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You are here: MacNN Forums > News > Mac News > Apple tells court Constitution 'forbids' FBI compliance

Apple tells court Constitution 'forbids' FBI compliance
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NewsPoster
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Feb 25, 2016, 05:14 PM
 
Apple has now presented a legal response that officially challenges the Department of Justice over its demands that the company creates access to an iPhone sized as part of the San Bernardino workplace violence case, which the FBI has consistently characterized as a "terrorist" incident -- a move critics say is really the agency leveraging the tragedy in an effort to weaken privacy laws, and which Apple's attorney's called "forbidden" by the Fourth Amendment of the US Constitution.

"This is not a case about one isolated iPhone," begins the 65-page document. It sets out to establish Apple's perspective that the government's demands mean nothing short of creating "a back door to defeat the encryption on the iPhone, making its users' most confidential and personal information vulnerable to hackers, identity thieves, hostile foreign agents, and unwarranted government surveillance."



Apple's position is that the All Writs Act which the FBI quotes as the centerpiece of its court case "does not give the district court a roving commission" to allow the undermining of security. "In fact, no court has ever authorized what the government now seeks, no law supports such unlimited and sweeping use of the judicial process, and the Constitution forbids it."

As well as submitting the legal response, Apple spoke with journalists about its position, and said that what was being asked for is tantamount to creating "a government OS," an iPhone operating system designed for Department of Justice access, and that doing so would require the company to build an "FBI forensics lab" along with other "burdensome" requirements, which sets the stage for the government's request to fail the various "tests" that courts, including the Supreme Court, have established for the last-resort nature of the All Writs Act.

MacNN has a copy of the legal response and is examining it. Apple has consistently said that the case involves fundamental rights of privacy and security that are constitutionally protected, whereas the FBI maintains that it wants Apple to unlock a single iPhone involved in a mass-shooting incident -- a claim that has been somewhat undermined by various government officials admitting that if the FBI prevails, it will create an opportunity for routine court requests for smartphone access for other, less-serious cases or investigations.

Motion to Vacate Brief and Supporting Declarations by ESTAnightshift

( Last edited by NewsPoster; Feb 25, 2016 at 07:16 PM. )
     
GeoBeach
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Feb 25, 2016, 05:27 PM
 
Grateful that Apple's legal eagles are on the case and that they have replied to the court's instructions. Sounds good for Apple, and we can also happily dismiss the NYTimes' arguments and scattered reporting about the case. We still have to keep an eye out on them of course, as they claim to be the newspaper of record. (ha ha ha).
     
Dandgar
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Feb 25, 2016, 05:41 PM
 
I agree totally with Tim Cook's position on this, but your depiction of the mass-murder event is insulting and absurd: "which the FBI has consistently characterized as a 'terrorist' incident."

"Characterized" as terrorist? Seriously? Do you think this helps to sway readers your direction?
     
Charles Martin
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Feb 25, 2016, 06:26 PM
 
The FBI has, in fact, recently changed its original position and has started characterizing the attack as a terrorist incident -- even though the available evidence suggests it was a more-common workplace gun massacre from a disgruntled employee. Not mentioned in this article, but widely reported by us and many others, is that Farook was an employee of the SBCHD, had disputes with co-workers, only had intentions to attack his workplace, and -- according to the FBI -- did not have any actual connections to terror groups, or worked with co-conspirators, or fit the profile of a what one normally thinks of as a terrorist (except in the broader sense that all people who are mass shooters intend to cause terror).

Thus, we feel the wording of the sentence you are questioning -- which is, in context, talking about what various critics (other than us) have said about the FBI's motives -- is completely accurate based on available evidence.
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Flying Meat
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Feb 25, 2016, 06:36 PM
 
There is very good reason to point out "which the FBI has consistently characterized as a 'terrorist' incident."
That characterization is not applied to all mass shootings. The FBI has already said they were not connected/acting for/with a terrorist group. Yet they continue to "consistently characterize" it as such.
It is an important point to bring up.

