Apple vs. FBI: who's right? What should be done?

[Aimless]

Brief summary: The FBI and the DoJ want Apple to help them access the contents of the iPhone that was in the possession of one of the terrorists who perpetrated the San Bernardino attack. Specifically (afaict) what they want is for Apple to install a digitally signed update on the phone that will let the FBI brute-force the pin-code without the phone clearing all the data. The FBI assures us that this solution would only let them access the contents of that specific phone and could not be used to access any other locked and encrypted iPhone. Apple seems to believe otherwise. Apple has stated that they could perhaps have helped the FBI by forcing the phone to sync to iCloud and then turned over that data (as they did with older data from that account), following a court order. However, it turns out that the day after the phone was confiscated, the phone's owner--the employer of one of the terrorists--somehow managed to change the ID associated with that iCloud account, making that solution impossible. According to the employer, they did this "in cooperation" with the FBI, which may imply that the FBI is responsible for this situation either due to a fuckup or possibly due to a deliberate decision to compel Apple to provide them with a backdoor that may be adapted to a general-purpose solution.

Anyway, who's right and about what? What should be done?

[Ominous Gamer]

, the phone's owner--the employer of one of the terrorists--somehow managed to change the ID associated with that iCloud account,

The county government owned the phone, and they reset the icloud password at the direction of the FBI. By doing this the phone will no longer sync with icloud (but also cant be remotely wiped), so the most recent information on the phone is what the FBI can't get. icloud info they already got (hint hint).

As for your final question, Apple and everything. FBI needs to find a different track to follow.

[GGT]

I think Apple is "more right" than the FBI. And for those who pose this as a privacy vs national security problem, I'd say it's more like a governmental surveillance problem.

[Hazir]

FBI this is clearly a national security problem.

[Being]

Why don't the FBI just raid room 641A? It's got all the metadata.

[Dreadnaught]

I'm sympathetic to both sides. The FBI feels they need to wiretap to prevent crime/terrorism. And they are right. Then again this isn't quiiite a wiretap, because people can use these devices to store information locally and encrypt it. And it's totally silly/dangerous to force security backdoors into these devices. I think the FBI is right to pursue the information and Apple is right to defend it.

[RandBlade]

Apple. Big Brother has its limits. A bank door to security voids the security and would get in the hands of criminals too.

[RandBlade]

Looks like Apple have found a golden bullet constitutional argument to try and win the case with. Computer code is speech, determined in courts in the nineties, so this would be a violation of the first amendment protections on freedom of speech.

Ethically and constitutionally right in my eyes. Can see this going to SCOTUS.

[Aimless]

Interesting, are there really no terrorism-related exceptions that permit the govt to compel speech?

[Hazir]

Interesting, are there really no terrorism-related exceptions that permit the govt to compel speech?

How is preparing for a terrorist attack merely 'speech'?

[LittleFuzzy]

Interesting, are there really no terrorism-related exceptions that permit the govt to compel speech?

When it comes to cooperating with police in an investigation the right to remain silent applies even if you're not a suspect. A subpoena could still be issued requiring testimony under oath before a court of law, to which someone would have rights like the 5th amendment protection against self-incrimination but could be forced to testify of be held in contempt or possibly even face obstruction of justice charges, but both of those are predicated on how much leeway the judge is willing to grant the police and generally they don't care for being used as a substitute for the police's own investigation efforts. Obstruction of justice can be very broad but at the same time that basically means it can be applied only so far as the judge's patience with the DA and police allow it. And since Apple is a corporate entity, things can get sticky. But for now, the first stage has been reached and there is a court order compelling their cooperation which is what Apple is fighting.

And while the Courts are willing to consider code to be speech, in this case it is also production. I don't think the government can compel that in police investigation. They could hire someone to do it though. I think it would be wholly legal to compel them to hand over all design documentation and similar work for the government to give someone else they've hired to create the lawful crack in aid of an ongoing police investigation. But I kinda think it's more likely that it will get kicked on technical grounds, either because the judge doesn't feel competent to decide the issue or just really doesn't want to get involved in the whole can of worms. Since this crack is made necessary solely because of their "misstep" that prevented Apple from using that iCloud workaround a judge could easily rule that this situation is of the FBI's creation and it is unreasonable to compel Apple to fix their mistake for them. That leaves open the question of whether this can be compelled when the FBI don't screw up but that likely won't hit the same judge's docket so s/he has no reason to care.

[Ominous Gamer]

How is preparing for a terrorist attack merely 'speech'?

