Apple reportedly enlists aid of free-speech attorneys in encryption battle

AppleInsider

Details surrounding Apple's legal battle to keep iPhone encryption intact continue to trickle out, the latest being a report claiming the company has retained the services of two prominent attorneys well versed in free-speech rights, suggesting such issues will be in play at upcoming court hearings.

According to filings recently lodged with a California court, Apple names Theodore Olson and Theodore Boutrous as representing lawyers in its bid to counter a court order compelling the company to help unlock an iPhone 5c device tied to last year's San Bernardino shootings. The pair's appearance could mean Apple plans to incorporate free-speech rights as a pillar in its case.

As reported by Reuters, Olson has seen success arguing First Amendment rights and in 2010 won the political free-speech case Citizens United v. Federal Election Commission. Boutrous, who often represents media organizations in court, is no stranger to Apple having been lead counsel in the company's protracted bid to curtail antitrust monitoring imposed as a result of the Department of Justice's e-book price fixing lawsuit.

Speaking with law professionals, the publication reports one of Apple's primary targets will be a U.S. Supreme Court decision from 1977 cited by government officials to compel the company's cooperation. The prior ruling referenced a reading of the All Writs Act of 1789 to authorize an order compelling a phone company to aid in a law enforcement surveillance operation.

As for the potential of a free-speech argument, Reuters spoke with cryptology expert Riana Pfefferkorn, a fellow at Stanford University's Center for Internet and Society, who said Apple could assert the FBI's request for a software workaround as tantamount to unlawful compelled speech. Since Apple contends such forensics tools do not currently exist, it would be forced to write computer code specifically for that purpose, Pfefferkorn said.

A federal magistrate judge earlier this week ordered Apple to comply with FBI requests to assist in the unlocking of a passcode-protected iPhone 5c used by San Bernardino shooter Syed Rizwan Farook. Under the terms of the agreement Apple would be made to create specialized software designed to bypass a passcode attempt counter in iOS 9.

Protecting computer code under the umbrella of free speech has been argued at the federal level before. Reuters points to a 1999 case heard by a three-judge panel of the 9th U.S. Circuit Court of Appeals, which found source code belonging to encryption software is indeed protected. That opinion was later rendered moot, however.

More information on Apple's legal tactics should be revealed when the company files its response to this week's court order. Apple was initially assigned a Feb. 23 filing deadline, but a report on Thursday claims that date has been pushed back to Feb. 26.

metrix

Speaking of children didn't the CIA exploit our children in the most evil ways conceivable with project "MK Ultra"?

wiggin

This really isn't a 4th Amendment question. The FBI is operating well within those bounds in wanting to access the data on the phone. The search is reasonable and even has the support of the owner of the phone. It comes down to if Apple can be required/compelled to assist in those efforts, which would seem to fall more under freedom of speech (or in this case, freedom to refuse speech...in the form of computer code).

For those who are worried about their privacy should a tool be created which would allow brute for attacks on iPhones, the solution is simple. Use the alphanumeric passcode option and don't use a stupid password. And don't use Touch ID, either.

mnbob1

wiggin said:

This really isn't a 4th Amendment question. The FBI is operating well within those bounds in wanting to access the data on the phone. The search is reasonable and even has the support of the owner of the phone. It comes down to if Apple can be required/compelled to assist in those efforts, which would seem to fall more under freedom of speech (or in this case, freedom to refuse speech...in the form of computer code).

For those who are worried about their privacy should a tool be created which would allow brute for attacks on iPhones, the solution is simple. Use the alphanumeric passcode option and don't use a stupid password. And don't use Touch ID, either.

The owner is dead. I guess that is giving support since he can't refuse.

The tool requested by the FBI has nothing to do with TouchID since they requested it to be able to turn off the number of failed attempts before the data is erased. TouchID is simply another way of inputting the passcode using biometric fingerprint detection. The so-called news reports about a fingerprint workaround are all but bogus and Apple has continued to improve the security of using it with each new iPhone model as well as new versions of iOS.

By creating a software tool (which doesn't exist) the FBI is asking Apple to modify the security of the iPhone and iOS. The capability to erase the contents of the iPhone with failed attempts (as well as to remotely erase the data) was the subject of hearings and news conferences by lawmakers. They were the impetus for Apple to create the features in the first place. If Apple complies with the FBI what precedent will that set for future backdoor security tools? The leaders of other countries that have few privacy laws could use this as a case to compel Apple to create or use the FBI code to create additional security bypass tools. Once the hacker community is able to get this code they can and will exploit it. I am not convinced that the FBI is able to keep this tool secure and a one time use as they say. 

thewhitefalcon

wiggin said:

This really isn't a 4th Amendment question. The FBI is operating well within those bounds in wanting to access the data on the phone. The search is reasonable and even has the support of the owner of the phone. It comes down to if Apple can be required/compelled to assist in those efforts, which would seem to fall more under freedom of speech (or in this case, freedom to refuse speech...in the form of computer code).

