directly here too, is that it's hilarious to see people all the way on the

00:44:24 ◼   ► anarchist to, um, you know, right wing

00:44:28 ◼   ► fundamentalists who are all like absolute

00:44:31 ◼   ► libertarian.

00:44:32 ◼   ► I, um, I love that aspect of this.

00:44:34 ◼   ► But the cryptographer, cause the cryptographic

00:44:35 ◼   ► community has people across a larger political

00:44:38 ◼   ► spectrum than I think almost who are prominent

00:44:40 ◼   ► in it, let's say, than almost any other field of

00:44:42 ◼   ► endeavor I can imagine.

00:44:44 ◼   ► So you've got Whitfield Diffie, you've got

00:44:46 ◼   ► Moxie, uh, uh, Marlon's, uh, you've got, uh,

00:44:49 ◼   ► David, uh, uh, what's his face, uh, Robert, um,

00:44:52 ◼   ► um, uh, from a rat, a gram from a rat of security.

00:44:55 ◼   ► Uh, you've got people across, um, huge spectrum,

00:44:59 ◼   ► right?

00:44:59 ◼   ► And some people have come from dictatorship, uh,

00:45:02 ◼   ► based societies and escape them.

00:45:04 ◼   ► Some are living in societies that are

00:45:05 ◼   ► becoming repressive.

00:45:06 ◼   ► Some are in democracies or extensible democracies

00:45:09 ◼   ► and they're all like, yeah, okay.

00:45:11 ◼   ► I mean, there's different reasons to argue

00:45:12 ◼   ► about this.

00:45:12 ◼   ► Some people may or may not be in favor of a

00:45:14 ◼   ► backdoor, none of them disagree over what you're

00:45:17 ◼   ► saying, there is no way to create that.

00:45:19 ◼   ► And so if you're an anarchist or a, you know,

00:45:22 ◼   ► raging libertarian, you've got the same view like, "Nah, can't be done."

00:45:25 ◼   ► I really enjoyed—I keep pondering it over my head—Rich Mogul's description of it,

00:45:30 ◼   ► that it's sort of a cover-your-ass mentality, or like, you're seeing his words are not on my watch,

00:45:34 ◼   ► but it's cover your own ass. Because that's the only way it really makes sense. And it's very

00:45:41 ◼   ► disappointing though, because the implications are so severe. I have a feeling—and again,

00:45:46 ◼   ► and I could be wrong.

00:45:48 ◼   ► And that's why it's nervous watching this go down.

00:45:51 ◼   ► I have a feeling that Apple might do well in this.

00:45:56 ◼   ► I think Apple, I think they should.

00:45:58 ◼   ► It's not just because I'm hoping

00:45:59 ◼   ► and that my personal preference

00:46:02 ◼   ► is that Apple wins this case.

00:46:03 ◼   ► I actually think that on the fact

00:46:05 ◼   ► and based on the law, I feel like that they should win.

00:46:10 ◼   ► - Well, there's, if they, it's so bizarre.

00:46:13 ◼   ► It's like, there's so many different bases

00:46:16 ◼   ► And this brief spells out a lot of them.

00:46:18 ◼   ► Why what the FBI and Department of Justice

00:46:20 ◼   ► are requesting is unprecedented or a misreading.

00:46:23 ◼   ► And I've been following this closely,

00:46:24 ◼   ► never read this brief and some others in depth.

00:46:26 ◼   ► This one I read very much in depth

00:46:28 ◼   ► because it's kind of one of the crux right now.

00:46:31 ◼   ► And because the FBI went into sort of name calling.

00:46:33 ◼   ► The DOJ isn't saying things that are just kind of,

00:46:35 ◼   ► it's like, it feels like watching someone

00:46:36 ◼   ► spin out of control.

00:46:37 ◼   ► You're like, look, we need an intervention here.

00:46:39 ◼   ► And Obama is not your interventionist apparently.

00:46:40 ◼   ► He's like being your codependent enabler here.

00:46:44 ◼   ► But you read this and you're like, look,

00:46:46 ◼   ► All rights act has never encompassed this.

00:46:47 ◼   ► And there's plenty of evidence like, and what

00:46:49 ◼   ► they're studying is speechless, the CALEA, the

00:46:51 ◼   ► legislative history, the previous, whatever.

00:46:53 ◼   ► Then you have like basically every person who

00:46:56 ◼   ► used to be in intelligence or law enforcement,

00:46:58 ◼   ► who was at a high level, who is no longer in

00:47:00 ◼   ► that office saying, yeah, like, well, what would

00:47:02 ◼   ► you have done when you're in office?

00:47:02 ◼   ► Well, I might've supported Comey because I had to

00:47:05 ◼   ► like, well, what about now?

00:47:06 ◼   ► Like, no, no, no, no.

00:47:06 ◼   ► I mean, the, the interview is with Richard

00:47:08 ◼   ► Clark with Michael Hayden with, you know, like

00:47:11 ◼   ► Clark's NPR interview is astonishing.

00:47:14 ◼   ► What do you say?

00:47:14 ◼   ► He's like, it was called the NSA.

00:47:16 ◼   ► we could, they could do it right. Well that, that's interesting to me. Now,

00:47:19 ◼   ► number one, I've found that post nine 11,

00:47:21 ◼   ► Richard Clark was fine at one of the most thoughtful and a truly impressive

00:47:26 ◼   ► individuals, you know, in the U S government in terms of,

00:47:31 ◼   ► yeah, I agree. I've been a huge fan of his,

00:47:35 ◼   ► I can't even think of a single point that I've ever really disagreed with him

00:47:38 ◼   ► on. I get really sad and he's, you know,

00:47:40 ◼   ► opened my mind to all sorts of things that I had never thought of.

00:47:43 ◼   ► Like he's exactly the sort of person who I would want to be

00:47:46 ◼   ► the, you know, who he was and who I wish we had more of

00:47:50 ◼   ► in national security positions.

00:47:53 ◼   ► So when I say, my gut feeling would be that

00:47:59 ◼   ► if the FBI gave this phone to the NSA,

00:48:01 ◼   ► I bet the NSA could crack this phone

00:48:04 ◼   ► and knows some, you know, knows a way to get in.

00:48:07 ◼   ► But that's just based on, you know, me, my hunch

00:48:10 ◼   ► as to what I think the NSA can do.

00:48:12 ◼   ► pretty much completely uninformed, but just sort of,

00:48:15 ◼   ► you know, it just seems to make sense to me.

00:48:17 ◼   ► When Richard Clark says, I'm pretty sure

00:48:20 ◼   ► that if you gave this phone to the NSA, they could get in.

00:48:23 ◼   ► It's like, go to the cashier

00:48:25 ◼   ► and put your money on that horse.

00:48:28 ◼   ► - Oh yeah, well, yeah, anything,

00:48:30 ◼   ► I think anything that Apple could do

00:48:31 ◼   ► to their own operating system, the NSA could do,

00:48:33 ◼   ► plus the NSA can disassemble it

00:48:36 ◼   ► to like a submolecular level.

00:48:37 ◼   ► - Right.

00:48:38 ◼   ► - I mean, they're not magicians,

00:48:39 ◼   ► But they have the best people who are not working

00:48:42 ◼   ► in cryptography in public and private enterprise,

00:48:45 ◼   ► I mean, I shouldn't say private enterprise, rather,

00:48:47 ◼   ► and in public sector open jobs.

00:48:49 ◼   ► They're working at the NSA.

00:48:50 ◼   ► I mean, this is the thing, like,

00:48:51 ◼   ► I don't love how our government is using the NSA

00:48:55 ◼   ► and the FBI to gather information.

00:48:57 ◼   ► I do respect that the people, the FBI, CIA, and NSA,

00:49:00 ◼   ► are some, there's some people in there,

00:49:02 ◼   ► maybe many people based on some things you hear,

00:49:05 ◼   ► who are some of the smartest people on the planet,

00:49:06 ◼   ► and they're going there because they're told,

00:49:08 ◼   ► do you want to work with the most interesting thing?

00:49:10 ◼   ► You can never talk about it,

00:49:11 ◼   ► maybe for decades or ever,

00:49:13 ◼   ► but you're going to work with the most interesting,

00:49:15 ◼   ► cutting edge technology, ideas and hardware and theory

00:49:20 ◼   ► that no one else in the world can work with.

00:49:22 ◼   ► You're going to go there.

00:49:23 ◼   ► There are people who will go there

00:49:24 ◼   ► and they may have moral qualms about it or not,

00:49:25 ◼   ► or they doesn't enter into it

00:49:26 ◼   ► or they support the missions,

00:49:28 ◼   ► but it's kind of an interesting pull, right?

00:49:31 ◼   ► So I'm sure that,

00:49:33 ◼   ► so I want to talk about employment issues

00:49:37 ◼   ► just for a second too,

00:49:38 ◼   ► 'cause this comes back to this Apple brief.

00:49:40 ◼   ► So let's say Apple loses and is compelled.

00:49:44 ◼   ► - All right, hold that thought, hold that thought.

00:49:45 ◼   ► I know where you're going and it's too long of a segment.

00:49:47 ◼   ► I wanna do it.

00:49:48 ◼   ► - I'm gonna hold my breath.

00:49:49 ◼   ► - Yeah.

00:49:50 ◼   ► Let me just say this before I do the sponsor.

00:49:52 ◼   ► I just wanna go back.

00:49:53 ◼   ► These are two quotes that Apple pulled out.

00:49:55 ◼   ► You referenced them both,

00:49:56 ◼   ► but this is people who've come out

00:50:00 ◼   ► and it's almost to a surprising degree

00:50:02 ◼   ► and I'm impressed at some of the people

00:50:04 ◼   ► who've come out in favor of encryption on this.

00:50:06 ◼   ► But one of them is former NSA and CIA Director Michael Hayden.

00:50:12 ◼   ► That's who Michael Hayden is.

