Apple v FBI

[cathy63]

Actually, if we're looking at the bill of rights, this might be more of a 1st amendment issue. This is from EFF's analysis last year of a previous attempt by DoJ to use the same All Writs law to compel Apple to break into a phone.

https://www.eff.org/deeplinks/2015/10/judge-doj-not-all-writs

... the All Writs Act is not a backdoor to bypass other laws. The government cannot impose an unreasonable burden on Apple, and it cannot violate the Constitution.

...

But if Apple in fact has this capacity, or if the government instead tried to require it to prospectively reengineer the operating system on an unlocked device, All Writs is not the means to do so. Reengineering iOS and breaking any number of Apple’s promises to its customers is the definition of an unreasonable burden. As the Ninth Circuit put it in a case interpreting technical assistance in a different context, private companies' obligations to assist the government have “not extended to circumstances in which there is a complete disruption of a service they offer to a customer as part of their business.” What’s more, such an order would be unconstitutional. Code is speech, and forcing Apple to push backdoored updates would constitute “compelled speech” in violation of the First Amendment.

I have not yet had a chance to read Apple's legal response to the latest order, but I'm interested to find out if they used this argument.

 

[redduck]

For the Third Amendment to apply, war must first be declared. Supposedly, the Constitution says that only Congress has the power to do that..

You will find that life becomes so much simpler if you don't let yourself get bogged down with minor details.

 

[target2019]

The correct perception of this issue:

Your Country vs Tech vs Terrorism.

 

[r2021t]

This thread is getting long, and I do not blame you for not following up.

I have to admit I did not read the entire thread before my first post. I've gone back now and see that NW-Bound raised many of the issues I did in my posts.

And much more eloquently than I, I would add.

My apologies, NW-Bound.

 

[Midpack]

Another good read, for those interested in more info, with an open mind. Some have already made up their minds based on surprisingly little...

The Apple-FBI Fight Isn’t About Privacy vs. Security. Don’t Be Misled | WIRED

Ultimately, the reason this debate is happening at all is that there’s no legislative guidance around encryption. The All Writs Act that the FBI has cited dates to 1798, and even the most recent supporting precedent dates to 1977. Until Congress acts, the FBI will continue to attempt to gain access through the courts.
“These issues will be decided in Congress,” Bill Gates said in a recent Bloomberg TV interview, attempting to clarify previous comments that had been wrongly interpreted as him favoring the FBI. “You don’t want to just take the minute after a terrorist event and swing that direction, nor do you want to swing away from government access when you get some abuse being revealed. You want to strike that balance.”

 

[ERD50]

Another good read, for those interested in more info, with an open mind. Some have already made up their minds based on surprisingly little...

Quote:
Ultimately, the reason this debate is happening at all is that there’s no legislative guidance around encryption. The All Writs Act that the FBI has cited dates to 1798, and even the most recent supporting precedent dates to 1977. Until Congress acts, the FBI will continue to attempt to gain access through the courts.
“These issues will be decided in Congress,” Bill Gates said in a recent Bloomberg TV interview, attempting to clarify previous comments that had been wrongly interpreted as him favoring the FBI. “You don’t want to just take the minute after a terrorist event and swing that direction, nor do you want to swing away from government access when you get some abuse being revealed. You want to strike that balance.”

The Apple-FBI Fight Isn’t About Privacy vs. Security. Don’t Be Misled | WIRED

Encryption dates back far beyond 1977 or even 1798...

from a book I found quite interesting:

The Code Book: The Science of Secrecy from Ancient Egypt to Quantum Cryptography

The Code Book: The Science of Secrecy from Ancient Egypt to Quantum Cryptography: Simon Singh: 9780385495325: Amazon.com: Books

-ERD50

 

[M Paquette]

Legal situation update:

James Orenstein, Magistrate Judge in the United States District Court Eastern District of New York, has ruled on a government request to compel Apple to bypass passcode security on a phone using the All Writs Act in Case 1:15-mc-01902-JO.

Apple New York 2/29/16

The government seeks an order requiring Apple, Inc. ("Apple") to bypass the passcode security on an Apple device. It asserts that such an order will assist in the execution of a search warrant previously issued by this court, and that the All Writs Act, 28 U.S.C. § 1651(a) (the "AWA"), empowers the court to grant such relief. Docket Entry ("DE") 1 (Application). For the reasons set forth below, I conclude that under the circumstances of this case, the government has failed to establish either that the AWA permits the relief it seeks or that, even if such an order is authorized, the discretionary factors I must consider weigh in favor of granting the motion. More specifically, the established rules for interpreting a statute's text constrain me to reject the government's interpretation that the AWA empowers a court to grant any relief not outright prohibited by law. Under a more appropriate understanding of the AWA's function as a source of residual authority to issue orders that are "agreeable to the usages and principles of law," 28 U.S.C. § 1651(a), the relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it. In addition, applicable case law requires me to consider three factors in deciding whether to issue an order under the AWA: the closeness of Apple's relationship to the underlying criminal conduct and government investigation; the burden the requested order would impose on Apple; and the necessity of imposing such a burden on Apple. As explained below, after reviewing the facts in the record and the parties' arguments, I conclude that none of those factors justifies imposing on Apple the obligation to assist the government's investigation against its will. I therefore deny the motion.

