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Apple to FBI: ‘The Founders Would be Appalled.’

Apple to FBI: ‘The Founders Would be Appalled.’

The Government is pushing too far, argues Apple, in their efforts to crack the San Bernardino terrorist’s iPhone.

In the latest round of legal battles between Apple and the FBI over accessing data in an iPhone used by one of the San Bernardino terrorists, Apple has fired back at the FBI with a scathing brief accusing the government of massive overreach in their efforts to get Apple’s assistance in unlocking the phone.

As Legal Insurrection reported last month, the iPhone 5C belonging to one of the shooters was seized as evidence by the FBI. The FBI obtained a warrant to search the contents of the iPhone, but ran into trouble with its passcode. The government wanted Apple to help them bypass the iPhone’s security measures, but Apple refused, arguing that doing so would unacceptably put the privacy of other customers’ iPhones at risk. The District Court of Central California issued an order for Apple to assist the FBI in unlocking the iPhone, and Apple objected. This set of several rounds of jousting, both in court and in the arena of public opinion.

How a law from more than two centuries ago is governing a case about iPhone security

The case has been covered heavily in both legal and tech blogs, as the intersection of privacy vs. security, plus the involvement of one of the world’s most influential tech companies. As MacWorld Executive Editor Susie Ochs wrote:

The court’s order for Apple to create a new version of iOS that would be easier for the FBI to crack was issued under the All Writs Act, a law first passed in the late 18th century. This act allows courts to issue warrants that aren’t authorized by more specific laws. But in this case, Apple argues, there is a more specific law called CALEA that can’t be stretched to fit the government’s request. Apple also argues that Congress had a chance to pass even more specific legislation, but declined to act.

In advance of the first hearing on the merits coming up on March 22, both sides filed briefs. The Justice Department fired the first shot, slamming Apple for its “false” and “corrosive” rhetoric. This week, Apple returned fire, arguing that the government was ignoring the bigger picture about what they were really asking Apple to do, and for the government to make such a request was overly intrusive:

The government attempts to rewrite history by portraying the [All Writs] Act as an all-powerful magic wand rather than the limited procedural tool that it is.… According 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.

Apple took a large section of their brief to issue what Wired called a “withering fact check” on the government. Apparently the government was looking at the wrong screen to determine iCloud backup status, and got several other details incorrect about how Apple’s proprietary cloud-based backup actually operates.

Is computer code speech?

Because complying with the court order would require Apple’s engineers to rewrite the iPhone operating system (in an amusing turn of phrase, Apple’s lawyers name what the government is requesting as a new “GovtOS” operating system), Apple argues that this is a violation of the First Amendment:

Even assuming there is such a thing as purely functional code, creating the type of software demanded here, an operating system that has never existed before, would necessarily involve precisely the kind of expression of ideas and concepts protected by the First Amendment. Because writing code requires a choice of (1) language, (2), audience, and (3) syntax and vocabulary, as well as the creation of (4) data structures, (5) algorithms to manipulate and transform data, (6) detailed textual descriptions explaining what code is doing, and (7) methods of communicating information to the user, there are a number of ways to write code to accomplish a given task.

As such, code falls squarely within the First Amendment’s protection, as even the cases cited by the government acknowledge…

The government’s position has sweeping implications. Under the government’s view, the state could force an artist to paint a poster, a singer to perform a song, or an author to write a book, so long as its purpose was to achieve some permissible end, whether increasing military enrollment or promoting public health.

In other words, Apple argues that the government’s efforts to force its engineers create these new lines of code are essentially forcing them to speak. (Of course, we’re living in a world where the Supreme Court of the United States says it’s fine for the government to force us to buy Obamacare, so maybe this is just the logical next step?)

Encryption wasn’t designed to shield criminals, argues Apple, but to protect us from criminals

Rejecting the government’s argument that this was a “modest order” affecting only a “single iPhone,” Apple stated that complying with the FBI’s request would irreparably compromise the iPhone’s security, which was a danger both for individual customers’ privacy, and an assault on the Fourth Amendment.

