Encryption

Apple Slaps Down the FBI's Encryption Hail Mary Effort: 'The Founders Would Be Appalled'

Both sides will be back in court next week.

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Apple
Credit: Andrew* / photo on flickr

When the Department of Justice and Apple face off again in court next week over the effort to get access to San Bernardino terrorist Syed Farook's work iPhone, let's just say the lawyers may not be particularly friendly toward each other.

The Department of Justice, while trying to use the All Writs Act to get a judge to force Apple to create a software program to weaken the phone's security, took the extraordinary step of actually attacking Apple as part of the process, as though somehow Apple were endorsing criminal behavior by proxy.

Apple is getting the last word before Tuesday's court date with a final brief, which does not pull punches, either rhetorically or technically. It blasts the Justice Dept. for misreading (probably deliberately) the context of previous decisions invoking the All Writs Act (legislation intended for the courts to use to force compliance to legal orders in certain situations) and trying to get the courts to completely ignore both the consequences of conscripting a private company to produce software on demand, as well as the consequences of demanding a weakening of phone security because it may help (possibly, but maybe not) the government get useful information.

On the conscription front, Apple is both blunt and aghast and the potential consequences should the court accept the Justice Dept.'s arguments that they can order third parties to do anything the courts permit unless the law specifically says they cannot:

[A]ccording to the government, short of kidnapping or breaking an express law, the courts can order private parties to do virtually anything the Justice Department and FBI can dream up. The Founders would be appalled.

One wonders what might happen if the Apple loses the case, the judge orders Apple to develop the tool, but every time Apple assigns engineers to create the programming to allow the FBI to try to brute force the phones passcode, those engineers resign. Could the court still force those engineers to work on the project?

And as for the consequences of the development of the tools themselves, Apple is quick to point out the significant number of security and intelligence officials who understand how important strong encryption is to protecting citizens from criminals and hackers:

[T]he Justice Department and FBI are asking this Court to adopt their position even though numerous current and former national security and intelligence officials flatly disagree with them. See, e.g. … quoting Defense Secretary Ashton Carter: "[D]ata security, including encryption, is absolutely essential to us. . . . I'm not a believer in backdoors . . . .");  … U.S Safer with Fully Encrypted Phones, CNBC (Feb. 23, 2016)] (quoting former NSA and CIA Director Michael Hayden: "America is more secure—America is more safe—with unbreakable end-to-end encryption.")

The brief is chock full of technical references and analysis of previous court precedents that I won't get into, but you can read Apple's filing here. One rather unusual invocation in the brief: Toward the end, when making the case that the First Amendment forbids forcing Apple to write code on the government's behalf, Apple's lawyers use last year's Obergefell v. Hodges Supreme Court decision as a precedent. That was the decision that mandated same-sex marriage recognition. What on earth would gay marriage have to do with Apple's encryption? The majority decision, written by Justice Anthony Kennedy, drew heavily on the concept of "personal autonomy" in recognizing the right of gay couples to choose whether to marry. The Apple brief quotes briefly from the decision, stating that that "conscripting" Apple engineers to write code would violate "personal choices central to individual … autonomy."

While we can't be certain of what federal judge Sheri Pym will ultimately rule, her initial orders were written in such a way that she wanted to make certain that whatever Apple developed could only be used for Farook's iPhone and could not get out of Apple's control. So it's clear that she is not ignoring the larger issues that surround what the Justice Dept. is asking of her, as much as they want her to do so.

I will stick my neck out and make a prediction: Given that some in the Senate are attempting to draft legislation related to encryption authority and government access, I have a hard time picturing Pym agreeing to bypass that process with an authorization with such potentially far-reaching consequences. Apple also makes a very strong case that Congress thus far deliberately has not given the Department of Justice the authority to demand the kind of cooperation it is asking for. I predict she will vacate her order and not require Apple to cooperate, putting her in line with a judge's recent ruling in New York.

That doesn't mean the court battle is over. Whoever loses is most certainly going to appeal.

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109 responses to “Apple Slaps Down the FBI's Encryption Hail Mary Effort: 'The Founders Would Be Appalled'

  1. Apple Slaps Down the FBI’s Encryption Hail Mary Effort: ‘The Founders Would Be Appalled’

    Oh NOW dead slave-owning white guys are cool.

    /mild sarcasm.

    1. Why would you want to own a dead slave? Not going to get much work out of them.

      1. That “-” is important.

        1. You realize that if you get into the business of defending me, there’s no going back.

    2. Wouldn’t it be the current FBI white guys owning the slaves in this case?

  2. I will stick my neck out and make a prediction: Given that some in the Senate are attempting to draft legislation related to encryption authority and government access, I have a hard time picturing Pym agreeing to bypass that process with an authorization with such potentially far-reaching consequences.

