Apple says San Bernardino iPhone case is 'unprecedented,' cannot be decided in a vacuum

Posted:
in General Discussion edited March 2016
In Apple's final response before a scheduled court hearing next week regarding the San Bernardino iPhone encryption case, the company said the Department of Justice is making an unprecedented request that usurps due legal process, democratic policy and Constitutional rights.




Apple's crack legal team, led by Theodore Boutrous, Jr. and Ted Olson, in today's response (via Christina Warren) reassert many of the same arguments posed in an initial response to the California court order, specifically limitations to the All Writs Act and potential infringement of Apple's First Amendment rights. The case, Apple says, is not about "one iPhone," but rather precedent for compelling private companies to hand over customer data at the behest of law enforcement officials.

"It has become crystal clear that this case is not about a 'modest' order and a 'single iPhone,' as the FBI director himself admitted when testifying before Congress two weeks ago," the filing reads. "Instead, this case hinges on a contentious policy issue about how society should weigh what law enforcement officials want against the widespread repercussions and serious risks their demands would create."

Apple references a recent congressional hearing on encryption attended by FBI Director James Comey, Apple's lead counsel Bruce Sewell and other associated parties. Comey at the hearing said he would "of course" leverage any precedent set in the California case to unlock iPhones in other investigations.

In February, Apple was ordered by a federal magistrate judge to comply with FBI requests for assistance in unlocking an iPhone 5c used by San Bernardino terror suspect Syed Rizwan Farook. Specifically, the government is asking Apple to code, sign and deploy an intentionally flawed version of iOS susceptible to brute-force passcode attacks, something security experts warn weakens the inherent safeguards built into millions of devices worldwide.

The company is resisting the ruling, saying the Department of Justice's application of the All Writs Act, a law that provides courts the ability to issue orders when all other judicial options are exhausted, is improper.

Furthermore, the Justice Department and FBI argue that this Court must decide the issue in a vacuum, without regard to either the swirling national debate about mandating a back door or the dangers to the security and privacy of millions of citizens posed by the relief they seek on behalf of the United States. But to determine whether this is an issue capable of judicial resolution under the All Writs Act and the Constitution, the Court not only can consider this broader context, it must do so. Indeed, the Justice Department and FBI are asking this Court to adopt their position even though numerous current and former national security and intelligence officials flatly disagree with them.

Those siding with Apple on the encryption debate foresee a quick deterioration of civil liberties if the DOJ is successful in garnering the motion to compel. Apple itself presented the slippery slope argument on multiple occasions, saying a government win would grant the DOJ limitless power in executing search warrants for digital information.

When it comes to AWA, Apple takes issue not only with the statute's scope, but its application to the instant case. Government overreach aside, the company contends FBI officials have not yet proven necessity, a prerequisite to asserting AWA. Again recalling the early March congressional hearing, Apple notes Comey said he did not know what avenues the FBI had exhausted in its attempts to decrypt Farook's iPhone.

The Justice Department's shifting, contradictory positions on this issue--first blaming the passcode change on the County, then admitting that the FBI told the County to change the passcode after the County objected to being blamed for doing so, and now trying to justify the decision in the face of Director Comey's admission that it was a mistake--discredits any notion that the government properly exhausted all viable investigative alternatives before seeking this extraordinary order from this Court.


Some security experts have claimed the NSA has developed forensics tools capable of breaking iOS encryption, but the agency is supposedly reluctant to relinquish those assets to the FBI as they might end up exposed in court proceedings. In a footnote Apple said, "The government is adept at devising new surveillance techniques."

Importantly, Apple maintains that the political ramifications of creating a software bypass cannot be divorced from the case at hand, as the government is attempting in its assertions. For its part, the Justice Department claims concerns of a weakened iOS encryption backbone are unfounded because the requested software would only be applied to Farook's iPhone. Further, the court does not have authority to adjudicate policy issues, and such topics should therefore not enter discourse.

The filing wraps up with a quote from Justice Louis Brandeis, who almost 90 years ago said, "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Apple seemingly chose the passage to reflect the government's ardent requests for access.

Tech companies, security experts and civil rights advocates have come out in support of Apple, while national security hawks and law enforcement groups side with the DOJ. Apple and the Justice Department are scheduled to discuss the matter in court on March 22.

