Congressional Agency Questions Legality of Wiretaps

[Apollo]

I still don't see the problem with Apple being compelled to unlock a phone they don't own. I keep hearing "What if a house was locked and the authorities needed access but couldn't unlock the door? Could they compel the lock-maker to open the door?" Sure, why not? As long as it is being done as part of a criminal investigation and there's a court order, why would this worry anyone?

There is no right to privacy in the Constitution, and even if there was, would it hold up in the face of a criminal investigation? For example, we have freedom of speech, but courts are constantly putting individuals under gag orders for legal reasons.

I DO think that this case is very interesting in that it seems to cut across party lines and political philosophies. I've seen both Liberals and Conservatives take strong stances on both sides of this issue.

EDIT: I would also like to add that Apple intentionally built these phones to be uncrackable, even by the authorities. If authorities had been able to use regular means to crack the phone, none of this would have happened. It's like building a new gun that has no serial number and leaves no identifiable traces on the bullets. Of course there's going to be a problem down the road! Is Apple really surprised this is happening, or was this all just a stunt to gain favor with Government haters everywhere?

[RunningMn9]

Should Apple have intentionally built their phones to be crackable? What would be the predictable outcome of that?

[Apollo]

Should Apple have intentionally built their phones to be crackable? What would be the predictable outcome of that?

It would be like every other mainstream electronic device then, wouldn't it? And what's wrong with that?

Don't get me wrong: I don't claim to have all the answers and maybe one of you guys will present facts that will change my mind. I'm certainly not set in stone on this issue. But I already feel that corporations are far too powerful and the idea that they should have the right to defy our legal system, especially in a case involving terrorism, is just insane, IMHO. THAT is the slippery slope I fear.

[RunningMn9]

Other mainstream devices that are sold with an expectation of security are intentionally designed to be crackable? If they are, then what expectation of security could there be?

Why does it matter that they are a corporation? If the cops showed up to my front door with a warrant telling me to write them some software, I'd defy it too.

[Anonymous Bosch]

Put it this way: If suspicion alone is sufficient to violate the Fifth Amendment rights of U.S. citizens without trial regarding travel (e.g. the No-Fly List), then it’s certainly enough to give bureaucrats reason to utilise the kind of malware they expect from Apple and its contemporaries against citizens they suspect. Better safe than sorry, right? If you're niave enough to believe that could never happen without a warrant, bear in mind that the government is no stranger to warrantless spying. Just ask the NSA, which engaged in warrantless surveillance from at least 2001 to 2007.

As the old aphorism goes, if someone has abusable power, we ought to expect them to abuse that power. The government is certainly no exception and, if anything, has repeatedly proven that to be the rule. The most crucial aspect of Apple’s resistance is its refusal to set a precedent. That a corporation or business could be court-ordered to create a product that specifically caters to the needs of government entities would be a massive overreach that would undoubtedly get abused for years to come.

[stessier]

I still don't see the problem with Apple being compelled to unlock a phone they don't own. I keep hearing "What if a house was locked and the authorities needed access but couldn't unlock the door? Could they compel the lock-maker to open the door?" Sure, why not? As long as it is being done as part of a criminal investigation and there's a court order, why would this worry anyone?

There is no right to privacy in the Constitution, and even if there was, would it hold up in the face of a criminal investigation? For example, we have freedom of speech, but courts are constantly putting individuals under gag orders for legal reasons.

I DO think that this case is very interesting in that it seems to cut across party lines and political philosophies. I've seen both Liberals and Conservatives take strong stances on both sides of this issue.

EDIT: I would also like to add that Apple intentionally built these phones to be uncrackable, even by the authorities. If authorities had been able to use regular means to crack the phone, none of this would have happened. It's like building a new gun that has no serial number and leaves no identifiable traces on the bullets. Of course there's going to be a problem down the road! Is Apple really surprised this is happening, or was this all just a stunt to gain favor with Government haters everywhere?

There is no Right for the State to be able to get into everything either. To think there is starts down a very dark road.

