Apple to argue First Amendment rights in FBI decryption battle

Posted:
in General Discussion edited February 2016
As expected, Apple intends to argue its First Amendment rights as part of a multi-pronged legal strategy designed to flout a court order compelling the company unlock an iPhone linked to last year's San Bernardino shootings.




Theodore Boutrous, Jr., one of two high-profile attorneys Apple hired to handle its case, said a federal judge overstepped her bounds in granting an FBI motion that would force the company to create a software workaround capable of breaking iOS encryption, reports the Los Angeles Times.

Specifically, U.S. Magistrate Judge Sheri Pym last week ordered Apple to help FBI efforts in unlocking an iPhone 5c used by San Bernardino shooting suspect Syed Rizwan Farook, a directive that entails architecting a bypass to an iOS passcode counter. Government lawyers cited the All Writs Act of 1789 as a legal foundation for its request, a statute leveraged by the FBI in at least nine other cases involving iOS devices.

While the act itself is 227 years old, lawmakers have updated the document to cover a variety of modern concerns, most recently as applied to anti-terrorism operations. In essence, All Writs is a purposely open-ended edict designed to imbue federal courts with the power to issue orders when other judicial tools are unavailable.

A 1977 Supreme Court reading of the All Writs Act is often cited by law enforcement agencies to compel cooperation, as the decision authorized an order that forced a phone company's assistance in a surveillance operation. In Apple's case, however, there is no existing technology or forensics tool that can fulfill the FBI's ask, meaning Apple would have to write such code from scratch.

"The government here is trying to use this statute from 1789 in a way that it has never been used before. They are seeking a court order to compel Apple to write new software, to compel speech," Boutrous told The Times. "It is not appropriate for the government to obtain through the courts what they couldn't get through the legislative process."

Boutrous intimated that the federal court system has already ruled in favor of treating computer code as speech. In 1999, a three-judge panel of the 9th U.S. Circuit Court of Appeals, which covers California, ruled that source code relating to an encryption system was indeed protected under the umbrella of free speech. That opinion was later rendered moot, however, meaning there is no direct legal precedent to support Apple's arguments.

The comments expressed by Boutrous echo those of Apple CEO Tim Cook, who earlier this week called for the government to drop its demands and instead form a commission or panel of experts "to discuss the implications for law enforcement, national security, privacy and personal freedoms."

Apple is scheduled to file its response to last week's order on Friday.
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Comments

  • Reply 1 of 41
    The better argument is the 4th Amendment, unreasonable seizure (of property). It takes employee (highly paid employee) time to produce a workaround for each of 17000 phones, and we are not going to give you the keys to our kingdom......
    SpamSandwich
  • Reply 2 of 41
    SoliSoli Posts: 8,435member
    If a civilian or gov't wants to find a security hole in the code and then exploit it legally, go right ahead, but to have a private company build you a backdoor option into a every device they make is just too ridiculous to imagine.
    aaron sorensonirelanddiplicationbaconstangargonautmike1956chiacincymaccornchippscooter63
  • Reply 3 of 41
    Political free speech has more protection from the courts (Bill of Rights) than other speech. I think the judge's order to Apple violates the Takings Clause (5th Amendment) by requiring Apple to provide resources for public use without just compensation. Just compensation may require not only that Apple be reimbursed for its out-of-pocket expenses in writing new software for the FBI, but also damage to its reputation and lost earnings. It seems little doubt the FBI is asking the judge to override the Takings Clause. The actions of the terrorist left the iPhone 5c in a state where Apple was able to render assistance (legally) to the FBI, but after that the owner of the iPhone -- under the FBI's direction -- changed the iPhone's password and placed it in a different state where Apple was no longer able to render assistance. Therefore, the FBI insists that Apple hack a device neither owned, nor possessed nor password-protected by a terrorist, but by the FBI. Thus, the judge's Writ empowers the FBI to commandeer Apple resources to aid in a programming problem of its own creation.
    fotoformatbaconstangmike1956cnocbuipalominelatifbpSpamSandwichjdgazjbdragonphone-ui-guy
  • Reply 4 of 41
    irelandireland Posts: 17,493member
    In Apple's case, however, there is no existing technology or forensics tool that can fulfill the FBI's ask