 

[ChiliPepr]

Legal situation update:

James Orenstein, Magistrate Judge in the United States District Court Eastern District of New York, has ruled on a government request to compel Apple to bypass passcode security on a phone using the All Writs Act in Case 1:15-mc-01902-JO.

Apple New York 2/29/16

Just a note, this is for a different case than the San Bernardino attacks. http://www.nytimes.com/2016/03/01/technology/apple-wins-ruling-in-new-york-iphone-hacking-order.html

 

[ls99]

The three factors required for AWA application will most likely be the neutering factor in the San Bernadino case too.

 

[stephenson]

The issue is whether there are any situations that are "warrantless."

With tech questions, one needs to find analogous situations ...in this case, assume the same kind of information desired is inside someone's house ...in a safe. With a warrant, the authorities can, per their mandate, hire a locksmith to open the house lock, right. Once in the house, the safe could be opened by a safe specialist, right ...or, maybe not ...in that case the authorities would go to the company to obtain their assistance in opening the safe ...via court order, if needed.

It has been this way as a legal principle ...should the principles be changed simply because there is an electronic device involved? In a murder case? When did the American people begin to believe their information was sacrosanct ...just because it was a dvi d that promised absolute security? Most would believe absolute security stopped when heinous crimes begin.

Pretty simple to me ...start the indictments quickly with Apple executives ...apply every analogous precedent possible ...tie them up and see where it goes.


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[Philliefan33]

The issue is whether there are any situations that are "warrantless."

With tech questions, one needs to find analogous situations ...in this case, assume the same kind of information desired is inside someone's house ...in a safe. With a warrant, the authorities can, per their mandate, hire a locksmith to open the house lock, right. Once in the house, the safe could be opened by a safe specialist, right ...or, maybe not ...in that case the authorities would go to the company to obtain their assistance in opening the safe ...via court order, if needed.

It has been this way as a legal principle ...should the principles be changed simply because there is an electronic device involved? In a murder case? When did the American people begin to believe their information was sacrosanct ...just because it was a dvi d that promised absolute security? Most would believe absolute security stopped when heinous crimes begin.

Pretty simple to me ...start the indictments quickly with Apple executives ...apply every analogous precedent possible ...tie them up and see where it goes.


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Let's change your analogy just a little.

Suppose the ACME Safe Company sells safes with the option of a self-destruct mode. When activated, the safe cannot be opened in any other way than by using the correct combination. If someone attempts to open the safe any other way -- drilling, brute force, removing the tumbler set, whatever -- the self-destruct function releases chemicals that dissolve the contents of the safe.

Lots of people buy ACME safes. Some of them activate the self-destruct function for nefarious reasons, others activate the self-destruct function simply for privacy. Maybe they don't want their heirs to see the cross-dressing photos, or find evidence of an affair. Whatever.

So here comes the FBI, with a safe belonging to an alleged bad guy, and a warrant to open/search the safe. But the FBI cannot open the safe without potentially activating the self-destruct mode. The FBI asks ACME Safe Company to open the safe. ACME does not have the capability. So the FBI goes to court to compel ACME to develop a method of bypassing the self-destruct mode. ACME does not want to develop a backdoor because (choose one or all): it will cost ACME time/money to try to do this; or developing a backdoor will demonstrate that a backdoor is possible, opening up ACME safes to potential attacks by safecrackers / lessening the security of the ACME safes already sold, and potentially hurting future sales of ACME safes.

(I don't know the reasons that Apple is using to fight the court order, I just made up some reasons for ACME to fight the scenario).

So I've taken technology out of the scenario. I believe the crux of the issue is compelling ACME (or Apple) to hand over something that does not exist. It will be an interesting court battle.

 

[G8tr]

Late to the thread, so I'm hoping someone already said this, namely, that there were critical mistakes made by the County and the FBI, and now they want Apple to fix those mistakes. For example, the County had the ability and right to ensure that EDM was fully installed and enabled on the phone. It didn't. The FBI reset the iCloud password, preventing a iCloud backup. There are probably more, but those are the most prominent ones.