[Isgrimnur]

Wiki

Application of the All Writs Act requires the fulfillment of four conditions:

• The absence of alternative remedies — the All Writs Act is only applicable when other judicial tools are not available.
• An independent basis for jurisdiction — the AWA authorizes writs in aid of jurisdiction, but does not in itself create federal subject-matter jurisdiction.
• Necessary or appropriate in aid of jurisdiction — the writ must be necessary and appropriate to the particular case.
• Usages and principles of law — the statute requires courts to issue writs "agreeable to the usages and principles of law."

[GreenGoo]

Saw a headline that Apple caved.

Jesus Christ.

Got a link? I'm not seeing that anywhere.

Sorry it was on my phone and I think it was coming out of the UK, which I've noticed can be either inaccurate or intentionally misleading then clarifies in the article itself. If I see it again I'll post. For the record I didn't read the article to confirm.

[GreenGoo]

The worst part of all this is that this is being done with no real expectation of accomplishing anything. This won't end terrorism and it won't even travel back in time to stop their attack. That it might, maybe, if we could only look in the phone to be sure, implicate some other people is not even remotely reason enough for this insanely intrusive and overreaching of the government into the affairs of a completely unrelated entity. That what the government is asking for will almost certainly negatively impact the corporation's performance in the marketplace makes this especially heinous.

Fuck you, FBI. Because some people do bad things is not reason enough to throw all rights and freedoms under a bus. Is this the first time bad people have existed that we need to start strong arming anyone who isn't completely onboard with giving the government what it wants?

This whole thing is nuts.

[Apollo]

Well, if it's just a matter of "Who Do You Trust: Corporate America or the Government?", I'll come down on the side of the Government, which is answerable to the general public, over Corporate America, which apparently answers to no one.

As far as the legality of the court's action goes, that's a different matter. If the courts truly are overreaching on this issue, then Apple should win. But there seem to be strong arguments on both sides about the legality of this action, so I guess I'll need to see how all of this plays out to truly decide where I stand.

[GreenGoo]

It's not a matter of trust. Why would you think it is?

[Apollo]

It's not a matter of trust. Why would you think it is?

Because a lot of the arguments against allowing the US Government to compel Apple to unlock the phone seem to rely on "slippery slope" arguments about how Apple will be compelled to create government spyware, skeleton keys, etc. I personally trust that the government will not use this incident to start violating the rights of individuals for no good reason. After all, the government is answerable to the public. On the other hand, I have no reason to trust Apple (or any other Corporation). Their only concern is to make money. Allowing a corporation to dodge a court order with no repercussions is insanity and would be a far more dangerous precedent, IMHO.

On the other hand, as I posted earlier, if what the Government is trying to do is truly illegal, then I will side with Apple. But from what I've read so far, this is not the case.

[Isgrimnur]

I trust neither of them. And both sides of the "government vs. corporations" have proven time and again that neither side are capable of being trusted.

[Max Peck]

Saw a headline that Apple caved.

Jesus Christ.

Got a link? I'm not seeing that anywhere.

Sorry it was on my phone and I think it was coming out of the UK, which I've noticed can be either inaccurate or intentionally misleading then clarifies in the article itself. If I see it again I'll post. For the record I didn't read the article to confirm.

It also might have been an old article that floated to the surface again. Apparently, in the past, Apple was receiving so many requests from miscellaneous law enforcement entities to unlock iThings that they had a months-long waiting list to action requests. OTOH, it appears that they didn't see an ethical problem with unlocking iThings for law enforcement entities back then.

[LawBeefaroni]

It's not a matter of trust. Why would you think it is?

Because a lot of the arguments against allowing the US Government to compel Apple to unlock the phone seem to rely on "slippery slope" arguments about how Apple will be compelled to create government spyware, skeleton keys, etc. I personally trust that the government will not use this incident to start violating the rights of individuals for no good reason. After all, the government is answerable to the public. On the other hand, I have no reason to trust Apple (or any other Corporation). Their only concern is to make money. Allowing a corporation to dodge a court order with no repercussions is insanity and would be a far more dangerous precedent, IMHO.

On the other hand, as I posted earlier, if what the Government is trying to do is truly illegal, then I will side with Apple. But from what I've read so far, this is not the case.

I bet they've already given it to them. The rest of this is just theater for the public. Apple gets to save face, the FBI gets a new shiny in their toolkit.

