Government says Apple arguments in encryption case a 'diversion,' presents point-by-point rebuttal
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.
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.
Comments
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.
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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.
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.
That is some pure grade AAA bullshit right there. WOW!
The same ones who illegally collected data on millions of American and foreign citizens?
Now they are just insulting our intelligence.
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.
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.
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?
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.
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.