00:50:13 ◼   ► His quote is, "America is more secure, America is more safe, with unbreakable end-to-end encryption."

00:50:22 ◼   ► That's a... I mean, you can't get more clear than that.

00:50:25 ◼   ► And here's Defense Secretary Ashton Carter.

00:50:28 ◼   ► So that's crossing the line over to the Department of Defense.

00:50:32 ◼   ► Data security, including encryption, is absolutely essential to us.

00:50:36 ◼   ► I'm not a believer in backdoors.

00:50:38 ◼   ► And to me, the angle there is that it gets to that...

00:50:42 ◼   ► the Rich Mogul thing, where why is the Department of Justice doing this?

00:50:50 ◼   ► And it doesn't make any sense from a national security perspective.

00:50:55 ◼   ► And that point blank is what these other guys are saying,

00:50:58 ◼   ► is that from a national security perspective,

00:51:00 ◼   ► backdoors are a disaster. And so, and Apple in their brief is saying that the

00:51:08 ◼   ► government is saying you can't take that into consideration and Apple in their

00:51:10 ◼   ► brief is saying I don't know about the legality of the argument of whether the

00:51:13 ◼   ► court should take it into consideration but Apple is certainly emphasizing that

00:51:17 ◼   ► angle. All right, let's take a break and we'll talk about that employment issue.

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00:52:56 ◼   ► All right, let's talk about the employment issue now.

00:52:58 ◼   ► >> Yeah, so we were talking about this on Twitter because I had this horrible,

00:53:01 ◼   ► okay, so this gets into like, I feel like we're in Orwell territory at all levels. Like,

00:53:05 ◼   ► okay, Snow Crash, did you ever read Neal Stephenson's Snow Crash?

00:53:08 ◼   ► >> I'm embarrassed to say no.

00:53:11 ◼   ► >> As a programmer, you would love it. And it's sort of about hacking the brain. But one of the

00:53:15 ◼   ► themes in it without giving spoilers to like a 20-year-old book is this notion that it

00:53:19 ◼   ► wanted to retain the ownership of programming code

00:53:22 ◼   ► in their programmers' minds.

00:53:23 ◼   ► So when they left, they couldn't use it elsewhere.

00:53:26 ◼   ► I mean, that's, I'm paraphrasing.

00:53:28 ◼   ► I had this thought, I'm reading this.

00:53:30 ◼   ► So Apple loses this case.

00:53:31 ◼   ► The court says, it compels them to write

00:53:33 ◼   ► what they're calling, you know, gov'd, G-O-V-T-O-S.

00:53:38 ◼   ► I'm picturing this meeting, Tim Cook in a room

00:53:41 ◼   ► with like 200 people.

00:53:43 ◼   ► And it's everybody at Apple capable of working on this.

00:53:45 ◼   ► And he says, all right, you know what's happened.

00:53:48 ◼   ► The order has been given.

00:53:49 ◼   ► We are going to, we always, you know, we're going to try to appeal it, but right now we haven't been able to stay.

00:53:54 ◼   ► Um, we need you to do this.

00:53:56 ◼   ► Um, and we can't order anyone to do it.

00:53:58 ◼   ► We can, we've been ordered, uh, but you are all individuals and this needs to happen.

00:54:02 ◼   ► Like what, what are those people do?

00:54:04 ◼   ► What are those people do?

00:54:04 ◼   ► And what does the court do if all 200 of them suddenly quit?

00:54:09 ◼   ► And what does Tim do for those people if they suddenly quit?

00:54:13 ◼   ► I mean, I just think you can't, you can order Apple to do something, but employees are at work.

00:54:17 ◼   ► None of the executives can do this.

00:54:20 ◼   ► They need specific employees at the engineering level.

00:54:23 ◼   ► What happens?

00:54:25 ◼   ► I also wonder just how many engineers at Apple

00:54:30 ◼   ► would be capable of doing this.

00:54:33 ◼   ► Now, capable-- you can obviously hire somebody new

00:54:36 ◼   ► and provide them with the source code

00:54:38 ◼   ► and let them study it and study the way the entire system works

00:54:42 ◼   ► long enough.

00:54:43 ◼   ► And somebody who's obviously not even employed by Apple today

00:54:46 ◼   ► Apple today could eventually become capable of doing it.

00:54:49 ◼   ► So it's, you know, I'm not saying it's impossible,

00:54:53 ◼   ► but I wonder how many people within Apple would be

00:54:56 ◼   ► on the team that would be commissioned to undertake this.

00:55:01 ◼   ► I don't know that it's 200.

00:55:04 ◼   ► I think it's probably a significantly lower number

00:55:06 ◼   ► of people who work in the area

00:55:08 ◼   ► of system level device security.

00:55:11 ◼   ► - So is it Daniel Jalka who used to work at Apple,

00:55:13 ◼   ► I mean, years ago working at Apple,

00:55:14 ◼   ► he say something in response to this?

00:55:16 ◼   ► Was it like he said there might be 100 people

00:55:17 ◼   ► in the world, maybe I'm exaggerating the number.

00:55:20 ◼   ► Something like that.

00:55:20 ◼   ► That's too small, but it was, it's right.

00:55:22 ◼   ► It's not that other people could, it's not that

00:55:25 ◼   ► other people can't get up to speed, but in order

00:55:29 ◼   ► to, then they'd have to hire other people.

00:55:31 ◼   ► And it's not even an issue of morals.

00:55:32 ◼   ► Like I have to wonder, what is your career

00:55:34 ◼   ► like inside Apple?

00:55:35 ◼   ► If you're the gal or guy who says, yeah, sure,

00:55:39 ◼   ► whatever the government wants.

00:55:40 ◼   ► Like you do the government OS and it's

00:55:43 ◼   ► and it's delivered and it's Tim say,

00:55:45 ◼   ► "Thanks for helping us obey the court order

00:55:47 ◼   ► and you have no future with us."

00:55:48 ◼   ► Could you be fired for being a good employee?

00:55:51 ◼   ► Could you be put on in Siberia

00:55:53 ◼   ► and sent to an Alaskan outpost of Apple

00:55:56 ◼   ► to work on projects there?

00:55:57 ◼   ► I don't know.

00:55:58 ◼   ► - It's easy to outside, to just abstract it.

00:56:03 ◼   ► Somebody within Apple could do it.

00:56:07 ◼   ► Apple has got a lot of money

00:56:08 ◼   ► and a lot of smart people they can do it.

00:56:10 ◼   ► But at some level it will, if it ever,

00:56:12 ◼   ► if this came to pass, it would come down to individuals.

00:56:16 ◼   ► And I think--

00:56:17 ◼   ► - They'd have to make a decision.

00:56:18 ◼   ► - And for security purposes, it would be better

00:56:20 ◼   ► to have it be as few people as possible.

00:56:22 ◼   ► I've often thought about this.

00:56:25 ◼   ► I wonder what Apple's security policies are

00:56:28 ◼   ► for hiring people to work on stuff like this.

00:56:30 ◼   ► Like, how do, think about it.

00:56:33 ◼   ► I mean, how do they make sure that a secret agent

00:56:36 ◼   ► for China isn't applying to be a security agent

00:56:41 ◼   ► to be an engineer on iOS who would place a backdoor.

00:56:45 ◼   ► I mean, and it sounds like it start thinking

00:56:48 ◼   ► it sounds like something out of a James Bond movie

00:56:50 ◼   ► or something like that, but stuff like that has happened.

00:56:52 ◼   ► There've been backdoors placed in,

00:56:54 ◼   ► remember the open SSL one?

00:56:58 ◼   ► - Oh yeah, the Heartbleed, well, Heartbleed,

00:57:02 ◼   ► was that the, there's so many.

00:57:03 ◼   ► - And I don't even wanna just blame China.

00:57:05 ◼   ► I think that there's a strong suspicion

00:57:07 ◼   ► that it was the US government who surreptitiously

00:57:11 ◼   ► placed a backdoor in like an SSL library that was--

00:57:15 ◼   ► - Oh yeah, there's some purposely,

00:57:16 ◼   ► what seems to be purposely weakened encryption

00:57:18 ◼   ► that NIST seemed to have some interaction with

00:57:22 ◼   ► in some VPN software libraries.

00:57:27 ◼   ► No, it's not implausible.

00:57:28 ◼   ► I mean, this is the thing, like what really drives

00:57:29 ◼   ► the world is not spy craft in the terms

00:57:31 ◼   ► of state-run espionage, it's industrial espionage

00:57:34 ◼   ► is a huge thing.

00:57:35 ◼   ► It's huge, it happens continuously.

00:57:38 ◼   ► This is not like a movie thing.

00:57:39 ◼   ► There are people working inside companies

00:57:42 ◼   ► constantly selling secrets to competitors

00:57:44 ◼   ► because they can get money from them.

00:57:46 ◼   ► - What do you do when somebody,

00:57:47 ◼   ► a very talented programmer with a security background,

00:57:52 ◼   ► who without lying about their employing history at all,

00:57:57 ◼   ► but has spent like eight years working for the NSA,

00:58:00 ◼   ► applies to work on a security job at App,

00:58:04 ◼   ► you laugh, but if they're being honest,

00:58:07 ◼   ► it could be a tremendous hire.

00:58:09 ◼   ► I tell you this story already. I once met guys from the CIA print shop and they said we gave them business cards

00:58:14 ◼   ► And they said we have business cards. We can't give them to you and we said you're serious

00:58:18 ◼   ► They said yeah, we can only hand them out inside the building

00:58:19 ◼   ► So like how do you get a reference from the NSA for your job at Apple - I?