For those who are worried about their privacy should a tool be created which would allow brute for attacks on iPhones, the solution is simple. Use the alphanumeric passcode option and don't use a stupid password. And don't use Touch ID, either.

I wish Apple would add a poison-pill finger option to TouchID, personally. 

digitol

@Wiggin, duuuuuuuude seriously. hahaha. And for those who argue just create a tool and destroy it, or update the iphone later so the tool doesn't work. Completely overlooking most of this parade/fanfare is to get Apple to admit, or display it can be done, rendering their earlier statement invalid, and AND setting a precedent for future decrypting via gov. That is what is dangerous. Oh and now if there is a known backdoor china, hackers, others have ways to your data. The entire economy of security, and encryption in america will be for nought. Flushed. Apple could also get pissed and move out of US. Can you hear the economic whirlpool of that. ?

metrix

I think there are more people afraid of our government than ever before. You ever notice how wrong doing in our agencies is only a result of someone coming forward at the risk of death or imprisonment. Just like a little kid, deny the lie until you are exposed. 

wiggin

mnbob1 said:

wiggin said:

This really isn't a 4th Amendment question. The FBI is operating well within those bounds in wanting to access the data on the phone. The search is reasonable and even has the support of the owner of the phone. It comes down to if Apple can be required/compelled to assist in those efforts, which would seem to fall more under freedom of speech (or in this case, freedom to refuse speech...in the form of computer code).

For those who are worried about their privacy should a tool be created which would allow brute for attacks on iPhones, the solution is simple. Use the alphanumeric passcode option and don't use a stupid password. And don't use Touch ID, either.

The owner is dead. I guess that is giving support since he can't refuse.
 

You might want to actually try reading the various news articles and other accounts. The owner of the phone is the county. It was the guy's work phone. And the county, the owner of the phone, has consented to the search of the phone.

wiggin

digitol said:

@Wiggin, duuuuuuuude seriously. hahaha. And for those who argue just create a tool and destroy it, or update the iphone later so the tool doesn't work. Completely overlooking most of this parade/fanfare is to get Apple to admit, or display it can be done, rendering their earlier statement invalid, and AND setting a precedent for future decrypting via gov. That is what is dangerous. Oh and now if there is a known backdoor china, hackers, others have ways to your data. The entire economy of security, and encryption in america will be for nought. Flushed. Apple could also get pissed and move out of US. Can you hear the economic whirlpool of that. ?

duuuuuude...what part of my post was inaccurate? It's not a 4th Amendment issue until such a tool exists and the authorities try to use it in violation of the 4th Amendment. Is the existence of a tool a violation of the 4th Amendment? Or is the violation when the tool is used in a way inconsistent with the 4th Amendment? If the authorities were able to create their own tool, would it be unconstitutional absent it's actual use in violation of a person's 4th Amendment rights? Would you argue that door battering rams should also be illegal because the police could potentially use it to break down the door of an innocent person or without the proper warrant in violation of the 4th Amendment?

Look, I'm not saying there's not a huge issue here. I'm not saying Apple should create the tool. I'm simply saying it's not so much a 4th Amendment issue. The owner of the phone has agreed to its search, so who's 4th Amendment rights are being violated? And even if it was the shooter's personal phone, don't you think all necessary requirements for it being a reasonable search under the 4th Amendment have been met?

Yes, if a tool is created, there is great potential for it to be abused. As you said, it's dangerous. But there is great potential for guns or any number of other things to be abused, to be used in violation of our rights.

Yes, Apple should fight this. But I think if they fight it on the grounds of the 4th Amendment, as you and so many other's seem to think, they will lose as there appears to be no 4th Amendment violation in this current case. Oh, and Apple seems to agree since, as per the article, they are staffing up on 1st Amendment rights legal counsel.

pscooter63

wiggin said:

You might want to actually try reading the various news articles and other accounts. The owner of the phone is the county. It was the guy's work phone. And the county, the owner of the phone, has consented to the search of the phone.

I'm glad you brought that up.  As the administrator of said phone, shouldn't they have done a better job of managing the device... including maintaining its security credentials?

It's disconcerting that Apple is taking the heat for this, instead of the responsible party.

Josef

This is just a game of shadows and tricks. They surely already have means, how to get into encrypted iPhones. But they are simply trying to convince everyone, that those means are nonexistent, ergo what a better way then sue for those...

likethesky

mnbob1 said:

The owner is dead. I guess that is giving support since he can't refuse.