EDIT: just saw this article on Yahoo that bears out the foregoing.
http://finance.yahoo.com/news/fbi-director-just-got-grilled-194307653.html

Also, the FBI is only speculating that there might be evidence on a County-issued phone. If there were actual evidence that could support a reasonable suspicion that such speculation was accurate, then Apple might be in a more precarious position. As it stands, the mere chance that there is evidence should not override the concrete damage that Apple would experience to its reputation and viability as a business, putting aside the larger question of personal privacy. In other words, a court doesn't even need to get to the privacy question. Knowing a run of the mill drug case would be insufficient, the FBI thought a terrorism case would be the best vehicle for getting from a court what it hasn't been able to get from Congress.


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[audreyh1]

Knowing a run of the mill drug case would be insufficient, the FBI thought a terrorism case would be the best vehicle for getting from a court what it hasn't been able to get from Congress.

Actually, the FBI has recently tried to apply the All Writs Act to compel Apple to do the same thing in a drug case, and this was denied. The FBI is working on multiple fronts.

Federal Judge Denies Request To Force Apple To Extract Data From iPhones In Drug Case

N.Y. judge backs Apple in encryption fight with government | Reuters

 

[redduck]

...Lots of people buy ACME safes. Some of them activate the self-destruct function for nefarious reasons, others activate the self-destruct function simply for privacy. Maybe they don't want their heirs to see the cross-dressing photos, or find evidence of an affair. Whatever...

Where can I buy one of these ACME safes?

 

[redduck]

Never mind. Found one on Craig's list.

 

[NW-Bound]

Congress can always decide that some products cannot exist. No ACME safe allowed, the same as individuals cannot build personal cannons, bombs, anthrax farms, or go naked without health insurance, refuse to pay SS. Anything is possible.

 

[Midpack]

Not only did a NY judge rule against the FBI's request, this (below) doesn't help the FBI's case either. Good thing Apple is challenging. If Apple is required to unlock the shooters work phone (would you use your work phone to communicate with fellow terrorists?), hopefully it won't be until Congress passes legislation and/or the Supreme Court makes a ruling. We will ALL be better served in the end, including the intelligence community.

Not a great source, but it was on all the major network news shows this morning too.

Comey, who is trying to force Apple to unlock the iPhone of San Bernardino shooter Syed Farook, said at the House Judiciary Committee hearing that FBI agents reset the password to try to obtain data from the device but ended up locking themselves out, the New York Times reports. "There was a mistake made in the 24 hours after the attack," he said. Sewell said that if the FBI had followed Apple's advice, "the very information that the FBI is seeking would have been available, and we could have pulled it down from the cloud."

FBI: We Screwed Up Trying to Unlock Phone of San Bernardino Shooter

 

[Jack_Pine]

Let's change your analogy just a little.

Suppose the ACME Safe Company sells safes with the option of a self-destruct mode. When activated, the safe cannot be opened in any other way than by using the correct combination. If someone attempts to open the safe any other way -- drilling, brute force, removing the tumbler set, whatever -- the self-destruct function releases chemicals that dissolve the contents of the safe.

Lots of people buy ACME safes. Some of them activate the self-destruct function for nefarious reasons, others activate the self-destruct function simply for privacy. Maybe they don't want their heirs to see the cross-dressing photos, or find evidence of an affair. Whatever.

So here comes the FBI, with a safe belonging to an alleged bad guy, and a warrant to open/search the safe. But the FBI cannot open the safe without potentially activating the self-destruct mode. The FBI asks ACME Safe Company to open the safe. ACME does not have the capability. So the FBI goes to court to compel ACME to develop a method of bypassing the self-destruct mode. ACME does not want to develop a backdoor because (choose one or all): it will cost ACME time/money to try to do this; or developing a backdoor will demonstrate that a backdoor is possible, opening up ACME safes to potential attacks by safecrackers / lessening the security of the ACME safes already sold, and potentially hurting future sales of ACME safes.

(I don't know the reasons that Apple is using to fight the court order, I just made up some reasons for ACME to fight the scenario).

So I've taken technology out of the scenario. I believe the crux of the issue is compelling ACME (or Apple) to hand over something that does not exist. It will be an interesting court battle.

My understanding is in the very beginning they stated it could not be done and now they are stating they should not have to do it (Apple), implying it could be done.

If it is impossible for ACME to do it, there is no point in even discussing it, IMHO.

 

[Jack_Pine]

Congress can always decide that some products cannot exist. No ACME safe allowed, the same as individuals cannot build personal cannons, bombs, anthrax farms, or go naked without health insurance, refuse to pay SS. Anything is possible.

True, that.

