Apple rails against FBI demands for 'GovtOS' in motion to vacate decryption request

Posted:
in General Discussion edited February 2016
As expected, Apple on Thursday filed a motion to vacate a federal court order that would require it to assist the FBI in unlocking an iPhone linked to San Bernardino terror suspect Syed Rizwan Farook, saying law enforcement demands for a "Government OS" set a dangerous precedent for the public at large.




The official filing entered into record earlier today by Apple lawyers Theodore Olson and Theodore Boutrous is comprehensive but expectedly narrow in scope. At its core, Apple's case targets what it portrays as an overly zealous reading of the All Writs Act of 1789 by a federal magistrate judge, bolstered by First Amendment rights concerns and possible undue burden on the company's operations.

In its introduction, Apple came out swinging.

This is not a case about one isolated iPhone. Rather, this case is about the Department of Justice and the FBI seeking through the courts a dangerous power that Congress and the American people have withheld: the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe.

CEO Tim Cook offered a concise summation of this particular argument in an interview with ABC News on Wednesday. Talking to anchor David Muir, Cook said he has no doubt that giving in to government demands creates a dangerous precedent not only for Apple, but for all tech industry players who field their own brand of encryption.

FBI investigators have so far been unsuccessful in their attempts to break into Farook's iPhone 5c and are now calling on Apple to help in bypassing a passcode counter, a security feature designed to thwart brute-force attacks. To circumvent this particular protective layer, Apple would need to write a new, compromised version of its iOS operating system.

"It's not like we have information on this phone in the next office over," Cook said. "We have no other information on this phone. None. The only way we know to get additional information is to write a piece of software that is the software equivalent of cancer. That is what is at stake here."

For its part, the FBI and Justice Department claim only to be after Farook's data, saying any Apple-devised workaround will be strictly limited to the case at hand.

The government says: "Just this once" and "Just this phone." But the government knows those statements are not true; indeed the government has filed multiple other applications for similar orders, some of which are pending in other courts.

Apple cites a New York court filing attesting to at least nine other cases in which the FBI leveraged All Writs to gain access to an iOS device.

If this order is permitted to stand, it will only be a matter of days before some other prosecutor, in some other important case, before some other judge, seeks a similar order using this case as precedent. Once the floodgates open, they cannot be closed, and the device security that Apple has worked so tirelessly to achieve will be unwound without so much as a congressional vote.

One of the more contentious -- and central -- issues cited in Apple's case is the "slippery slope" argument. If allowed to set precedent in this case, Apple says, the government would be able to over-reach in ways potentially in infringement of basic civil rights.

And if it succeeds here against Apple, there is no reason why the government could not deploy its new authority to compel other innocent and unrelated third-parties to do its bidding in the name of law enforcement. For example, under the same legal theories advocated by the government here, the government could argue that it should be permitted to force citizens to do all manner of things "necessary" to assist it in enforcing the laws, like compelling a pharmaceutical company against its will to produce drugs needed to carry out a lethal injection in furtherance of a lawfully issued death warrant, or requiring a journalist to plant a false story in order to help lure out a fugitive, or forcing a software company to insert malicious code in its autoupdate process that makes it easier for the government to conduct court-ordered surveillance. Indeed, under the government's formulation, any party whose assistance is deemed "necessary" by the government falls within the ambit of the All Writs Act and can be compelled to do anything the government needs to effectuate a lawful court order. While these sweeping powers might be nice to have from the government's perspective, they simply are not authorized by law and would violate the Constitution.

On the topic of undue burden, Apple outlines the arduous process of creating a viable operating system up to FBI standards. According to the declaration of Apple manager of user privacy Erik Neuenschwander, it could take six to ten engineers anywhere from two to four weeks to design, create and deploy the requested software. Neuenschwander was only able to provide estimates in his testimony, as such an undertaking has never been attempted at Apple.

To counter Apple's assertions that creating backdoor is tantamount to opening Pandora's box, the FBI contends the purposely vulnerable code can be "destroyed" after its implementation. However, such an easy solution might be difficult or impossible to achieve, Apple says. Aside from the knowledge gleaned by engineers working on the project, each step of the coding process would need to be logged and vetted. Further, if the software is ultimately destroyed, Apple might later be asked to replicate the process in another case, forcing it to start from scratch.

There is also the issue of Apple's First Amendment right to free speech, or more specifically protections against compelled speech.

"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 said in an interview this week. "It is not appropriate for the government to obtain through the courts what they couldn't get through the legislative process."