[Rip]

http://www.techspot.com/news/63861-john ... -free.html

McAfee, who has been no stranger to controversy in recent years, has offered to unlock the iPhone in question free of charge. He says he’ll be able to do this with his team of “prodigies” who possess “talents that defy normal human comprehension.”

Problem solved.

[Anonymous Bosch]

Really?

The password for the San Bernardino shooter's iCloud account associated with his iPhone was reset hours after authorities took possession of the device.

The Justice Department acknowledged in its court filing that the password of Syed Farook's iCloud account had been reset. The filing states, "the owner [San Bernardino County Department of Public Health], in an attempt to gain access to some information in the hours after the attack, was able to reset the password remotely, but that had the effect of eliminating the possibility of an auto-backup."

Apple could have recovered information from the iPhone had the iCloud password not been reset, the company said. If the phone was taken to a location where it recognized the Wi-Fi network, such as the San Bernardino shooters' home, it could have been backed up to the cloud, Apple suggested.

The auto reset was executed by a county information technology employee, according to a federal official. Federal investigators only found out about the reset after it had occurred and that the county employee acted on his own, not on the orders of federal authorities, the source said.

Apple executives say the iPhone was in the possession of the government when iCloud password was reset. A federal official familiar with the investigation confirmed that federal investigators were indeed in possession of the phone when the reset occurred.

I hope Apple continues to tell them to piss off.

FBI told San Bernardino County staff to tamper with gunman's Apple account:

The San Bernardino County government on Friday night said the FBI told its staff to tamper with the Apple account of Syed Farook, who with his wife, Tashfeen Malik, carried out the December shooting in which 14 people were killed.

The development matters because the change made to the account – a reset of Farook’s iCloud password – made it impossible to see if there was another way to get access to data on the shooter’s iPhone without taking Apple to court.

“The county was working cooperatively with the FBI when it reset the iCloud password at the FBI’s request,” read a post on San Bernardino County’s official Twitter account.

On Saturday, the Justice Department referred questions on the matter to the FBI.

[Zarathud]

Apple os in the soup because of its software license -- the iOS remains Apple's property and so they retained the right to change the locks if they choose. The government is forcing Apple to use those rights and tools.

Apple protects trade secrets all the time. Even if it's distasteful, Apple is crying wolf.

[Bruce]

How will you feel when Chinese or Russian governments demand the same?

The majority of Apple's customers are not US citizens.

[GreenGoo]

Apple os in the soup because of its software license -- the iOS remains Apple's property and so they retained the right to change the locks if they choose. The government is forcing Apple to use those rights and tools.

Apple protects trade secrets all the time. Even if it's distasteful, Apple is crying wolf.

What is this...I don't even...

You're suggesting the government can compel someone/something to use their legal rights to the government's benefit, is that what you're saying?

[RunningMn9]

Yeah I don't get it. The government is forcing them to make those tools (you can't use what doesn't exist). I don't think the government has that authority.

[Anonymous Bosch]

Ex-NSA and CIA chief backs Apple on iPhone 'back doors':

McLEAN, VA — Retired four-star general Michael Hayden, who as director of the NSA installed and still defends the controversial surveillance program to collect telephone metadata on millions of Americans, says he opposes proposals to force Apple and other tech companies to install "back doors" in digital devices to help law enforcement.

...

"In this specific case, I'm trending toward the government, but I've got to tell you in general I oppose the government's effort, personified by FBI Director Jim Comey," Hayden told Capital Download in an interview about his memoir, Playing to the Edge: American Intelligence in the Age of Terror. "Jim would like a back door available to American law enforcement in all devices globally. And, frankly, I think on balance that actually harms American safety and security, even though it might make Jim's job a bit easier in some specific circumstances."

...

"Look, I used to run the NSA, OK?" Hayden told USA TODAY's weekly video newsmaker series. "Back doors are good. Please, please, Lord, put back doors in, because I and a whole bunch of other talented security services around the world — even though that back door was not intended for me — that back door will make it easier for me to do what I want to do, which is to penetrate.

"But when you step back and look at the whole question of American security and safety writ large, we are a safer, more secure nation without back doors," he says. With them, "a lot of other people would take advantage of it."

