FBI says NY judge went too far in ruling the FBI went too far in forcing Apple to unlock iPhone The US Department of Justice has appealed a decision by a New York judge to refuse the FBI access to an iPhone: one part in a wider legal battle between law enforcement and Apple. The New York case is separate from the San Bernardino case in California, over which Apple and the FBI have been very publicly fighting. However the …
"It also argues – as it has done in the San Bernardino case – that the request is device-specific and so does not constitute blanket approval for the FBI to break into any iPhone."
So, two quite unique but surprisingly similar cases.
I'm sure the New York office had misread the instructions. Their case was intended as the second slice of salami when they'd got the result they wanted in San Bernadino. They've given away the game plan.
They've given away the game plan.
I think we can be glad that FBI leadership appears to have a large ego problem, trying to hit the big players first. If they had used patent troll tactics by hitting smaller setups first they would already have a boatload of precedent by now which would have made it harder for a judge to say no, a creeping death approach.
It's much harder to stop this if it's not black and white but 50 dodgy shades of grey because it becomes hard for judges to decide where to draw the line. Now it is a binary decision, rather appropriate in context :).
As far as I can see, it is all crap anyway... they appear to have been doing it for a long while...
http://www.bbc.co.uk/news/technology-35753973
"Federal prosecutors cited several examples in which Apple has extracted data from a locked device under the law. Apple argues that it has opposed requests to help extract information from more than a dozen iPhones since being invited to challenge the government's use of the 1789 All Writs Act by Judge Orenstein in October last year."
Set a precedent, my arse. This is all about public image.
You G-men and your loud plaid suites and machine guns in violin cases, kicking down doors with your spats all white and shiny, I thought by now you would know that all criminals are easily identifiable, they all have names like 'Bullets Maloney' 'Sharky the shark' 'Windy the window cleaner' etc. I know it's been hard, but since the 20's and 30's criminals don't look like Edward G or Humphry B. I'm sure you could try Police work to crack this case wide open,.
See Ma! I'm on top of the World.....
The FBI argues that Orenstein looked at the question too broadly and focused on possible future abuse rather than the actual case he was considering. And then effectively accuses him of overreach by saying his ruling "goes far afield of the circumstances of this case and sets forth an unprecedented limitation on federal courts' authority.
That argument would seem to be self defeating: the first part says that it is only about this one individual device (case) and pretends no precedent would be set. The second part is a concern that a precedent has been set (albeit the opposite one to the one they wanted) by a judgment in the same particular case.
The problem is it probably requires Apple to abuse their signing keys, so what you have then is court-sanctioned CA abuse on record - there's no situation where it'll end at this one phone or even at Apple; or even in the US.
Next week it's they want to get into somebody's Windows desktop or a cert created by Globalsign that looks remarkably like a gmail cert so they can backdoor somebody's email. Slippery slope doesn't do that justice, indeed it could (or rather should) bring down the entire economic system. That's the FBI and the courts not doing their job.
Fuck all law enforcement. Encrypt everything.
No to the first, yes to the latter. I would have no problem with this at all if there was some control over these sort of powers. I understand that law enforcement needs to do its job, but its job is not to run roughshod over people's rights and to rewrite the law. If new powers are required, this requires a democratic decision by the right mechanisms in government - NOT by the FBI trying to set precedent through the backdoor - and such powers require EXTREME accountability and transparency. The whole "National Security" nudge, nudge, wink, wink game has gone too far already.
An opaque government agency asking for more powers is a recipe for abuse, and it's not like that isn't happening already. I'm sick and tired of hearing the terrorist/paedophile meme every time they don't get free and unfettered walk-in access to something. As far as I can see, after all they have been given already (money as well as far reaching powers), nothing much has improved.
In an ideal world I'd start to review ALL these powers and budgets and start slashing a bit to get this back to a size that is manageable and re-introduce some accountability into this show as it's clearly careering out of control. Unfortunately, they probably hold dirt on everyone by now so I suspect a correction is becoming more and more impossible.