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Comments

  • Reply 1 of 47
    SpamSandwichSpamSandwich Posts: 33,408member
    "Hope for the best, prepare for the worst."
    pscooter63
  • Reply 2 of 47
    Come on Apple. We can trust our government. They never lie to us about anything.

    Don't worry! If you like your encryption, you can keep your encryption!
    SpamSandwichlatifbpstevehbuzdotsewtheckmanchuck1252
  • Reply 3 of 47

    Some security experts have claimed the NSA has developed forensics tools capable of breaking iOS encryption, but the agency is supposedly reluctant to relinquish those assets to the FBI as they might end up exposed in court proceedings.
    But that's exactly what the FBI is demanding from Apple.
    radarthekatstevehchuck1252
  • Reply 4 of 47
    Would it be bad taste for Apple to cite in court the information revealed by Snowden and Wikileaks?
    US government hacking into internet traffic of major companies
    US government indiscriminately collecting internet and phone activity of US citizens
    US government spying on foreign allies of the US

    edited March 2016 brakken
  • Reply 5 of 47
    Blaster said:
    Would it be bad taste for Apple to cite in court the information revealed by Snowden and Wikileaks?
    US government hacking into internet traffic of major companies
    US government indiscriminately collecting internet and phone activity of US citizens
    US government spying on foreign allies of the US


    Or, they could cite the numbers for all the data that IPhones send to Siri. I'm sure that data is guarded by the Lone Ranger and will never be used by the forces of evil.
  • Reply 6 of 47
    wizard69wizard69 Posts: 13,377member
    Unfortunately with this administration Apple is screwed.     Sadly there doesn't appear to be a candidate out there that gets it, so no matter what we as a nation are screwed.    Time for a revolution.    
    magman1979
  • Reply 7 of 47
    Once you leave a store with a candy bar you didn't pay for in your pocket, the act itself has a very specific legal definition called "Theft".

    People don't get to have a conversation with the security officer or share thoughts and ideas with the police about an idealistic utopia or how the laws should be written if they weren't hungry.

    Still, it's honorable that so many additional technology companies came to Apple's defense, and agree with Apple... However, companies always want to reduce costs. If companies could find a way to lay off Legal Compliance departments, they'd love to; it paves the way for a large bonus check for the executive team.
    edited March 2016 JeffA2
  • Reply 8 of 47
    BlasterBlaster Posts: 97member
    Once you leave a store with a candy bar you didn't pay for in your pocket, the act itself has a very specific legal definition called "Theft".

    People don't get to have a conversation with the security officer or share thoughts and ideas with the police about an idealistic utopia or how the laws should be written if they weren't hungry.

    Still, it's honorable that so many additional technology companies came to Apple's defense, and agree with Apple... However, companies always want to reduce costs. If companies could find a way to lay off Legal Compliance departments, they'd love to; it paves the way for a large bonus check for the executive team.
    Speaking of taking candy bars:

    http://losangeles.cbslocal.com/2016/03/14/santa-ana-police-officers-charged-with-petty-theft-in-videotaped-raid-at-marijuana-dispensary/