[Anonymous Bosch]

Solid support for Apple in iPhone encryption fight - Poll:

BOSTON (Reuters) - Nearly half of Americans support Apple Inc's decision to oppose a federal court order demanding that it unlock a smartphone used by San Bernardino shooter Rizwan Farook, according to a national online Reuters/Ipsos poll.

Forty-six percent of respondents said they agreed with Apple's position, 35 percent said they disagreed and 20 percent said they did not know, according to poll results released on Wednesday.

Other questions in the poll showed that a majority of Americans do not want the government to have access to their phone and Internet communications, even if it is done in the name of stopping terror attacks.

The responses to the privacy questions in the poll are similar to results from a 2013 Reuters/Ipsos poll, showing a consistent desire on the part of Americans to keep their phone, Internet communications and other data private.

Most of those polled also feel that unlocking Farook's phone would set a dangerous precedent that authorities would use to force the company to unlock more phones, a claim that Apple Chief Executive Tim Cook made in an open letter to customers last week.

When asked if the government would use the ability to unlock phones to "spy on iPhone users," 55 percent said they agreed, 28 percent disagreed and the rest said they were not sure.

[Fretmute]

Apple’s refusal to help the FBI unlock an iPhone 5c used by one of the terrorists in the San Bernardino, California attack on Dec. 2 has prompted the Maricopa County attorney’s office in Arizona to ban providing new iPhones to its staff.

“Apple’s refusal to cooperate with a legitimate law enforcement investigation to unlock a phone used by terrorists puts Apple on the side of terrorists instead of on the side of public safety,” Maricopa County Attorney Bill Montgomery said in a statement on Wednesday.

It pains me that I was born in that terrible place.

[GreenGoo]

What the hell is their budget that they can afford to give everyone some of the most expensive phones ever made anyway?

This sounds like a net gain for tax payers.

[Defiant]

Obama Administration Set to Expand Sharing of Data That N.S.A. Intercepts

[Defiant]

SENATOR GRAHAM LIKES ENCRYPTION NOW THAT HE UNDERSTANDS IT

(in caps cause I copied and pasted it rather than rewrote it)

[Rip]

Last Week Tonight with John Oliver: Encryption

This may be his best one yet.

Especially the ad at the end.

[Kraken]

I don't pretend to understand the technology, but Snowden says the government's claim that it can't unlock that phone is 'bullshit." When Snowden and the government differ, I know which side is more likely to be telling the truth.

[Defiant]

I don't pretend to understand the technology, but Snowden says the government's claim that it can't unlock that phone is 'bullshit." When Snowden and the government differ, I know which side is more likely to be telling the truth.

Not so impressed:

These methods are expensive, time-consuming and some could ultimately lead to physically destroying the memory, but they’re possible

[Isgrimnur]

We don't need your help after all:

The FBI says it may have found a way to crack into the iPhone of one of the San Bernardino terrorists without Apple's help. While it explores this option, a federal judge has postponed Tuesday's hearing that would have been the next step in the battle to get Apple to follow a court order to cooperate.

The FBI says that on Sunday, an "outside party" demonstrated to the FBI a "possible method for unlocking" Syed Rizwan Farook's iPhone.

The government's court filing to delay the hearing adds, "Testing is required to determine whether this is a viable method that will not compromise data on Farook's iPhone. If the method is viable, it should eliminate the need for the assistance from Apple Inc."

The FBI is not asking to dismiss the case, just for time to test the new option. The government has been ordered to file a report on the status of the testing by April 5.
...
Apple attorneys said Monday night that the company doesn't know what technique the FBI is testing. If it works, they hope the government will tell Apple what method was used, but the FBI might decide not to share it.

Maybe they have McAfee on retainer.

[GreenGoo]

I never thought the FBI's case was ever about this specific iPhone, so I will be very surprised if they simply stop because they found another way into that particular iPhone.

We don't need your help after all:

...
Apple attorneys said Monday night that the company doesn't know what technique the FBI is testing. If it works, they hope the government will tell Apple what method was used, but the FBI might decide not to share it.

Lol. I'm sure they'll get right on that.

[The Meal]

I thought that this Bloomberg article was pretty good.

Apple gave the Federal Bureau of Investigation early access to iOS 8 so it could study how the new system would change evidence-gathering techniques, according to people familiar with the software's development. The agency quickly realized Apple had closed an important access point used for years by agents to collect information about criminal suspects. Many in the FBI were stunned. Suddenly, photos, text messages, notes and dozens of other sources of information stored on phones were off-limits.