00:58:23 ◼   ► Don't know but you know

00:58:26 ◼   ► but what you know it I it must occur to them, you know, and it's

00:58:31 ◼   ► Anyway, it's we're getting off the point though of what happens if everybody who works at Apple refuses to do this and and I or even

00:58:38 ◼   ► Like you need, I mean, I said 200, partly because

00:58:41 ◼   ► it's like project managers and what like, there's

00:58:42 ◼   ► people who have the expertise and there's the

00:58:45 ◼   ► people who support those people and people, I

00:58:47 ◼   ► mean, who has the key, who has the codes that give

00:58:50 ◼   ► them access to like the root certificates that

00:58:52 ◼   ► are used, all this stuff involves a very small

00:58:55 ◼   ► number of people.

00:58:56 ◼   ► Uh, but what if they all, I mean, look, if you

00:58:59 ◼   ► and I were in that position, I think we know

00:59:00 ◼   ► what we'd do.

00:59:01 ◼   ► We'd quit, right?

00:59:02 ◼   ► We'd quit.

00:59:02 ◼   ► And then can the government compel us?

00:59:04 ◼   ► Could the government court say, you're not

00:59:06 ◼   ► allowed to quit?

00:59:07 ◼   ► to quit. I can't imagine, but could they? I don't know the legality of that.

00:59:11 ◼   ► And it's even easier in today's, the current job market in Silicon Valley. No, it is!

00:59:19 ◼   ► Yeah, no, it is like, "Oh!"

00:59:20 ◼   ► I just wanna be out there and say that I'm not even trying to say that it's an act of

00:59:24 ◼   ► nobility. It would be, I would like to think, and I would like to think that I would act

00:59:29 ◼   ► on principle. But if you just wanna get down to the cold hard facts of, "Well, you've

00:59:35 ◼   ► got a mortgage to pay and kids to put through college or whatever.

00:59:38 ◼   ► It's like somebody who has extensive experience on Apple's security team is

00:59:42 ◼   ► not going to have a hard time getting another job.

00:59:44 ◼   ► No, absolutely not. Right.

00:59:46 ◼   ► They probably get like million dollar bonuses that are still being handled,

00:59:48 ◼   ► handed out when they go to work for one of the unicorns.

00:59:50 ◼   ► Right. And it might break their heart cause maybe they'd prefer to work at

00:59:53 ◼   ► Apple, but you know,

00:59:54 ◼   ► rather do good work for Google than do destructive work for Apple. I mean,

00:59:58 ◼   ► it's, it's, it, it, to me is not, uh,

01:00:01 ◼   ► an outlandish scenario at all. And I do think, I do think,

01:00:05 ◼   ► I think that people who work in encryption, it's like you said that it spans the political gamut

01:00:10 ◼   ► That's one of the things that I really like about this is that in in what I you know in my sideline as a amateur

01:00:16 ◼   ► Twitter political columnist

01:00:18 ◼   ► One of the things that depresses me about the current state of decades-long discourse in the United States is the polarization of

01:00:27 ◼   ► politics and that so many issues are so clearly polarized and that we've we've

01:00:35 ◼   ► Sorted on these various lines into the two parties and that there's no interchange between them

01:00:42 ◼   ► I I it does my heart it warms my heart that on this particular issue

01:00:46 ◼   ► It it doesn't fall on on one line or the other and if anything

01:00:52 ◼   ► Because the DOJ is part of the executive branch

01:00:55 ◼   ► You know, I would have to say that the you know

01:00:57 ◼   ► The Democrats have more responsibility in this case with Apple than the Republicans

01:01:02 ◼   ► I mean, there certainly are Republicans who I've seen call for Apple should just open the iPhone.

01:01:06 ◼   ► Oh yeah.

01:01:07 ◼   ► But do you, I'm sure you watched the John Oliver.

01:01:09 ◼   ► Yes.

01:01:09 ◼   ► Brilliant.

01:01:10 ◼   ► The Lindsey Graham thing.

01:01:12 ◼   ► I didn't realize Lindsey Graham had recanted his position to watch Lindsey Graham say,

01:01:15 ◼   ► Oh, I was wrong.

01:01:16 ◼   ► I've been better informed now.

01:01:18 ◼   ► You're like coming to Jesus moment.

01:01:20 ◼   ► If he can be convinced, then wow.

01:01:23 ◼   ► I mean, I know he's got the easy side also of, you know, they want to support law and order, which is a fundamental GOP stance, but he also has

01:01:31 ◼   ► but he also can be opposing the Obama administration

01:01:34 ◼   ► by doing so.

01:01:34 ◼   ► Even with that, I was just like, oh my God.

01:01:38 ◼   ► Well, they got to him, they explained it to him,

01:01:40 ◼   ► and he accepted the logic of what was explained.

01:01:42 ◼   ► - Right.

01:01:43 ◼   ► I think Daryl Issa, who I generally disagree with--

01:01:46 ◼   ► - Oh God, I retweeted him today,

01:01:48 ◼   ► because he's so right in some places.

01:01:51 ◼   ► - And he understands it to a certain degree.

01:01:53 ◼   ► I mean, and I know he had a background in technology

01:01:55 ◼   ► before he got into politics,

01:01:57 ◼   ► but at least at the layman's understanding

01:01:59 ◼   ► that you would hope that our legislators would have.

01:02:02 ◼   ► He's got it.

01:02:03 ◼   ► He's been really good.

01:02:06 ◼   ► - Here's an interesting, just a side note,

01:02:10 ◼   ► get back to 1776, 'cause this is a musical podcast.

01:02:13 ◼   ► I know there's a bit.

01:02:15 ◼   ► So imagine you're the engineer at Apple,

01:02:16 ◼   ► or a set of engineers, and you're the people

01:02:19 ◼   ► who write the code that's been compelled by the government

01:02:22 ◼   ► to essentially betray humanity.

01:02:24 ◼   ► I mean, it comes down, I'm not even exaggerating the case.

01:02:27 ◼   ► 1776 the musical it draws on there no apparent records that just that are came

01:02:32 ◼   ► from the Continental Congress because they were worried about being

01:02:35 ◼   ► intercepted all kinds of stuff so there's 1776 is a recreation from later

01:02:39 ◼   ► remembrances of people and other sources there's a judge judge Wilson is from the

01:02:43 ◼   ► Pennsylvania delegation so it's you've got Dickinson on one side is opposed to

01:02:47 ◼   ► voting for independence you have Franklin on the other who's for it this

01:02:50 ◼   ► is a key vote Wilson who had supported Dickinson sort of out of moderation

01:02:55 ◼   ► changes essentially last minute declares himself.

01:02:58 ◼   ► And it's a dramatic moment in the musical,

01:03:00 ◼   ► but it's also essentially what happened in reality.

01:03:03 ◼   ► Here's the thing, he didn't want to be,

01:03:04 ◼   ► this is the motivation given to him.

01:03:06 ◼   ► He didn't want to be the person who killed Liberty.

01:03:08 ◼   ► He wanted to be kind of, you know, under the radar.

01:03:11 ◼   ► And it's like, everyone will remember Judge Wilson

01:03:14 ◼   ► as the person who killed American Liberty, you know?

01:03:18 ◼   ► And you think about that as the programmers,

01:03:19 ◼   ► you've like maybe 20 people or 15 people

01:03:21 ◼   ► on a team that do it.

01:03:22 ◼   ► and you're the people who kill encryption for everybody.

01:03:26 ◼   ► How do you do that?

01:03:27 ◼   ► That's a traumatic thing you'd be put through

01:03:30 ◼   ► if you have that kind of conscience.

01:03:32 ◼   ► - Right.

01:03:33 ◼   ► There's a personal security angle here,

01:03:35 ◼   ► and Apple has mentioned this in their,

01:03:38 ◼   ► I think in a brief, but if not in a brief,

01:03:40 ◼   ► certainly in one of the supplements,

01:03:44 ◼   ► you know, there's the testimony from Craig Federighi.

01:03:47 ◼   ► - Yeah.

01:03:49 ◼   ► - I forget the guy's name.

01:03:50 ◼   ► It's got a big long name that starts with an N.

01:03:52 ◼   ► Sorry, if you listen to the talk show.

01:03:57 ◼   ► - It's Erich Neunschwander, how do you pronounce?

01:04:00 ◼   ► - Yeah. - I'm pronouncing it German-ly.

01:04:02 ◼   ► - It's a big long Germanic name.

01:04:05 ◼   ► But part of it is that there's a personal security angle

01:04:08 ◼   ► to this where right now nobody knows how to create,

01:04:13 ◼   ► as Apple calls it, government OS,

01:04:16 ◼   ► a version of OS that you can install

01:04:18 ◼   ► on top of an existing iPhone without destroying

01:04:20 ◼   ► its encryption keys and then bypass

01:04:24 ◼   ► the protections against the touchpad,

01:04:28 ◼   ► which once you get rid of those protections, it's easy.

01:04:31 ◼   ► Obviously using a long alpha numeric password

01:04:37 ◼   ► or passphrase, I guess I should say,

01:04:39 ◼   ► would actually, you know, would significantly help increase

01:04:43 ◼   ► the security of your phone.

01:04:44 ◼   ► But even the six digit passcode,

01:04:47 ◼   ► it would take longer to brute force,

01:04:49 ◼   ► but once you bypass the protections,

01:04:52 ◼   ► you know, you're talking about like days or weeks,

01:04:54 ◼   ► not, you know, years.

01:04:57 ◼   ► There are jailbreaks for the phone,

01:05:02 ◼   ► zero day, you know, what are they?

01:05:03 ◼   ► Zero day exploits that have been sold on the open market.

01:05:07 ◼   ► And there was one that sold for like over a million dollars

01:05:10 ◼   ► last year, like a way to, you know,

01:05:13 ◼   ► like a security form put out like a bounty

01:05:16 ◼   ► and said, if you can get us into a jailbreaker on an iPhone

01:05:21 ◼   ► that under the following conditions,

01:05:25 ◼   ► like let's say like just by sending a text message

01:05:27 ◼   ► or just by opening this URL in Safari,

01:05:31 ◼   ► sold for like a million dollars.

01:05:35 ◼   ► Can you even imagine what the black market value

01:05:38 ◼   ► of Government OS would be?

