Government says Apple arguments in encryption case a 'diversion,' presents point-by-point rebuttal

Posted:
in General Discussion edited March 2016
As the Apple vs. FBI encryption debate heats up in California, the U.S. government on Thursday fired back at Apple's oppositions to a court order compelling its assistance in an FBI investigation, and in a new motion discounted a number of arguments related to supposed backdoors, "master keys," the All Writs Act and more.




In its letter in support of a federal magistrate judge's original order to compel Apple's help in unlocking an iPhone used by San Bernardino terror suspect Syed Rizwan Farook, federal prosecutors intimate the company is playing to the media in an attempt to protect its brand. The document was penned by U.S. Attorneys for the Central District of California Eileen M. Decker, Chief of the Cyber and intellectual Property Crimes Section Tracy L. Wilkison and Chief of the National Security Division Patricia A. Donahue.

"Apple and its amici try to alarm this Court with issues of network security, encryption, back doors, and privacy, invoking larger debates before Congress and in the news media. That is a diversion. Apple desperately wants--desperately needs--this case not to be 'about one isolated iPhone,'" the letter reads. (Emphasis in original.)

The government argues Farook's phone may contain actionable intelligence that could help shed light on last year's terror attack. Investigators need Apple's help in acquiring said information, if it exists, but instead of providing aid as it has done in the past, the company is waging a war of words both in court and publicly. Prosecutors classify Apple's statements, including arguments that weakening the security of one iPhone is a slippery slope to a surveillance state, as "not only false, but also corrosive of the very institutions that are best able to safeguard our liberty and our rights."

One of Apple's main targets is the All Writs Act, a contingency that imbues courts with the power to issue orders if no other judicial tools are available. After being met with resistance to an initial warrant, the FBI leveraged AWA as a legal foundation to compel Apple's assistance. If the DOJ is successful in its court action, it could pave the way for broader application of the statute in other investigations, Apple says. Indeed, the FBI is currently asserting AWA in at least nine other cases involving iOS devices.

In this case, however, the government argues its use of AWA is proper.

As for undue burden, the letter notes Apple grosses hundreds of billions of dollars each year. It would take as few as six employees plucked from Apple's workforce of approximately 100,000 people as little as two weeks to create a workable solution to the FBI's problem, the letter says, adding that the company is to blame for being in the position it currently finds itself.

"This burden, which is not unreasonable, is the direct result of Apple's deliberate marketing decision to engineer its products so that the government cannot search them, even with a warrant," according to the government.

A few interesting tidbits were also revealed in the course of dismantling Apple's opposition, including a technical revelation that strikes at the heart of one of Apple's key arguments. Apple has maintained that a forced iCloud backup, obtained by connecting Farook's iPhone to a known Wi-Fi network, might contain information FBI agents are looking for. However, that option was rendered moot after the FBI ordered San Bernardino officials to reset Farook's Apple ID password.

"The evidence on Farook's iCloud account suggests that he had already changed his iCloud password himself on October 22, 2015--shortly after the last backup--and that the autobackup feature was disabled. A forced backup of Farook's iPhone was never going to be successful, and the decision to obtain whatever iCloud evidence was immediately available via the password change was the reasoned decision of experienced FBI agents investigating a deadly terrorist conspiracy," the government claims.

Finally, the letter takes issue with Apple's assertions that the instant order violates its First and Fifth Amendment rights. Apple claims computer code should be covered by free speech protections, meaning DOJ requests to write code in an attempt to break into Farook's iPhone amounts to forced speech. Nebulous legal footing aside, Apple's claims are "particularly weak because it does not involve a person being compelled to speak publicly, but a for-profit corporation being asked to modify commercial software that will be seen only by Apple"

The idea of narrow investigation is mentioned multiple times. Apple is not being required to create a master key for all iOS devices, government representatives insist, but instead a piece of code applicable to one iPhone. Even if hackers or nefarious agents manage to steal said code, it would only be useful in unlocking Farook's iPhone 5c, the government attests. This issue is under debate, however, as some experts say the flawed iOS version could be used on other devices. Creating a specialized forensics tool also acts as a proof-of-concept that iOS is vulnerable to attack.

Apple and the DOJ are set to meet in court over the matter in a hearing scheduled for March 22.