It is of course possible to be a terrorist without being affiliated with, or directed by a terrorist organization, but what is the reason other mass shootings aren't terrorist incidents?

Current thinking is that the FBI is holding on to that characterization as an emotional tool to bolster their demands.
     
Inkling
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Feb 25, 2016, 07:30 PM
 
If principle like privacy are involved, why isn't Apple taking a stand against spying on its citizens by China's single-party, communist dictatorship? Note this from QZ.com:

The state-run People's Daily is trumpeting a big win by the Chinese internet czar Lu Wei: While there was no other information available on the paper's website, the tweet echoes a report in the Beijing News (link in Chinese) that Apple chief executive Tim Cook informed Lu last month that Apple would let China's State Internet Information Office conduct "security checks" on all products that it sells on the mainland. China has been concerned that Apple devices like the iPhone enable the company—or worse, US intelligence agencies—to spy on Chinese citizens.

http://qz.com/332059/apple-is-reportedly-giving-the-chinese-government-access-to-its-devices-for-a-security-assessment/

------

What do those "security checks" mean? There's speculation it means access to the iOS and OS X source code. I quote again:

What would "security checks" entail? Apple hasn't provided any information on the matter and did not respond to requests for comment. But analysts said the most likely interpretation is that the company is giving Beijing access to its operating system source code in return for being able to continue to do business in China—arguably Apple's most important market, but one that has been imperiled by regulatory obstacles.

"Handing over source code [would] mean that the Chinese government will know exactly how an Apple software works," said Percy Alpha, a pseudonymous founder of the anti-censorship group GreatFire.org.

Inside knowledge would make it much easier for the Chinese government to find bugs and vulnerabilities in Apple's products, he said, and "the government can then exploit such vulnerabilities to hack iPhone or MacBooks."

-----

Ask yourself which is a greater threat to your privacy:

1. Apple providing the FBI with passcode access to a single iPhone in the custody of law enforcement and used by a terrorist who's already killed many people. That's what this dispute about. Anything else is speculation about what courts might or might not permit.

2. China's repressive government seeing the source code to iOS and OS X, which might allow it to discover a backdoor into both operating systems that even Apple doesn't know about. That would give it access to virtually every iPhone, iPad and Mac on the planet.

I don't about you, but I find that latter not only infinitely more frightening, I find Apple's willingness to cooperate with China but not the FBI absolutely terrifying.

It does appear that the only conceivable reason for Apple refusing to cooperate with #1 but willingly and covertly cooperating with #2 is that this is all about money. Privacy be damned.

Apple could clear this matter up by making public precisely what its agreements with the Chinese government entail.
Author of Untangling Tolkien and Chesterton on War and Peace
     
Mike Wuerthele
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Feb 25, 2016, 07:35 PM
 
I think they already did, I remember reading something about this from Cook in an interview. I'll check more in depth a bit later. There's the continuing statement about governments never having access to Apple servers now, or ever, but that may not be relevant. A more clear public statement would be good, yes, and I suspect that in the hearings, that something will be said about it.

Also, even if they did, source code isn't the same as encryption keys (which is in the QZ article, but you left that part out). China possibly being able to do something isn't the same as the FBI having something in-hand that it makes Apple build.

Your point #1 is misrepresenting the situation. It is little more than a workplace shooting, and the FBI has said so. The FBI has lied about this being the only device they want access to, as there is a list of 12 different court cases involving the FBI and DOJ that they want access to an assortment of iPhones. Also remember, that Apple has already handed over all the data that they have, including emails, and the previous iCloud backup from the phones, so it's not like they're refusing to provide what they have.