If Apple's motion is denied, the company is expected to appeal its case to the 9th Circuit Court. In the more immediate future, Apple's general counsel is scheduled to discuss complex encryption issues in a U.S. House of Representatives Judiciary Committee hearing on March 1, at which FBI director and backdoor advocate James Comey will play counterpoint.

brakken
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Comments

  • Reply 1 of 33
    GovtOS? How is this not fbiOS? Seriously missed opportunity.
    gtrbrakkenradarthekatpmzewtheckman
  • Reply 2 of 33
    GovtOS v1.1 will include the new applet allowing the FBI and local  Parks and Recreation Commission to secretly take stills and video from your phone. This new feature will be affectionately called the Telescreen.  

    To continue using your phone without GovtOS features,  download the new firmware from snowdenOS.ru    Not available in all market areas.
  • Reply 3 of 33
    rufwork said:
    GovtOS? How is this not fbiOS? Seriously missed opportunity.
    It's a court pleading, not a cutesy-ass internet meme.
    mike1
  • Reply 4 of 33
    And I have said from the beginning that the FBI has no real plenary authority here. The suspects are dead, the crime is done, there is nothing left to investigate. This is the power of law enforcement to lie to judges in affidavits and go after anyone they want, when they want, under the auspices of 'doing their job.' They lie, cheat and steal all the time. That's their job. And we wonder why we have no rights
    calibaconstangthedbaindyfxnoivad
  • Reply 5 of 33
    I know nothing about encryption, but I can can think in general terms. Is it not possible for the FBI to turn the phone over to Apple and let them privately and secretly break the encryption on the phone (holding the pass code with Apple, not the FBI)? Couldn't Apple turn over the information from the cracked phone, but not the key? I suppose there must be numerous reasons to prevent this cooperation, but it seems like Apple could assist the FBI in fighting crime, while keeping their key proprietary.
    josha
  • Reply 6 of 33
    londorlondor Posts: 257member
    vaughnv said:
    I know nothing about encryption, but I can can think in general terms. Is it not possible for the FBI to turn the phone over to Apple and let them privately and secretly break the encryption on the phone (holding the pass code with Apple, not the FBI)? Couldn't Apple turn over the information from the cracked phone, but not the key? I suppose there must be numerous reasons to prevent this cooperation, but it seems like Apple could assist the FBI in fighting crime, while keeping their key proprietary.
    http://www.zdziarski.com/blog/?p=5645
    tdknoxgtrbrakkenpscooter63ewtheckmanpalomine
  • Reply 7 of 33
    ... and every single one of the Republican candidates for President of this once great nation advocated compelling Apple to yield to the overwhelming power of government to compel them to create a product that does not exist and for which there is no market need. That confirmed beyond any doubt there is no difference among those elected to allegedly serve the public: they're all sick twisted control freaks, no matter what color they might be. None of them has a clue what's at stake in this case. Worse yet is that they're not interested in learning. Nothing good will come of this, not for Apple, not for the public, not for the families of the particular case that's being exploited to fulfill the FBI's wishes, and certainly not future victims of crimes yet to be committed. The latter will certainly become out of control, once it becomes possible for any lowlife to crack into everyone else's personal information. That is the logical result of creating that ability. To see it one must think logically; to connect the dots. It shouldn't take a genius but none of the idiots on that podium appear to be capable of that.
    edited February 2016 fotoformatgtrbrakkenthedbalarryaradarthekatmike1OttoReversepalominenolamacguy
  • Reply 8 of 33
    vaughnv said:
    ... Is it not possible for the FBI to turn the phone over to Apple and let them privately and secretly break the encryption on the phone (holding the pass code with Apple, not the FBI)?
    The federal government has been a particularly poor custodian of private information. For example see the OPM data breach that affected over twenty million Americans, a number which seems to keep climbing. Then there's the Clinton email server disaster... there are many such examples. The code used to break into the single phone at hand will be in the wind about twenty minutes after it's created.
  • Reply 9 of 33
    jfc1138jfc1138 Posts: 3,090member
    Attaeus said:
    And I have said from the beginning that the FBI has no real plenary authority here. The suspects are dead, the crime is done, there is nothing left to investigate. This is the power of law enforcement to lie to judges in affidavits and go after anyone they want, when they want, under the auspices of 'doing their job.' They lie, cheat and steal all the time. That's their job. And we wonder why we have no rights
    Co conspirators, like the buddy that bought their weapons for them have to be looked into. Though I'd expect all their phone and cell service records would contain the relevant contact information for that line of investigation. 
  • Reply 10 of 33
    jfc1138jfc1138 Posts: 3,090member

