mead cohen berger shevtsova garfinkle michta grygiel blankenhorn
Privacy in the Tech Age
Apple Takes a Hard Line

It may be the most epic showdown yet in the post-Snowden tech privacy wars: Apple CEO Tim Cook has announced that the company will challenge a judge’s order that the company help the FBI unlock the iPhone of one of the San Bernardino shooters.

New iPhones are end-to-end encrypted, meaning that it’s impossible for anyone, even Apple’s engineers, to open them without knowing the user-created password. So according to the Washington Post, the FBI obtained a court order for Apple to create new software that would “disable the feature that wipes the data on the phone after 10 incorrect tries at entering a password. That way, the government can try to crack the password using ‘brute force’ — attempting tens of millions of combinations without risking the deletion of the data.”

Tim Cook isn’t having it. “The government is asking Apple,” he said in a letter cheered by civil libertarians across the web, “to hack our own users and undermine decades of security advancements that protect our customers — including tens of millions of American citizens — from sophisticated hackers and cybercriminals.”

We’re sympathetic to some of Cook’s points. Apple’s tough encryption surely makes user information more secure from hackers and authoritarian governments. And the U.S. government’s request—not that Apple simply open the iPhone (that would be impossible), but that it actually have its engineers write from scratch a complicated new software to facilitate the FBI’s efforts to break into the phone—is quite invasive, and possibly unprecedented.

At the same time, the absolutist position the company is taking does not seem tenable in the long run. We already live in a world where the government and private corporations collect a huge amount of personal information about ordinary people as a matter of course. And now we are being told that the FBI can’t execute a lawfully obtained search warrant on an ISIS-inspired terrorist mass murderer? Something has to give.

Apple is clearly entitled to act in the interests of its customers and shareholders and appeal this ruling. But in the long run, it seems doubtful that the American people will accept the current encryption arrangement. Even before the attacks in Paris and San Bernardino, a majority of Americans wanted the NSA’s warrantless data collection program renewed. Young people are especially supportive of the NSA. Surely there is a compromise position in the encryption debate that would satisfy Americans’ privacy concerns while also making sure that the authorities can access—with a search warrant—the materials used by dangerous criminals.

We’ve written before that Americans “have a 300 year tradition of balancing civil liberties, government power, and the safety of the community through a mix of legislation, judicial oversight, and public debate.” The standoff between Apple and the government is likely to reinvigorate this debate, and possibly produce badly needed legislative efforts to update our surveillance, encryption, and privacy laws. We suspect that the final compromise will be at least somewhat less friendly to privacy hardliners than Apple’s boosters hope.

Features Icon
Features
show comments
  • jeburke

    Apple doesn’t have a leg to stand on. The 4th Amendment protects unwarranted searches and seizures, but of course warranted searches to investigate crimes are always permitted. In the case the government has obtained a court order requiring Apple’s cooperation — well warranted because the object of the search is to investigate a multiple murder. This is NOT about national security per se. Apple’s argument is like the old copper wire electromechanical switch phone company refusing to honor a warrant to tap Al Capone’s phone because letting FBI agents into the switch room might open the way for them to tap other phones.

    • GS

      The whole thing reeks of putinism: “cooperate with kgb [whatever the current name], or else”. One could argue that the whole American tradition is exactly about telling the government where to go and what to do on its way there.

      • CapitalHawk

        Uh, yeah, comply with a court issued warrant is “putinism”. Sure. Just like “pay workers a minimum wage” is putinism, and “pay your taxes” is putinism, and “don’t murder people” is putinism.

        You can argue that the FBI should or should not have the ability to access peoples phones when investigating a crime, but to say that seeking a search warrant from a judge, and then seeking to enforce the court issued search warrant, is “putinism” is idiocy.

        • GS

          Omnipotent government is putinism [or sinicism, if you want]. The western tradition is telling the government to ef off. There are things that are simply not for it.

          • CapitalHawk

            This isn’t in any way omnipotent government. This is old fashioned police work – investigation of a crime after it has occurred. Forcing compliance with court issued search warrants is not new. It is built straight into the constitution.

          • GS

            Apple is not a party to any crime committed there. Therefore the government should be left to work with what it already has, and ef off.