    Do you know this? The NSA, CIA or FBI could break into a single iPhone?
  • Reply 5 of 41
    foggyhillfoggyhill Posts: 4,767member
    The better argument is the 4th Amendment, unreasonable seizure (of property). It takes employee (highly paid employee) time to produce a workaround for each of 17000 phones, and we are not going to give you the keys to our kingdom......
    They're going to use a whole plethora of means, Apple could put a mountain of lawyers on this one and make the FBI suffer.
    baconstang
  • Reply 6 of 41
    Screw San Bernardino!!! You can't see past a 227 year old piece of paper. They are trying to solve a domestic terrorism crime and you are all more worried about Apple. Herein lies the problem of the US. The FBI won't suffer. The money for attorneys comes from the people. Genius. BTW, vote TRUMP.
  • Reply 7 of 41
    cnocbuicnocbui Posts: 3,613member
    You might want to look up the meaning of 'flout', it doesn't convey a very favourable impression.
  • Reply 8 of 41
    fracfrac Posts: 480member
    foggyhill said:
    The better argument is the 4th Amendment, unreasonable seizure (of property). It takes employee (highly paid employee) time to produce a workaround for each of 17000 phones, and we are not going to give you the keys to our kingdom......
    They're going to use a whole plethora of means, Apple could put a mountain of lawyers on this one and make the FBI suffer.
    Hope so. I'd like to see them play hardball with the FBI whose incompetence possibility set back their own investigation by several months.
    jbdragon
  • Reply 9 of 41
    The elephant in the room is the incompetent foreign policy of the U.S.  The wife of the terrorist had a Facebook page that showed her terrorist beliefs, but due to the politically correct insanity of U.S. immigration policy, the immigration check was forbidden from looking at her FB page!  Moreover, the terrorists destroyed their other phones--how likely do you think it is that they left valuable info on the remaining work phone?  Finally, the FBI screwed up their handling of the phone.  To summarize, several U.S. government agencies screwed up royally, but now want to make this Apple's problem!...?  Will hacking the phone help with the FBI's "investigation"?  Extremely unlikely.  Will creating a backdoor severely damage the most successful U.S. business, and compromise the security of hundreds of millions of Apple users, and empower other governments to also force backdoors into additional electronics?  Absolutely, 100% yes!  Screw the FBI!  Hurray for Tim Cook and Apple!
    palomineSpamSandwichjbdragontdknoxjony0
  • Reply 10 of 41
    It's really sad to see so many people get so upset about technology that didn't exist when the Constitution was written and expecting those rights for this new technology. But then will fight against the same rights and use that same argument against when it is applied to the Second Amendment. It can't apply in one situation and not in another of your choosing.
    birko
  • Reply 11 of 41
    The better argument is the 4th Amendment, unreasonable seizure (of property). It takes employee (highly paid employee) time to produce a workaround for each of 17000 phones, and we are not going to give you the keys to our kingdom......
    The 4th Amendment is not an issue if the government has a legal search warrant or (as in this case) is the owner of the phone. The better argument is whether the government can force Apple to assist in the search by forcing Apple to create a tool that will diminish the value of the products they sell, as soon as it's known that they created it, to assist the government to do the search.
    edited February 2016 palominetdknox
  • Reply 12 of 41
    Soli said:
    If a civilian or gov't wants to find a security hole in the code and then exploit it legally, go right ahead, but to have a private company build you a backdoor option into a every device they make is just too ridiculous to imagine.


    Its not ridiculous and there are plenty of precedents in a whole bunch of 'private' industries including telecommunications.  That is why apple will lose.  I remember when the Swiss when faced with massive international pressure to open banking records to court orders complained "This will cause worldwide chaos and could destroy the Swiss banking industry".  it did not happen.

    All Apple is doing is crying wolf.  They are using this as a brand and marketing lever. That is all. Their fear mongering is kind of a laugh.  You do not have this issue with Android phones (of which there are many more worldwide) and civilization has not ended.

    Tim Cook is not as smart or savy as he makes out.  Bill Gates is proving to be wise....and Mark Zuckerberg is a hypocritical moron.  Zuck backing apple when his company is one of the worst examples of privacy invasion the world has ever seen.