01:05:40 ◼   ► It's, and again, it's not,

01:05:42 ◼   ► it sounds like we're talking about cloak and dagger,

01:05:44 ◼   ► James Bond, Jason Bourne movie stuff, but it's not,

01:05:47 ◼   ► it's real, right?

01:05:49 ◼   ► But imagine if the identities of the engineers at Apple

01:05:53 ◼   ► who knew how to make it and knew how to, you know,

01:05:58 ◼   ► knew the details of it, it would put them in some measure

01:06:02 ◼   ► of personal risk.

01:06:04 ◼   ► It really, I mean Apple made this--

01:06:05 ◼   ► - Oh God, yeah, I mean I think right now they must be too.

01:06:07 ◼   ► Imagine if you have some of the secrets,

01:06:08 ◼   ► I'm sure those people are already,

01:06:10 ◼   ► Apple security must already have eyes on them,

01:06:14 ◼   ► both from the perspective and the danger side,

01:06:16 ◼   ► like are these people going off to do stuff?

01:06:18 ◼   ► They're probably being watched.

01:06:19 ◼   ► But also, is someone trying to kidnap?

01:06:21 ◼   ► I mean, imagine if your family's kidnapped

01:06:22 ◼   ► and you know how to do whatever,

01:06:24 ◼   ► and it's kept quiet, and you're like, yeah, here's the key.

01:06:26 ◼   ► I mean, and that's just now before government OS is built.

01:06:29 ◼   ► - Apple has made the analogy,

01:06:34 ◼   ► and I think this comes to the way that the Bill of Rights,

01:06:39 ◼   ► to me, protects acts of your conscience.

01:06:43 ◼   ► You know, I mean, that's a big part of what the first amendment is about.

01:06:48 ◼   ► Apple has made the analogy to, uh, like, uh,

01:06:54 ◼   ► what could a pharmaceutical company be forced to produce, uh,

01:06:58 ◼   ► the serum for a lethal injection,

01:07:00 ◼   ► which is a real world world political problem right now.

01:07:03 ◼   ► That is not hypothetical either, right?

01:07:05 ◼   ► Where the States in the United States that still have the death penalty,

01:07:11 ◼   ► because it's been banned in the rest of the civilized world.

01:07:15 ◼   ► And there's only, you know,

01:07:18 ◼   ► it was really only practiced in the first world in the United States and only

01:07:21 ◼   ► then in certain States, um, the company, you know,

01:07:25 ◼   ► whatever they used to use to give people a lethal injection,

01:07:27 ◼   ► there's no more of the serum.

01:07:29 ◼   ► If you want to be really interesting coverage about that,

01:07:33 ◼   ► Buzzfeed has had some really amazing coverage about this,

01:07:36 ◼   ► the people selling drugs from India and so forth fascinating.

01:07:40 ◼   ► and the state's refusing to disclose information

01:07:43 ◼   ► that they should be about

01:07:43 ◼   ► where they're obtaining the drugs from.

01:07:45 ◼   ► - Right, all right, I will look that up, Buzzfeed.

01:07:47 ◼   ► - It's very interesting. - On lethal injections.

01:07:50 ◼   ► Right, 'cause can a state,

01:07:53 ◼   ► this is getting off into the weeds on the death penalty,

01:07:56 ◼   ► but can a state use a substance to put a prisoner to death

01:08:01 ◼   ► that isn't like FDA approved?

01:08:03 ◼   ► And why in the world, it gets down to the question

01:08:05 ◼   ► of why in the world would the FDA approve a substance

01:08:07 ◼   ► that kills people.

01:08:10 ◼   ► But well, so could the, but Apple's question stands,

01:08:13 ◼   ► could the All Rits Act be used for,

01:08:17 ◼   ► could the government say, okay,

01:08:18 ◼   ► we don't have any more of this stuff,

01:08:19 ◼   ► let's go to, let's go to Pfizer and compel Pfizer

01:08:24 ◼   ► to come up with a serum that would have

01:08:28 ◼   ► the following qualities, you know,

01:08:29 ◼   ► that it's painless and puts you to death.

01:08:32 ◼   ► - Yeah, this is, I think one of the great arguments,

01:08:36 ◼   ► I think it's very directly related

01:08:37 ◼   ► to what you're talking about here,

01:08:38 ◼   ► is Apple trying to show what I think is,

01:08:42 ◼   ► they'd like to say a settled law that code is speech,

01:08:45 ◼   ► and other people may be less secure in that.

01:08:47 ◼   ► I think it's pretty settled.

01:08:48 ◼   ► I think the Supreme Court has really made that clear,

01:08:52 ◼   ► and the FBI and DOJ would like to say

01:08:54 ◼   ► that code is not speech when it's functional code.

01:08:56 ◼   ► There's a thing where Apple is sort of

01:08:57 ◼   ► ridiculing the FBI's phrase in the brief.

01:08:59 ◼   ► There's no such thing as functional code.

01:09:01 ◼   ► All code is the same thing.

01:09:02 ◼   ► So you cannot, it's unconstitutional to compel speech.

01:09:07 ◼   ► That is practically, I'm pretty sure

01:09:10 ◼   ► that is an overriding principle.

01:09:11 ◼   ► I'm not a constitutional lawyer, I'm not sure,

01:09:13 ◼   ► but I'm pretty sure I keep reading about it.

01:09:15 ◼   ► You cannot compel speech.

01:09:16 ◼   ► No court can compel speech.

01:09:17 ◼   ► It can compel you to testify, or it can penalize you

01:09:20 ◼   ► for not testifying, for not providing information,

01:09:23 ◼   ► but you cannot compel someone to speech.

01:09:25 ◼   ► And you cannot compel a programmer to program.

01:09:28 ◼   ► Few of wise Twitterers were saying,

01:09:30 ◼   ► "Wait a minute, if corporations are people,

01:09:32 ◼   ► can you compel corporations to speech given that they are now, you know, under Citizens United

01:09:37 ◼   ► and other rulings should have ostensibly the same rights. So, can you compel Apple to speech if that

01:09:42 ◼   ► involves code? That's the thing about this brief is Apple is hacking away at many, many, many

01:09:47 ◼   ► different, you know, trees with poison fruit. And I think the code is speech when it's very

01:09:52 ◼   ► compelling, even if the all-rits one, which is also compelling, falls down.

01:09:55 ◼   ► Pete: Yeah. Yes, I agree on both of those parts, that to me, that's the main thrust of Apple's

01:10:01 ◼   ► two-fold argument is that they can't be compelled to do this because it's speech

01:10:06 ◼   ► and it's deeply offensive to to Apple and the employees who would be you know

01:10:11 ◼   ► subject to carry it out and that the all-rits Act cannot be used to compel

01:10:16 ◼   ► extraordinary action and to me that's when you read the government thing and I

01:10:21 ◼   ► feel almost feel bad for the lawyers who wrote the government's brief because

01:10:25 ◼   ► it's I don't think it was their decision to it's not like James Comey had to

01:10:28 ◼   ► write the brief. It's not like Loretta Lynch, the Attorney General, wrote the

01:10:33 ◼   ► brief. It's like it got assigned to these, you know, the two lawyers who wrote it.

01:10:38 ◼   ► And I almost feel bad for them because I feel like it's like when you're, you know,

01:10:42 ◼   ► that's what it's like to be a lawyer. You don't necessarily, you don't get to pick

01:10:44 ◼   ► the side, you know what I mean? Like, they might know they're, they might well

01:10:49 ◼   ► know that their argument stands on nothing but thin air, but they've still

01:10:52 ◼   ► got to write the brief. They're left arguing, the government is left trying to

01:10:58 ◼   ► argue because they know that they all rich act is supposed to fill in the gaps of statutory law so

01:11:05 ◼   ► they're left trying to argue that the use of the all rich act here isn't compelling apple to do

01:11:10 ◼   ► something extraordinary but it's it's really really hard to do that you know and and the

01:11:16 ◼   ► gist of it is that the already i've you know for people who are you know aren't paying attention

01:11:20 ◼   ► that the all rich act is supposed to fill in the gaps that isn't covered by existing law so if

01:11:26 ◼   ► if there's a law that says this and a law that says that,

01:11:28 ◼   ► but there's a minor issue that's in between there,

01:11:31 ◼   ► the All Rights Act fills it in.

01:11:33 ◼   ► And I think one of the examples the government gave

01:11:34 ◼   ► is that somebody can be compelled

01:11:38 ◼   ► to give testimony in court, like you said.

01:11:40 ◼   ► What if their testimony will take three days?

01:11:45 ◼   ► What, where do they go at?

01:11:47 ◼   ► Right?

01:11:47 ◼   ► And so maybe there's no law that says that.

01:11:48 ◼   ► The All Rights Act would fill it in

01:11:50 ◼   ► and that the government can just do what's reasonable

01:11:52 ◼   ► and put the guy up in a hotel.

01:11:54 ◼   ► the government will put you up in a hotel for three days.

01:11:56 ◼   ► So you still have to testify for the full three days.

01:11:59 ◼   ► But even if there's no law that says that when a,

01:12:02 ◼   ► you know, that says when a witness has to testify

01:12:04 ◼   ► for more than one day,

01:12:05 ◼   ► the government will put them up in a hotel.

01:12:06 ◼   ► It's just that the All Writs Act can fill in

01:12:08 ◼   ► and fill in the gap in a situation like that.

01:12:11 ◼   ► Apple's argument, and I think it's extremely compelling,

01:12:15 ◼   ► is that if the government wants to compel a company

01:12:20 ◼   ► to do what they're saying they want Apple to do,

01:12:21 ◼   ► It has to be passed through legislation.

01:12:24 ◼   ► You have to pass a law that says, yes, in this case,

01:12:27 ◼   ► you would have to do this.

01:12:28 ◼   ► Because otherwise you're at, you know,

01:12:31 ◼   ► 'cause it's an extraordinary thing.