One quick note, this was his work phone. He destroyed his personal phone. The local police department already admitted that there is likely nothing of importance on his work phone that wouldn't have been in the last icloud backup. The FBI wants this phone cracked because it would allow them to crack all other current iphones that much easier.

[Hazir]

One quick note, this was his work phone. He destroyed his personal phone. The local police department already admitted that there is likely nothing of importance on his work phone that wouldn't have been in the last icloud backup. The FBI wants this phone cracked because it would allow them to crack all other current iphones that much easier.

That would an opinion. It is obviously not my opinion. It also does not answer my question as to how terrorism is free speech.

And reading the rest of the post after that; why are we talking about self-incrimination rules? Are we expecting a court case against the dead terrorists? Is Apple suspected of complicity in the San Bernardino attack?

[LittleFuzzy]

Because defining the negative areas where testimony can't be compelled was way faster and easier than trying to provide all the areas where it can be compelled. But thanks for demonstrating just how you're intending to approach this.

[Ominous Gamer]

It also does not answer my question as to how terrorism is free speech.

Because there is no suggestion yet that the phone was used to encourage or carry out terrorism. In fact the police have already made statements that the phone likely isn't connected to terrorism.

[Aimless]

It also does not answer my question as to how terrorism is free speech.

And reading the rest of the post after that; why are we talking about self-incrimination rules? Are we expecting a court case against the dead terrorists? Is Apple suspected of complicity in the San Bernardino attack?

Terrorism is not free speech. The discussion of both freedom of speech and the right to no incriminate oneself have to do with Apple's rights, not the dead terrorist's. Apple's statements about backdoors and security etc. are intended as justification (for the public) for their decision to invoke those rights rather than waiving then in the service of national curiosity security.

[Ominous Gamer]

Apple Doesn't Have to Help FBI in New York iPhone Case, Judge Says

U.S. Magistrate Judge James Orenstein said the FBI could not compel Apple to unlock the phone in the Brooklyn case, because Congress specifically considered and rejected a bill that would require companies like Apple to make the data on a locked iPhone available to law enforcement.

What the government could not achieve in Congress, the judge said, it cannot now get from the courts. "The relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it.

"It is also clear that the government has made the considered decision that it is better off securing such crypto-legislative authority from the courts," Orenstein said, "rather than taking the chance that open legislative debate might produce a result less to its liking."

Judge Orenstein also agreed with Apple's contention that what the government wanted in the Brooklyn drug dealer case was too much of a burden on the company, another argument the company makes in the San Bernardino case.

"The assistance the government seeks here — bypassing a security measure that Apple affirmatively markets to its customers — is not something that Apple would normally do in the conduct of its own business and is, at least now, plainly offensive to it," Orenstein wrote.

[GGT]

Apple Doesn't Have to Help FBI in New York iPhone Case, Judge Says

U.S. Magistrate Judge James Orenstein said the FBI could not compel Apple to unlock the phone in the Brooklyn case, because Congress specifically considered and rejected a bill that would require companies like Apple to make the data on a locked iPhone available to law enforcement.

What the government could not achieve in Congress, the judge said, it cannot now get from the courts. "The relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it.

"It is also clear that the government has made the considered decision that it is better off securing such crypto-legislative authority from the courts," Orenstein said, "rather than taking the chance that open legislative debate might produce a result less to its liking."

Judge Orenstein also agreed with Apple's contention that what the government wanted in the Brooklyn drug dealer case was too much of a burden on the company, another argument the company makes in the San Bernardino case.

"The assistance the government seeks here — bypassing a security measure that Apple affirmatively markets to its customers — is not something that Apple would normally do in the conduct of its own business and is, at least now, plainly offensive to it," Orenstein wrote.

In other words, congress needs to get is act together, and pass legislation that's clear to both IT creators, and its consumers.

[Ominous Gamer]

That would an opinion.

To that point, the New York City police commissioner, William J. Bratton, and the Manhattan district attorney, Cyrus R. Vance Jr., criticized Apple after it refused to comply with the court order and said that they currently possessed 175 iPhones that they could not unlock.

Charlie Rose recently interviewed Mr. Vance and asked if he would want access to all phones that were part of a criminal proceeding should the government prevail in the San Bernardino case.

Mr. Vance responded: “Absolutely right.”

Even people who oppose the Justice Department’s request concede the government made a smart first move, one that could establish precedent to justify more invasive tactics.