 

[ChiliPepr]

Congress can always decide that some products cannot exist. No ACME safe allowed, the same as individuals cannot build personal cannons, bombs, anthrax farms, or go naked without health insurance, refuse to pay SS. Anything is possible.

True, that.

Absolutely, Congress can create a law requiring all phones have a back door built in. Pass a law stating that and that a backdoor must be built for old version before any new versions can be released. That would fix it all. You are not telling Apple to build a back door, just telling them they cannot release anything new until they do.

They could also pass a law stating that all internet providers must maintain a copy of all your web browsing history in case the court wants it.

Do you think congress has the guts to do it? I don't.

 

[ls99]

Absolutely, Congress can create a law requiring all phones have a back door built in. Pass a law stating that and that a backdoor must be built for old version before any new versions can be released. That would fix it all. You are not telling Apple to build a back door, just telling them they cannot release anything new until they do.

They could also pass a law stating that all internet providers must maintain a copy of all your web browsing history in case the court wants it.

Do you think congress has the guts to do it? I don't.

With that sort of backdoor stuff law, every resident of the US could be required to hand a key to their house or apartment to the local police. Heck how about a set of spare keys to your car while they are at it.

 

[M Paquette]

Congress can always decide that some products cannot exist. No ACME safe allowed, the same as individuals cannot build personal cannons, bombs, anthrax farms, or go naked without health insurance, refuse to pay SS. Anything is possible.

With software? Good luck with that.

Remember that until the late 90's cryptographic software was a controlled munition, with nothing stringer than the original DES encryption permitted. That was readily cracked using a simple Rainbow attack in a few minutes on an awesome 90 MHz Pentium.

So, where did stronger encryption come from? Internet sites outside the US borders. US vendors would write software that accepted plug-ins, and at install time the user had the option on many products to download better encryption such as PGP.

Apps like Telegram will just go right back to that model. Oh, implement the Great American Firewall to ban access to nasty software the FBI says is bad, by buying the China edition of Internet primary routers? Tunneling software like Tor takes care of that. Heck, the US government paid to develop Tor to allow activists to bypass the Great Firewall of China.

Won't work.


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[audreyh1]

Congress can always decide that some products cannot exist. No ACME safe allowed, the same as individuals cannot build personal cannons, bombs, anthrax farms, or go naked without health insurance, refuse to pay SS. Anything is possible.

That's right. But they have to actually pass a law.

 

[M Paquette]

Absolutely, Congress can create a law requiring all phones have a back door built in. Pass a law stating that and that a backdoor must be built for old version before any new versions can be released. That would fix it all. You are not telling Apple to build a back door, just telling them they cannot release anything new until they do.

Terrorists buy phones before they come to the US.

Meanwhile, a reward is offered on the DarkNet for the master key. 1000 BitCoin for the keys. A dozen government IT techs that want a new Corvette race to sell the master key. (One of the greatest telecom intercept projects of the Cold War was sold out by a tech who wanted a new Corvette.). Hilarity ensues, along with massive credit card fraud and identity theft.

This ends well...


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[NW-Bound]

Terrorists buy phones before they come to the US...

Phones can be blocked from roaming, using their ID (IMEI).

Yes, it is indeed difficult, and there may not be anything we can do, but to slow them down. "Innovation has its dark side", as Buffett recently noted. Perhaps there is not much one can do, short of taking down the digital phone network and going back to the old analog wireless phones.

Here's what Buffett wrote (the boldface is mine):

... the major threat our citizenry faces: a “successful” (as defined by the aggressor) cyber, biological, nuclear or chemical attack on the United States. That is a risk Berkshire shares with all of American business.

The probability of such mass destruction in any given year is likely very small. It’s been more than 70 years since I delivered a Washington Post newspaper headlining the fact that the United States had dropped the first atomic bomb. Subsequently, we’ve had a few close calls but avoided catastrophic destruction. We can thank our government – and luck! – for this result.

Nevertheless, what’s a small probability in a short period approaches certainty in the longer run. (If there is only one chance in thirty of an event occurring in a given year, the likelihood of it occurring at least once in a century is 96.6%.) The added bad news is that there will forever be people and organizations and perhaps even nations that would like to inflict maximum damage on our country. Their means of doing so have increased
exponentially during my lifetime. “Innovation” has its dark side.

There is no way for American corporations or their investors to shed this risk. If an event occurs in the U.S. that leads to mass devastation, the value of all equity investments will almost certainly be decimated. No one knows what “the day after” will look like. I think, however, that Einstein’s 1949 appraisal remains apt: “I know not with what weapons World War III will be fought, but World War IV will be fought with sticks and
stones.”

So, I think all problems with the human race will be self-limiting. When we are back to sticks and stones, there will be no more stinkin' phones, smart or dumb ones.