01:12:33 ◼   ► And the other analogies I thought about,

01:12:35 ◼   ► and I wanna see what you think about this,

01:12:37 ◼   ► but so for example, famously, I think it's the '60s,

01:12:41 ◼   ► I might be getting the time wrong,

01:12:42 ◼   ► but when Ralph Nader wrote the, what was the book,

01:12:46 ◼   ► "Unsafe at Any Speed?" - Speed, yeah.

01:12:50 ◼   ► about the horrible state of car crash safety,

01:12:55 ◼   ► and wanted to legislate that,

01:13:02 ◼   ► to get car companies to mandate

01:13:03 ◼   ► that they put seat belts in cars.

01:13:05 ◼   ► And the car industry pushed back against mandatory seat belts

01:13:10 ◼   ► under the argument that putting seat belts in cars

01:13:15 ◼   ► made cars look unsafe.

01:13:17 ◼   ► That if you got--

01:13:18 ◼   ► - Oh, right.

01:13:19 ◼   ► - No, this is true, I'm not making this up.

01:13:21 ◼   ► - No, it's true, I forgot the other way.

01:13:21 ◼   ► - Right, so they said, no, this is not a good idea

01:13:24 ◼   ► because people love driving cars

01:13:27 ◼   ► and they feel safe and happy driving cars,

01:13:29 ◼   ► but if you go in there and there's these safety harnesses,

01:13:32 ◼   ► safety belts, it's gonna make people think

01:13:34 ◼   ► that they're dangerous.

01:13:35 ◼   ► That's not, it sounds silly in hindsight,

01:13:40 ◼   ► and we now have a lot of statistics that back up

01:13:42 ◼   ► that it obviously hasn't stopped Americans from driving

01:13:45 ◼   ► and we have statistics that prove that safety advances

01:13:49 ◼   ► that have been mandated have been tremendous boons

01:13:51 ◼   ► to public safety.

01:13:52 ◼   ► But it's not a ridiculous argument.

01:13:54 ◼   ► It's not ridiculous that the logic

01:13:58 ◼   ► of the car manufacturers, it was provably wrong.

01:14:01 ◼   ► But that didn't, it didn't happen through the All Rights Act.

01:14:05 ◼   ► It happened through, you know, real legislation

01:14:07 ◼   ► passed through Congress that mandated things like this.

01:14:12 ◼   ► And that's the way it should be.

01:14:13 ◼   ► And the other analogy I can think of,

01:14:15 ◼   ► this isn't national, it's all gone local,

01:14:17 ◼   ► like state by state and city by city.

01:14:20 ◼   ► But one of the great things of my lifetime

01:14:24 ◼   ► as someone who really, really has always been bothered

01:14:27 ◼   ► by cigarette smoke is the passing of laws

01:14:31 ◼   ► that get cigarettes out of bars and restaurants

01:14:33 ◼   ► and workplaces and stuff like that.

01:14:35 ◼   ► Now, it was a common, common and oft-repeated refrain,

01:14:40 ◼   ► especially from bar owners,

01:14:42 ◼   ► that if you made smoking illegal in bars,

01:14:44 ◼   ► it would, business would dry up

01:14:46 ◼   ► because people who smoked would go to private establishments

01:14:50 ◼   ► instead of public ones,

01:14:51 ◼   ► because they're not gonna stop smoking while they drink.

01:14:54 ◼   ► And the common sense that says that,

01:14:57 ◼   ► that argument might hold water, right?

01:14:59 ◼   ► It might, there's some logic to that.

01:15:02 ◼   ► And again, this wasn't done through the All Writs Act.

01:15:08 ◼   ► It was, you have to pass an actual law and fight

01:15:11 ◼   ► and make that argument and listen to the people,

01:15:14 ◼   ► the bar owners arguing.

01:15:15 ◼   ► Now, I pick both of those examples, the seatbelt, the mandatory seatbelts and the getting cigarettes

01:15:21 ◼   ► out of bars and restaurants. I pick those specifically because I know that those arguments

01:15:27 ◼   ► are on the wrong side, right? That it's, in my opinion, it's correct that seatbelts and,

01:15:33 ◼   ► you know, other safety devices and, you know, very high standards for, you know, crash survivability

01:15:40 ◼   ► are a good idea, and that I think it's a very good idea for public health that cigarettes are not,

01:15:46 ◼   ► are banned in most restaurants and bars now. But I still think that it was right that they had to

01:15:51 ◼   ► pass legislation to do it. So in this case, to me, with Apple being on the right side, it's even more

01:15:58 ◼   ► important that if you want to force them to do this terrible thing, that you have to fight it

01:16:02 ◼   ► out in the legislature. Yeah, I think you're absolutely right. I think those are great examples.

01:16:07 ◼   ► And we could also get to like gun control as part of this issue too is like what can be done under regulations

01:16:14 ◼   ► existing regulations and enforce and what requires laws to be passed and whatever side you are about the you know

01:16:21 ◼   ► How many guns should be out there guns should be out there at all in private hands, whatever the side you are

01:16:25 ◼   ► I think I would argue I would rather have a legislative solution

01:16:28 ◼   ► Than a regulatory one even if a regulatory one might be better whether that's for allowing broader gun ownership or narrower gun ownership

01:16:36 ◼   ► Because without the legislative solution, an executive making a decision, it doesn't lack that consensus.

01:16:42 ◼   ► So we have the same situation here. It's like, do you want the government to use a 240-something-year-old law

01:16:49 ◼   ► with, uh, constrained logic to upset the future of privacy and communication protection

01:16:56 ◼   ► when the CALEA more recently addressed it or didn't address it in specific ways?

01:17:01 ◼   ► Or do you want legislators, um, you know, regardless again of who, which political party is in charge.

01:17:05 ◼   ► It's not actually a political issue in that sense.

01:17:08 ◼   ► It's a political issue of how this would be addressed in a comprehensive way through a

01:17:12 ◼   ► process that has various, you know, three branches of government and the checks and

01:17:17 ◼   ► balances.

01:17:18 ◼   ► I don't really want an executive agency to push through something like this.

01:17:21 ◼   ► And you know, despite having, I'll admit it, I voted for Obama, yes, twice.

01:17:24 ◼   ► And but I don't really like the extensive use of presidential orders, executive orders,

01:17:29 ◼   ► and regulatory moves that he's using.

01:17:31 ◼   ► I understand why he's doing it.

01:17:33 ◼   ► I don't think there is long-lasting, and I don't think there, I mean, I know we're in

01:17:36 ◼   ► the middle of intransigence, and you, with gridlock, you have to try things and so forth.

01:17:41 ◼   ► So I understand why they're being done, but they won't have the lasting effect, they

01:17:44 ◼   ► don't indicate a change of policy, where something like the Affordable Care Act, they

01:17:48 ◼   ► were able to actually get that passed.

01:17:50 ◼   ► It became law, and you see how implacable it is to resistance.

01:17:53 ◼   ► I mean, look at, you know, the Supreme Court Chief Justice voting in favor, surprising

01:18:00 ◼   ► of ACA under the Commerce Clause and, you know, all these decisions that have come through

01:18:05 ◼   ► where the ACI, ACA has had some, you know, fallback, but mostly been upheld because it

01:18:11 ◼   ► was law as opposed to regulatory interpretation or strained regulatory interpretation or presidential

01:18:17 ◼   ► order. So, and a lot of presidential orders recently have been thrown down by the courts

01:18:21 ◼   ► at various levels and some have not been upheld so far.

01:18:25 ◼   ► You went to guns, so I'll go to...

01:18:27 ◼   ► - I know guns, like yeah, we should bring it.

01:18:29 ◼   ► - But I thought you did, hopefully,

01:18:30 ◼   ► I think we've done so in a way that is amenable

01:18:33 ◼   ► to anybody on either side of the issue.

01:18:34 ◼   ► I'm gonna go to abortion, and Ruth Bader Ginsburg.

01:18:38 ◼   ► Ruth Bader Ginsburg--

01:18:39 ◼   ► - That's the game we're playing, guns, abortion,

01:18:40 ◼   ► and all rights act.

01:18:41 ◼   ► (laughing)

01:18:43 ◼   ► - Ruth Bader Ginsburg has argued,

01:18:46 ◼   ► and I think surprising many people, long argued,

01:18:48 ◼   ► I think from before she was on the Supreme Court,

01:18:50 ◼   ► I think it was a paper she wrote

01:18:52 ◼   ► that kind of got her to the Supreme Court ruling.

01:18:54 ◼   ► that that Roe v. Wade was actually a setback in the long run for abortion

01:19:01 ◼   ► rights because it was a sweeping change by the Supreme Court and rather than

01:19:09 ◼   ► letting it work its way through the legislative branch which would have

01:19:13 ◼   ► given it a lot more that things work out better and are more broadly accepted

01:19:20 ◼   ► when they go through the legislature than when the judiciary passes, takes matters into

01:19:26 ◼   ► its own hands.

01:19:27 ◼   ► And again, I don't even want to touch on the side of which way it should go.

01:19:35 ◼   ► Pretty clear my views on it are known, but it doesn't matter though.

01:19:38 ◼   ► I think that the basic argument though that Roe v. Wade has remained controversial in

01:19:43 ◼   ► a way that a legislative solution, which the US was probably heading to at the time in

01:19:48 ◼   ► the '70s, would have had more staying power. It's almost remarkable to the extent that

01:19:53 ◼   ► Roe v. Wade remains so radioactively controversial 40-some years later, 44 years later, that

01:20:06 ◼   ► a 44-year-old Supreme Court decision is still considered contentious, shows the logic of

01:20:15 ◼   ► Ginsburg's argument.