One of Apple’s chief concerns is that if they did create this “GovtOS” to crack the terrorist’s iPhone, it might prove impossible to keep that technology private. If that information were leaked or stolen, it could be a very damaging tool in the hands of criminals. One interesting point Apple made is that unlike the government, which has the ability to create undercover identities and job titles to shield their employees who work on sensitive matters, Apple can offer no such protections to their employees. Once it became known that “GovtOS” had been created, Apple worries, the engineers who created it would be vulnerable to kidnapping or extortion.

The next hearing is scheduled for March 22, 2016, at 1 p.m. PT. Google, Facebook, Amazon, and Microsoft have all filed amicus briefs in support of Apple.

Follow Sarah Rumpf on Twitter: @rumpfshaker.

 

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Comments

“This set of several rounds of jousting, both in court and in the arena of public opinion.”

I think you meant, “This set OFF several rounds of jousting…”

But the Founders would have been totes cool with the government forcing Americans to violate their religious beliefs and provide services to gay “weddings” or be bankrupted, right Tim Cook?

    This has nothing to do with that.

      Observer in reply to Amy in FL. | March 19, 2016 at 8:31 am

      I see. So Apple’s executives can invoke the Founders when they believe the Founders would have supported a position Apple is taking, but these same executives are free to ignore the Founders when the Founders would not have supported Apple’s position.

      Got it. Apple is free to invoke the Founders — but only when it’s convenient for them.

Hard cases make bad law. The FBI knows this, and is taking advantage.

Fact is that if government can access your phone, then so can everyone else.

Stand strong Apple! Tell the feds to pound sand!

Of course, we’re living in a world where the Supreme Court of the United States says it’s fine for the government to force us to buy Obamacare,

No matter how many times people say this, it remains a lie. The Supreme Court said the exact opposite. It said that the government can not force people to buy anything, and (citing a case from the 1930s) it cannot disguise such an illegal mandate by calling it a tax.

PPACA survived only because there is no mandate, there never was one, it was a lie all along. There is an ordinary, easily affordable tax on income, everyone has the choice whether to pay it or buy insurance, and many will rationally choose to pay the tax. If the tax ever rises to a level where paying it is no longer a reasonable option, it will become unconstitutional.

    PPACA survived only because there is no mandate, there never was one, it was a lie all along. There is an ordinary, easily affordable tax on income, everyone has the choice whether to pay it or buy insurance, and many will rationally choose to pay the tax.

    $2000 per year (for now; subject to change) is “easily affordable”, even for the folks making $15-20K per year? It’s at least 10% of his/her income.

    Sure, you have the “choice” to buy insurance or pay the “tax”, but that’s just legitimizing extortion. You’re damned if you do and damned if you don’t, and it’s the government doing the damning on both ends.

    ss396 in reply to Milhouse. | March 20, 2016 at 12:31 am

    True, the Court did not say that the government could compel people to buy ObamaCare. They merely stated that the government could assess a tax for those who didn’t. Meanwhile, a penalty for non-purchase did not survive the Court.

    Which means it’s a tax. Which means ObamaCare is a revenue bill. Which means that it was not open to reconciliation because revenue bill have to originate in the House. That’s why the government, through the whole appellate process – including at the Supreme Court – insisted that the cost of not buying ObamaCare was not a tax. So ObamaCare was illegally enacted.

    No matter; the fix is in. With this Administration and these Attorney Generals and under a Roberts Supreme Court, any further challenge along these lines is doomed to fail, so why bother.

This case makes my head spin. I really really want to side with Apple, but I’ve seen stories suggesting that Apple is doing similar things for China without complaint. That leaves me wondering.

There’s a simple solution: let them give the FBI the source code for iOS, and let the FBI hire people to write the new OS themselves. No compelled speech, no problem. Copyright is a gift from the government, and if necessary Congress can write an exception into it for this purpose.

