Posted on 03/13/2016 1:21:37 PM PDT by Swordmaker
The FBI wants Apple to do something no private company has ever been forced to do: break its own technology. Specifically, the FBI wants Apple to build a new version of its mobile operating system (iOS, or GovOS) so that the contents of an iPhone can be removed from an iPhone used by Syed Farook, one of the gunmen in the San Bernardino shooting.
A magistrate judge recently ordered Apple to comply with this request; Apple in turn filed a Motion to Vacate (MTV) the magistrate’s order. The key point made in the MTV — and the key issue on which this entire case hangs — is that complying with the FBI’s request would weaken a valuable encryption platform at a time when the United States desperately needs stronger, more effective encryption.
There is an arms race to create more-sophisticated, harder-to-crack encryption tools, and if the FBI gets its way, we will be running that race with a self-imposed handicap.
This week Apple is appearing before Congress to address the issues raised above. For those unable to attend the hearings, I want to explore how Apple is thinking about the FBI’s legal authority to compel the company to create new software to crack Apple’s security measures.
After exploring that legal issue, we’ll consider the broader constitutional stakes involved in this case. After all, it’s not everyday that the U.S. government is asking a private company to undermine a technology platform without providing any concrete evidence that doing so will make Americans safer.
To understand what the law says, we must first properly frame what the FBI is trying to compel Apple to do. Without a precise understanding of what the FBI is demanding in this case, it is hard to clearly say that the FBI is trying to overstep its bounds.
What is the FBI seeking here? First, the FBI is demanding that Apple make a new software product. Second, that software product would have to be designed in accordance with specifications provided to Apple by the FBI. Third, once Apple created that software product, it would have to test the product to ensure it met Apple’s own quality standards. Fourth and finally, Apple would have to test and validate this software product so that criminal defendants would be able to exercise their constitutional rights to challenge the government’s legal claims as provided by the Federal Rules of Evidence (FRE).
Forcing a company to break its own technology appears to be something a dictatorship might do, not a democracy like the United States.
Simply put, the FBI is demanding that Apple create a new software product that meets specifications provided by the FBI. As Apple clearly articulates in its MTV, the FBI is demanding “the compelled creation of intellectual property.” The legal grounds for the FBI’s demand come from the Communications Assistance for Law Enforcement Act (CALEA) and the All Writs Act (AWA).
With this understanding in mind, what does the law say? Is there any law that allows a government agency such as the FBI to compel private companies to create new software products?
Let us begin with the key law regulating the interception of electronic communications, CALEA. This law was enacted to carefully control the government’s right and ability to intercept communications in order to enforce the laws of the United States. Specifically, CALEA outlines the circumstances in which a private company must provide law enforcement with assistance in order to effectively carry out electronic surveillance.
Under CALEA, there is a strong argument that Apple cannot be legally required to create new software of any kind for any department of the federal government. When Congress passed CALEA, it had the opportunity to include device manufacturers like Apple within the scope of the law. Congress decided to require telecommunications companies to ensure that their equipment and facilities are built in a way that allows the government to conduct surveillance on the basis of a lawful surveillance warrant.
In other words, telecommunications companies have to build in a back door. However, under CALEA, Apple is not a telecommunications company; instead, Apple is considered an “information service” to which CALEA does not apply. In short, Congress made it clear they did not intend for CALEA to even apply to companies like Apple.
Even if CALEA applied to Apple, the FBI would not be entitled under CALEA to force the company to break its encryption protocol. The statute in section 1002(b)(3) states that telecommunications companies are not responsible for decrypting communications “unless the encryption (1) was provided by the carrier and (2) the carrier possesses the information necessary to decrypt the communication.”
Because Apple does not currently possess that information, even an improperly broad interpretation of CALEA would not compel Apple to create GovOS in this case. The FBI can ask, but under CALEA it cannot compel.
The All Writs Act (AWA) also does not allow the FBI to compel Apple to create new software. Enacted in 1789 as a stop-gap that allows the government to efficiently administer its given legislative privileges, the AWA is being given an impermissibly broad interpretation by the FBI.
According to that interpretation, this stop-gap gives courts any relief that is not specially prohibited by existing law. So, if there’s no law expressly prohibiting Apple from being compelled to write code for the FBI, then the AWA gives courts the authority to force the company to do just that.
Apple should do what is necessary to preserve our enduring constitutional values.
Let’s take a completely make-believe example. Imagine that a federal law gives a particular agency the right to do X, but doing X is hard and costly. The AWA might be invoked to help get X done more efficiently. But the key is this: The AWA is only appropriate when there’s already a federal law or a constitutional principle that gives the particular agency the right to do X in the first place. That is precisely why the AWA cannot be lawfully used by the FBI in this case: The FBI has no underlying right to compel Apple to create new software products.