          • CapitalHawk

            Yes, and the government argued, and the magistrate agreed, that there was probable cause to justify the search. The search is not possible without Apple’s cooperation and therefore Apple was order to cooperate in the execution of a validly issued search warrant.

          • GS

            The government overstepped, and should ef off.

          • Andrew Allison

            Can you grasp the difference between a legitimate search and a demand that somebody do it for you?

          • CapitalHawk

            I can, yes. The FBI is not demanding that Apple conduct the search, they are demanding that Apple unlock the device to allow the FBI to conduct the search. This is analogous to an order for a landlord to get a key made in order to unlock an apartment so police can conduct a search. The law requires Apple to render reasonable assistance.

          • Andrew Allison

            BS. This is “we’re absolutely clueless but want to extend our reach anyway”. Did you see the piece about the government demanding that Apple break into a phone that wasn’t password protected.

        • Andrew Allison

          It’s not, by any stretch of the imagination, a warrant.

    • f1b0nacc1

      Poor analogy. The old FBI could ONLY tap phones when in the room with the switch….this would allow them to do it potentially from anywhere. A warrant allows the police to search my house, but not an unrelated house next door.

      The FBI is asking for a skeleton key to undermine the entire basis of Apple’s encryption. Arguing that ‘if you have nothing to hide, you don’t need encryption’ is not only baseless on its face, it runs counter to essentially every significant court case in this area in the last 25 years.

      • CapitalHawk

        You are incorrect. They are asking for Apple to disable the setting on the phone that causes the phone to reset to factory settings if you enter the incorrect password ten times in a row. They are only asking for Apple to do it on this particular phone that is in the FBIs possession. This would not allow the FBI to tap phones from anywhere.

        • f1b0nacc1

          Once you make such a change, you open ANY phone to be compromised with brute-force tactics, which is precisely the reason that Apple is making this stand in the first place.

          As for it being in the FBI’s possession, it isn’t difficult to imagine a remotely loaded app doing the same thing, if it can override the reset capability. Essentially any phone is vulnerable to this sort of thing, which is why Apple put in this very simple precaution.

          • Andrew Allison

            Exactly!

          • Jim__L

            I don’t think anyone is arguing that these practices should be widespread or without oversight.

            However, I firmly believe that it is possible to put in place sufficient controls (and those controls seem to be working in this case) so that we can both reap the national security benefits of finding a terrorist attacker’s connections, and protect the data of citizens generally.

            If Farook had been your neighbor, and had had his residence searched as part of a duly written and served warrant, would you be worried about the security and privacy of your own residence?

          • CapitalHawk

            No, you are wrong again. The request is to make a change on this one iPhone, not on all iPhones. If Apple wants to delete the program after using it, they can.
            I’m not really going to address your “The FBI can then hack everyone’s phone” argument, because the FBI doesn’t have near enough resources to do that. If you want to understand the difference in resources here, note that the total budget for the FBI last year was just over $8 Billion and that Apple made a profit of over $50 Billion last year.
            And let’s not pretend that Apple didn’t put itself in this position. Apple intentionally created the encrypted system. Apple intentionally excluded themselves from access to customer data. Apple has zealously fought any legislative attempts to allow any government access to smartphones under any circumstances. Apple has (in another case) refused to unlock an iPhone for police, even though Apple has the ability to do so easily and has done so under similar circumstances many times before (the phone in question is running an old iOS). Apple has now started to argue to court issued warrants are not “properly” issued, essentially because Apple doesn’t like what the warrant says. Apple intentionally refused to cooperate with the FBI with respect to this iPhone. If Apple wanted to, it could have offered to disable the “erase” setting on this one iPhone and done it at Apple’s offices while FBI agents attended. They chose not to and now here we are.

          • f1b0nacc1

            Once Apple has been compelled to create this program (if they even can, which is debatable as well), the poisonous precedent has been set, and they can be forced to create it again, even if they are permitted to destroy it the first time. What the FBI can convince a judge to order, a local sheriff;s office can as well, or for that matter a party to a divorce. The genie, once out of the bottle, cannot be put back in, and with it…the privacy of all of us will be fatally compromised.

