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You are here: MacNN Forums > News > Mac News > Apple fires back at 'ridiculous' DOJ response

Apple fires back at 'ridiculous' DOJ response
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NewsPoster
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Mar 10, 2016, 10:10 PM
 
Apple Senior Vice President and General Counsel Bruce Sewell has commented on the government's formal response to Apple's brief in the San Bernardino case, where the FBI has demanded that the All Writs Act be used to compel Apple to develop software that will help the agency decrypt a work-issued iPhone 5c used by one of the gunmen in the December 2 workplace massacre. Sewell said that the harshly-worded response has "thrown all decorum to the winds," and that the Department of Justice's insinuations about Apple's motivations are "demeaning."

Contrary to the suggestion from the government -- which has been met with much lambasting from the press and public -- that Apple specifically moved to whole-disk strong encryption in iOS 8 a year and a half ago solely to hinder law-enforcement efforts, Sewell said that the company "adds security features to protect our customers from hackers and criminals" -- and that "to suggest otherwise is demeaning." The 48-page filing form the Department of Justice defends the use of the All Writs Act as necessary for law enforcement, and puts forth that the "larger debates before Congress" are a diversion planted by the iPhone maker, reiterating the FBI's now-retracted claim that the request is only about a single, isolated iPhone. The government says the company is defying the order to comply because "Apple desperately wants -- desperately needs -- this case not to be 'about one isolated iPhone.'"



Apple attorneys, including Sewell, met with the press to rebut the various claims in the DOJ's response, which was notable for particularly aggressive language that sought to portray Apple in the most negative light possible, insinuating that because Apple had supplied iPhone data to China in response to US legal requests (though the DOJ glossed over the fact that the US-issued lawful warrants were for iCloud data -- the same sort of data Apple has already provided the FBI voluntarily), its motivation in doing was to gain access to the the lucrative Chinese market.

The government further noted that Apple agreed, as part of its accommodations to Chinese authorities, to keep Chinese iCloud data stored on servers in China -- though it omitted the fact, pointed out by Apple attorneys, that the data kept there is encrypted, just as US data is, and that Chinese authorities do not have any access to it either, except through US legal processes. In the brief, Apple's dealings with China were strongly suggested to be purely for marketing purposes, amount to an attack on the company's patriotism, and -- probably inadvertently -- portraying the US government as demanding the same access to spy on citizens as it pretends the authoritarian regime in China has.

In the new filing, the government again claims that the request is "modest" and only applies to a single iPhone, despite these pronouncements -- originally made by FBI Director James Comey, who has been a long-time opponent of any sort of encryption on mobile devices at all -- have been walked back by the agency, with Comey admitting that if the tools requested by the FBI were built, it and other agencies would use them in most criminal cases involving seized smartphones (which already number in the thousands), and that the granting of the FBI's requests would "set a precedent."

"The tone of the brief reads like an indictment," said Sewell. "In 30 years of practice I don't think I've ever seen a brief that was intended to smear."

The DOJ filing also echoes an equally-spurious claim by Comey that because Apple has an excellent track record on security and protecting its core iOS code and electronic "signatures" needed to make the software run from reverse engineering, it would magically be able to do the same with any tool it developed to assist the FBI, despite how often the software would be likely to be used. It also claims that both developing the software, keeping it updated, using it regularly to fulfill law-enforcement requests, and protecting it from being misused either by the government or hackers and criminals would be a trivial effort that would not present a "burden" to the company, one of the key tests used to determine the scope of the All Writs Act.

Because Apple makes lots of money and has a total employee base of 100,000 workers, the government claims, it should easily be able to spare the millions it says it would need to fund the effort, and the engineers needed to stop their current job duties and work on the project. The government -- which has admitted under oath that it does not understand the full extent of what would be involved, and that it does not possess the knowledge to exploit any weaknesses in iOS to decrypt the iPhone itself -- claims that "to build the ordered software, no more than 10 employees would be required to work for no more than four weeks, perhaps as little as two weeks."