    magman1979SpamSandwich
  • Reply 9 of 47
    CMA102DLCMA102DL Posts: 121member
    Apple is in a tough place. The Govt. is not going to lose this one. They will use every tactic of coercion they are known for including slander, misrepresentation, intimidation, lying, etc. Take Joe Nacchio, the ex Qwest executive who refused to turn over mass customer data when requested to do so in violation of the 4th Amendment. The government found a way to frame him for insider trading (of course, Joe was not guilty for insider trading) and he went to prison for 6 years. Take Yahoo. They refused the secret court order to turn over information to the NSA and were fined $250K a day. And this was the NSA. The NSA pales in comparison to the FBI. The FBI has pure coercive government power and they are known for playing dirty. The government will do anything to put away Tim and get someone else that will compromise. Tim really rubbed Obama the wrong way when he went against the administration. This issue is greater than encryption. This is personal. If the government can't succeed at removing Tim, then it will do everything it can to destroy Apple. Under Obama, civil liberties have been violated further. It is a fact. All those civil liberty promises Obama made during his run for the Presidency, he kept none. But encryption is beyond civil liberties. This is a safety issue  and the Obama administration wants to compromise data security for everyone. There you have it. The US Govt has your best interests in mind...
    edited March 2016 palomineewtheckmanbrakkenchuck1252
  • Reply 10 of 47
    bwinskibwinski Posts: 164member
    It was actually rather public when the Stasi was alledgedly dis-banded?? I see the FBI and their idiot pals re-constituted the Stasi under Comey !! Hummm... He'll get his.
    londor
  • Reply 11 of 47
    This is a federal terrorism investigation. The privacy issue is moot because the ONE phone in question belonged to a terrorist who is now dead. Apple needs to be very careful with this. Being perceived to be on the wrong side of an FBI investigation of a terrorist act where 14 people were murdered can't be good for Apple's image. There are times to stick up for privacy rights, such as when the government tries to do things without a warrant, or otherwise tries to circumvent the process, but not when the government has a court order from a federal judge for assistance with a dead terrorist's phone. Apple needs to do the right thing here and help the feds get any and all information that will help us understand what led to the murder of 14 people - anything less is a disgrace and an affront to those who perished in the attack.
    JeffA2
  • Reply 12 of 47
    rob53rob53 Posts: 2,648member
    tpkatsa said:
    This is a federal terrorism investigation. The privacy issue is moot because the ONE phone in question belonged to a terrorist who is now dead. Apple needs to be very careful with this. Being perceived to be on the wrong side of an FBI investigation of a terrorist act where 14 people were murdered can't be good for Apple's image. There are times to stick up for privacy rights, such as when the government tries to do things without a warrant, or otherwise tries to circumvent the process, but not when the government has a court order from a federal judge for assistance with a dead terrorist's phone. Apple needs to do the right thing here and help the feds get any and all information that will help us understand what led to the murder of 14 people - anything less is a disgrace and an affront to those who perished in the attack.
    I'm tired of the terrorist label. It's used for anything and everything. There were more than one phone, it's just that the iPhone was the only one left intact. As for the fourteen people murdered, I like that word better than calling it a terrorist action. The murderer knew the people, he worked with them. Unfortunately, murders happen every day of every year. So does theft of personal information. Just because one judge demands Apple do something that's not allowed by law (read everything, don't just listen to Fox News) doesn't mean Apple hasn't cooperated. They have. Just because a judge demands something doesn't mean that judge knows what they're doing. They're human so not perfect. Sometimes judges need to be reminded what their job is and what limits there are on that job. I won't even go into the FBI since it continues to operate like it did when J. Edgar Hoover turned it into the equivalent of the Schutzstaffel (look it up), which is how it operates to this day. It's amazing how common citizens are required to abide by laws while the FBI and the other government underground organizations can do what ever they want to do, regardless of whether it's against the law. Oh, I forgot, you don't care about the law, all you care about it trying to get rid of terrorists.
    mwhitelondorjony0magman1979tdknoxchuck1252brakken
  • Reply 13 of 47
    Can someone please explain to me why Apple can't just give the government the information on the phone, destroy the phone and wait for the next mass murder case to have to open another phone? The government should not be able to open the phone, just Apple when there is such an extreme case at hand. Don't give the government the key to the phone just the info on the phone? I don't get it.

    Thanks for any help in understanding why Apple can't just give the government info on a phone of mass murderers on a case by case basis.
  • Reply 14 of 47
    CMA102DLCMA102DL Posts: 121member
    tpkatsa said:
    This is a federal terrorism investigation. The privacy issue is moot because the ONE phone in question belonged to a terrorist who is now dead. Apple needs to be very careful with this. Being perceived to be on the wrong side of an FBI investigation of a terrorist act where 14 people were murdered can't be good for Apple's image. There are times to stick up for privacy rights, such as when the government tries to do things without a warrant, or otherwise tries to circumvent the process, but not when the government has a court order from a federal judge for assistance with a dead terrorist's phone. Apple needs to do the right thing here and help the feds get any and all information that will help us understand what led to the murder of 14 people - anything less is a disgrace and an affront to those who perished in the attack.
    Apple will obey a legitimate court order, but first, it will try to make it clear that the US Govt should not compromise encryption. What is at stake is far more than privacy. Do you honestly think that there is anything valuable to the case in the phone? If you ask the NSA, they say that the way they get around encryption is by gathering metadata. Metadata, which the FBI has access as of today. Or is the FBI completely incompetent and needs to get metadata from the phone directly? First, the CTD completely missed detection of these terrorists and now the FBI is using the case as a pretext to get additional power.
    edited March 2016 mwhitelondorewtheckmanmagman1979
  • Reply 15 of 47
    CMA102DLCMA102DL Posts: 121member
    spinnor said:
    Can someone please explain to me why Apple can't just give the government the information on the phone, destroy the phone and wait for the next mass murder case to have to open another phone? The government should not be able to open the phone, just Apple when there is such an extreme case at hand. Don't give the government the key to the phone just the info on the phone? I don't get it.