    “For every complex problem, there is an answer that is clear, simple, and wrong.” — H.L. Mencken

    There is so much wrong with that comment that I don’t know if I can sum it up in one reply.

    Copyright protects intellectual property. It’s not fundamentally different from patent laws. You create something original, it’s yours to capitalize on as you please, whether a government-stamped copyright or patent is issued or not; the copyright/patent just makes it official/notarized, and more defensible in court.

    Apple created its iOS out of its collective ingenuity. Copyright or not, it’s theirs, but you can bet your bottom dollar they’ve got copyrights and patents on every aspect of it. Why on Earth would it be OK to expect them to surrender their work to the FBI with no compensation?

    Even if the FBI hires someone to build a new iOS based on Apple’s source code, you’re still compelling Apple to release it’s intellectual property, which is compelled speech.

    Seriously, how do you not see that?

    assemblerhead in reply to Milhouse. | March 18, 2016 at 12:58 pm

    You are either ignorant of how the tech works, or willfully ignoring the facts.
    —————-
    In order to get a “GovtOS” on the phone, Apple has to hand over the Master Encryption Key ( A.K.A. the key that signs all updates for iOS )

    The TPM on the iPhone has ( in the past? ) auto loaded all software signed with that key. That key is the only thing stopping rogue/malware “iOS” like replacements.

    How long do you think the Gov can keep that key secure?

    Think about how other countries will react to being able to force the handover of the “key”.

    Once that key gets out, Apple can kiss its business goodbye.
    ( lost sales / customers suing / loss of security certification )
    Yes, the iPhone would be de-certified for Gov use.
    —————-
    You are not taking into account the other 2 iPhone(s) and the laptop hard drive that were destroyed.

    Think !!!

    If you wanted to keep info away from the Gov, and you had just hammered 2 phones and a hard drive into junk, would you just put the third phone back into your pocket? Only if there is nothing on it!

    The Gov screwed up or deliberately invalidated every other method for getting info of this phone.

    The NSA can and has hacked these kind of iPhone(s), but does not want to aid the FBI. ( software emulation of iPhone hardware && clone the phone )
    —————-
    You should read up on this : ( the Feds / FBI / DOJ are lying )

    Latest Filings / Findings :
    http://www.wired.com/2016/03/apple-fact-checks-the-feds-in-latest-brief/

    https://www.techdirt.com/articles/20160317/15151333939/apparent-redaction-failure-leads-to-government-confirming-target-lavabit-investigation.shtml

    Basic Background / Simplified :
    https://www.youtube.com/watch?feature=player_embedded&v=zsjZ2r9Ygzw

      In order to get a “GovtOS” on the phone, Apple has to hand over the Master Encryption Key ( A.K.A. the key that signs all updates for iOS )

      […]

      How long do you think the Gov can keep that key secure?

      More to the point, once they have that key, how long do you thing the Gov can keep itself from pushing “GovtOS” (I still like the term “FBiOS” better) out to ALL iOS devices? How long do you think they’ll be able to resist the siren’s tempting song of having a backdoor into everyone’s iPhone?

      That’s the part I worry about, and I don’t even have an iPhone.

        assemblerhead in reply to Archer. | March 18, 2016 at 1:24 pm

        @Archer

        Considering the quality of Gov produced software, it would fail miserably if they tried a mass release. And be blindingly obvious. Besides, everyone would just dump their freshly “bricked” phones and try something else.

        Example : Obamacare Federal Insurance Exchange website.

Whatever else, Apple’s argument that code is free speech is complete and utter bollocks.

Code is in effect the blueprint of a program. Take the code through a particular process and it becomes a program. Are blueprints speech?
I think not. There is a degree of expressiveness but I find it hard to buy that is speech. An example I think is easy to understand. A blueprint may specify that when installing a plate you must first install the screw in the top left then proceed clockwise. Someone else may say put in the lower right screw and proceed counterclockwise. Are such descriptions speech?