"... the San Bernardino phone belonged to mass killer Syed Farook ..."
I gather that the San Bernardino phone technically belonged to the former employer of Syed Farook and that they are happy for the FBI to try and break the encryption.
Those appear to be important differences between the cases, but IANAL ...
Who owns the phone and whether they are OK with breaking into it is irrelevant for whether the court should be able to order Apple to do something when they are blameless for either the mass shooting in one case or drug dealing in the other.
The All Writs Act, if interpreted the way the FBI wants, would seem to allow them to compel any business to give them anything they want if they can argue it will help with the prosecution of a case. Maybe the NYPD wants the Mandarin Oriental to give them a block of suites to help them in a sting operation. Maybe they want Chase Manhattan to give them a $1 billion credit line. Why is forcing Apple to produce a special build of iOS OK but those things will remain out of bounds?
Look at the RICO laws, which were passed on the promise they would only ever be used to help prosecute the Mafia, since existing laws didn't do a good job of handling it. Now they are used for all sorts of things totally unrelated to the Mafia, which is only a tiny percentage of overall RICO cases. Give them an inch, they'll take a mile. That judge was quite correct to be worried about handing them that sort of power from the All Writs Act.
Smartphones have been relatively common for about 10 years or so. If they are so critical to solving crimes how were any crimes solved say about 25 - 30 years ago? It seems as if the feral donut-eaters have forgotten that they occasionally need to get out of Dunkin Donuts (or local equivalent) and do some real work. At least one judge thinks they are lazy, lying scum.
If smartphones represent little more than shortcuts to finding forensic data than what is the big deal about encryption in the first place?
Mind you I think that you may well be the first person I have seen that has suggested that the FBI's requests be declined as part of a weight loss program.
@John H Woods - There is no contradiction involved. Asking for specific access to a specific device does *not* set a legal precedent for establishing access to all devices for any purpose. aiui in the US the court can even make this explicit in their ruling.
But being denied access to a specific device for a specific purposes does potentially establish a precedent for future requests relating to other, different but specific devices to also be denied.
On the point that Apple cannot be compelled to assist because they are not complicit in the alleged crimes, this frankly beggars belief.
How is this any different from a warrant for telephone records or financial records where the telephone company or accountant are not complicit - nor alleged to be complicit - in any alleged wrong doing or financial malfeasance ?
And yet telephone and financial records are seized under court orders - legally - ALL THE TIME, without anyone complaining that this poses a threat to the privacy of you or I or anyone else going about their lawful business.
"How is this any different from a warrant for telephone records or financial records where the telephone company or accountant are not complicit - nor alleged to be complicit - in any alleged wrong doing or financial malfeasance ?" -- Deltics
If it were no different, the All Writs Act would not have had to have been invoked because Apple would be in contempt of court for not complying with a warrant.
"How is this any different from a warrant for telephone records or financial records where the telephone company or accountant are not complicit - nor alleged to be complicit - in any alleged wrong doing or financial malfeasance ?"
You're seriously asking how a warrant for records that a company does possess is different from a warrant for records that a company does not possess and that is designed to force them, against their will, to create something that they do not want to create in order to access data they do not own?
When the Director of the FBI has said in testimpony to a Committee of Congress that it WILL set a precident please explain how you came to that glorious conclusion.
US Lawyers (90% of whom are scumbags who only want to get into Politics) love quoting precident. It is a foundation/cornerstone of their legal system.
Once the lid to pandoras box or as in this case, the iPhone has been decrypted then the flood gates will open and Apple and Google and anyone who uses PGP or bitlocker or anything else do encrypt anything will be open to being forced to let the Feds see what is inside and there will be nothing you can do about it.
IANAL but frankly sir, I think you are talking out of your arse.
IANAL but frankly sir, I think you are talking out of your arse
I need some help translating this into words that management won't immediately catch on to. Vox rectal, does that work, as in "That's clearly vox rectal"?