If this seems like a legal technicality, zoom out a bit and reconsider that for just a minute. Imagine if the Department of Homeland Security used the AWA to argue that citizens with certain last names should be subject to arbitrary detention to make it easier to catch terrorists. Would that violate American values and our system of laws? Absolutely.
Alternatively, consider a scenario in which the Department of Energy tried to use the AWA to force federally funded universities to “donate” resources to the DOE in order to enhance its Energy Materials Network. Would this be inappropriate? It would be completely inappropriate, because the DOE does not have the underlying legal right to force universities to do this.
In a nation of laws, the FBI’s attempt to expand the AWA is dangerous. The FBI’s interpretation of the AWA transforms the law into something it was never meant to be: a tool granting government agencies boundless powers not authorized under the Constitution or in existing federal law.
Lawyers have a fancy way of describing this problem. They say that expanding the AWA violates the separation of powers between the federal courts and Congress. After all, what is the purpose of Congress if our courts are allowed to expand federal law without any meaningful limitations? One might go further still and say that forcing a company to break its own technology appears to be something a dictatorship might do, not a democracy like the United States.
Fortunately, a Brooklyn judge recently ruled, in a separate but similar case involving a demand from the Department of Justice to unlock an iPhone, that the AWA only empowers courts with “residual authority to issue orders that are consistent with the usages and principles of law.” Judge Orenstein explicitly condemned the government’s overreach in that case, echoing the exact concerns explored above: “The implications of the government’s position are so far-reaching — both in terms of what it would allow today and what it implies about Congressional intent in 1789 — as to produce impermissibly absurd results.”
Apple should do what is necessary to preserve our enduring constitutional values, including life, liberty and the pursuit of happiness. Those values also include the privacy and speech rights protected by the Constitution. The First Amendment famously protects an individual’s right to say what he or she thinks or feels, and the Fourth Amendment guarantees that Americans shall be free of unreasonable searches and seizure.
These values and constitutional ideals are not mere commodities to be traded away, but are instead regulative ideals that capture and define who we are. Such ideals must remain unmolested by the temporary whims of each and every government agency. That’s what it means to be a nation of laws that is guided by a constitution.
In this particular case, Apple has a responsibility to resist the FBI’s efforts to force the company to undermine the security measures in its mobile operating system. To understand what is at stake here, one has to think deeply about what the world would be like if Apple were to comply with the FBI’s demands.
Imagine that Apple complied with the FBI. To do so, Apple would need to build a new version of iOS (GovOS) that does three things.
Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.
First, GovOS would bypass the auto-erase function for an individual iPhone. This feature is designed to prevent third parties from getting unauthorized access to an iPhone’s contents.
Second, Apple’s newly minted GovOS would need to provide the FBI a new way of electronically submitting passwords to a particular iOS device. At present, these passwords must be manually submitted, and each incorrect password submission results in a delay before another attempt can be made.
Third, and finally, GovOS would disable the delay between incorrect password submissions. In a nutshell, GovOS would be a special version of iOS that allowed an iPhone to be cracked automatically without knowing the owner’s password.
The FBI, then, is asking Apple to build a technology that destroys the value of the key security mechanisms built into its mobile operating system: The FBI wants to force a private company to build a tool that completely breaks the security technology for what is arguably the world’s gold-standard for mobile operating systems, iOS.
On this narrow issue, the FBI has to agree and concede this critical point. For the FBI cannot say that (1) it needs Apple’s assistance to crack an iPhone but (2) Apple’s assistance would not break a world-class encryption product. Once the FBI says that it needs Apple’s help, the FBI can’t honestly challenge the fact that the help it seeks would utterly break a security suite that Apple has spent years developing.
A recent conversation with information security expert John Sebes (formerly of Securify, acquired by McAfee) put this issue into proper context. Imagine you are building a security mechanism for your mobile ecosystem. You have spent years developing this system because you want to provide your customers, private citizens as well as the government, a software product that is secure. Your intention, in other words, is to create a product that protects the security and integrity of information your customers place on any device that has that security mechanism.
I support the constitution, of course. If it needs to be changed there is a stipulation inherent in the document to do just that.
But in this case you are talking about the 4th amendment which allows for the government to obtain information via warrants and court orders. I think Apple, like anyone else, has to comply with a court order, but I may be wrong. But I do know, being a lawyer myself, that defying a court order will land you in jail for contempt until you comply. It can’t be any other way if we are to accept the rule of law.
That's true. But here there is no evidence. What the FBI wants does not exist.
The law provides for a challange as far as I know.