The new encryption protections set off a behind-the-scenes battle that ultimately spilled into the open last month

[El Guapo]

I never thought the FBI's case was ever about this specific iPhone, so I will be very surprised if they simply stop because they found another way into that particular iPhone.

It would seem likely that the alternative method would have some applicability to other iPhones of that type, right?

I actually expect that if this method works the FBI is going to drop this particular request. First, if they were not so inclined presumably they would not have asked the court to put the next hearing on this matter on hold. Second, while I certainly do not expect that the FBI would (of its own accord) stop seeking authority to compel de-encryption of phones, they do have a helpful trial-court level decision on this point (that Apple is appealing). Depending on what they think their odds are of prevailing on this on appeal, they might be inclined to hold off on this and try this again in whatever jurisdiction they think is most friendly to their arguments here.

[Pyperkub]

We don't need your help after all:

The FBI says it may have found a way to crack into the iPhone of one of the San Bernardino terrorists without Apple's help. While it explores this option, a federal judge has postponed Tuesday's hearing that would have been the next step in the battle to get Apple to follow a court order to cooperate.

The FBI says that on Sunday, an "outside party" demonstrated to the FBI a "possible method for unlocking" Syed Rizwan Farook's iPhone.

The government's court filing to delay the hearing adds, "Testing is required to determine whether this is a viable method that will not compromise data on Farook's iPhone. If the method is viable, it should eliminate the need for the assistance from Apple Inc."

The FBI is not asking to dismiss the case, just for time to test the new option. The government has been ordered to file a report on the status of the testing by April 5.
...
Apple attorneys said Monday night that the company doesn't know what technique the FBI is testing. If it works, they hope the government will tell Apple what method was used, but the FBI might decide not to share it.

Maybe they have McAfee on retainer.

And I have no problem with this solution. The man is dead, his family is dead, the phone can be of use, and the Government can and should have the right to look at it (with the family dead or in hiding, it kind of belongs to them, in a way). They are not violating the constitution as I felt they were in trying to force Apple to do so. Though I expect this would be against the DMCA and EULA..

[Max Peck]

Israeli firm helping FBI to open encrypted iPhone

Israel's Cellebrite, a provider of mobile forensic software, is helping the U.S. Federal Bureau of Investigation's attempt to unlock an iPhone used by one of the San Bernardino, California shooters, the Yedioth Ahronoth newspaper reported on Wednesday. If Cellebrite succeeds, then the FBI will no longer need the help of Apple Inc (AAPL.O), the Israeli daily said, citing unnamed industry sources. Cellebrite officials declined to comment on the matter.

Apple is engaged in a legal battle with the U.S. Justice Department over a judge's order that it write new software to disable passcode protection on the iPhone used by the shooter. The two sides were set to face off in court on Tuesday, but on Monday a federal judge agreed to the government's request to postpone the hearing after U.S. prosecutors said a "third party" had presented a possible method for opening an encrypted iPhone. The development could bring an abrupt end to the high-stakes legal showdown which has become a lightning rod for a broader debate on data privacy in the United States.

Cellebrite, a subsidiary of Japan's Sun Corp (6736.T), has its revenue split between two businesses: a forensics system used by law enforcement, military and intelligence that retrieves data hidden inside mobile devices and technology for mobile retailers.

[GreenGoo]

I never thought the FBI's case was ever about this specific iPhone, so I will be very surprised if they simply stop because they found another way into that particular iPhone.

It would seem likely that the alternative method would have some applicability to other iPhones of that type, right?

I assumed that because of repeated, but failed attempts to legislate backdoors into various products (the iPhone being the most visible) that this was an end-run around that. They wouldn't need backdoors if they could just have a court force Apple (as the precedent) to break into anything they wanted broken into.

If we assume the Israeli company is using an exploit to break into the phone, we should assume that the exploit will be closed at some point in the future rendering it unusable. The great thing about a court decision is that it becomes harder and harder to reverse, the more it is used as precedent for other cases.