“They’ll come up with a reason why for every single phone,” said Chris Finan, a former White House security adviser who, while in government, said he opposed this tactic. But as a strategic matter, he said, “It’s tactically brilliant.”

Thats 175 phones, in one city, that are waiting for the FBI to win this case.

[RandBlade]

Clever to choose a terrorism case as the thin end of the wedge perhaps but this should indeed be a matter for Congress not the courts. If an override is to be created it should be created with protections in place following the legislative process.

[LittleFuzzy]

The issue isn't having an override created. As I said, the FBI could actually hire someone to break them into the phone and it would be completely legal. They already have the warrant giving them that access. This is about whether they can compel a company to give it to them, which is why I said that, regardless of speech (which can be compelled which is why that particular defense of Apples is offbase) I didn't think someone can be compelled to acts of creation. It's been pointed out to me though that both sides probably pushed this the way they have to put pressure on CONGRESS to finally create some legislative space. While OG's New York example is illustrative as far as it goes, it still leaves allowable procedure very undefined which doesn't make anyone happy.

[Ominous Gamer]

Congress tells FBI that forcing Apple to unlock iPhones is 'a fool's errand'

Congress showed it's willing to fight the FBI on encryption. Finally

[GGT]

......It's been pointed out to me though that both sides probably pushed this the way they have to put pressure on CONGRESS to finally create some legislative space. While OG's New York example is illustrative as far as it goes, it still leaves allowable procedure very undefined which doesn't make anyone happy.

CONGRESS is reluctant to legislate anything these days, let alone technology that lives in ethereal clouds of computer code. One of these days, not too far in the future, when self-driving cars have passengers 'driving' big smart-phones, and black-hat hackers are the new terrorists.....everyone will be asking why CONGRESS didn't write better rules.

[LittleFuzzy]

CONGRESS is reluctant to legislate anything these days, let alone technology that lives in ethereal clouds of computer code. One of these days, not too far in the future, when self-driving cars have passengers 'driving' big smart-phones, and black-hat hackers are the new terrorists.....everyone will be asking why CONGRESS didn't write better rules.

People are always going to be wondering that, even if Congress wasn't reluctant to legislate (though I agree it is). Many people, definitely including you, love to blame the government for the unknown and unforseen once you have 20/20 hindsight.

[GGT]

People are always going to be wondering that, even if Congress wasn't reluctant to legislate (though I agree it is). Many people, definitely including you, love to blame the government for the unknown and unforseen once you have 20/20 hindsight.

The second part of the OP is "what should be done?" I'm saying that Congress needs to act, because it's their job to legislate. Yeah, that means they have to anticipate certain problems, even if that means acting on 20/20 hindsight they don't have yet.

Projecting into the future isn't as difficult as it seems: using past lessons, it's clear that "industry" has been able to persuade legislators that they don't know what they're doing, because they're not experts in the field. Therefore, only the "experts" can know what's going on, and since teh gummint doesn't pay enough to attract the "experts", it's no wonder that private corporations like Google or Apple or Microsoft are up against the FBI (or any other government agency).

As a private citizen, who cares about privacy rights....I don't think my service providers and governmental agencies are on the same page. Do you?

[Ominous Gamer]

One quick note, this was his work phone. He destroyed his personal phone. The local police department already admitted that there is likely nothing of importance on his work phone that wouldn't have been in the last icloud backup.

Called it
Source: Nothing significant found on San Bernardino iPhone so far

[ar81]

Apple, FBI to clash again in Congress over encryption
http://www.reuters.com/article/us-ap...-idUSKCN0XB2RU
Earlier this week, two U.S. senators released draft legislation that would empower courts to order technology companies to hand over data "in an intelligible format," even if encryption has rendered that data inaccessible to anyone other than the owner.

Now the battle moved towards encryption. One government wants the keys to all phones in the world. What if other governments ask for the keys too?

Microsoft sues DOJ over snooping citizens' emails
http://www.usatoday.com/story/tech/n...data/83030642/
Microsoft has sued the Justice Department in a fresh effort to prevent the government from rifling through users' personal emails or documents without their knowledge. "We believe that with rare exceptions, consumers and businesses have a right to know when the government accesses their emails or records," Microsoft president and chief legal officer Brad Smith wrote in a blog post. "Yet it’s becoming routine for the U.S. government to issue orders that require email providers to keep these types of legal demands secret. We believe that this goes too far and we are asking the courts to address the situation."

Was it "investigation" or just opening people's letter envelopes to snoop? The danger is that industrial espionage could come by bribing corrupt police officers.

Here an interesting video on encryption.