    Thanks for any help in understanding why Apple can't just give the government info on a phone of mass murderers on a case by case basis.
    Apple does not work for the US Govt.
    Creating backdoor software always creates the possibility of it leaking out, even at Apple. Remember how some Apple employees misplaced prototype iPhones in the past?
    And even if it does not leak out, engineers involved in the project would know how to develop a backdoor to the iPhone.
    This sets an ugly court precedence and it will be reused for every kind of encrypted technology.

    IMHO, the FBI and DOJ should serve the search warrant to the rightful owner of the phone and leave Apple out of it.
    edited March 2016 londor
  • Reply 16 of 47
    davidwdavidw Posts: 1,332member
    spinnor said:
    Can someone please explain to me why Apple can't just give the government the information on the phone, destroy the phone and wait for the next mass murder case to have to open another phone? The government should not be able to open the phone, just Apple when there is such an extreme case at hand. Don't give the government the key to the phone just the info on the phone? I don't get it.

    Thanks for any help in understanding why Apple can't just give the government info on a phone of mass murderers on a case by case basis.


    Because Apple don't have it. Neither the data or the key. In other to get it, Apple has to create a special iOS (key) without any security features (plus code in the ability to input the passcode using a computer instead of the touch keyboard), install it into a passcode locked iPhone, without bricking the iPhone and then hand the iPhone back to the FBI so they can brute force the passcode in their own government lab, using their own computer to enter the passcodes. The FBI is only  asking for Apple to create the special iOS (key), not to unlock the iPhone, retrieve the data and then hand over the data. The court order say nothing about Apple getting the data out of the iPhone, using Apple programers and at Apple. The FBI has no interest in the data in this one iPhone. They know, like most of us, there is no usable data in this terrorist government work issued  iPhone.

    However, the FBI found another more useful purpose for this iPhone, since it's involve in a high profile case and the FBI are hoping the public sediments of the ill informed will sway the courts into getting what they really want from Apple, the backdoor (key) that will help them unlock nearly all iPhones. A backdoor that has the possibility of being exploited by hackers through out the World when it's leaked. And it will be leaked, as in order for any evidence from an iPhone that was accessed using this key to be used in a court of law, the key must be available for the defense to analyze, to insure the evidence was not tainted or tampered with when it was used to unlock the iPhone.  
    londorewtheckmanpscooter63chuck1252
  • Reply 17 of 47
    foggyhillfoggyhill Posts: 4,767member
    spinnor said:
    Can someone please explain to me why Apple can't just give the government the information on the phone, destroy the phone and wait for the next mass murder case to have to open another phone? The government should not be able to open the phone, just Apple when there is such an extreme case at hand. Don't give the government the key to the phone just the info on the phone? I don't get it.


    Thanks for any help in understanding why Apple can't just give the government info on a phone of mass murderers on a case by case basis.

    First:
    Because there is a chain of custody thing going here and if there was info on the phone, a whole the defense experts need to get a hold of this and the tools used, you can't just keep this at Apple.

    Secondly, this is not some trivial task, it's likely something that costs many millions and in facts creates a new version of IOS and quite some time to do. If Apple is compelled to do this work, why on earth should it not be compelled to so in the future using the same legal precedent. The All Writs Act in fact makes this highly probable by its very nature.
    Many in law enforcement all over the US, both the DOJ and local juridictions have clearly stated that they're if this work they'd do the same.

    Thirdly, this is not "some extreme case at hand". The terrorists are dead, they destroyed all the other evidence the had (two phones and hard drives), and even the FBI said it's likely there is nothing useful on these phones. So, it's very likely a precedent setting fishing expedition from the FBI.

    Mass murders occur ever other day in the US. How is this "more extreme"... It is not.