            As for the FBI’s resources, please don’t be any sillier than you need to be. The FBI can quite easily call upon other federal agencies (the NSA comes immediately to mind), or simply commandeer those of private companies (this is almost precisely how wiretaps are done) if necessary. The notion that the Federal government has fewer resources available to it than Apple does is farcical on its face, and the option of using the courts to compel cooperation trumps everything else.

            Apple added the encryption features to its phones as a result of customer demand, which is the way that free markets work. None of this is illegal (in fact the courts have repeatedly upheld the rights of private individuals to use encryption), so suggesting that they have ‘put themselves in this position’ evinces a rather disturbing lack of understanding of basic legal practice. Apple shows a rather mature view of user privacy by not acting as the steward of users private data, a refreshing change of pace from what we see from other vendors, notably Google and Microsoft. Numerous users see this as a feature that influences their purchasing choice, which is how free markets are supposed to work in the first place.

            Apple does not have the ability to simply turn off safety features on one phone without putting the security of all their phones in question. First of all, only the older phones (without the chip-based protection in the 5, 5s, 6, and later models) could be cracked even if Apple could disable this feature, and even then, they couldn’t crack the encryption beyond that (i.e. it would still require a brute force approach to do so). In simpler terms, Apple could only offer limited support, at a huge cost in liability and loss of user confidence, and ONLY on older phones to boot. The Feds have made it clear on numerous occasions that they don’t want help, they want a freely usable back door into all systems, something that no responsible tech company should ever do. Lets remember, these are the folks who recently got hacked by the Chinese, giving up private data on over 26 million current and former Federal employees. Do we really trust them with the data on hundreds of millions more individuals?

            There is always a conflict between civil liberties and the preferences of law enforcement organizations. A free society must defer to the former first, and then the latter only when it will not undermine those core liberties. Given the numerous abuses by not only law enforcement, but numerous other executive agencies of the federal government, it is clear that such deference is not warranted.

          • Boritz

            “If they even can”

            The task involves removing complexity from an existing program.

          • f1b0nacc1

            Actually no, the task involves bypassing their own security provisions, which may not be an option if they have built them well enough. I have been in exactly this situation myself, while employed by another company, and it is simply untrue that there are convenient back doors built into all software. For mission-critical applications that support high security operations (i.e. most enterprise quality databases), if it became clear that your software had a backdoor built in, your customer base would find other software to use.

          • CapitalHawk

            There is much to respond to here, but I think the first order of business is to establish if you think that there is(or should be) information that is wholly immune from discovery by the government, no matter what. I would guess that you would say yes, but that has never been the case under US law. The Fourth Amendment governs searches and seizures and it does not (and likely never will be interpreted to) completely protect information from government discovery. The Fourth Amendment allows reasonable searches (in that it only protects against unreasonable searches) and requires probable cause for a warrant to be issued. So, we can debate whether this is an unreasonable search or if the government has probable cause, but you can’t under US law assert that information is wholly immune from discovery by the government. You may want that as a policy matter, but as a legal matter it is not the case.

            In this instance we are dealing with the All Writs Act, which is a general statute that allows judges to issue court orders to require actions from people, even if there isn’t a specific statute covering the underlying area, which makes the legal analysis slightly different but doesn’t really change our policy arguments.
            Anyway, as to your statements I think it is clear that Apple can create the program. If they couldn’t that would have been the first thing they said. Outside experts have also opined that they believe Apple can comply with the order, they just don’t want to.

            I know that lots of people want to lump the NSA and the FBI together here, but doing so only points out their ignorance as to the purposes of those to agencies and as to how government actually works. Government agencies are often in conflict and have competing functions and goals. Even on this issue different agencies within the government have been internally lobbying the President to get on “their side”. I know that sounds crazy, but go read the many Washington Post articles on this issue and you will see that is actually the case.

            The FBI functions in two roles – anti-terrorism within the USA and in its traditional role as de facto national police. The FBI is acting in that latter role here. They want the information for purposes of investigating a crime that has already occurred and they need the information they get to be admissible in court. NSA is an intelligence agency and does not care about whether information they gather is admissible in court. Even if NSA were to pass information to the FBI (and inter-agency sharing of information doesn’t happen as much as citizens would generally like), that information would not be admissible in court.