    It aint rocket science, but its the right call.

    S.S. continues to be the best writer here. its all about having the balls to give voice to your common sense and your gut. and yes, i think that was a 3x mixed-metaphor there.

    1. He does put some effort into alt text.

      1. These masturbation euphemisms, i swear.

        1. oh, ok fine, … Welch *duh*…. that’s why he’s the boss.

            1. He’s more like the Godfather after he handed over the family to Michael.

      1. “…and thus is the cycle of life renewed.”

        If the contest is, “who churns out the most dedicated, doctrinaire libertarian theme music”, yes, Sullum wins. He’s been covering the drug war &… whatever else he covers for-evahhhh.

        I think Shacks the clown deserves the 6th Man award. Best man off the bench, capable of handing any story and reliably finding the libertoid angle. he has *instincts*. Ok, so he doesn’t have the roundhouse kicks of a radley balko, but that’s an unreasonably high-standard. Shacks is the future of this publication. He’s going have a knife fight with suderman at some point in a succession-crisis. I’ll make popcorn.

        1. HEY, LOOK AT THIS CRAZY KINKSTER HELICOPTER PARENTING ON A COLLEGE CAMPUS!

          1. Soave, on the other hand, may have to go back to the minor-leagues for a few seasons

            1. If he must, but the hair can stay.

              1. perhaps they can use it to mop up the oil-slick left behind by weigel.

        2. Best man off the bench, capable of handing any story and reliably finding the libertoid angle.

          Agreed. Shackford is by far my choice for “Reason’s best new writer”.

          “But Shackford isn’t new!”

          New enough. Especially when you’ve wasted as much time here as some of us have.

          1. The man’s name is “Scotty ‘Love Shack’ Shackford”. Get it right.

            1. +1 Rock lobster.

          2. I liked Two-Chilly and I like Harsanyi. But Two-Chilly has disappeared into the ether.

            1. He’d better be working on a new book.

              1. I think he decided working for Reason was too much like a real job.

  3. How does one’s ability to perform a given task come into this? For example, say a judge can order a locksmith to help the FBI crack a safe. But what if the locksmith then claims he doesn’t know how as an excuse for non-compliance. Can he be held in contempt? Does he have to prove that he doesn’t know how, or does the FBI have to prove that he does have the ability?

    1. What is the locksmith’s relationship to the safe? Is it his safe? Or did the court simply enlist the services of a locksmith? In either case, it would be unjust to force that guy to open the safe. One on 5th Amendment grounds, the other on the 13th.

      1. You have clearly forgotten the FYTW clause, which serves to negate the rest of the constitution and grants the government unlimited powers.

        1. That’s why I said it would be “unjust” for the courts to do that, not necessarily illegal. Since justice has nothing to do with our judicial system, except to act as a veneer to obscure the evil under the surface.

        2. If you have ever received or spent money, or performed services in in exchange for other goods or services, then the commerce clause applies to you.

          Penumbra, bitchez!

          1. If you have ever received or spent money, or performed services in in exchange for other goods or services, then the commerce clause applies to you.

            Or if you have ever not received or not spent money, or not performed services in exchange for other goods or services, then the commerce clause applies to you. Because your lack of action affects interstate commerce. A butterfly flapping it’s wings on Jupiter could be regulated by the fucking Commerce Clause.

            1. So you’re only safe if you’re operating outside the United States’ light cone?

              1. Rendering vast swathes of the already inhospitable universe, completely uninhabitable for libertarians.

              2. Though shalt not affect commerce within my historic light cone – or else.

      2. Of course it would be unjust. I’m just wondering how the legal system would handle such a scenario. And maybe the safe example was a bad one. Better would be a case that actually existed such as when a court order was used to force a phone company to assist the government in installing a device that would record all phone numbers dialed from a particular phone. What if the phone company had simply claimed they were incapable of providing that assistance for technical reasons?

        1. Well you already know the answer to that. Double jeopardy is explicitly prohibited by way of the Constitution, but federal (and state) prosecutors have no trouble engaging it and judges certainly don’t mind.

    2. A valid point. Technically proving such a thing would be impossible unless the order concerned an action that had already been done for someone else; but I’m sure they could come up with “proof” with a hearty dose of FYTW.

  4. When the Department of Justice and the Apple face off again in court next week over the effort to get access to San Bernardino terrorist Syed Farook’s work iPhone, let’s just say the lawyers may not be particularly friendly toward each other.