Critics have pointed out that 10 top iOS engineers could be as much as half the team responsible for the operating system, and that the government has simply made up its estimate of how long it would take to initially develop the system, test it, create an environment to secure it, and maintain it. Fred Cate, a law professor at Indiana University contacted by Ars Technica for its report on the brief, called the government's argument against the "burdensome" requirement "nonsensical."

"We don't measure the impact of privacy and security intrusions by how much effort they take, but rather by what their effects are," he said. "So if the government ordered a maintenance worker to open a spillway in a dam that results in flooding a city, we don't say it was okay because the worker just had to turn one lever." The DOJ also spent considerable time in the brief arguing that another test of the application of the All Writs Act -- that innocent third-parties not involved with the crime cannot be compelled to give assistance unless they are government-regulated public utilities -- does not apply in this case because Apple, by virtue of creating the secure operating system, is in effect a co-conspirator engaged in obstructing law enforcement, and that "utilities" argument is not really part of the various tests put on the use of the AWA by the Supreme Court in previous cases.



Sewell, responding to the strong language and criticism of Apple's daring to fight the order, called the brief "an unsupported, unsubstantiated effort to vilify Apple rather than confront the issues in the case," adding that "for the first time ever, we see an allegation that Apple has deliberately made changes to block law enforcement requests for access. This should be deeply offensive to everyone that reads it."

"We've all heard Director Comey and Attorney General Lynch thank Apple for its consistent help in working with law enforcement," said Sewell. "Director Comey's own statement…that there are no demons here? We certainly wouldn't conclude it from this brief. In 30 years of practice, I don't think I've ever seen a legal brief that was more intended to smear the other side with false accusations and innuendo, and less intended to focus on the real merits of the case."

"To do this in a brief before a magistrate judge just shows the desperation that the Department of Justice now feels. We would never respond [in a court filing] in kind," Sewell continued, "But imagine Apple asking a court whether the FBI could be trusted because, 'there is this real question about whether J. Edgar Hoover ordered the assassination of Kennedy. See ConspiracyTheory.com as our supporting evidence' ... the FBI should be helping to support us in this, because it keeps everyone safe. To suggest otherwise is demeaning. It cheapens the debate, and it tries the mask the real and serious issues.

"I can only conclude that the DoJ is so desperate at this point that it has thrown all decorum to the winds," he added. After noting that Apple works extensively and regularly with law enforcement, and that there are "great people" at the DOJ and FBI and "we work shoulder to shoulder with them all the time," Sewell said that "we help when we're asked to. We're honest about what we can and can't do ... that's why this cheap shot brief surprises us so much. Let's at least treat one another with respect and get this case before the American people in a responsible way."

In the brief, the government also protested Apple's claim that it's Constitutional rights were being violated, since it posits that code is speech, and it is being compelled to make a pro-government form of speech. The DOJ's response to this amounts to claiming that because the tool it would force Apple to create would be secret and under Apple's control, the First Amendment claim doesn't apply because the "speech" would be private. Apple attorneys in the press call made short work of this, saying that even private poetry or diary entries, never intended to be seen by the public, are still protected by the First Amendment, which does not qualify that only certain types of speech are protected.

Apple General Counsel Sewell testifies before Congress
Apple General Counsel Sewell testifies before Congress


"These are great developments that reflect the critical role that iPhones typically play in their users' lives, collecting, storing, and transmitting personal, often sensitive, information involving health, finance, political opinions, intimate relationships," Sewell noted. "Both the market and security experts have applauded Apple's efforts to make the iPhone more secure. Now the government is trying to force Apple actively to compromise that security -- in effect, to undo the progress on security of the past decade.

"It doesn't seem to matter whether we characterize Apple as a 'bystander' or as the manufacturer of the phone and author of its operating system, the government is still demanding the same thing, and the impact on users is still the same," he said. "We are going to court to exercise our legal rights. Everyone should beware, because it seems like disagreeing with the Department of Justice means you must be evil and anti-American. Nothing could be further from the truth."