    Finally, the country itself could have installed a management software that would have made this thing pointless (they could have unlocked the phone) and the FBI could have had the contents of this phone but through their incompetence f*cked it up by changing the Icloud password.


    It's to be noted that if this was a 5s instead of a 5c, the work they;d be asking of Apple would be colossal and extremely costly and even risky. What's to stop them from simply making all those post 5 phones easier to hack then using the same "All Writs Act" logic. What pisses them off is after all that these phones in fact are getting harder and harder to get into even by Apple (and Apple is designing them this way).




    edited March 2016 ewtheckman
  • Reply 18 of 47
    dabedabe Posts: 99member
    spinnor said:
    Can someone please explain to me why Apple can't just give the government the information on the phone, destroy the phone and wait for the next mass murder case to have to open another phone? The government should not be able to open the phone, just Apple when there is such an extreme case at hand. Don't give the government the key to the phone just the info on the phone? I don't get it.

    Thanks for any help in understanding why Apple can't just give the government info on a phone of mass murderers on a case by case basis.
    The FBI is asking Apple to create new software that will allow the government to unlock not only this iPhone but potentially millions of other iPhones. Already, scores of other iPhones from other criminal cases have been identified as waiting on the sidelines to be presented to Apple for use of this software once its created. So, let's say Apple is forced to create the software (GovtOS). It's then applied to this one phone. It would be ridiculous to destroy the software and create it again when the next request comes in, which will undoubtedly be no more than a few minutes later! (Consider the amount of work involved in writing and testing the software each time.)

    So now Apple is faced with the job of securing this newly created software so that it is safe from criminal hackers, who will be spurred by huge bounties to get at it somehow. Once that software is stolen, none us in the U.S. (innocent or guilty) are assured of privacy and security on our phones, whether from the government or from criminals. And it doesn't end with this version of the software because by getting this done now, the government is attempting to set a precedent that means they can force any tech company (any phone manufacturer in the U.S. for example), now and in the future, to create software that weakens the security of their devices, basically put in a backdoor that defeats the encryption.

    If Apple does this, we in the U.S. will no longer be able to have a device on which the information is safe through encryption. Unless we buy it abroad, where the criminals and terrorists will still have access to truly-secure devices. So, basically, the innocent law-abiding people get punished and restricted, while the criminals and terrorists continue to have the best of what technology can offer in terms of encryption.

    Apple is saying that rather than coming from the the courts on a case-by-case basis, the decision to take steps that clearly move us in that dangerous direction should be made by Congress after careful and informed consideration of all the implications. Congress may enact a law that defines/restricts the right to privacy on our devices. But that's for congress to determine, not the FBI. If Apple is compelled to do what the FBI wants, then any possibility of well-considered rights regarding privacy on our devices will be destroyed and pre-empted by the FBI. It will be gone forever because a precedent will have been set in court.

    I  hope you can see now why this is not simply a matter of "just give the government the information on the phone, destroy the phone and wait for the next mass murder case to have to open another phone."
  • Reply 19 of 47
    jony0jony0 Posts: 345member
    davidw said:
    … the FBI are hoping the public sediments of the ill informed will sway the courts into getting what they really want …  
    I'm not sure if it's a typo or autocorrect or intentional, but it's brilliant and if it's the latter the result is quite astute. I will reuse and quote this as it reflects my sentiments exactly about these people and their total lack of understanding, now portrayed as a precipitate in and of their solution.
  • Reply 20 of 47
    Out of one side of their mouths, the FBI wants to weaken encryption for all of us, but out of the other side:

    http://appleinsider.com/articles/16/03/15/man-pleads-guilty-in-celebrity-icloud-hacking-case-admits-phishing-scheme
    (On the iClout / Gmail hacking in 2014)

    "By illegally accessing intimate details of his victims' personal lives, Mr. Collins violated their privacy and left many to contend with lasting emotional distress, embarrassment and feelings of insecurity," said David Bowdich, Assistant Director in Charge of the FBI's Los Angeles office. "We continue to see both celebrities and victims from all walks of life suffer the consequences of this crime and strongly encourage users of Internet-connected devices to strengthen passwords and to be skeptical when replying to emails asking for personal information.

    And this guy was not the menace that a terrorist group or Internet crime ring could be.
    latifbpewtheckman
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