    This “court” you speak of, it’s a neutral court, right? It’s silly to think that, say, if the 49’ers were to agree to play the Dallas Cowboys in a “fair” game that they would agree to play in Arlington under the rules written by Jerry Jones and with the officiating crew being employees of the Dallas Cowboys, right?

    1. My favorite part of this whole analogy, is that the Dallas Cowboys are the bad guys. Good call.

  5. “her initial orders were written in such a way that she wanted to make certain that whatever Apple developed could only be used for Farook’s iPhone and could not get out of Apple’s control.”

    Hasn’t the FBI already admitted that they’d use a favorable decision as a precedent to force open any encryption they wish?

    1. Yes. It’s not about the technology, it’s about the power to compel compliance.

      1. (touches nose)

      2. Bingo. I wouldn’t be surprised if the FBI deliberately mishandled Farook’s phone, ensuring that it got locked down so that they could force this issue in a case where they would get maximum public support (domestic terror).

    2. Not to mention that such specificity is impossible.

      1. It seems to be the judge thinking she is being clever covering her ass out of her own profound ignorance or counting on same from casual observers.

        It is almost magical thinking that if a judge orders something it must be possible.

  6. OT: Jared Gets First Jail Yard Beatdown

    Fogle, 38, who is serving a 15-year sentence at the Englewood federal prison in Littleton, Colorado, after pleading guilty last year to child porn and sex-crime charges, received a bloody nose, swollen face and multiple scratches across his neck after the violent run-in on Jan. 29, according to prison documents obtained by the gossip site.

    I guess he’s not a virgin anymore

    1. in similar OT-ness….

      Apologies Never Win You Shit

      PYONGYANG, North Korea ? North Korea’s highest court sentenced an American tourist to 15 years in prison with hard labor for subversion on Wednesday, weeks after authorities presented him to media and he tearfully confessed that he had tried to steal a propaganda banner.

      Otto Warmbier, a University of Virginia undergraduate, was convicted and sentenced in a one-hour trial in North Korea’s Supreme Court.

      His full “confession” is pretty epic, if you haven’t seen it.

      1. What kind of a fucking idiot would want to go to North Korea? Enjoy your socialism, fucktard.

        1. In his case, I think he was just stupid, not socialist stupid.

        2. Not to mention all those tourists are providing a portion of the foreign currency necessary to prop up the regime.

        3. Wasn’t he handing out Bible(s) too? Pretty sure he would have known going in that’s not gonna fly.

          1. Well, Darwin Award candidate, then.

        4. I’m guessing a very religious person going on a mission or b: a hipster who thinks that if you’re ‘down’ with foreign cultures, they’ll think you’re cool too and you’ll get the golden ticket.

          1. Geez that webpage is from the Stone Age (aka 2004).

      2. *watches confession*

        Oscar material right there.

      3. to 15 years in prison with hard labor

        15 years in a hard labor camp in North Korea? That’s essentially a death sentence.

        1. Don’t worry. Dennis Rodman and Jimmy Carter will save him.

          1. Sadly i don’t think the same can be said for many undergraduate students being sentenced in similar mock trials around the country

      4. Wow — can’t tell if this dip is the most transparent kiss-ass I’ve ever seen, or possibly the most retarded super-troll. Either way, my guess would be that his sentence had more to do with so thoroughly insulting the intelligence of everyone in the hearing room.

        1. More likely, I think, they tortured the fuck out of him until he was ready to say whatever they wanted. I doubt anyone at the hearing was at all surprised by anything he said.

    2. Ha, ha, ha! The judicial system is so fucked up that they can’t even keep a high-profile prisoner safe from being beaten by thugs in their own goddamn cages that they own and operate and staff with employees armed with badges and guns – but it gives me an opportunity to make a joke about “foot longs” so it’s cool!

  7. It’ll be nice when this is decided in Apple’s favor. However, like a defeated school referendum, the issue will just keep coming back until power eventually gets what it wants — not all at once, but even more completely, all told. And, few people will really be aware of it, since the main effect of this current fight will be to serve as a reminder to the govt that it should avoid, as much as possible, pursuing these things in the public eye.

    1. It won’t be long before encryption will be literally beyond Apple’s control, including retry limits and timeouts. It won’t even matter if Apple loses this case, but if it stalls it long enough, so much the better.

      1. Yep – bet you next apple update will wipe the phone if a new OS build is flashed while the device is encrypted

  8. Did Apple roll out the involuntary servitude argument? It would be interesting to see if the government could order a corporation to do something that it could not order an individual to do. In some contexts (namely, the 1A), we already know that it can’t, after all.