Apple will file a formal reply to the government's brief by March 15. The hearing of oral arguments on whether Magistrate Judge Sherie Pym's order will stand or be rescinded will commence on March 22.
( Last edited by NewsPoster; Mar 10, 2016 at 11:37 PM. )
     
packlad
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Mar 11, 2016, 01:28 PM
 
"the December 2 workplace massacre."

Yes, just like that September 11 high casualty incident. At least we know it didn't involve a conservative. Macnn would've put that into the headline.
     
Charles Martin
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Mar 11, 2016, 02:05 PM
 
packlad: do you have some evidence that it was anything other than what we described? While (as explained numerous times in our other coverage) the two gunmen were sympathetic to terrorist groups like IS, the FBI has already said the two were NOT members, were NOT affiliated with such groups, did not coordinate the attacks with anyone, and had no co-conspirators.

They were, however, employees of the San Bernardino County Health Department, their target. The iPhone 5c at the center of this controversy was a work-issued iPhone.

In the sense that anyone who commits gun violence is a terrorist, they were terrorists. In the usual sense of the term, however, they were not. The FBI is using the term to try and gain extra-Constitutional powers. As a conservative, you should be extremely alarmed by this.

You don't take down the US government by shooting up your workplace office Christmas party. That just makes you a mass murderer.

Thanks for the opportunity to clear this up for you.
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Mike Wuerthele
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Mar 11, 2016, 03:24 PM
 
Originally Posted by packlad View Post
"the December 2 workplace massacre."

Yes, just like that September 11 high casualty incident. At least we know it didn't involve a conservative. Macnn would've put that into the headline.
You think we're all liberals? Not by a long shot. We do, however, call a duck, a duck.
     
packlad
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Mar 11, 2016, 03:37 PM
 
"In the usual sense of the term, however, they were not (terrorists)." Seriously what you smoking over there? In every sense of the word they are terrorists. They stockpiled guns, built bombs, and planned an attack not for monetary gain or to avenge any known personal grievances against the targets but for maximum possible carnage and terror. That by itself should settle this. We don't even have to get into the attackers pledged loyalty to an extremist group the US is currently engaged with. Or that Enrique Marquez Jr. has already been indicted as a co-conspirator contrary to your claim they "did not coordinate the attacks with anyone, and had no co-conspirators."

The FBI has designated this a terrorist attack. The President has called this a terrorist attack. By your uniquely bizarre criteria the Oklahoma City and Boston marathon bombings were just hooligan activity. Heck, shooting up restaurants and theaters couldn't "take down the government" as you insist for qualification so apparently what happened in Paris was also just French people being extra rude.

And since you want fall back on technicalities to bail you out it should be noted none of the victims or the attackers actually worked at the place of the San Bernadino massacre.
     
Mike Wuerthele
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Mar 11, 2016, 03:44 PM
 
Ignoring complaints about what the shooting by the pair is called, and getting back on track to the entire point of the discussion -- what do you want Apple to do, and how do you reconcile it against the Constitution, and the needs of the US as a whole, Packlad?
     
HappySlug
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Mar 11, 2016, 04:21 PM
 
The core issue has nothing to do with whether the perpetrators were 'terrorists' or your average mass murderers. The Constitution doesn't have an appendix of exceptions to the various rights laid out in it. The FBI is just talking up the 'terrorist' side of this to try and bring emotion into what is a strictly legal issue.
     
packlad
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Mar 11, 2016, 10:09 PM
 
" The FBI is just talking up the 'terrorist' side of this to try and bring emotion into what is a strictly legal issue."

And Macnn is clearly working in the opposite direction. The San Bernadino massacre was a terrorist attack. We all know this. Stop calling it a workplace event in repeated articles. Stop creating fluctuating and unique criteria for a terrorist designation. Stop trying to deflect and make this a gun violence issue. I challenge anyone to find other legitimate news sites referring to the attack in that manner since mid-December. People naturally hold terrorist attacks as more serious than "common" crimes. But that shouldn't affect our opinions of the overall issue, so just call it what it is.