            I have never suggested that Apple had behaved illegally, and as far as I know they still haven’t. They have a right to oppose/appeal the court order, just as the FBI and DOJ had the right to seek it. But Apple HAS put themselves in this position, no less than a landlord who intentionally discarded the key to an apartment and then complained when the police arrived to serve a search warrant and demanded that the landlord get a new key to allow them access.

            You are correct that FBI/DOJ do indeed want a workable backdoor into smart phones, they have been pretty clear about that. Congress hasn’t acted on that and President Obama hasn’t supported either side (although he seems to have sided with law enforcement on this particular case). That does not mean they would have all of the information on those phones. They have proposed multiple solutions and the industry/privacy advocates have voiced objections to all of them, primarily because they will create a potential avenue for hackers to get access. But I’m not aware of any proposal to gather all data created by all Americans (a la what was happening pre-Snowden).

            At bottom, Apple apparently wants the legal ability to create some sort of “black box” into which people can deposit whatever information they wish and to have it legally immune from discovery by the government. As I said above, that has never existed under US law and I don’t think it ever will. Well, with one exception – your brain. If you only have the relevant information in your brain, it is 100% protected from government discovery via the Fifth Amendment. Once you write it down (with pencil, ink or bits and bytes), it can be discovered.

          • f1b0nacc1

            Lets start off with the first order of business. Individuals can (within the bounds of the law) create whatever they choose, including ‘a black box’ to store private information in. The government can (with the accession of a court) attempt to get into that black box, but it is far from clear (the All Writs Act notwithstanding) that they can conscript third parties to help them do so. Apple is not the owner of the cell phone in question, if they were they could be compelled to give up the passwords and if they wouldn’t produce them, they might (if they were found to be withholding those passwords, as opposed to having ‘forgotten’ them) be vulnerable to a contempt of court charge. This is well established precedent, and if you bother doing even a small amount of research online, you will find numerous cases of precisely this dynamic at work. However! The owner here is the city of San Bernadino, which cannot cooperate because apparently they reset the password themselves, either accidentally (routine maintenance) or to avoid embarrassing information being released. This is negligence on their part (at best), but if the FBI has a problem, the good people in the IT department in the San Bernidino city government are the folks they should be talking to.
            Now, as to the All Writs Act….This act has been interpreted to refer to direct actions taken with respect to specific writs, i.e. opening a door or providing unique and specialized services directed at a single goal with an impact upon a single individual. What the FBI is looking for here is a back door that will open ALL phones, not just this one, so it is quite unlikely that a court will buy the reasoning. Given that (at best) this is an extreme extension of the existing act (and pray tell, what would the limits be otherwise?), unless you are seriously suggesting that the government has an unlimited right to conscript any entity at will for any reason (and ‘it may tell us something’ isn’t a reason, it is an open ended excuse that could be applied to anyone with nothing more than a ‘trust me’ from the government) your argument fails on its face.
            You suggest that some experts (note: not all of them, and none, as far as I can tell, who have any intimate understanding of what is involved here) state that Apple can create what the FBI wants, but others (several of whom do have the requisite knowledge of the subject at hand) believe otherwise. I have some experience here, and it seems EXTREMELY unlikely that Apple can do much more than disable the retry limit, which would permit a brute force attack on the encryption. Once again, this would take weeks to crack the encryption, if not longer, even with the best of the NSA helping the FBI out. It is extremely unlikely that any sort of back door exists in the encryption itself, for reasons that should be obvious when you consider that Apple sells its phones all over the world, including places that wouldn’t be too happy about an American agency having access to its phones.
            Even if it were possible for Apple to disable encryption, it would still be viable for them to oppose this, for the same reason why they would (and should) oppose disabling the limited retries option. Any action that they take would effect all phones, not simply this one (though in fairness, I should point out that earlier iPhones, including the 5c that is the subject of this controversy, have substantially more permissive encryption options so a change that would work with them will not work with later models), which means that Apple would not be providing a service in the interest of a single investigation, but a general one which would cover non-involved third parties….far beyond the scope of the All Writs Act and in fact injurious to the rights of uninvolved parties. Once it was clear that such software existed, Apple would be called upon to share it by everyone, from the FBI to ambitious divorce lawyers trolling for dirt. This is even IF (a very poor hope) that the FBI didn’t accidentally ‘lose’ it when hacked by some outside party.
            Apple has acted legally and correctly here, the blame (if any exists) lies with the City of San Bernadino, which has complicated the FBI’s fishing expedition. Why Apple should undermine their own business and the privacy rights of innumerable innocent users who have absolutely no reason to expect their rights to be infringed upon remains wanting for a rational explanation. Apple has not ‘put themselves in this position’, they created a legal product which was used by a very bad person. The government has no expectation that Apple should destroy their business merely because they (the government) doesn’t possess the means to gather more information. If you are unaware of the governments long-stated desire to be able to tap all information (see the “Clipper Chip” as an excellent example of geek history), you simply are that…unaware…for the feds (under multiple administrations, D and R) have made no secret of their desires. This isn’t about ‘admissible in court’, this is about fundamental limitations on the reach of the government, and the government’s vociferous dislike of those limits.
            As for Apple’s desires, they want to create a secure data store used by individual customers…period. That same data store, I should point out is used by dissidents all over the world (or do you think we are the ONLY government that wants that information), as well as individuals who have done absolutely nothing, but simply wish some privacy. Once you open this door to intrusion, it won’t just be the Feds on an antiterrorism hunt, it will be cops looking for speeders (GPS location tracking), foreign tyrannies looking to find dissidents, or sleazy PIs trolling for dirt, or hackers looking for data theft.
            The founders were wise men, and they understood that government should remain limited, even when those limits are painful to live with. I believe that I already mentioned “A Man for All Seasons”, and Sir Thomas Moore’s eloquent defense of the rule of law….if you haven’t seen it, you owe it to yourself to do so, at least that one short scene.