    1. It seems there’s less and less the govt cannot order an individual to do given a large enough “national social-welfare” problem that needs solving. Why not go the roundabout way and create a 95% tax on corporate profits for companies not providing govt backdoors to their encryption? What would stop that approach?

      1. What would stop that approach?

        Certainly not the court of John “Penaltax” Roberts.

        1. Hey, we elected them. Roberts is just respecting the will of the people.

    2. Beyond that, just how would they order it be done bug-free? Were I an engineer who’d be likely to be on the team tasked with this work, I’d have spent the past few weeks figuring out a way to subvert the fix such that it bricked the phone upon update, but in a way that appeared from the outside, to be a normal glitch. Now say that I’m successful in this; would the FBI then demand Apple to hand over the modified code, in order to try and prove that the malfunction was produced purposefully? I’m sure they’d want to, but on what basis? And how would they prove motive, if they did? Because, bugs happen, and apparently even at this moment, it is possible to brick (at least temporarily) an iphone by doing something as seemingly-harmless as setting the date to May 1970 or earlier. How many other such obscure bugs are known, internally, that I could take advantage of, in order to prevent the FBI getting what it wants?

      But of course, we know full well it’s not the data on this phone they are really after.

    3. The draft is legal. They can order an individual to do absolutely anything and violate any of their constitutional rights as long as they first inform them that they are now in the Army.

  9. 2 stories that don’t involve Trump in a row. You’re getting soft.

      1. Old “Cinemax After Dark” movies?

      2. These masturbation euphemisms are getting pretty abstract.

    1. Ronald “pussy hands” Macdonald?

  10. If the judge rules the right way this time, I’m going to give her the benefit of the doubt the first time around.

    The original order was (IIRC) via an ex parte application process which gave Apple hardly any time to consider and oppose (essentially, Apple’s attorneys received a phone call from the DoJ, were (maybe) emailed a copy of the application, and given at most a couple days to research and respond before the hearing). The application was likely carefully crafted over weeks to make it seem like what the government was asking for was not really a big deal and Apple’s arguments were likely came across as hollow and not fleshed-out due to the time constraints. The judge granted the order without considering a full-throated opposition from Apple and likely not completely understanding what the FBI was asking for.

    The DoJ likely didn’t think Apple would react so strongly and publicly to the order. And they had no reason to: Apple has been generally cooperative with government investigators and somebody in the hallowed halls of the DoJ likely considered this to be a reasonable request.

    Anyways, that’s my take…

    1. If the judge rules the right way this time, I’m going to give her the benefit of the doubt the first time around.

      I would acknowledge she made a mistake and duly corrected it.

      Otherwise, she isn’t doing her fucking job and the FBI should just kick in the doors at Apple HQ and say, “I’m commandeering this engineering team to prevent terrorism!”

      The DoJ likely didn’t think Apple would react so strongly and publicly to the order.

      Which is, in-and-of-itself a pretty sick state of affairs. The fact that the FBI assumed they would walk off with an unlocked iPhone and only ‘got caught’ when Apple refused to cooperate is pretty messed up on lots of levels. Seriously, think about what you’re saying; between the FBI, a District Judge, and Tim Cook; Tim Cook is the legal/constitutional expert.

  11. What if the Apple engineers don’t resign but just refuse as individuals to do it?

  12. Man, the Apple Service Agreement is going to get even longer and more complicated. HUMANCENTiPAD indeed.

    1. Why don’t they just make it like the Social Contract we all signed? Endless, vague, applicable to anything and of course, not actually signed.

  13. Uh uh, Apple might lose their hipster, progressive base if they start sounding like a bunch of tea baggers. founding fathers. psshhh.

    1. It’s ironically sounding like teabaggers, so it’s cool.

    2. They didn’t specify which Founders they were talking about…

  14. When the Department of Justice and the Apple

    Thanks, gramps.

  15. “One wonders what might happen if the Apple loses the case, the judge orders Apple to develop the tool, but every time Apple assigns engineers to create the programming to allow the FBI to try to brute force the phones passcode, those engineers resign. Could the court still force those engineers to work on the project?”

    No it could not.

    That would be slavery and therefore a violation of the 13th Amendment.

    1. If that were to happen, the FBI will just do what it should have done in the first place, which is to task their own people with the job.

      Right now they are hoping to get it for free.

      1. task their own people with the job

        – which means that apple would have to deliver their OS source code to the FBI – you know they don’t want to do that either. Apple would then also be compelled at that point to sign the FBI modified OS with their signing key, effectively the ‘Apple seal of approval’ to install on any device the FBI deems appropriate. It would be a non-starter for Apple (and a massive liablility in non-US jurisdictions) to have a who-knows-what version of their OS floating around in the wide world

        1. You presume too much.

      2. Right now they are hoping to get it for free.

        No, I expect the FBI is happy to lose this. Think of the budget increase they’ll get.