I could also do this with euphemisms as in "That's spoken with very bad breath" but that's a bit too long.
Anyone game? :)
...between a judge setting a precedent on privacy and raising a Constitutional question or the FBI setting a precedent for privacy invasion and possibly a Constitutional crisis, I know which one I'd be in favor of.
Unless there's some reasonable lockdown on the methodology, including a tweaked OS, and strong judicial oversight and limits placed on this, there's a lot of room for surveillance on an even more massive scale. I hope that both cases end up in the Supreme Court.
So the FBI tries to convince a judge that it will limit his power by deciding against them: "... and sets forth an unprecedented limitation on federal courts' authority." I would say that the court is doing exactly what it is supposed to do.
As for the FBI "just this one time" argument, it is similar to a teenage boy saying "I will just put it in this once... and just a little bit."
"The New York case was addressed by FBI director James Comey at a Congressional hearing on the Apple case last week, where he acknowledged that the FBI had lost. He tried to play down its importance by suggesting it was just one fight in a much larger battle."
Right, so they aren't trying to set a precedent and this is all about each specific case, on its merits and they are entirely unrelated. But it's just one fight in a larger battle.
And what is that battle, director?
Reading his submitted statement, I see this:
"The core question is this: Once all of the requirements and safeguards of the laws and the Constitution have been met, are we comfortable with technical design decisions that result in barriers to obtaining evidence of a crime?"
Fair enough, but one can also approach it from the other side:
"Are we comfortable outlawing technical design descisions aimed at providing privacy for individuals on the the basis that this may form a barrier to obtaining evidence of a crime, thus weakening the security for millions of innocent citizens in order to more potentially obtain data that may be useful in a handful of cases involving a tiny fraction of the population?"
Because that's what they are saying - they want the ability to restrict the level of security and privacy available to everyone on the justification that it has the side effect of making it more difficult for them to get some data on some tiny subset of people.
I think it's worth taking a look at the All Writs Act here.
"(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction."
That's it.
Hoooly shit, seriously? That's like the Pope's Divine Cheat Code Chair, only this applies to actual fucking law! If the court puts it into writing, it happens? Seriously?
That's an absurd interpretation. I mean, what, could the court issue a writ declaring in no uncertain terms that waterboarding does not constitute punishment which is either cruel or unusual, and thus allow for everyone to be waterboarded until they confess?
That's an absurd interpretation. I mean, what, could the court issue a writ declaring in no uncertain terms that waterboarding does not constitute punishment which is either cruel or unusual, and thus allow for everyone to be waterboarded until they confess?
I think they have until it became *politically* unacceptable to maintain this.
"Hoooly shit, seriously? That's like the Pope's Divine Cheat Code Chair, only this applies to actual fucking law! If the court puts it into writing, it happens? Seriously?" --- ShadowDragon8685
Whilst I largely agree with your amusing take on this, there are two mitigating circumstances preventing it becoming a tool for draconian imposition of arbitrary burdens:
(a) the caveats, in the Act itself, of "necessary or appropriate" and "agreeable to the usages and principles of law"
(b) a 1977 Supreme Court Ruling that "... the power of federal courts to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed"
... that there is zero relevant information on that iPhone - I read that the Feds found several smartphones at the couples residence that had been smashed prior to their awful rampage, & that the iPhone was one supplied to Farook by the San Bernadino Public service agency he worked at. It just doesn't follow that he would use THAT phone to communicate with any terrorist cell or handler.
For some reason, sadly, I keep being reminded of the awful 'Enabling' act passed into law by a certain National Socialist party all those years ago.
While I agree, I think these arguments distract from Apple's position and make it appear one is saying "well it would be OK if they knew there was stuff on this phone, but because we there is good reason to believe there's nothing on it they shouldn't force Apple to do it". They shouldn't be able to order Apple to do this even if they had evidence there was important data on the phone! The precedent would still be set!