[Max Peck]

Lawmakers say NSA plan to expand sharing data ‘unconstitutional’

A Democratic and a Republican congressmen have asked the National Security Agency to halt a reported plan to share more raw intelligence data with other federal agencies, warning the policy shift would be “unconstitutional and dangerous,” according to a letter seen by Reuters. U.S. Representatives Ted Lieu and Blake Farenthold, who sit on the House Oversight Committee, said in a letter dated March 21 to NSA Director Michael Rogers that the proposal would violate Fourth Amendment privacy protections because the collected data would not require a warrant before being searched for domestic law enforcement purposes. “If media accounts are true, this radical policy shift by the NSA would be unconstitutional, and dangerous,” Lieu, a California Democrat, and Farenthold, a Texas Republican, wrote.
...
“Our country has always drawn a line between our military and intelligence services, and domestic policing and spying,” the lawmakers wrote. “We do not — and should not — use U.S. Army Apache helicopters to quell domestic riots; Navy Seal teams to take down counterfeiting rings; or the NSA to conduct surveillance on domestic street gangs.”

The executive branch is able to change its rules for some surveillance programs without congressional approval. Without a law from Congress, the government relies on executive order 12333, which was signed by President Ronald Reagan in 1981 and later modified by President George W. Bush. Critics have said the order is overly broad and vague.

[El Guapo]

I never thought the FBI's case was ever about this specific iPhone, so I will be very surprised if they simply stop because they found another way into that particular iPhone.

It would seem likely that the alternative method would have some applicability to other iPhones of that type, right?

I assumed that because of repeated, but failed attempts to legislate backdoors into various products (the iPhone being the most visible) that this was an end-run around that. They wouldn't need backdoors if they could just have a court force Apple (as the precedent) to break into anything they wanted broken into.

If we assume the Israeli company is using an exploit to break into the phone, we should assume that the exploit will be closed at some point in the future rendering it unusable. The great thing about a court decision is that it becomes harder and harder to reverse, the more it is used as precedent for other cases.

Yes. But they already have a favorable court decision on this, from the trial-level court (which Apple is currently appealing). If they can now get into this particular phone, they may just pocket that decision rather than risk having it reversed on appeal. That depends on what their risk assessment is of that happening, of course.

I agree that the FBI is not going to give up (unless they are forced to) on the general effort to get a broad ability to get access to encrypted phones.

One interesting question is whether Apple would try to proceed with its appeal if the FBI winds up withdrawing this particular request.

[Anonymous Bosch]

Israeli firm helping FBI to open encrypted iPhone

Israel's Cellebrite, a provider of mobile forensic software, is helping the U.S. Federal Bureau of Investigation's attempt to unlock an iPhone used by one of the San Bernardino, California shooters, the Yedioth Ahronoth newspaper reported on Wednesday. If Cellebrite succeeds, then the FBI will no longer need the help of Apple Inc (AAPL.O), the Israeli daily said, citing unnamed industry sources. Cellebrite officials declined to comment on the matter.

Apple is engaged in a legal battle with the U.S. Justice Department over a judge's order that it write new software to disable passcode protection on the iPhone used by the shooter. The two sides were set to face off in court on Tuesday, but on Monday a federal judge agreed to the government's request to postpone the hearing after U.S. prosecutors said a "third party" had presented a possible method for opening an encrypted iPhone. The development could bring an abrupt end to the high-stakes legal showdown which has become a lightning rod for a broader debate on data privacy in the United States.

Cellebrite, a subsidiary of Japan's Sun Corp (6736.T), has its revenue split between two businesses: a forensics system used by law enforcement, military and intelligence that retrieves data hidden inside mobile devices and technology for mobile retailers.

Apparently, they were successful.

FBI has accessed San Bernardino shooter’s phone without Apple’s help:

The Justice Department is abandoning its bid to force Apple to help it unlock the iPhone used by one of the shooters in the San Bernardino terrorist attack because investigators have found a way in without the tech giant’s assistance, prosecutors wrote in a court filing Monday.

Prosecutors wrote that investigators had now “accessed the data stored on” the shooter’s iPhone and no longer needed Apple’s help. They asked a court to vacate an earlier forcing Apple to provide assistance.

The stunning move averts a courtroom showdown between Apple and federal prosecutors that many in the tech community had warned might set dangerous precedents.