        It’s the FBI lawyers that don’t want to lose because it’s just a game to them.

    2. That would be slavery and therefore a violation of the 13th Amendment.

      Nope. “Here’s $10 a day. Just like jury duty. Court order.”

    3. Just conscript them into the military. There is apparently an invisible provision of the 13th that says that is OK.

  16. Surprised there hasn’t been the obligatory atlas shrugged comment. I guess it’s not cool to talk about Ayn Rand anymore.

  17. Who are these “Founders” you people keep referring to?

  18. While we can’t be certain of what federal judge Sheri Pym will ultimately rule, her initial orders were written in such a way that she wanted to make certain that whatever Apple developed could only be used for Farook’s iPhone and could not get out of Apple’s control. So it’s clear that she is not ignoring the larger issues that surround what the Justice Dept. is asking of her, as much as they want her to do so.

    So, not maliciously anti-Constitutional, just *completely* ignorant of the general practice regarding legal precedence, the stacks of iPhones LEOs have in their possession waiting on this case, and the basic tenets of software engineering and mass production?

    Props for using her name and at least indicating that she might have *some* responsibility for this mess.

  19. If Apple iPhone security depends on not handing over source code to governments, then there is nothing to “weaken”. Even if Apple wins this case in the US, they are not going to win it internationally. Microsoft has already handed over source code to Windows to the Russian government, for example.

    The only way to safeguard privacy and have phones be secure is to build them that way from the ground up; they need to be secure even against compromise of the manufacturer or the network. Apple has failed to do that, which is why we are seeing this court case.

    1. It is secure from the ground up – assuming that the user has a strong enough encryption key – the weakness here is in the update mechanism – Apple made it so that only Apple can push updates to the phone (you have to trust somebody) – the FBI wants an update where security features are disabled. In the future Apple might be able to build it into the hardware where the user has to enter their password to unlock the upgrade mechanism (to guard against surrendering their signing authority), but that’s not a fix one can push via a SW update

      1. Apple could allow “updates from unknown source” and just specify in the EULA that doing so will void any warranty. If you want to jailbreak your phone for security purposes, then it’s really beyond Apple’s control at that point.

        1. Who pushes updates to the phone should be irrelevant to breaking its encryption. The fact that it is relevant to iOS is at the heart of the problem.

    2. The case isn’t about weakening encryption it’s about the government compelling a private interest to take action against itself and/or that it doesn’t want to take. Also, Apple’s obligation is not to keep encrypted/transmitted content a secret from anyone, anywhere, forever. It’s to provide you phone service and information security up to whatever contract you it’s customers expect. *If* the FBI/NSA cracked Syed’s phone on their own, Apple isn’t liable for whatever information you may be storing with them that *you* wanted to keep secret from the FBI/DOJ/NSA.

  20. One wonders what might happen if the Apple loses the case, the judge orders Apple to develop the tool,

    I’d expect Apple to contract the work out to an off-shore contractor.

    1. They could probably get something from the right group of Chinese or Russian hackers in a couple hours.

      1. Imagine the program Snowden would write.

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  22. I think Apple makes a strong argument for overreach of the statute, and so will probably prevail in this case (and appeals). But the author reads way too much into the judges prior order. I think it’s almost certain that the limiting provisions (code targeted to a single device, and remaining within Apple’s possession) were constructed by the FBI, and just reiterated by the judge. i.e., they represent the FBI trying to create facts that were most advantageous to them, vs. representing the judge trying to exert some level of protection.

    As for the constitutional arguments, there remains zero chance of those arguments succeeding. If they were valid, CALEA (and thousands of other laws and regulations) would be unconstitutional, also. i.e., if Congress were to decide to extend CALEA obligations to cover cases, nobody should expect the courts to intervene on constitutional grounds.

  23. I find myself on the outside, looking in via foggy windows. That said, it seems that the FBI is essentially trying to set a precedent, one which by the bye, should be left unset.

  24. —“One wonders what might happen if the Apple loses the case, the judge orders Apple to develop the tool, but every time Apple assigns engineers to create the programming to allow the FBI to try to brute force the phones passcode, those engineers resign. Could the court still force those engineers to work on the project?”

    It’s simpler than that. Just assign the least-productive, least-motivated, least-competent “engineers” and don’t manage them at all. And charge the government a buttload of money for the “effort”. So bill the engineers at $1000/hour, pay them $50/hour and let them do whatever they want. Put the millions of dollars in a “fuck the government” fund to be used to litigate anything the government tries to do.

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