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Comments

  • Reply 1 of 122
    "... the letter says, adding that the company is to blame for being in the position it currently finds itself." No you got it wrong- if anybody then that is FBI to blame to put Apple into this position. Do not apply incorrect and political logic. Apple has point and FBI has point, but that's FBI who put Apple into this position so do not make stupid statements like that.
    edited March 2016 VisualSeedlondorbaconstangkevin keerob53pmzCacophonyuraharapscooter63steveh
  • Reply 2 of 122
    The legal argument should never be "you should help us because you can afford to help us." If that was the criteria then courts should be able to compel the rich to feed the hungry or build houses for the homeless. I have a friend that I helped move 4 times over the last few years. This weekend I decided I didn't want to help for a 5th time. Am I somehow legally obligated to help because I own a truck and helped in the past?
    edited March 2016 radarthekatlondorkevin keerob53pmzSpamSandwichCacophonylolliverchiaurahara
  • Reply 3 of 122
    Certain that a wave of the top legal minds in this forum will provide expert, cool and dispassionate judicial analysis.
    repressthis
  • Reply 4 of 122
    radarthekatradarthekat Posts: 3,055moderator
    The fact is, the case isn't about who can shout loudest or come up with the most damning insult.  It's about whether the government has a right to force a private citizen, in this case a corporation, to act against its will in service of a government investigation to which the private citizen is not a direct party.

    Some have suggested that this is no different than the government asking the manufacturer of a safe to help crack the safe.  Lets say the smartphone as safe argument has merit.  To crack a safe, you call a safe cracker, perhaps with some technical details provided by the safe manufacturer.  Apple, the iPhone manufacturer, has already provided the technical details of how passwords are protected. The FBI has no authority, in my view, to demand that Apple weaken those protections. No more than they have the authority to tell safe manufacturers to redesign their safes so that they can be cracked; ones they build in the future or ones they've already built and sold.  It's up to the FBI's safecracker, or one they hire who voluntarily takes that employment, to crack the safe/iPhone.
    edited March 2016 VisualSeedlondorkevin keeSpamSandwichmanfred zornsmack416lolliverchiajdgazration al
  • Reply 5 of 122
    "This burden, which is not unreasonable, is the direct result of Apple's deliberate marketing decision to engineer its products so that the government cannot search them, even with a warrant," No, it is a direct result of engineering a product to keep personal data private from anyone that may try to extract it. With or without a warrant.
    londorkevin keebaconstangCacophonylolliveruraharastevehcornchipjony0jbdragon
  • Reply 6 of 122
    If the Obama administration was investigating Hillary with this much vigor, she would be in jail already.
    londorSpamSandwichrobroy72Cacophonyindyfxlolliverjdgazmac_dogstevehUrei1620
  • Reply 7 of 122
    radarthekatradarthekat Posts: 3,055moderator
    The legal argument should never be "you should help us because you can afford to help us." If that was the criteria then courts should be able to compel the rich to feed the hungry or build houses for the homeless. I have a friend that I helped move 4 times over the last few years. This weekend I decided I didn't want to help for a 5th time. Am I somehow legally obligated obligated because I own a truck and helped in the past?

    ---

    Taking your argument further, you helped your friend move four times and now he's asking you to use your carpentry skills to help him build his new home.  That's more akin to this case.  Apple has never helped in the way the government is asking; it has only handed over data that existed and was in Apple's hands, unencrypted.  But this case is about breaking encryption in a manner the encryption was designed not be be able to be broken.  By helping your friend move in the past, not only should you not be compelled to assist him in the future, but you also haven't set any precedent for assisting him in the manner he is now requesting.  This is the lie of the FBI's stance; they know the details of how Apple has assisted in the past, they know it doesn't pertain to the current situation and they know exactly why.  Yet they act deliberately obtuse in order to confuse the public.
    edited March 2016 londorbaconstangkevin keeVisualSeedjbishop1039Cacophonylollivermac_dogpscooter63Urbane_Gorilla_
  • Reply 8 of 122
    apple ][apple ][ Posts: 8,654member
    This coming from the same DOJ that was considering prosecuting "climate change deniers". What a damn joke. The DOJ is acting awfully thuggish. 
    londorbaconstangjbishop1039stevehUrbane_Gorilla_jbdragonlatifbpam8449damn_its_hot
  • Reply 9 of 122
    jungmarkjungmark Posts: 6,694member
    "Apple's deliberate marketing decision to engineer its products so that the government cannot search them, even with a warrant"

    frak you, DOJ. Information systems are being hacked weekly and you want Apple to have a book door for just a govt? You don't think our enemies will exploit that hole? You guys are frakking foolish and are a terrible waste of my taxes. 

    Do you frakkers also require journalists to turn over their sources 'cause terrorism? Do you force our medical data to be available via a govt back door? 