The tool requested by the FBI has nothing to do with TouchID since they requested it to be able to turn off the number of failed attempts before the data is erased. TouchID is simply another way of inputting the passcode using biometric fingerprint detection. The so-called news reports about a fingerprint workaround are all but bogus and Apple has continued to improve the security of using it with each new iPhone model as well as new versions of iOS.
[...]

I believe what Wiggins meant by the above is that for those users who care about security there is an easy workaround, which is to simply use a 7 character or longer random alphanumeric passcode. Just one character longer than 6, and the average time to brute force solve it at 80ms per guess (which is the absolute limit inside an iPhone currently) would take about 70-100 years to guess it, if on average the FBI had to go through half of all the possible combinations. If you choose 8 alphanumeric (with special characters too), that'd go up to about 3,500 years to brute force guess half the possibilities. So Higgins is just saying users who care (maybe even this San Bernardino terrorist) can just do that, even if Apple fulfills the FBI's request.

I I also believe that his comment about not using TouchID (remember the iPhone 5c of the San Bernardino terrorist doesn't *have* that feature) was if you want to prevent law enforcement from compelling you to press your finger on your own phone or doing it for you after you're deceased, then turn off that feature and only use a 7 or better yet 8 character random passcode and you're uncrackable by FBI, NSA, Apple, or anyone else. This is all assuming that they cannot transfer the entire phone to another computer, it's believed that this is very difficult to do because the chip might get destroyed in trying to view it's embedded hardware key via electron scanning microscope. In any case those techniques would cost probably a million dollars or more and only be used for very very high value targets.

Kaitlynn

At issue here is the safety of American Citizens...what right does a terrorist have when it comes to that?  And why would Apple want to defend them, or help keep secret any part of any conversation they may have had, or messages they may have sent, and to whom they were said, or sent?
If it were my company, I would open it up for this phone only, and any future consideration would be made case by case...

boltsfan17

I came across this article not long ago. Unbelivevable!

http://www.usatoday.com/story/money/columnist/wolff/2016/02/18/wolff-who-does-apple-think/80565156/

ireland

Welcome to 2016 where you have to fight your own government for freedom.

frac

Kaitlynn said:

At issue here is the safety of American Citizens...what right does a terrorist have when it comes to that?  And why would Apple want to defend them, or help keep secret any part of any conversation they may have had, or messages they may have sent, and to whom they were said, or sent?
If it were my company, I would open it up for this phone only, and any future consideration would be made case by case...

Congrats on your first post.
May I suggest you lurk and do some catchup reading before your second. 

palegolas

I bet if you compared the number of deaths caused by encryption, to the number of deaths caused by guns, it would become clear where to start making big changes...

matrix077

Kaitlynn said:

At issue here is the safety of American Citizens...what right does a terrorist have when it comes to that?  And why would Apple want to defend them, or help keep secret any part of any conversation they may have had, or messages they may have sent, and to whom they were said, or sent?
If it were my company, I would open it up for this phone only, and any future consideration would be made case by case...

Kaitlynn, you do your country a disservice. Now people might read this and think American are all dumb.

cnocbui

Kaitlynn said:

At issue here is the safety of American Citizens...what right does a terrorist have when it comes to that?  And why would Apple want to defend them, or help keep secret any part of any conversation they may have had, or messages they may have sent, and to whom they were said, or sent?
If it were my company, I would open it up for this phone only, and any future consideration would be made case by case...

Over 35,000 people are killed with guns in the US every year.  When you have adequately addressed that safety issue, then you can turn your attention to the minuscule numbers harmed through terrorism.  There have probably been more US citizens wrongfully shot dead by police officers than have been killed by terrorists.

rogifan_old

pscooter63 said:

wiggin said:

You might want to actually try reading the various news articles and other accounts. The owner of the phone is the county. It was the guy's work phone. And the county, the owner of the phone, has consented to the search of the phone.

I'm glad you brought that up.  As the administrator of said phone, shouldn't they have done a better job of managing the device... including maintaining its security credentials?

It's disconcerting that Apple is taking the heat for this, instead of the responsible party.

And how did they hire this person in the first place? 

rogifan_old

boltsfan17 said:

I came across this article not long ago. Unbelivevable!

http://www.usatoday.com/story/money/columnist/wolff/2016/02/18/wolff-who-does-apple-think/80565156/

The media siding with the government. Why am I not surprised.

its not just about this one phone. Are people really that naive to think once Apple does this they'll never be asked to do it again? Also can the government force a private company to create a product that currently doesn't exist in order to comply with a court order? What specific law gives the government that power?