01:20:17 ◼   ► - I have to agree with that too, is right,

01:20:19 ◼   ► it does not matter what your stance is on abortion,

01:20:21 ◼   ► a legislative decision that was made

01:20:24 ◼   ► and carried out at a national level

01:20:26 ◼   ► and then enforced and refined by Supreme Court rulings

01:20:29 ◼   ► that narrowed or broadened them on more limited grounds,

01:20:33 ◼   ► people would be arguing about it in a different way

01:20:36 ◼   ► because they would have felt like the,

01:20:38 ◼   ► they would be looking to overturn the law

01:20:40 ◼   ► as opposed to trying to figure out

01:20:41 ◼   ► how to change a constitutional precedent

01:20:43 ◼   ► it would have become enshrined as a constitutional precedent.

01:20:45 ◼   ► You would have had, you know, a Roe law and the law having passed, I think in the seventies,

01:20:51 ◼   ► I think the GOP and the Democratic Party at the time, I think would easily have passed a law that,

01:20:57 ◼   ► uh, I think I actually think it would have not been that difficult to produce consensus then.

01:21:04 ◼   ► Um, so let's say that happened.

01:21:06 ◼   ► So, you had a Roe law and then some Roe based decisions later that refined it.

01:21:10 ◼   ► that refined it.

01:21:11 ◼   ► You know, people would still be debating about it, would still be active, but there wouldn't

01:21:14 ◼   ► be this notion that it could be just a small tweak in the composition of the court would

01:21:19 ◼   ► change this for everyone because you would have to get the law returned or you'd have

01:21:22 ◼   ► to have a radically different Supreme Court interpretation.

01:21:25 ◼   ► And that's an ongoing issue in the court.

01:21:27 ◼   ► And it's one of the critiques of Scalia as an originalist is that he was, as an originalist,

01:21:32 ◼   ► he didn't care about precedent as much as proceeding courts did.

01:21:35 ◼   ► You can see the liberal and some conservative justices going off on rejecting on the fact that decisions

01:21:42 ◼   ► overturned sometimes relatively recent precedents, which is not historically

01:21:46 ◼   ► The case it's usually long periods of time before precedents are overturned by one from one court to another right so so yeah

01:21:54 ◼   ► I think you're I mean so in this case

01:21:55 ◼   ► Let's say it's I think Congress addressing it and interestingly giving Congress's approach this I wouldn't be surprised if Congress could reach consensus

01:22:03 ◼   ► maybe not in this one, but the next one about the direction it should take that would not be as extreme as the

01:22:09 ◼   ► administration's position and would not require this level of

01:22:13 ◼   ► action, even if it did then you might have a constitutional issue if they try to enshrine what the FBI is trying to do as

01:22:20 ◼   ► regulatory action. The big difference here, like we just mentioned a few minutes ago though, is that on

01:22:26 ◼   ► abortion it's clearly polarized between the two parties.

01:22:30 ◼   ► The Roe v. Wade only exacerbated that this issue this issue of encryption it

01:22:36 ◼   ► Splendidly, so is crosses the political spectrum and I almost wonder whether if if the DOJ wins this case

01:22:44 ◼   ► against Apple

01:22:46 ◼   ► Whether that actually polarizes Congress to

01:22:52 ◼   ► pass a law to

01:22:55 ◼   ► Enshrined the right to strong encryption

01:23:00 ◼   ► be interesting. Left and right could join hands around the side. That's always a good thing.

01:23:04 ◼   ► That it might, but it might be that like losing in court might inspire Congress to do that in a way

01:23:09 ◼   ► that not having picked this fight at all, the FBI might have been better off, you know, from their

01:23:16 ◼   ► desire, wrongheaded desire to keep these devices as accessible as possible. Because the other thing

01:23:22 ◼   ► too, the thing that's cross-platform, the other thing that is definitely cross-platform, and it's

01:23:27 ◼   ► just common sense but it's easy to overlook is that branches of government

01:23:35 ◼   ► that are three branches of government don't take well to the usurpation of

01:23:41 ◼   ► their powers by another branch so like you said President Obama has taken and

01:23:48 ◼   ► Bush did too but both of them in the face of opposition in Congress have

01:23:54 ◼   ► taken to executive orders. And Congress, whatever the order is, regardless of it, does not take

01:24:01 ◼   ► poorly, does not take well to that. And I think that when the judicial branch, when

01:24:08 ◼   ► a judge passes or makes an order that Congress sees as that should be something that we decide,

01:24:15 ◼   ► it doesn't matter what the issue is, it just stiffens their spine. They bristle. And I

01:24:19 ◼   ► think rightly so. That's sort of the way the system is designed to work.

01:24:23 ◼   ► - Yeah, and yeah, it's true.

01:24:25 ◼   ► And I think, I mean, you can take this too

01:24:27 ◼   ► from the legislature to the people, right?

01:24:29 ◼   ► We keep reading these things, polls show that, you know,

01:24:32 ◼   ► the support for Apple, the FBI are evenly split.

01:24:34 ◼   ► And I'm like, all right, let's see what questions you ask.

01:24:36 ◼   ► And the questions are too vague.

01:24:38 ◼   ► I would like to see this question asked in like AB testing.

01:24:40 ◼   ► So in one case you say, should Apple give the FBI

01:24:43 ◼   ► the contents of the phone or whatever the questions are

01:24:45 ◼   ► that ask yes, no, and how are they phrased, right?

01:24:47 ◼   ► The other is, should the FBI be allowed

01:24:50 ◼   ► with legal warrant from a judge to access your phone

01:24:54 ◼   ► at any time they deem there's a legal necessity for it

01:24:58 ◼   ► and obtain all the contents absolutely in plain text,

01:25:01 ◼   ► you know, in some form of that.

01:25:03 ◼   ► I think he'd get a different response if he said,

01:25:05 ◼   ► you know, should a judge allow the FBI to examine

01:25:09 ◼   ► the contents of your phone at any time?

01:25:11 ◼   ► - Well, and it's-- - Not at any time,

01:25:11 ◼   ► but in a criminal action with a warrant.

01:25:15 ◼   ► - It's really hard to pull, too, because it's--

01:25:18 ◼   ► because it's easy for a lay person to believe in the magic solution of a way

01:25:25 ◼   ► for the F for the government to get in but nobody else that only the government

01:25:28 ◼   ► you know which you kind of have to be gently informed of the basic way that

01:25:36 ◼   ► encryption works to understand just how dang you know how dangerous and

01:25:40 ◼   ► impossible it is to say the only people who can get in are the US federal

01:25:45 ◼   ► It just doesn't work that way once you create,

01:25:47 ◼   ► you know, once you create a backdoor.

01:25:49 ◼   ► I know it's right.

01:25:51 ◼   ► So there's like, you could actually ask, I mean,

01:25:53 ◼   ► basically we're saying is, uh, for this poll,

01:25:55 ◼   ► we need to get 10,000 people.

01:25:56 ◼   ► We can give a two day class on cryptography and

01:25:59 ◼   ► operating systems too.

01:26:00 ◼   ► And after that, we're going to ask you a few

01:26:02 ◼   ► questions like, yeah.

01:26:03 ◼   ► Yeah.

01:26:03 ◼   ► And what if, what if you just proceed the

01:26:05 ◼   ► question with, remember like, uh, 20 minutes ago,

01:26:08 ◼   ► 30 minutes ago when I read the two quotes from,

01:26:10 ◼   ► uh, the, the, uh, uh, the, uh, uh, the, uh,

01:26:15 ◼   ► the Department of Defense, the, what do you call it?

01:26:18 ◼   ► The who's in charge of the Department of Defense?

01:26:20 ◼   ► The Secretary of Defense, US Secretary of Defense.

01:26:25 ◼   ► And the former head of the NSA and CIA.

01:26:28 ◼   ► And just read those two short, clear statements.

01:26:31 ◼   ► And then say, do you think Apple should be forced

01:26:34 ◼   ► to comply with this?

01:26:34 ◼   ► And then see if the poll results change.

01:26:36 ◼   ► And it's almost certain it would change to some degree,

01:26:38 ◼   ► whether it would change dramatically or mildly,

01:26:40 ◼   ► but it would have to have some effect.

01:26:43 ◼   ► So, you know, I don't go,

01:26:45 ◼   ► That is why we don't have, this is, you know, it's exactly why we don't just vote on everything,

01:26:50 ◼   ► you know, California style, just have voter initiatives on all this stuff.

01:26:53 ◼   ► But it's why we have a representative democracy.

01:26:55 ◼   ► Yeah.

01:26:56 ◼   ► And that's, I mean, this is the problem sometimes or often with jury trials, right?

01:27:00 ◼   ► We've seen this with civil trials specifically, but you'd have them with criminal too.

01:27:02 ◼   ► It's like, how do you get average people who should be able to solve, I mean, in many kinds of cases of

01:27:08 ◼   ► or civil liability, uh, an ordinary people with

01:27:12 ◼   ► reasonable intelligence should be able to spend

01:27:14 ◼   ► a few days in a courtroom, learn enough and be

01:27:17 ◼   ► able to make an adjudication that's, that's

01:27:19 ◼   ► ostensibly fair or reasonable, right?

01:27:21 ◼   ► Right.

01:27:21 ◼   ► With a judge overseeing it.

01:27:22 ◼   ► But how do you do that with encryption?

01:27:24 ◼   ► How do you do that with most of these technical

01:27:25 ◼   ► topics or user interface design?

01:27:27 ◼   ► Like you can't, and every outcome is going to be

01:27:29 ◼   ► arbitrary when placed in front of a jury.

01:27:31 ◼   ► It's the same thing with polls.

01:27:33 ◼   ► The polls are a reflection of how a jury would

01:27:35 ◼   ► probably deal with it, which would be, you

01:27:37 ◼   ► would be, you know.

01:27:39 ◼   ► - So one of the things, so Tim Cook a while back,

01:27:42 ◼   ► at some point, you know, not a while,

01:27:45 ◼   ► but it's all been within the last month,

01:27:46 ◼   ► but at one point had compared it to the creation

01:27:49 ◼   ► of this governmentalist to cancer.