The pro-FBI crowd only wants to focus on "what if they find something of value that saves lives - by standing in the way Apple could cost lives etc. etc." They ignore the lives that might be cost if this precedent is set. It isn't like the law enforcement world is free of corruption. Arresting someone on made up charges or with planted evidence, and getting a judge to issue a court order to force Apple to unlock a phone could result in the death of a witness against police taking bribes or someone who takes video of an unjustified police shooting.
Some innocent people may die as a result of terrorism or other criminal activity if the ruling goes Apple's way but other innocent people may die if the ruling goes the FBI's way and a precedent is set that adds this capability to law enforcement's toolbag. No one should be under any illusion this is a one sided deal where lives are lost only if Apple prevails.
It's not just that. I mean, it IS that, but it's not JUST that.
What worries me isn't just the legal precedent. In fact, that may be less frightening to me than the TECHNOLOGICAL precedent. Once you make something like a custom iOS version just to get into ONE phone, you can get into ALL of them.
There's no way to make a version of the OS that "only works on this guy's phone," the way the court ordered. Computer programs just do not work like that, not unless the OS version somehow exploits a unique physical property of THAT phone. Otherwise, even if they put in code that tells the custom OS version "only work on phone with serial number #XXXXXXXXXX," it's just a matter of changing it to "only work on phone with serial number #XXXXXXXXXY" to get into Joe Blow's phone. Or just stripping out that code altogether to make it work on every Jane Doe's phone.
They're talking about making a software WEAPON, and the thing is that unlike a physical weapon, a software weapon can be reproduced, again and again, without practical limitation.
The FBI need to get it through that they're not asking a locksmith to crack a safe. They're trying to get a court order to compel a locksmith to crack EVERY safe, with a tool that can be reproduced endlessly if it gets into the hands of just one bad guy.
iOS software is cryptographically signed by Apple, it is impossible to change the code after Apple signs it. If they make it so it only runs on one specific phone by checking the serial number, it is guaranteed it will only ever run on that one specific phone.
The problem is that this won't be the only request the FBI and other law enforcement agencies make. The NYPD alone has 173 phones they say they will ask Apple to unlock using the FBI's argument if the FBI prevails. There would be thousands of requests per year just in the US alone, it isn't feasible to create a custom iOS for each one when you start receiving a dozen new requests every day. That's before you add the rest of the world, whom Apple will have little excuse to avoid cooperating with when they're cooperating with US law enforcement.
How can a government have the right to order a company to do work for them? I can understand if it were the case that Apple had this feature and version of iOS ready and working and the government were demanding access to that ready made tool, but if it doesn't exist, how can they be forced to do work for them?
Surely that on its own would be a form of slavery?
There's supposed to be limitations on what can be required under the All Writs Act to prevent "unreasonable" work, or some other vague word which they're arguing doesn't conflict with this. More likely they'll run afoul of a supreme court decision I heard about, that writing code is covered by the first amendment, as requiring them to write code they disagree with would be, under this ruling, roughly equivalent to ordering people to declare their opinion to be X when they actually think Y, something the government isn't able to do
"It also argues – as it has done in the San Bernardino case – that the request is device-specific and so does not constitute blanket approval for the FBI to break into any iPhone"
Well, yes, and no. Each case may be about one physical device. But the precedent is being attempted that a court order is all that's required to access any one device. And given the number of judges is the US there's going to be * A L O T * of requests to access one device, and some of those might not yet have committed a crime.
That's absolutely the case. Let's not be under any illusion that the spy agencies don't have this capability (or if they don't, it's their fault and not ours,) but the problem with THAT is that spy agencies don't have to worry about domestic law, because they don't have a mandate to spy on U.S. citizens. It would be hilariously illegal for them to do so, in fact, which is why the NSA hasn't just taken this guy's phone and done whatever spooky shit to it they do.
Because the FBI want it as part of an ongoing domestic criminal case, and if they cracked it extrajudicially, such as by having the NSA crack it, any information gathered therefrom would fall under the Fruit of the Poisonous Tree doctrine, and be hilariously inadmissible in court, as would any evidence gathered, otherwise-legitimately, which they were clued into from this phone.