          • CapitalHawk

            I’m well familiar with Sir Thomas More and his defense of the rule of law. I will also give the devil the benefit of the law.
            I don’t have time to respond to all of your points right now, but you have forgotten a key point in your defense of Apple. You say Apple doesn’t own the cell phone and then you say that if they did own it you could compel them to give up the password or potentially hold them in contempt if they refuse. Well, Apple DOES own what we are talking about here – the software that operates the cell phone. You will note that Apple never sells the software to anyone, it only sells a license to use the software while it retains ownership for itself. So, no, Apple does not own the metal and plastic that makes up the physical form of the cell phone, but it does own the software that makes it work and the FBI seeks access to the software not the metal and plastic. And when I put that together with your statement that we should be able to compel the owners of things to comply with court orders…it sounds like you agree with me.

          • f1b0nacc1

            Nice try, but not quite…
            The courts have been quite clear that licensed software does not impose liabilities upon the owners for what the licensees do with it. This is a variation of what is often called ‘safe harbor’, and it means in practice that you cannot impose a liability on an entity for what a third party does with their product. Hence Apple cannot be held responsible, nor can they be made liable for actions taken by a third party. Much more to the point, since forcing Apple to create such software (even if it were possible, a point I do not concede) would inevitably prejudice the rights of third parties (iOS users whose privacy would be compromised by the creation of a skeleton key), the bar to such a demand would be even higher.
            Keep in mind that just yesterday the former head of IT for the OPM resigned (‘retired’, apparently so she could ‘spend more time with her family’ – Washingtonese for slinking off into the darkness in disgrace) rather than face a Congressional grilling on her role in allowing millions of American’s private information to be stolen by Chinese hackers. These are the people you want to hand skeleton keys to our information stores to? Not. A. Chance.

          • Andrew Allison

            It seems apparent that CapitalHawk is a police state troll.

          • f1b0nacc1

            Perhaps you aren’t being entirely fair. I don’t agree with him either, but this isn’t an easy topic. I sympathize with those who are outraged by the (mistaken) notion that Apple (a company that I am not all that fond of, actually) is somehow siding with the bad guys, but I firmly believe that they are mistaken, and that Apple is on the side of the angels with this one. Franklin’s adage about liberty versus security is all too apt here, but it is rarely as obvious or simple as all of that…

          • Andrew Allison

            I’m glad that we are in agreement that Apple (about which I share your general opinion) is on the side of the angels in this matter. As to the topic, I’ve come to the conclusion that our civil liberties are under concerted attack by our government and unthinking apologists.