01:27:51 ◼   ► And I think a better analogy, I've been thinking about it,

01:27:56 ◼   ► this bothered me ever since, and a better analogy to me,

01:27:58 ◼   ► it's close, but to me it's a better analogy,

01:28:00 ◼   ► is chemical weapons or biological weapons.

01:28:02 ◼   ► And I've seen other people make this comparison

01:28:05 ◼   ► that creation of this is like creating a biological weapon.

01:28:08 ◼   ► And you can say, oh, we're gonna let you keep it

01:28:11 ◼   ► in a secure place and we'll treat it,

01:28:14 ◼   ► and we're gonna devise a very precise,

01:28:17 ◼   ► carefully planned procedure for the application of it

01:28:22 ◼   ► so that it's only applied in this one specific thing.

01:28:25 ◼   ► But that there is a very good argument

01:28:30 ◼   ► that the best way to avoid the dangers

01:28:32 ◼   ► of biological weapons getting out of your control

01:28:34 ◼   ► is to never create them in the first place.

01:28:37 ◼   ► And that to me is where the cancer analogy falls down

01:28:39 ◼   ► is that nobody's created cancer.

01:28:40 ◼   ► Cancer is not a, no, but I think it really matters though.

01:28:44 ◼   ► - No, no, I think you're true.

01:28:45 ◼   ► It's not an intent, it's a byproduct

01:28:47 ◼   ► of biological processes and maybe pesticides

01:28:50 ◼   ► and genetics and so forth.

01:28:52 ◼   ► Right, yeah, absolutely.

01:28:53 ◼   ► I never thought of that analogy though.

01:28:54 ◼   ► That's very funny.

01:28:55 ◼   ► - And I think it's a little,

01:28:57 ◼   ► I think, I haven't seen Apple repeat that analogy

01:28:59 ◼   ► and I think they realize that it's not a good enough analogy

01:29:03 ◼   ► Right?

01:29:04 ◼   ► 'Cause there's this, the part of the argument,

01:29:07 ◼   ► or the entirety of the government's argument

01:29:09 ◼   ► is that this could be controlled.

01:29:11 ◼   ► And it would never get out, given the right precautions,

01:29:14 ◼   ► it would never get out of control.

01:29:16 ◼   ► And that's-- - I don't know,

01:29:18 ◼   ► I keep thinking about this, like, what if, you know,

01:29:20 ◼   ► okay, government says, you, hospital X,

01:29:24 ◼   ► we need you, Sisters of Charitable Mercy,

01:29:27 ◼   ► we need you to do open-heart surgery on this individual

01:29:31 ◼   ► who has a micro SD card implanted in his heart.

01:29:35 ◼   ► And we need that data.

01:29:36 ◼   ► And so the hospital tries to oppose it,

01:29:40 ◼   ► they're ordered to do so,

01:29:40 ◼   ► court orders them to do what surgeon goes in

01:29:43 ◼   ► and does the open heart surgery to do that.

01:29:46 ◼   ► I mean, that's a one-off thing too,

01:29:47 ◼   ► it's not even as bad.

01:29:48 ◼   ► And it's like, okay, well, this is possible.

01:29:50 ◼   ► Well, we have a thousand open heart surgeries,

01:29:52 ◼   ► we need to schedule tomorrow.

01:29:54 ◼   ► And we'll have surgeons trained in this now too,

01:29:56 ◼   ► so it's very easy to do.

01:29:57 ◼   ► Like, oh no, no, no, no.

01:29:59 ◼   ► Not everybody has a chip in their heart. Um, all right,

01:30:03 ◼   ► let me just take a break here and thank our next sponsor and it's our good

01:30:06 ◼   ► friends at audible audible.com has more than 180,000 audio books and spoken word

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01:30:25 ◼   ► I think with $180,000, 180,000 audio books,

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01:31:41 ◼   ► unbelievable library at audible all right what else should we talk about glenn tiny phones

01:31:49 ◼   ► Tiny phones for tiny hands.

01:31:50 ◼   ► Vulgarian handed phones.

01:31:53 ◼   ► Tiny, tiny hands.

01:31:55 ◼   ► I love the idea that Donald Trump is bothered by it.

01:31:58 ◼   ► He keeps sending, he sends the photocopies of his hands to, uh, what's his name?

01:32:05 ◼   ► The guy from Green Carter.

01:32:06 ◼   ► Right.

01:32:07 ◼   ► Got them a few years.

01:32:08 ◼   ► It's not like he did it once.

01:32:10 ◼   ► Like it's Green Carter's every couple of years, I guess.

01:32:12 ◼   ► The story, for those of you who haven't, the story, I'll paraphrase it.

01:32:17 ◼   ► I'll put it in the show links.

01:32:18 ◼   ► It's such a funny story, and it's so telling as to Donald Trump's personality.

01:32:21 ◼   ► But the story is—I think it might have even predated the Vanity Fair.

01:32:24 ◼   ► Was it for Spy Magazine?

01:32:25 ◼   ► Pete: Oh, it was for, I think it was Spy, that's right.

01:32:28 ◼   ► Jim: Right, well, but Graydon Carter, who's long been the editor at Vanity Fair,

01:32:35 ◼   ► and before that was the editor at the late beloved Spy Magazine, which was just fantastic,

01:32:40 ◼   ► wrote a profile of Trump in the 80s, and I think he called him a small-handed Bulgarian.

01:32:47 ◼   ► small, small, wait, small fingered, small fingered, small fingered, something like that.

01:32:53 ◼   ► And in the decade since Graydon Carter has said recently that every, you know, once a year,

01:33:00 ◼   ► maybe two years go by, but then he gets another one. Every couple of years, he gets a letter from

01:33:06 ◼   ► Trump with like a picture from a magazine pulled out and in gold Sharpie, a circle around the hands,

01:33:15 ◼   ► and it's just like a handwritten note that says, "Look at those hands."

01:33:18 ◼   ► Not small. So, you know, there's a PAC, a political action committee was registered by

01:33:26 ◼   ► a Portland, Oregon man called Trump Has Tiny Hands. And the Federal Election Commission on

01:33:31 ◼   ► Monday, so the FEC has been deadlocked with two members, Republican appointed, two Democratic

01:33:36 ◼   ► appointed members, destroying the ability for the FEC to enforce election law. And it's been going

01:33:41 ◼   ► on for years because Congress won't approve the third appointee who would give the balance of

01:33:44 ◼   ► power of the Democrats under Obama. Many, one of the many intransigent points here, right?

01:33:48 ◼   ► FEC acts against this guy on Monday. FEC can't do anything. They act against this guy,

01:33:55 ◼   ► requiring that he changes Trump has tiny hands pack. So he's changed his name.

01:33:59 ◼   ► It's now the Americans against insecure billionaires with tiny hands. That's his

01:34:04 ◼   ► political action. Oh my God.

01:34:07 ◼   ► (laughing)

01:34:10 ◼   ► Trump famously was, however large or small his hands are,

01:34:16 ◼   ► a few years ago I remember he tweeted something

01:34:22 ◼   ► to the effect of that, this is before the iPhone 6 came out,

01:34:25 ◼   ► that Apple needs to put out a big iPhone,

01:34:27 ◼   ► you know, get with the times or something like that.

01:34:29 ◼   ► - Oh, that's funny, yeah.

01:34:31 ◼   ► - So Trump, however small his hands are,

01:34:33 ◼   ► is a fan of large phones.

01:34:35 ◼   ► - That's true.

01:34:36 ◼   ► Well, I'm curious, my wife likes small phones,

01:34:38 ◼   ► and when I use her, she has an iPhone 5 that is failing.

01:34:41 ◼   ► And when I use it, when she hands it to me,

01:34:42 ◼   ► and she makes a type large, little vision issue,

01:34:45 ◼   ► so she makes a type large, and I use it,

01:34:47 ◼   ► and I feel like I'm using a fairy phone.

01:34:48 ◼   ► I'm like, little tiny fairies use this phone.

01:34:50 ◼   ► And I'm like, how many years did I use a phone

01:34:52 ◼   ► that was that size or smaller, and it seemed fine.

01:34:55 ◼   ► I have an iPhone 6S, and now the iPhone 5S size

01:34:59 ◼   ► seems ridiculous, but she's waiting, her phone is failing.

01:35:02 ◼   ► If the SE ships or is announced on Monday as expected,

01:35:05 ◼   ► then she's a customer.

01:35:07 ◼   ► John Woltz is a customer.

01:35:08 ◼   ► - I would argue that in a certain sense,

01:35:11 ◼   ► I don't know what the volume is,

01:35:12 ◼   ► but in a hand feel sense,

01:35:14 ◼   ► I would argue that the iPhone 5 and 5S

01:35:16 ◼   ► are the smallest iPhone Apple ever made.

01:35:18 ◼   ► And I know that the screen got bigger.

01:35:20 ◼   ► It went from three and a half to four,

01:35:21 ◼   ► but it's so much thinner that to me it feels smaller.

01:35:25 ◼   ► And I have my little museum here of old iPhones,

01:35:29 ◼   ► that because of the thinness,

01:35:32 ◼   ► it feels smaller in the hand,

01:35:33 ◼   ► that it feels like the smallest iPhone they ever had.

01:35:36 ◼   ► - That is probably it, you're right,

01:35:37 ◼   ► by volume and like screen edge dimensions, yes.

01:35:41 ◼   ► - Maybe by volume it's not because of the extra length

01:35:44 ◼   ► to accommodate the four inch screen as opposed to 3.5,

01:35:47 ◼   ► but because you hold it sideways typically,

01:35:51 ◼   ► you don't really hold it end to end,

01:35:53 ◼   ► that the volume that matters is sort of like the,

01:35:57 ◼   ► you know, like the bottom half of the phone.

01:35:59 ◼   ► - Yeah, that's true.