  • Reply 13 of 41
    Screw San Bernardino!!! You can't see past a 227 year old piece of paper. They are trying to solve a domestic terrorism crime and you are all more worried about Apple. Herein lies the problem of the US. The FBI won't suffer. The money for attorneys comes from the people. Genius. BTW, vote TRUMP.
    The attorneys and judges that will have to work on this case are already getting paid by us. Whether they working on this case or some other case for the government.

     The FBI already solved this case of domestic terrorism. With all the data they have from the two terrorist, their families and the person that supplied the guns, phone records, CC records, FB posting, Google searches, e-mails, computers, etc., they have come to the conclusion that the two terrorist were acting on their own and they are now dead. With all this data, they have no proof that there are any other terrorist involve. So why do you think that the data of the last month and half that he owned this phone will solve this case? It was his work issued phone linked to a government IT department. He would not have used this phone for any of his terrorist activities and would had destroyed it, along with his two other phones (and computer HD), if he did.

    http://www.latimes.com/local/lanow/la-me-ln-shooters-planned-san-bernardino-massacre-alone-no-link-seen-to-terror-cell-fbi-says-20151204-story.html


     The FBI is now using to this phone for other motives that has nothing to do with trying to solve this crime of domestic terrorism.
    edited February 2016 ration alstevehtdknox
  • Reply 14 of 41
    The real issue here is whether or not we will allow government theatrics to solidify the position of the real terrorists: the military/intelligence agency plot to transform America into a fascist dictatorship where workers tow the line or face the camps.  Immigrants and other groups will be singled out as scapegoats. Nationalism will reach a fever pitch. War will be the ultimate glory.  

    I've always wondered how fascism could operate in America given it is a colonial country full of immigrants from all over the world, and its raison d'être is Liberty.  American nationalism should therefore be compatible with internationalism and freedom from jack booted terror.  

    But they have managed to hoodwink a substantial section of the population (or at least they have the technical ability to fool us into believing as much). 

    Total automation isn't compatible with capitalism because money is an accounting of socially necessary abstract labor power. Capitalism breaks down when it becomes so efficient there aren't enough slaves working for the middle men to extract sufficient profit.  Machines cannot be compelled by wages and cannot be exploited.  And it doesn't have to reach total automation before capitalism starts breaking down. It just has to approach it enough so that profits slow down and start a deflationary spiral. They use asset bubbles for awhile to keep it going. 

    We kill each other over an accounting problem that heralds the possibility of a techno-utopian paradise of leisure. 

    Why won't people read Marx?  Get over Stalin.  That was nearly a century ago with very different circumstances.  

    Maybe China will have enough of an open mind to start reading him again. 

    It's not about politics as much as it is about technical ability and the approach of the end of the necessity of human labor power.  

    I don't think we should destroy the planet to avoid a communism that doesn't resemble 20th century failures so much as it resembles Star Trek.

    But capitalists do!  Human labor power and property rights place them in a class above everyone else and free them from the compulsion to labor and the indignity that confers (boss = baas (Dutch) = master).  They have become insane in their efforts to preserve their political power in the face of radically changed circumstances. 
    williamlondondtidmore
  • Reply 15 of 41
    They have cracked it open, probably by day 2 since the IT guy of China may have been not available that day. they need apple to do it "legally" so they can proceed with prosecution of more muslim terrorists. If Apple-jacks around,the alternative will be star chamber abductions and executions without the bother. If you think apple is somehow impervious to having somebody hack a phone, you are insane. A Chinese or Indian 3rd grader could do it.
  • Reply 16 of 41
    Just consider the NSA metadata picked up that day. they know everything already, without even needing the phone hacked. they need the company's "help" in order to proceed legally in prosecution of other terrorists they had contacted. the only way the government is blind to conversations between people is if they meet face to face and not use tech any higher than ear to ear by sound,( and even that isn't safe from being overheard electronically) or a pencil and paper.
  • Reply 17 of 41
    wizard69wizard69 Posts: 12,656member
    Screw San Bernardino!!! You can't see past a 227 year old piece of paper. They are trying to solve a domestic terrorism crime and you are all more worried about Apple. Herein lies the problem of the US. The FBI won't suffer. The money for attorneys comes from the people. Genius. BTW, vote TRUMP.
    They aren't trying to solve anything here, the people that committed the crime are dead. The FBI is just trying to get mileage out of a horrible crime so that they can have free access to your cell phones. If the FBI is successful here they won't stop at just this one phone and its peculiar problem. At this point I'm likely to vote Trump but I'm not so dense that I'm ignoring the fact that Trump would continue this assault on Apple and freedom in general. The need for change in Washington has never been greater over my 55 years of life. Even the horrors of the 1960's are not as crippling as the current situation in Washington. I will vote Trump to bring about massive change but I'm under no illusion that all of those changes will be good. Even then I not so certain that Trumo will have the influence and leadership ability to smit those in Washington causing more harm than good. Hell Obama said he would change things but yet his administration has attacks just about every article in the Bill of Rights. I just don't have a lot of hope that anything will happen with Trump in office that will be seen as a positive for freedom in America. The system just expenses and expands its desire for control of every aspect of the personal lives of Americans.
    ration alsteveh
  • Reply 18 of 41
    Soli said:
    If a civilian or gov't wants to find a security hole in the code and then exploit it legally, go right ahead, but to have a private company build you a backdoor option into a every device they make is just too ridiculous to imagine.