          • f1b0nacc1

            Actually we agree for the most part, though I am not sure that it is so much a concerted attack as just bureaucratic empire building by the government and laziness and misguided patriotism by the apologists. Either way, it is not good

          • CapitalHawk

            Obviously. People who disagree with you are always and forever “trolls”.

          • Jim__L

            So… why not put hardware in the loop as part of the brute-force solution, to make sure possession is required?

          • f1b0nacc1

            I am not entirely sure that I understand your suggestion here. Could you please clarify?

          • Jim__L

            Make it so you can only get into the iPhone if you have possession, by requiring attached hardware for the solution.

          • f1b0nacc1

            Certainly an option, but it still doesn’t undercut the overall problem, that truly bulletproof security isn’t maintained by the vendor, but rather by the user. Yes, I think that tightening security even further by requiring physical possession wouldn’t be a bad idea, but that still wouldn’t change the problem of the FBI wanting Apple to provide them with a skeleton key.

          • Jim__L

            Skeleton key, battering ram, there are tools that can legitimately be used in accordance with Due Process.

            Look, if this were warrantless or widespread it would be whole a different story.

            Is the real worry that Due Process could become corrupted? If so, isn’t that where we should concentrate our arguments?

          • f1b0nacc1

            Not really. A battering ram isn’t an option here (brute forcing the encryption, even with the NSA’s tools, would take months…perhaps longer), and a skeleton key offers frightening possibilities for misuse. Once created, it could never be destroyed, and given the governments appallingly bad (or just lazy/lax) security, it would certainly spread and undermine everyone’s security in the long run. Apple’s products would be devalued, and the company would face serious issues in the long term with anyone who didn’t wan the US government to decide that they had a right to their data. The NSA’s rather cavalier use of its capabilities in the past (present?) has thoroughly poisoned the water here…

    • Daniel Nylen

      First and thirteenth amendments maybe? How is this different than a court ordering a doctor to perform an abortion or to take part in a state run execution? If the FBI wants a program written, it should either contract for it or ask the NSA to write it. This conscription of the employees of a company to perform labor and create something that it would not do in the ordinary course of its business seems to be a bit imperial.

      • jeburke

        Doctors performing abortions are not helping to conceal evidence inba criminal investigation. The fact that Apple has to write some software to override some other software it wrote previously doesn’t alter the essential case. This is like a bank where a deceased murderer may have kept evidence related to his crime in a safety deposit box refusing to unlock the box because if had promised the customer the box would remain private. It’s important to remember that this case is not about the NSA monitoring communications in the absence of a specific crime in the hope of preventing future crimes. It’s about an investigation of a crime already committed. We have never before seen companies, telecompanies included, claiming they are not subject to court warranted searches. The Apple claim that if they help create software to open this particular phone, if will spread everywhere endangering everyone to hackers is absurd. It’s a smokescreen, a marketing ploy.

        • Daniel Nylen

          This is not at all like the safety deposit box case. If it was, I might agree with you. The older iphones issues were like the safety deposit box cases, Apple had the keys to unlock them and the court asked for something that already existed. Apple either complied or fought legally. Here what is sought does not exist. There is nothing to subpoena, nothing to seize– there is no key.

          What Apple doesn’t want to do is CREATE a program that breaks into their own product. They are currently giving popular reasons why they shouldn’t (privacy), but I am asking about the legal issues with forcing labor from people against their will because the government thinks it aids national security and without a congressionally passed set of laws that apply like selective service. This project the judge seems to be tasking might take many thousands of man-hours and use large amounts of Apple IP–is it within the Federal Rules of Government Contracting–Apple didn’t agree to have them apply here? They can sue under fifth amendment for loss of property taken for public use, but what allows the judge to force them to create that property?