Either you believe a company shouldn't be forced create a hack into their own products for use (and almost certain abuse) by government agencies or you believe a company should follow the rule of law and a valid court-approved order (here comes FISA) to assist in opening a criminal's information device. It shouldn't matter what the underlying crime was. A small-time pot dealer's phone with possible supplier information, a sex traffickers phone that may lead to the rescue of victims, or a terrorist device with info on a certain imminent attack are all the same in this regard. Once the security seal is broken it will cover everything.

If macnn wants to hold itself above a common tech blog and give each other fancy Managing Editor titles then they should work under basic journalist standards.
     
chimaera
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Mar 11, 2016, 10:34 PM
 
... so just call it what it is.
MacNN has been calling it what it is. After extended planning and preparation, the murderers shot up fellow employees in their department. They committed suicide-by-cop a few hours later. There was plenty of time in between to shoot random members of the public, five hours of time. If they had planned terror attacks, it would have happened.

It was a disgruntled-worker going postal, along with wife. The religion they associated with was not relevant, because the entire target was workplace-related.
     
Mike Wuerthele
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Mar 11, 2016, 11:06 PM
 
Originally Posted by packlad View Post
" The FBI is just talking up the 'terrorist' side of this to try and bring emotion into what is a strictly legal issue."

And Macnn is clearly working in the opposite direction. The San Bernadino massacre was a terrorist attack. We all know this. Stop calling it a workplace event in repeated articles. Stop creating fluctuating and unique criteria for a terrorist designation. Stop trying to deflect and make this a gun violence issue. I challenge anyone to find other legitimate news sites referring to the attack in that manner since mid-December. People naturally hold terrorist attacks as more serious than "common" crimes. But that shouldn't affect our opinions of the overall issue, so just call it what it is.

Either you believe a company shouldn't be forced create a hack into their own products for use (and almost certain abuse) by government agencies or you believe a company should follow the rule of law and a valid court-approved order (here comes FISA) to assist in opening a criminal's information device. It shouldn't matter what the underlying crime was. A small-time pot dealer's phone with possible supplier information, a sex traffickers phone that may lead to the rescue of victims, or a terrorist device with info on a certain imminent attack are all the same in this regard. Once the security seal is broken it will cover everything.

If macnn wants to hold itself above a common tech blog and give each other fancy Managing Editor titles then they should work under basic journalist standards.
Just because you don't think we're working under basic journalist standards, doesn't mean we aren't. I'm continuing to be civil, despite your attacks, and this isn't the first time you've taken something personally. So, tone it down a notch, don't put words in our mouth, as we aren't making this a gun issue, and lets talk.

The FBI called it a workplace shooting, before they changed what they wanted to call it for this court order. You can call it what you want, and we'll call it what we want, and it doesn't change, like you said, what they want Apple to do about it. You're getting annoyed about how we've classified something, but we aren't the ones making court filings about it, and we aren't going to be called to testify. Like you, we get to have opinions on the matter, and we've made ours clear in two editorial posts about it, and in non-editorial posts (regardless if you don't like the word choice).

However, you didn't answer the question that we've already answered. What do you want Apple to do?
( Last edited by Mike Wuerthele; Mar 11, 2016 at 11:22 PM. )
     
Inkling
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Mar 14, 2016, 07:22 PM
 
Apple still hasn't learned what it should have learned from it's twice-failed price-fixing lawsuit. Bashing judges, the DOJ, or the FBI may feel good and it may play well with Mac fans, but it irritates those in government, particularly judges, who take their dignity seriously. Apple lawyers haven't even shown much sense in their choice of a place to take their stand. It's a company phone, so the company has every right to give permission to break into it. And you can squabble until the cows come home over the motivation. It remains a multiple murder and thus a crime to be taken seriously.
Author of Untangling Tolkien and Chesterton on War and Peace
     
   
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