    Its not ridiculous and there are plenty of precedents in a whole bunch of 'private' industries including telecommunications.  That is why apple will lose.  I remember when the Swiss when faced with massive international pressure to open banking records to court orders complained "This will cause worldwide chaos and could destroy the Swiss banking industry".  it did not happen.

    All Apple is doing is crying wolf.  They are using this as a brand and marketing lever. That is all. Their fear mongering is kind of a laugh.  You do not have this issue with Android phones (of which there are many more worldwide) and civilization has not ended.

    Tim Cook is not as smart or savy as he makes out.  Bill Gates is proving to be wise....and Mark Zuckerberg is a hypocritical moron.  Zuck backing apple when his company is one of the worst examples of privacy invasion the world has ever seen.

    The FBI is not asking Apple to turn over the data in this iPhone. An iPhone that is not in their possession and never been. All the precedents that you (and Bill Gstes) think support the government in this case involve data that was in the possession a third party named in the warrant. Apple can not turn over data they don't have. They have already handed all the data requested that are in their servers, concerning this case. The court order is not asking Apple to turn over any data, but to create software that will hack into this iPhone and can possibly be used to hack into all iPhones. 

    Bill Gates and you are not proving to be wise. 
    ration alibillstevehtdknox
  • Reply 19 of 41
    wizard69wizard69 Posts: 12,656member
    mike1956 said:
    The elephant in the room is the incompetent foreign policy of the U.S.  The wife of the terrorist had a Facebook page that showed her terrorist beliefs, but due to the politically correct insanity of U.S. immigration policy, the immigration check was forbidden from looking at her FB page!  Moreover, the terrorists destroyed their other phones--how likely do you think it is that they left valuable info on the remaining work phone?  Finally, the FBI screwed up their handling of the phone.  To summarize, several U.S. government agencies screwed up royally, but now want to make this Apple's problem!...?  Will hacking the phone help with the FBI's "investigation"?  Extremely unlikely.  Will creating a backdoor severely damage the most successful U.S. business, and compromise the security of hundreds of millions of Apple users, and empower other governments to also force backdoors into additional electronics?  Absolutely, 100% yes!  Screw the FBI!  Hurray for Tim Cook and Apple!
    Sad isn't it. People need to realize that this action by the FBI has absolutely nothing to do with the murder spree in California. It is simply an attempt to eventually force backdoors into all computerized devices. If they win even your Paystation will end up with an FBI backdoor. It is a sleazy example of using tragedy to sway public opinion.
    irnchrizration alchia
  • Reply 20 of 41
    wizard69wizard69 Posts: 12,656member
    js4321 said:
    It's really sad to see so many people get so upset about technology that didn't exist when the Constitution was written and expecting those rights for this new technology. But then will fight against the same rights and use that same argument against when it is applied to the Second Amendment. It can't apply in one situation and not in another of your choosing.
    So true! The second Amendment is the tool by which all other Amendments in the Bill of Rights are secured.
    steveh
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