Yes I am sure Tim Cook will not be arrested for contempt of court due to his wealth (unfortunate but true there are two legal systems one for the rich and one for the rest of us) but I do not recommend you defy a court order.
4th Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Apple’s Addendum: Unless you are a liberal organization that encrypts or hides things that cannot be read or found.
You're wrong. There is a doubt. While the iPhone was in the FBI's hands, they had full access to it and changed the I.D., thereby covering up whatever information they had accessed. The FBI may or may not already know what data is in the phone, so there is a doubt as to any crime. Going after Apple is nothing more than a scam perpetuated by the FBI on the public.
“Wrong, there is a lawful warrant that Apple does not want to obey.”
No there isn’t. A search warrant gives the government the right to seize the phone, and to search it. A search warrant cannot order someone do it for them.
For example, you have a safe in your house. The FBI gets a warrant to search it. You cannot be forced to hand over a front door key, lock up your dogs, and give them the combo. The safe company cannot be ordered to come crack the combination.
The FBI can show up with saws, drills, cutting torches, and Vinnie the safecracker.
But no, search warrants do not compel anyone to do the work for them. A warrant allows the government to do it.
Frankly, as our government lips into authoritarianism, I am glad for a method to communicate they cannot get into.
“Put Cook in jail and we will see how long it takes to drill. You are siding with criminals, why”
Obama is grateful to you. And we are siding with freedom. You are siding with a domestic spying police state with no limits.
Completely incorrect. There is no authority for the government to do anything in any amendment of the Constitution. The only thing the Constitution does is put a clear boundary around the laws that Congress (and now the States) make. Congress can make a law to require Apple to put back doors in all their devices. As long as Congress puts some flowery 4th amendment language into that law, it should pass Constitutional muster. But in this case there is no such law.
I would recommend that you challenge a court order that is not based in law. Your point that there are better chances for Cook than for the rest of us is sort of true, except you are ignoring the fact that lots of lawyers would jump at the chance to take a case like this court order to the Supreme court pro bono.
“But I don’t think you’d like living in a world of ineffective courts that can’t compel evidence.”
Actually yes, yes I would. Compelled evidence. wow, you aren’t even aware that this is bad. And the 4th amendment doesn’t mean the government can access every data point out there. Would you also forbid shredders? I mean, what if the government wants all of your papers and you quickly shred them?
Yeah, the matter of the writ is different, it’s very deep though IMO. Courts have inherent powers but they’re limited by law and usage.
IMO law will have to require the ability to open encryption without the cooperation of the owner.
With strong encryption how does the court access the data in an investigation of the owner’s death or say for administrative purposes such as executing a will, when the owner isn’t even alive to open it?
Yeah, it’s the owner’s fault for not keeping the password stored safely somewhere but it’s a very common human fault.
But, obviously there’s a lot to consider.
“Apple’s Addendum: Unless you are a liberal organization that encrypts or hides things that cannot be read or found.”
Bullcrap. The founders were well aware that secret codes and cyphers existed. They did not forbid their use, and they never had the idea that the creator could be forced to decipher it for them.
I agree.
Treating the use of encryption as the same as destroying evidence with a shedder is one possible solution.
But it doesn’t address the situation where the owner is deceased.
So you would also make it illegal to routinely shred documents? Nuts. And a deceased owner has no worry for me.
I prefer encryption the government cannot get into. I am also in favor of me shredding what I wish.
Your childlike faith in the government is almost inspiring.....almost.
The original order gave Apple time to respond if they believed compliance would be unreasonably burdensome. That is exactly what Apple did.
It is illegal to destroy evidence.
Of course in your world without courts it doesn’t matter.
The Stasi was the secret police in East Germany. They were widely thought of us the post invasive government ever when it came to domestic spying. They collected between 900 million and a billion pages of data on its people. Tis was across its 40 year existence.
Your government already collects the unencrypted amount equivalent to the entire library of congress every 14 seconds. It collects the equivalent to the entire 40 years of the Stasi (literally: State Security) every 2 days.
There has never been a society in all of human history that has collected more data on its own people.
And they are -still- claiming they cannot possibly keep us safe without even more. Its ridiculous on its very face to claim that. The founders weren’t fighting for safety.
You are aware than many many people routinely burn and shred all kinds of papers? So isn’t that destroying evidence the government might want some day?
How can he be in contempt? He is challenging the order in court and a hearing is scheduled this month.
I might not be the sharpest knife in the drawer when it comes to the law, but to my non-legal mind it would appear as if the legal process is moving forward.
Am I to understand anyone using available legal options to fight a court order is in contempt? Are we no longer free to exhaust whatever legal remedies are available?
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