01:36:00 ◼   ► - Or like the bottom, you know, two, three inches

01:36:02 ◼   ► is really the volume that matters

01:36:04 ◼   ► and that whatever sticks up off the top

01:36:06 ◼   ► doesn't really count.

01:36:07 ◼   ► - I think it's gonna be a big seller.

01:36:10 ◼   ► I hope it actually is a real thing.

01:36:11 ◼   ► It seems very reliably so that it's a real thing.

01:36:13 ◼   ► And it's fun to watch.

01:36:15 ◼   ► I mean, Apple has that matrix.

01:36:17 ◼   ► Who did that a few years ago

01:36:18 ◼   ► before something came out, the iPad mini,

01:36:20 ◼   ► something came out where someone built this fan

01:36:24 ◼   ► of all the devices and sizes and prices

01:36:26 ◼   ► and they said, "Here are the holes,"

01:36:27 ◼   ► then Apple released devices that fit in those holes.

01:36:29 ◼   ► I feel like the SE is absolutely

01:36:32 ◼   ► in one of those holes right now.

01:36:34 ◼   ► - I think it's fascinating that here we are,

01:36:36 ◼   ► we're recording on Wednesday, March 16th,

01:36:38 ◼   ► and I think the show's gonna air on Thursday.

01:36:40 ◼   ► I don't know when people will listen.

01:36:43 ◼   ► Hopefully they'll listen before the event on Monday,

01:36:45 ◼   ► but who knows what will leak at the last possible minute,

01:36:48 ◼   ► but it's fascinating to me that the phone hasn't leaked.

01:36:51 ◼   ► And I know that there was like a CAD drawing

01:36:53 ◼   ► that one of the rumor sites,

01:36:55 ◼   ► I don't know if it was 9to5Mac or MacRumors,

01:36:58 ◼   ► probably 9to5 Mac, but they had like a CAD rendering

01:37:01 ◼   ► that they then interpreted as a, you know,

01:37:04 ◼   ► made like a rendering out of.

01:37:07 ◼   ► But we don't really know, like the parts didn't leak.

01:37:09 ◼   ► There's nobody who's held up a part that says,

01:37:12 ◼   ► here's the, you know, here's the casing for the iPhone SE.

01:37:15 ◼   ► And I-- - It makes me wonder

01:37:17 ◼   ► if it's shipping like a month,

01:37:19 ◼   ► but I can't imagine they're gonna do the event and say,

01:37:21 ◼   ► and you can order this for shipping on May 1st.

01:37:23 ◼   ► - I don't think so. - It's gonna be available

01:37:24 ◼   ► day and date, I have to believe.

01:37:25 ◼   ► - Germin, Germin? - Like, on Friday, rather.

01:37:27 ◼   ► I think Germin says by Friday, which is actually kind of interesting, my, you know, just my own

01:37:31 ◼   ► selfish interest that it's, I'm going to the event, I'll be at the event. I guess since I'm going that

01:37:38 ◼   ► I'll probably get one to review, but if they're shipping it on Friday, I don't, I'm not quite sure

01:37:43 ◼   ► how, how I write a review before it actually ships. Yeah, that's, it, it seems, yeah, I'm doing a

01:37:50 ◼   ► Monday event, yeah. Although on the other hand, maybe it's a very easy device to review. It's,

01:37:55 ◼   ► It's back to the old size and it's got the new specs

01:38:00 ◼   ► and figure out how good the camera is.

01:38:03 ◼   ► I think I'm gonna like it.

01:38:04 ◼   ► I think I'm going to,

01:38:05 ◼   ► I don't know that I'll switch from the 4.7

01:38:07 ◼   ► but I might be very tempted to.

01:38:09 ◼   ► It's gonna be a close call for me.

01:38:13 ◼   ► - I love that they're,

01:38:15 ◼   ► I mean if this happens, it seems so likely,

01:38:17 ◼   ► I love that they're doing it because,

01:38:19 ◼   ► I've talked to some other folks about the notion

01:38:21 ◼   ► that we're getting to post numbering,

01:38:23 ◼   ► that maybe this is, or maybe this model never gets numbered.

01:38:27 ◼   ► I think you've written about that too.

01:38:28 ◼   ► It's that like, at some point, you know, the iPad 3,

01:38:32 ◼   ► was it called the iPad 2 and the iPad 3,

01:38:34 ◼   ► then it became the iPad.

01:38:35 ◼   ► And numbers are bad for Apple,

01:38:39 ◼   ► except if they're trying to create demand,

01:38:41 ◼   ► like a pull of demand for the newer thing.

01:38:43 ◼   ► And I think sales figures and growth may show

01:38:46 ◼   ► that they just need to be shipping out devices,

01:38:49 ◼   ► maybe not creating the expectation

01:38:51 ◼   ► in the same way and the new plans.

01:38:53 ◼   ► I mean, the thing is with a lot of people

01:38:55 ◼   ► shifting to, shifting to installment plans

01:38:56 ◼   ► that allow an upgrade after either 12 or 18

01:38:58 ◼   ► months, I think we're going to see, seems like

01:39:01 ◼   ► the majority of people in the U S will wind up

01:39:03 ◼   ► on a plan with either a 12 or 18 month refresh

01:39:05 ◼   ► and some with like a, you know, 20 or 24 month

01:39:08 ◼   ► where, um, they don't pay any extra for that.

01:39:10 ◼   ► That's going to flood the market with older

01:39:12 ◼   ► phones in some fashion, there'll be resold

01:39:14 ◼   ► or there'll be, uh, you know, uh, refurbished

01:39:17 ◼   ► and available.

01:39:18 ◼   ► And then, um, you have all these people

01:39:20 ◼   ► I mean, Hey, look, I'm on an installment plan.

01:39:22 ◼   ► Am I going to get an iPhone seven or whatever it's called?

01:39:24 ◼   ► Probably because I feel like that's my Apple fee is now I'm paying, I don't

01:39:28 ◼   ► know what is 56 bucks a month.

01:39:29 ◼   ► I'll just pay that forever for my phone and I'll just always have the freshest

01:39:33 ◼   ► phone like that does not seem like a penalty to me, um, the way they're

01:39:37 ◼   ► marketing it.

01:39:37 ◼   ► Yeah.

01:39:38 ◼   ► To me, I think it'll probably personally come down to image quality.

01:39:43 ◼   ► I think that, or, you know, for the camera that if you want your 12 megapixel

01:39:48 ◼   ► - Well, I don't care about the megapixel camera.

01:39:50 ◼   ► - I'm sorry, but like a better, right.

01:39:52 ◼   ► That's a field, I want depth of field.

01:39:54 ◼   ► - Well, you're not gonna get that in this camera.

01:39:56 ◼   ► - I know.

01:39:57 ◼   ► - It's not gonna move forward,

01:40:00 ◼   ► but if to me it looks like I can take the same quality

01:40:03 ◼   ► pictures in the same lighting conditions as my iPhone 6S.

01:40:07 ◼   ► - Oh, I'm sorry, I see, yes.

01:40:08 ◼   ► - More or less that it, at least to my eyes,

01:40:11 ◼   ► it looks like I'm getting the same image quality.

01:40:13 ◼   ► I think I would prefer the smaller phone.

01:40:15 ◼   ► the smaller phone. I like the way it feels in my hand. I like the way it is smaller in my pocket.

01:40:21 ◼   ► And to be honest, the majority of what I read on the phone is Twitter. And tweets,

01:40:31 ◼   ► because they're so small, it doesn't matter that I can see more of them at a time on a larger screen

01:40:37 ◼   ► phone. And I do read a lot of articles on Mobile Safari, but I never minded it that much.

01:40:45 ◼   ► You know, like to me, both screens are small and constrained for reading articles

01:40:49 ◼   ► and you just reflow them with, you know, reader view or something like that. So

01:40:54 ◼   ► Big screen to me isn't all that appealing. I see, you know, it is certainly a trade-off

01:41:00 ◼   ► But in terms of the smaller device size, I don't know. I think I'm on the fence. Me and Moltz.

01:41:04 ◼   ► Yeah, I like having the smaller phone. I mean this comes back to hey, apparently we're both guys

01:41:09 ◼   ► So there's an issue there

01:41:10 ◼   ► which is that we don't have the tiny unusable pockets

01:41:13 ◼   ► or no pockets that a lot of women have in their clothing.

01:41:16 ◼   ► My friend, Erin McKean, who's at Wordnik,

01:41:18 ◼   ► the head of that great site that's collecting

01:41:20 ◼   ► like open source-ish definitions of words,

01:41:23 ◼   ► the nonprofit project, she likes to make her own dresses,

01:41:26 ◼   ► makes wonderful stuff, wrote about it

01:41:27 ◼   ► for the magazine years ago, and she puts pockets in stuff

01:41:30 ◼   ► and she has people stopping her all the time.

01:41:32 ◼   ► Wait, you have pockets in your clothing, how that happens?

01:41:34 ◼   ► Like I made the dress, so there's pockets in it.

01:41:36 ◼   ► A wife encounters this all the time

01:41:38 ◼   ► stylish, but not like, um, like a fashion,

01:41:41 ◼   ► absurdly stylish, unusable clothing.

01:41:43 ◼   ► And, um, got to think like that was the thing

01:41:45 ◼   ► with the iPhone six or if I own a six plus

01:41:48 ◼   ► when it came out, I thought I don't want to

01:41:50 ◼   ► phone that big, but I'm not going to prejudge

01:41:52 ◼   ► it because Apple knows the market better.

01:41:53 ◼   ► And I am like one tiny segment now of the market.

01:41:56 ◼   ► I don't want a gold phone.

01:41:57 ◼   ► I don't want a gold watch.

01:41:58 ◼   ► I don't want whatever.

01:41:59 ◼   ► Uh, and I, a lot of women I know, uh, liked

01:42:02 ◼   ► the six plus cause they already keeping a phone

01:42:04 ◼   ► in their purse.