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.
Three months past the crime is only because of Apple’s refusal to comply. Like someone who kills their parents asking the court for mercy because they are an orphan.
We are dealing with murderers here, dead murderers at that who have no privacy rights anyway yet you defend them? But you choose to attack me instead because of your indefensible position.
LE needs the info to prevent possible future crimes, they have probable cause and have gone to court, ducks are in order, we will see what happens.
“The proper conclusion is the opposite...”
Yeah, his ignorance of the tech was displayed- epically.
I find the ‘legal’ writings on this issue poor on technical knowledge, and the ‘technical’ writing poor on legal understanding.
And those with knowledge of both too specialized to see the big picture.
However the NY judge wrote an admirable opinion and I look forward to the same from the Calif. judge.
I think the NSA could crack this phone with a little work, but chooses not to do so simply so the FBI can expand its power.
Above all, the problem here is caused by a failure to secure the borders against Islamist infiltration, and to clean out Muslims who are tied to terror. And I am sick to death of having both my dignity and liberties insulted and constricted because the government prefers to treat Americans as criminals and foreigners as privileged.
You've more than proved my contention you are not a lawyer. You bluster and keep obfuscating the issues and never address the very issues we bring up, nor do you have a grasp of the facts in this case at all. You do not exhibit a lawyer's mindset at all. Not one bit.
We are not talking at all about late and certainly not lamented Farouk's and Malik's privacy rights one even tiny little bit, but rather the rights of the users of the over ONE BILLION iOS devices around the world who are relying on the absolute security of those devices to do banking, use ApplePay, keep financial records, do online purchases with credit and debit cards all with complete confidence, security, and knowledge that their data and identities are safely locked behind an unbreakable wall. Some of those users are living in countries where their own governments would KILL them because of the mere religious opinions they may have expressed privately in the records on their phones or the secure iMessaging system! That is the privacy we are concerned about.
You ignore the completely LEGAL defenses to the court order we have raised and say our position is indefensible, but a Federal Magistrate Judge in New York just ruled in Apple's favor in a case using an All Writs Act Court Order to unlock an iPhone in which Apple argued on those very points of law. The Judge agreed it was UNLAWFUL for the court to use the All Writs Act, or for the FBI to even request the order due to CALEA, and found the court (his own) had erred in issuing an unconstitutional court order, on separation of powers grounds. Seeing as how you may be rusty on law, that's a case law precedent!
No, you are just pulling made-up "facturds" out of your rear now. The FBI went to court on a Friday afternoon, February 19th, with their proposed court order in hand and got Federal Magistrate Judge Sheri Pym to sign off on it without Apple's knowledge. . . while Apple was still working with the authorities. They held a Press Conference to announce the Court Order!
The San Bernardino terrorist attack took place 78 days before the FBI bothered to get that court order. Had they thought there was such a "time is of the essence" goldurn RUSH to get into it, they would not have waited more than 2 ½ months to do it, or waited until late Friday, just before a weekend, when no action could be taken either!
Judge Pym accepted the FBI's proposed language, thinking it of such no consequence, it was signed by her clerk with a rubber stamp!
“Trump on the rise in Ohio. Watch for Rubio to drop out tomorrow. Just sayin’.”
Sure you’re on the right website Kenny? FR stands for the rule of law, not the rule of government expediency. You might be more comfortable over at DU.
” I think Apple, like anyone else, has to comply with a court order, but I may be wrong.”
I don’t think any court order that violates the Constitution will be upheld. In this instance, the FBI is just bull$hitting some idiot judge. I have seen several legal scholars on TV who are saying the Apple will win the day just as the analysis of this post postulates.
Fine. Be the first to step up and surrender access your SSN, bank access codes, credit card security, etc. to our dictatorial government.
But keep this in mind: courts have ZERO RIGHT to dictate and enact law.
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In fairness to the NSA, they were not asked for assistance, because if they'd cracked into the phone the FBI wouldn't be able to use it in an attempt to set a powergrabbing precedent.
Given the obvious conclusion that all the crime-related stuff was on those phones, not the iPhone, I don't even see how the warrant was issued in the first place.
Since Apple did not comply it looks like they are going to have to hand over their entire operating system. Then the NSA and other Feds and Gov’t contractors can figure out how to retrieve what they want. Saying that Apple won’t hack its own phone so it will forced to hand over its OS so that others can. A real cluster for the Cupertino foam party bois and only a few court decisions away.
Developing!
The top NSA geeks can crack that iphone within a week. The FBI will take a year or so depending on what outside contractors they bring in. The in-house expertise is not there..
What bothers me the most is that a lot of the anti-terrorism laws put into place are now being routinely used to "supercharge" ordinary criminal offenses by Americans.
So any crisis is used by our government not to address the crisis itself, but as an opportunity to put the screws to the American population.
Of course, that's because the government views us as the primary threat to their own power, not al Qaeda or ISIS. We're also a lot easier to grab because we don't fight back.
The TSA is one of the finest examples of habituation to despotism put into practice I've ever seen: even the old commissars would be amazed.
The iPhone 5C in question was found in the possession of the terrorists at the time of their deaths, in the back seat of the Lexus SUV. There may not even be a requirement for a search warrant as it was found at a crime scene, and the owner of the iPhone, the San Bernardino County Department of Public Health, has voluntarily given permission open it and to get anything they want off it.
The FBI has already admitted it "doesn't expect to find anything" on the iPhone. They say it's just about "doing their due diligence" and "checking everything" and "leaving no stone unturned". This is the same organization that left everything in the Terrorists' apartment unsecured and unguarded, including things I would have expected to have been seized, and then let the press go through it photographing everything they wanted, corrupting the site, taking thing if they chose, leaving things, touching things, etc.
Trust Baron Dennis von Münchhausen to come up with the bass-awkward conclusion. The FBI is making an empty threat. The courts have no power to any such hand-over. That WOULD be an over-reach to end all over-reaches.
Be careful what you wish for here.
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