          Can the government force Taylor Swift to create a propaganda video supporting some cause or war or go to jail, and if not how is that any different to the programmers who do not want to create this program or Apple who doesn’t want to? Can I force Samuel Jackson to do a commercial opposing everything he believes in, or make L. Tribe write a law textbook that teaches the opposite of his ideas?

          The government can seize/demand the IP and have the NSA write the program, but I don’t think that the judge can force a person or persons (a company) to create something or work (involuntary servitude) outside of conscription.

          • Jim__L

            It would be reasonable for the government to pay Apple engineers for their time, at rates similar to what they pay DoD programmers.

            Apple should be prosecuted for interfering with a murder investigation if they refuse.

          • Daniel Nylen

            So the government can conscript anyone anywhere, anytime and have them do anything, even if it goes against their beliefs. You must really like serfdom. This violates 1st amendment (forcing creation against their desires) and 13th amendment.

          • Jim__L

            Compelling interest — Americans are getting murdered.

          • Daniel Nylen

            Are they really getting killed due to the information in this phone? Some old Ben Franklin quote comes to mind about security and freedom. Enjoy the serfdom.

          • Jim__L

            I really don’t think it’s serfdom to think a law enforcement agency should be able to effectively execute a warrant in the investigation of a clear crime. Due process is being followed here.

          • Daniel Nylen

            Please try to understand simple concepts: a warrant authorizes the seizure of certain items that already exist or record things that will exist (pen register- writes numbers as they enter the phone system- the case in the federalist article). There is nothing to seize here. The program that the FBI wants does not currently exist, a group of people have to write it.

            If the FBI used the All Writs Act to seize the IP they needed so they could write the program, I wouldn’t have any issue with such use. Seizing something that exists, and likely paying for it, to enable the FBI or NSA to write the hacking program would be a good use of the act.

            If Congress wrote a law that required a backdoor to every phone as a requirement of sale–again no issues. The company could decide to follow the requirements for sales here or not sell the items. Congress considered such laws and did not pass them– a pretty good indicator of Congressional intent.

            The All Writs Act was never envisioned or ever used to be a conscription or involuntary servitude act where persons could be forced to work against their will.

            What I object to is the use of government will to grab citizens and tell them they must create this thing or face government consequences.This is currently against the expressed will of Congress (they didn’t pass the law) and seemingly in violation of the 1st amendment that does not let the government force speech from us (writing the program is speech).

            Additionally the idea that any sheriff with his friend the local judge can just conscript anyone and have them do something because it furthers jurisdiction or law enforcement is a very slippery slope. Like I said– what stops the government from forcing Taylor Swift from being required to make a propaganda music video or Samuel Jackson form having to create a propaganda commercial instead of the many many others he makes. No one thought the 1965 Civil Rights Act would negate all employer testing and force quotas (excuse me diversity goals) or force bakers to make gay wedding cakes.

            Enjoy the serfdom, you seem to welcome it.

          • Jim__L

            What do you think of the All Writs Act?

            https://en.wikipedia.org/wiki/All_Writs_Act

            If you’ve got some spare moments, would you care to comment here on the reasoning given in this article?

            http://thefederalist.com/2016/02/19/cut-the-crap-apple-and-open-syed-farooks-iphone/

    • mgoodfel

      The bottom line here is that if you crack the Apple-provided encryption
      on phones, smart criminals and terrorists will use another layer of
      private encryption. Then the consequences of your backdoor is that
      honest citizens and companies have lousy security, and criminals still
      have good security. I doubt that’s what you want.

    • Andrew Allison

      Of course the warranted search is permitted. The question is whether the government has the right to require a private company to interpret the results.

  • Fat_Man

    It is political posturing by the FBI. They don’t need what they are asking for if they have physical possession of the phone, and they do because the perp is dead. They can physically remove the memory chip and clone it. They can then attack the data without going through the phone OS.

    What the FBI really wants is to force all manufacturers to put back doors into their phone so that the FBI doesn’t need to have physical possession. The manufactures don’t want to do that because it would kill their businesses.

    • Andrew Allison

      Let’s be clear that the reason it would kill there business is that law-abiding citizens don’t want the government to have unlimited access to their lives. We are in danger of an electronic police state.