I utterly disagree that this is only about money, but I think you know that.
( Last edited by Mike Wuerthele; Feb 25, 2016 at 07:46 PM. )
     
Charles Martin
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Feb 25, 2016, 08:25 PM
 
Not that Inkling will read this, but whatever China has or doesn't have (and to put it mildly, his sources are suspect), it would definitely demand much, much more -- as will all other countries -- if the FBI prevails in this case. As has been reported recently, China recently backed off a number of security demands in negotiations with trade partners in large part because it was reassured that the US government or other entities did not have any greater access to Apple's encryption than it did.

If America -- "land of the free" -- decides to compromise security and privacy, then those concepts are finished worldwide. A right, if taken by force, can be restored; a right surrendered willingly will never return.
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Flying Meat
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Feb 25, 2016, 08:52 PM
 
"What do those "security checks" mean? There's speculation..."
What else you got?

"Anything else is speculation about what courts might or might not permit."
So it's not okay. Got it.
Though we do have enough evidence and historical examples of our very own government officials and courts going overboard, to further even counter-productive agenda. It almost seems like the goal is to create China here in the US.

Point #1: "used by a terrorist"
How are you making the determination of terrorism? What is the criteria you are using?
I'm not saying you're wrong, as it's been suggested that one does not have to be directly affiliated with, or act on the orders of a terrorist group, to commit an act of terrorism. But if you're criteria is just that someone said so, then there are a bunch of incidents that went unrecognized as such.

Point #2: China could do it, but the FBI doesn't have the same ability? Hmmm.
     
chimaera
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Feb 25, 2016, 09:19 PM
 
I see nothing wrong with source-code security audits. I'd be in favor of Apple & everyone else publishing all critical security code, so everyone can look for bugs. Not just China, which might not kick bugs back for fixing.
     
Charles Martin
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Feb 25, 2016, 10:26 PM
 
Chimaera: you (and to a lesser extent Inkling) raise an interesting point about the difference between security code audits, the ostensible point of which is to look for flaws or areas that could be improved, and sharing sensitive technology with other countries. Source-code audits could also be used to teach countries that the US wishes to have a technological advantage over (translation: everyone) how to match or even surpass that technology. Is there a line to be drawn, and if so, where is it?

That is where the education and discussion that is fostered via in-depth coverage can prove enlightening and helpful.
Charles Martin
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chimaera
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Feb 25, 2016, 10:45 PM
 
Charles, I only called for publishing all critical security source code.

Just finished reading Apple's motion. In my non-lawyer opinion, a very good read. The only thing that bothered me was Apple referring to the criminals as "terrorists". Doing so implicitly validates the government keyword, which lacks a fixed definition.

I'd have called them what they are: murderers.
     
Charles Martin
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Feb 26, 2016, 03:15 AM
 
Originally Posted by chimaera View Post
I'd have called them what they are: murderers.
I suppose it is fair to say "it's complicated." There is evidence that they were "on the path" to becoming terrorists and held "radicalized" views.

But you're not going to bring down America by attacking a banquet of fellow employees at your workplace. If the gunmen hadn't been Islamists, this story wouldn't have even made the national news quite frankly -- workplace massacres happen fairly routinely in the US (as opposed to *anywhere* else), and it is only the conversion Farook and Malik appear to have been undergoing to supporting ISIS that allows the FBI the cover it needs to call them "terrorists."

Needless to say, I agree with you that Apple is making a terminology error there, but it has been maintaining a steadfast anti-terrorism position all during this case, since a significant portion of the public will not appreciate the distinction between a mass-killer who murders people he worked with and a terrorist attacking America with the intend to destroy it. Given the company's position, and how easily its words could be taken out of context -- they're probably right to cede that term to the FBI.
Charles Martin
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sgs123
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Feb 29, 2016, 10:58 AM
 
One thing worth noting about security checks: a hallmark of good security code is that it can be completely open source because it must be mathematically impossible* to decrypt the data without the private keys.

Similarly, how the keys are protected is open to audit, to show that they can't be leaked to the wrong parties.

*impossible in this context means more expensive to break than the value of the data it protects.
     
   
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