    Apple isn't your developers. You wanna hack it, use your own people. 
    kevin keebaconstangradarthekatlondorCacophonylolliverration alstevehUrbane_Gorilla_jony0
  • Reply 10 of 122
    If this is a marketing decision by Apple (and I'm not saying it is or isn't), should Apple not have the right to protect their brand? 
    clemynxlondorCacophonyuraharajbdragonewtheckmanlatifbpdamn_its_hotbadmonk
  • Reply 11 of 122
    "not only false, but also corrosive of the very institutions that are best able to safeguard our liberty and our rights." 
    That is some pure grade AAA bullshit right there.   WOW!
    kevin keeclemynxradarthekatlondorlolliverration alstevehUrbane_Gorilla_ewtheckmanlatifbp
  • Reply 12 of 122
    rbonnerrbonner Posts: 635member
    What law was broken?
    londorSpamSandwichuraharalatifbpchiadamn_its_hot
  • Reply 13 of 122
    clemynxclemynx Posts: 1,510member
    "the very institutions that are best able to safeguard our liberty and our rights." 

    The same ones who illegally collected data on millions of American and foreign citizens? 

    Now they are just insulting our intelligence. 
    edited March 2016 baconstanglondorSpamSandwichlolliverjdgazuraharaUrbane_Gorilla_jbdragonewtheckmanlatifbp
  • Reply 14 of 122
    kevin keekevin kee Posts: 1,036member
    rbonner said:
    What law was broken?
    None, but the point is they wanted to make "a law which Apple has broken".

    It's akin of you are helping someone to do something out of generosity, but if you didn't do it anymore for some reason, they will make a law so that you are guilty of refusing to help.
    edited March 2016 londorrbonnerlolliverUrbane_Gorilla_jbdragonewtheckmanchiadamn_its_hot
  • Reply 15 of 122

    Taking your argument further, you helped your friend move four times and now he's asking you to use your carpentry skills to help him build his new home.  That's more akin to this case.  Apple has never helped in the way the government is asking; it has only handed over data that existed and was in Apple's hands, unencrypted.  But this case is about breaking encryption in a manner the encryption was designed not be be able to be broken.  By helping your friend move in the past, not only should you not be compelled to assist him in the future, but you also haven't set any precedent for assisting him in the manner he is now requesting.  This is the lie of the FBI's stance; they know the details of how Apple has assisted in the past, they know it doesn't pertain to the current situation and they know exactly why.  Yet they act deliberately obtuse in order to confuse the public.
    Totally agree. I don't think a citizen or company should be held to setting a precedent when it comes to assisting the government in any situation. I think every time they are asked to assist it is in itself unique and unencumbered by previous or future decisions on the issue. "I just don't feel like it." is a valid answer and should not be used to compel  someone though the courts or publicly shaming into rendering assistance. Having the means, the skill or insight on the matter should not create a legal obligation. The warrant gave the FBI the right to search the device, it did not give them the right to commandeer the ability to search the device from a third party. 
    radarthekatlondorbaconstangUrbane_Gorilla_chiadamn_its_hot
  • Reply 16 of 122
    rob53rob53 Posts: 2,032member
    "As for undue burden, the letter notes Apple grosses hundreds of billions of dollars each year. It would take as few as six employees plucked from Apple's workforce of approximately 100,000 people as little as two weeks to create a workable solution to the FBI's problem, the letter says, adding that the company is to blame for being in the position it currently finds itself." 

    Then the FBI should be able to do it themselves. Of course, the DOJ hasn't the faintest idea how much effort would be needed to break Apple's software but that's irrelevant in their mind. All of these excuses are baseless and should be used against them. 

    "
    Prosecutors classify Apple's statements, including arguments that weakening the security of one iPhone is a slippery slope to a surveillance state, as "not only false, but also corrosive of the very institutions that are best able to safeguard our liberty and our rights." " And what institution is the best at safeguarding our liberty and rights? Certainly not the FBI or DOJ. They've shown over and over and over again that they don't care about the citizens of the US. 
    baconstangUrbane_Gorilla_ewtheckmanlatifbpchia
  • Reply 17 of 122
    sflocalsflocal Posts: 4,624member
    Are these lawyers really that dense?  Do they think it's okay to essentially force a company (or person) on their own dime to assist the government is breaking security?  Really?

    Does the government contact a company that manufactures bank vaults and forces them to get an employee of that company to break into a vault?  Really?
    SpamSandwichUrbane_Gorilla_
  • Reply 18 of 122

    The government’s response fills me with rage. I had to stop reading it. But here are some quotes that just made me fume.