    vaughnv said:
    I know nothing about encryption, but I can can think in general terms. Is it not possible for the FBI to turn the phone over to Apple and let them privately and secretly break the encryption on the phone (holding the pass code with Apple, not the FBI)? Couldn't Apple turn over the information from the cracked phone, but not the key? I suppose there must be numerous reasons to prevent this cooperation, but it seems like Apple could assist the FBI in fighting crime, while keeping their key proprietary.
    That's not what the judge ordered, presumably then at the behest of the FBI. She ordered "the delivery" of software to the FBI to disable all of its security features. The order was very specific. 
    tdknoxradarthekatewtheckman
  • Reply 11 of 33
    jfc1138 said:
    Attaeus said:
    And I have said from the beginning that the FBI has no real plenary authority here. The suspects are dead, the crime is done, there is nothing left to investigate. This is the power of law enforcement to lie to judges in affidavits and go after anyone they want, when they want, under the auspices of 'doing their job.' They lie, cheat and steal all the time. That's their job. And we wonder why we have no rights
    Co conspirators, like the buddy that bought their weapons for them have to be looked into. Though I'd expect all their phone and cell service records would contain the relevant contact information for that line of investigation. 
    Where is this mythical buddy you speak of? Did it ever occur to any of you boot-licking, authoritarian gun lovers that the time to catch the terrorists was BEFORE they killed all those innocent people? Perhaps even start tracking them when they bought the guns? No, we can't have that. So lets just spy on everyone instead. SMFH
    calibaconstangtdknoxgtrbrakkenthedbapalomineewtheckman
  • Reply 12 of 33
    vaughnv said:
    I know nothing about encryption, but I can can think in general terms. Is it not possible for the FBI to turn the phone over to Apple and let them privately and secretly break the encryption on the phone (holding the pass code with Apple, not the FBI)? Couldn't Apple turn over the information from the cracked phone, but not the key? I suppose there must be numerous reasons to prevent this cooperation, but it seems like Apple could assist the FBI in fighting crime, while keeping their key proprietary.
    They could yes, but the real point is once it is allowed once it sets a precedence. So after apple proves they can do it the FBI will start requesting the same assistance for other cases. Who knows how commonplace it will become. Maybe it will even become so commonplace where even if you commit a misdemeanor part of the booking in process will be to hack your phone and go through its contents. You know just in case your a terrorist and they havent figured it out yet. Then next thing you know apple gives the code out to law enforcement because it can't keep up with the requests and does not wish to pay its staff simply to crack phones all day. Once that happens it wont take long for hackers to get ahold of it and start cracking every phone they have stolen totally bypassing the security and being able to re-sell the phone as a fully functional unit.
    calitdknoxbrakken
  • Reply 13 of 33

    The problem is when technology is created for government use to surveil criminals it does not stay long as a government only technology.  If this backdoor is placed into the phones software it will only be a matter of time before non-government entities will have access to it as well.
     
    Stingray (Harris corp) is an IMSI catcher device. This device acts like a cell phone tower and is able to locate, tap, retrieve information from cell phones as well as change the phone’s settings.  These devices have become widely used by law enforcement to track criminals and retrieve information from their phones.  The problem is that while this was once only available to law enforcement it is now available to everyone and will no doubt be used in some criminal activity.  You can find videos on YouTube on how to build these devices.  There are now a number of companies that make these devices such as PKI and Septier. IMSI catchers can be bought directly online from China for $1800.00.

    Cell phone spying software is another example.  This software has the ability to track, read emails and texts as well as remotely turn on the microphone and camera.  This technology has not remained out of other’s hands.  Users of this technology include jealous admirers, criminals and many companies are issuing company cell phones and tablets with this type of software on them to their employees. Cell phone spying software is available for as little as 50 dollars through the internet for anyone to buy. A Google search for cell phone spying software gives lots of results.