  • CapitalHawk

    The overarching issue here is who should decide what information is available to police and intelligence agencies – Apple or the American people via their representatives in government? Apple is asserting the right to create an impregnable storage device for information and to maintain its impregnability even in the face of a court order. This is analogous to creating a impregnable physical vault, storing things in it, destroying the only key, and then complaining when a judge orders you to create a new key to replace the one you intentionally destroyed.

    • Andrew Allison

      Nonsense. Thanks to Snowden, et al., we know that our reprehensatives have already permitted gross violations of our civil rights. The current situation is that the government is demanding that a private company expend the significant resources necessary to provide a back-door entry into its telephone security.

      • Jim__L

        The FBI has the right to investigate American citizens in a way that the NSA does not.

        We have a right to protection from “unreasonable” search and seizure here. Search and seizure in accordance with a lawful warrant is something completely different.

        • Andrew Allison

          As previously noted, there’s no warrant. And yes, there’s a huge difference between a request to appear or produce documents and a warrant.

          • Jim__L

            … why the h*ll aren’t they getting a warrant?

          • Andrew Allison

            Because they can’t. They can get a warrant to secure, and even to break into the phone, but they can’t get a warrant to compel somebody to do it for them.

          • Jim__L

            According to what I’ve read, in fact the FBI got the phone via a proper warrant. Also according to what I’ve read, the All Writs Act is what the court is applying in this case:
            https://en.wikipedia.org/wiki/All_Writs_Act

            It looks to me like they’re doing things by the book, here. I have to admit, I wouldn’t mind seeing Cook serve some jail time here, or Apple getting fined. Particularly when the next terrorist attack hits. (Since Obama seems to think such attacks are just a “cost of doing business” for implementing his worldview.)

  • jeburke

    “…because the government thinks it aids national security…”

    Your argument fails right there. It’s nof because the government thinks it aids national security. It’s because the government is investigating a crime. A court can order a company or a person to jump through a lot of hoops and spend a lot of man hours and money to fulfill a subpoena. As a simple example, in a garden variety lawsuit, a court can order a company to spend millions to produce mountains of documents. The “this is slavery” or a taking of property argument will cut no ice with judges.

    • Andrew Allison

      There’s no subpoena.

      • Jim__L

        Just a warrant. Is that not enough?

        • Andrew Allison

          No warrant, no subpoena, just a court order. It’s not unreasonable to assume that the judge didn’t understand the implications of his agreeing to the FBI request, and that’s what Apple is trying to determine. My personal opinion is that the FBI branch of our emerging police state knows perfectly well that, pardon the pun, one ring (breaking into a single phone) rules them all. The first, fourth, fifth and sixth amendments are under attack by our government under the guise of “national security” and we will regret not strenuously resisting.

          • Jim__L

            So charge Apple with contempt of court, then, and we go from there.

          • Andrew Allison

            Works for me. But, in fact, Apple is doing what you suggest by appealing the court order. I was simply pointing out an error in the post upon which I commented.

  • Anthony

    Tim Cook (Apple – All Writs Act of 1789):

    “We have great respect for the professionals at the FBI, and believe their intentions are good. Up to this point, we have done everything that is both within our power and within the law to help them. But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.” http://www.apple.com/customer-letter/

  • JosefK314

    “… our private conversations to our photos, our music, our notes, our
    calendars and contacts, our financial information and health data, even
    where we have been and where we are going.”

  • Andrew Allison

    Does anybody here doubt that our civil liberties are under attack?

    • Jim__L

      It looks to me like due process is being followed. This is a clear and obvious crime whose details are available to the public.

      I agree that a solution that allowed the federal government to do this without due process or in secret, or that would allow the federal government to do this remotely, would be a step in the wrong direction. I suspect that a solution could be found that avoided those pitfalls.

  • Jim__L

    This software Apple (or likely, a combination of clearable Apple employees and already-cleared government security contractors) would obviously quality as a “source or method”, and so be protected by classification systems.

    So, as long as we keep the Hillary Clintons of the world out of the White House (and in the Big House), it’s unlikely hackers would get their hands on the software.

© The American Interest LLC 2005-2016 About Us Masthead Submissions Advertise Customer Service