    “By Apple’s own reckoning, the corporation—which grosses hundreds of  billions of dollars a year—would need to set aside as few as six of its 100,000 employees for perhaps as little as two weeks.”

    Go back and read Apple’s response to original court order. The work requested would require 10 employees and up to 4 weeks. And the 100,000 are not all engineers. The government thinks that we are a bunch of idiots like they are.

    “This burden, which is not unreasonable,”

    How do you fknn know? Do you have the source code????

    “ is the direct result of Apple’s deliberate marketing decision to engineer its products so that the government cannot search them, even with a warrant.”

    Blame it on Apple for competing and constantly innovating. For staying ahead of the game. Or do you want Russia or China to be in the lead on technological innovation? This again is stupid and a reflection of the low IQ level of our courts.

    “The Court’s Order is modest.”

    How in the fk do you know again? Just because you paraphrase it several times, does it make it true?

    “ It applies to a single iPhone, and it allows Apple to decide the least burdensome means of complying. Apple and its amici try to alarm this Court with issues of network security, encryption, back doors, and privacy, invoking larger debates before Congress and in the news media. That is a diversion. Apple desperately wants—desperately needs —this case not to be “about one isolated iPhone.”

    At the risk of Comey purgering himself, he did affirm that it was not about 1 phone. That this case would be used as precedence for future cases. Someone is lying and should go to jail for it.

    “Apple deliberately raised technological barriers”

    It is called INNOVATION. Dumb Govt!

    “Apple intentionally and for commercial advantage retains exclusive control over the software that can be used on iPhones, giving it monopoly-like control over the means of distributing software to the  phones.”

    Again, It is called competition and innovation. Dumb Govt!

    “Apple cannot now pretend to be a bystander, watching this investigation from afar.”

    Yes it can. This needs to be decided by a higher court like the SCOTUS.






    baconstangewtheckmanchiahlee1169
  • Reply 19 of 122
    The fact is, the case isn't about who can shout loudest or come up with the most damning insult.  It's about whether the government has a right to force a private citizen, in this case a corporation, to act against its will in service of a government investigation to which the private citizen is not a direct party.

    Some have suggested that this is no different than the government asking the manufacturer of a safe to help crack the safe.  Lets say the smartphone as safe argument has merit.  To crack a safe, you call a safe cracker, perhaps with some technical details provided by the safe manufacturer.  Apple, the iPhone manufacturer, has already provided the technical details of how passwords are protected. The FBI has no authority, in my view, to demand that Apple weaken those protections. No more than they have the authority to tell safe manufacturers to redesign their safes so that they can be cracked; ones they build in the future or ones they've already built and sold.  It's up to the FBI's safecracker, or one they hire who voluntarily takes that employment, to crack the safe/iPhone.
    It's like blaming a shredder manufacturer for developing a paper shredder that even they cannot reassemble the document from the pieces. Or a match manufacturer for being unable to reassemble the paper from the burnt ashes.
    edited March 2016 radarthekatVisualSeedewtheckmanchiahlee1169
  • Reply 20 of 122
    rob53 said:
    "As for undue burden, the letter notes Apple grosses hundreds of billions of dollars each year. It would take as few as six employees plucked from Apple's workforce of approximately 100,000 people as little as two weeks to create a workable solution to the FBI's problem, the letter says, adding that the company is to blame for being in the position it currently finds itself." 

    Then the FBI should be able to do it themselves. Of course, the DOJ hasn't the faintest idea how much effort would be needed to break Apple's software but that's irrelevant in their mind. All of these excuses are baseless and should be used against them. 

    "Prosecutors classify Apple's statements, including arguments that weakening the security of one iPhone is a slippery slope to a surveillance state, as "not only false, but also corrosive of the very institutions that are best able to safeguard our liberty and our rights." " And what institution is the best at safeguarding our liberty and rights? Certainly not the FBI or DOJ. They've shown over and over and over again that they don't care about the citizens of the US. 
    Apple's response: 
    The overwhelming bulk of our 100,000 employees do not have the expertise or skills required to create what the FBI is asking.  There are only a handful of employees who could create such a compromised version of our OS.  Further, this would limit some our most critical human resources and cripple active product development.

    The public's response (wishful thinking):
    Its very desperate and very misleading statements like these that should be eroding the FBIs authority, not just in this case.  
    This charade is an agency problem, and it's time to start seriously questioning exactly what good they are doing.

    baconstangchia
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