So they're trying to set a precedent that says they can force Apple to just crack the phone for them with a court order. Because that would have been "legally" done, meaning that any evidence so gathered would be admissible.
I'm just waiting for someone to try dragging up that case of the paedophile who had child porn on his laptop and the cop shut the laptop, causing it lock, and the guy simply refused to tell them the password to unlock it.
They're going to scream "But without this kind of legal crowbar, this guy can abuse children! Is that what you want? THINK OF THE CHILDREN!"
You know what?
Yes.
I would rather let one paedophile abuse children than set a legal precedent that weakens security and privacy for ALL OF HUMANITY. It's called choosing the lesser of two evils. Get out there and do some actual fucking police work and nail the paedo to the wall (cock-first, preferably,) another way, stop getting tiny little authoritarian-boners at the idea of being able to crack into and read everybody's electronic everything. You managed to nail paedophiles, and terrorists, and all those other good crims before now, so get back to it.
Have Apple made more recent iPhones so that they simply cannot be forcibly unlocked? In other words, programming them so that they require the unlock code to be entered before they will reload the operating system?
If they haven't, are they going to?
If they aren't, I wonder what is the point of all the legal manouverings?
I expect that they will do so. In the name of preventing this from happening (at least, this way,) again, Apple will proudly announce that their new phones don't do ANYTHING if they haven't been unlocked, and quite possibly have built-in routines designed to monitor for signs of external tampering and wipe if the phone believes that someone is trying to sneak something like that in.
Because Obama is in favor of them being such dicks? He's surrendered to the law enforcement crowd on this one, so he can press forward with police shooting reform on the other hand and not have every intelligence or justice department briefing at the White House start with "Well, if you'd stop tying our hands on encryption".
The issue in the NY judgement is simply that the FBI have presented an interpretation of the all writs act which permits them to require a third party to do anything that they want as long as the purpose of the action is to aid the FBI in their statutory duty. The magistrate has quite correctly responded by saying that if that is the correct interpretation of the all writs act then the all writs act is unconstitutional and therefore the courts should take a different interpretation or simply refuse on the basis that the all writs act is invalid.
It is that alternative interpretation that is rather difficult. Can you define a general scope definition for permitted writs that includes what the FBI is asking of Apple but excludes outrageous requirements like "Microsoft, we require a complete computer forensics package, please write one for us and hand it over (free of charge)". If the FBI wants to win then they will need to produce a formal justification why the software development work requested is a reasonable request and quite different from my outrageous suggestion above.
The key difference between this and a normal search warrant or subpoena is that it is a request to "do some work" rather than hand over some material evidence.
Usually you threaten someone when you say ".....now you've gone too far..."
Is it POSSIBLE that the FBI is threatening a judge? Does the FBI require a "Safe Space" and doesn't it sound like they're guilty of a micro aggression? I shudder to think that such an ENLIGHTENED Administration would be guilty of that.
As a US Citizen, I see this as a direct assault on our 5th Amendment Rights, that right of privacy and for invoking the privilege that allows a witness to decline to answer questions where the answers might incriminate him or her, and generally without having to suffer a penalty for asserting the privilege.
Not saying the shooter in San Bernadino was good chap - they clearly were not. But in most of these pending cases, the defendant was asked to provide a code to access their private telephone, and the declined.
In essence, the FBI is 1) Trying to force Apple to be party to said litigation against a person against their will (and they are creating the first limited backdoor, more powerful ones would follow once the legal precedent is set) and 2) attempting to bypass the fact the defendant already invoked their 5th Amendment right.
"Great, you want to plead the 5th? We will force someone else to break in to your phone and then use the information against you even after you have invoked your Constitutional right against self incrimination". Personally, I'm totally against the idea. Once this door is open, we shall lose all protection.
Ben Franklin said it best - "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." Still true to this day!
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