    A cell phone can be stopped from IMSI intrusion, tracking and acting as a bugging device if it is placed in a Faraday Cage. A Faraday cage is a metal or conductive envelope that completely surrounds the electronic device and stops signals from going into or out of the cage.  This can be accomplished by making a pouch out of a metallized ie conductive fabric. Search Youtube for detracktor for a demonstration.

    ewtheckman
  • Reply 14 of 33
    There was no "decryption request"... no one asked Apple to "decrypt" anything.
  • Reply 15 of 33
    john galt said:
    ... and every single one of the Republican candidates for President of this once great nation advocated compelling Apple to yield to the overwhelming power of government to compel them to create a product that does not exist and for which there is no market need. That confirmed beyond any doubt there is no difference among those elected to allegedly serve the public: they're all sick twisted control freaks, no matter what color they might be. None of them has a clue what's at stake in this case. Worse yet is that they're not interested in learning. Nothing good will come of this, not for Apple, not for the public, not for the families of the particular case that's being exploited to fulfill the FBI's wishes, and certainly not future victims of crimes yet to be committed. The latter will certainly become out of control, once it becomes possible for any lowlife to crack into everyone else's personal information. That is the logical result of creating that ability. To see it one must think logically; to connect the dots. It shouldn't take a genius but none of the idiots on that podium appear to be capable of that.
    you might want to get some counseling, 'paranoia strikes deep, into your life it will creep...' and so on.
  • Reply 16 of 33

    Agamemnus said:
    There was no "decryption request"... no one asked Apple to "decrypt" anything.
    you are correct sir!  
  • Reply 17 of 33
    I strongly support Mr. Cook and his actions in this case.   In addition to the first and fifth amendment claims, I am surprised Apple did not also reference the ninth amendment, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."  This was referenced in Griswald v. Connecticut as well as Roe v Wade - as noted by Douglas when he stated that the ninth amendment meant that the people retain "customary, traditional, and time-honored rights, amenities, privileges and immunities that come with the sweep of the Blessings of Liberty."  The right to privacy would certainly fall under this definition.
    brakkenewtheckman
  • Reply 18 of 33
    calicali Posts: 3,494member
    tdiguy said:
    vaughnv said:
    I know nothing about encryption, but I can can think in general terms. Is it not possible for the FBI to turn the phone over to Apple and let them privately and secretly break the encryption on the phone (holding the pass code with Apple, not the FBI)? Couldn't Apple turn over the information from the cracked phone, but not the key? I suppose there must be numerous reasons to prevent this cooperation, but it seems like Apple could assist the FBI in fighting crime, while keeping their key proprietary.
    They could yes, but the real point is once it is allowed once it sets a precedence. So after apple proves they can do it the FBI will start requesting the same assistance for other cases. Who knows how commonplace it will become. Maybe it will even become so commonplace where even if you commit a misdemeanor part of the booking in process will be to hack your phone and go through its contents. You know just in case your a terrorist and they havent figured it out yet. Then next thing you know apple gives the code out to law enforcement because it can't keep up with the requests and does not wish to pay its staff simply to crack phones all day. Once that happens it wont take long for hackers to get ahold of it and start cracking every phone they have stolen totally bypassing the security and being able to re-sell the phone as a fully functional unit.
    And imagine how the customer would feel sitting in jail knowing Apple is hard atwork cracking their iPhone open?

    Now wait for China and other countries to bring in thousands of iPhones for Apple to crack.

    Then after that hackers will find the key and imposters posing as the FBI or Chinese government will be handing over iPhones.

    P.S.
    The one-posters on this thread are nice and use their head!
    edited February 2016
  • Reply 19 of 33
    knowitallknowitall Posts: 1,648member
    This is a power struggle and has nothing to do with fairness, logic or rights.
  • Reply 20 of 33
    vaughnv said:
    I know nothing about encryption, but I can can think in general terms. Is it not possible for the FBI to turn the phone over to Apple and let them privately and secretly break the encryption on the phone (holding the pass code with Apple, not the FBI)? Couldn't Apple turn over the information from the cracked phone, but not the key? I suppose there must be numerous reasons to prevent this cooperation, but it seems like Apple could assist the FBI in fighting crime, while keeping their key proprietary.
    Apple doesn't want to risk creating GovtOS even if it keeps it within its walls. Once done, there will be many points of attack within Apple for a bad agent to buy or get the sw out to bad guys (both private and government). 

    Govt. would be 'priceless' as in millions of dollars available for the employee who 'gets the job done'. Everyone at Apple is honest, but what if $2M+ was coupled with a threat to the employee's family? Encryption cracked.

    Merely creating this code is something Apple doesn't want to do because the history of encryption teaches something for us to get our heads around:

    There are two types of encryption:

    Encryption that has been cracked and

    encryption that will be cracked.
    radarthekatewtheckman
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