Posted on 02/19/2016 1:36:09 AM PST by Swordmaker
As someone who worked as a prosecutor for 30 years, I can assure you that encryption presents a problem for law enforcement and public safety. . . a very real problem, not a made-up one. However, Apple did not create that problem and emasculating Apple's security measures will not solve it. Virtually unbreakable encryption is reasonably easy to implement. If it were not built into our phones, it would be available via a native or web application.
Right now, Apple can truthfully tell not only its customers, but also the literally thousands of national, regional, and local jurisdictions where it does business that not even Apple itself can access the encrypted contents of a new iPhone. You may not believe that, but if the FBI did not believe it, it would already have arrested Apple's management for making a material misrepresentation to a federal officer in the course of a criminal investigation.
In order to create a bypass for the 10-try limit, Apple will have to develop new software that does not already exist. The California federal court has ordered Apple to involuntarily devote its labor to that project, which will not benefit but very seriously harm the company. Could a Mississippi court in 1956 have lawfully ordered African-Americans to chop cotton in the public interest? I think not.
There is no question that the All Writs Act can reach out to require the cooperation of some third parties, but that reach is limited. If the FBI wants to search a house, it cannot draft the neighbors to help conduct the search. It cannot force Google to help crack an iPhone. Apple has no connection to this device except as its manufacturer. It has no connection to the data at all.
The actual owner has given its consent to a search, but the owner's employee who knew the passcode is deceased. There is no living person with standing to challenge the search. Apple's assistance is not being sought to assist with the search or seizure of the device, but with the interpretation of the data contained on it. Does the government position mean that the FBI could force a third-party translator to interpret the data on a phone seized from someone who spoke Navajo? Could it require someone to learn Navajo so they could translate?
The New York Police Commissioner has stated that they have at least dozens, if not hundreds, of locked iPhones that have been seized in the course of criminal investigations. If Apple had the means to unlock all those devices, is there any doubt that the NYPD would go to state court and get orders compelling the company to do just that? The promise of the US Department of Justice that the San Bernardino case is a one-time deal does not bind state prosecutors or even the federal officials who will take office next January 20. Putting the issue of foreign requests to one side, the volume of domestic demands on Apple to unlock phones would become enormous. That might quickly extend beyond the criminal courts, as civil courts required Apple to unlock phones that might contain information relevant to civil suits or family law disputes.
Once the use of the cracking tools became widespread, it would only be a matter of time (and not much time, at that) before somebody leaked the details. How much remains secret about the upcoming iPhone and iPad upgrades? Groups like Anonymous and WikiLeaks would be glad to disseminate the information. After that, nobody could place any confidential information on an iPhone with the assurance that nobody could defeat the encryption.
Right now, Apple can sell phones outside the United States (notably in China) because it can promise the local government that the US Government cannot use an iPhone to tap communications between two local citizens. The US lets Apple export its technology because it can promise that it does not have the means to comply with a foreign court's order to crack the encryption on the phones of political dissidents (who are often defined as terrorists by the local government). Without those guarantees, Apple might well be prevented from selling its devices outside the USA.
Within the US, it can sell phones to doctors, lawyers, and ministers because it can promise them that privileged communications with their patients, clients, or penitents will remain secure. It can sell iPhones to businesses because it can promise that proprietary information on the devices will remain confidential. Without that assurance, those professions would have to drop back on face to face conversations or exchanging written notes. Why pay the extra money for a smart phone when it cannot be used with safety?
I have every sympathy for the situation of the Assistant US Attorneys in Southern California. I have been there. Yes, there could be serious consequences if this iPhone 5c is not cracked. Yes, people could die and felons go free if the New York iPhones remain locked. However, we must consider the countervailing threat to our system of liberties. The consequences of forcing a third party to work for law enforcement (to its own detriment) in a case where it is just a bystander are simply too serious to regard as reasonable.
John McAfee has seen the chat, and heard the talk and is ready to act. He has promised to crack the iPhone log-in process to save Tim Cook and the government the trouble - in just three weeks.
ROTFLMAO.
DOJ has jumped into the mix
http://abcnews.go.com/US/doj-escalates-battle-apple-san-bernardino-shooters-phone/story?id=37056775
later
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