    Code is in effect the blueprint of a program. Take the code through a particular process and it becomes a program. Are blueprints speech?

    And a painting is in effect just pigments on canvas. Take the pigments through a particular process and it becomes a painting. Is a painting speech?

    Hell, speech is in effect just words and ideas spoken aloud. Take the words and ideas through a particular process and they become a speech. Is speech speech?

    You’re confusing the issue (intentionally or unintentionally) by stating that Apple’s intellectual property (iOS, in this case) serves a purpose other than raw expression. It doesn’t matter. The blueprint for a building displays the expression and ideas of the architect. That it’s also useful in a practical sense doesn’t diminish the value of the expression.

    ss396 in reply to RodFC. | March 20, 2016 at 12:43 am

    Yes, blueprints ARE protected. If there is proprietary information contained on them (and there frequently is) violations of that can be prosecuted in court. Companies come to agreements on intellectual property rights for the usage, and every one of those that I’ve seen expressly allow the violator to seek injunctive relief in court.

    Another batch are the blueprints that describe systems, which systems are patented. If a company wants to utilize that system, they have to come to a licensing royalties agreement with the holder of the patents. Again, violations can be prosecuted in court.

    The whole legal field of intellectual property rights is highly striated and highly complex. Absolutely are there protections built around blueprints!

The other day I saw a post (sorry no link) that Edward Snowden popped up (in a phone call) at some convention and said the NSA can crack this encryption.
So, we have the FBI asking Apple to do what the NSA can but can’t do domestically by law.

Then there was this headline this morning in the NYTimes

Apple Encryption Engineers, if Ordered to Unlock iPhone, Might Resist
http://www.nytimes.com/2016/03/18/technology/apple-encryption-engineers-if-ordered-to-unlock-iphone-might-resist.html

IF I had the skills – AND if they asked nicely – I would consider helping the FBI out with this. Voluntarily. This ONE time.

But attempted forced-labor under a court order?!?

NO effin’ way, Loretta Lynch! This is not my problem, and you’re NOT the boss of me.

(Won’t be baking a cake for a gay pretend-“wedding”, either.)

All of this because the feds didn’t do their jobs in the first place and now they want Apple to cave. Had the state dept done a better job vetting immigrants instead of handing out visas like candy and the FBI not been more preoccupied with spying on citizens, then there might not have been terrorist acts being committed. Add in a failed immigration policy for those who over stay visas and lack of law enforcement, and one has to wonder why have a fed gov at all if all they do is violate our rights and stomp on the Constitution. The FBI can go pound sand.

It seems everything was OK and Apple was able to hand the FBI the data it requested, until the FBI ordered the San Bernardino County Department of Health, Farook’s former employer and owner of the iPhone 5c in question, to reset the associated Apple ID password on Dec. 6 without first consulting Apple. That locked everyone out.

Donald Trump has sided with the Federal Government over Apple. I’m kind of wondering how the many Trumpkins currently on this blog feel about that.

    Ragspierre in reply to Amy in FL. | March 18, 2016 at 12:51 pm

    “Sided” is WAY too suggestive of thought and deliberation.

    KNEE-JERKED is much more apt. And typical.

    He tossed of his usual “hate the market, HATE due process” call for a boycott of Apple.

    Remember our Bierhall Bullyboi Britt’s call to CRUSH Apple with every corrupt use of the BIG GOVERNMENT agency state he could think of?

    I do. That’s how we know the puke is a fascist. Well, one way…

    I predict they’ll overlook it. Trump’s “cult of personality” is every bit as effective as Obama’s was.

    Trump is all for big government, especially if he’s at the helm. He will always side with the government over private businesses … other than his own.

    janitor in reply to Amy in FL. | March 18, 2016 at 1:17 pm

    Donald Trump has sided with the Federal Government over Apple.

    So has Mark Levin.

    There’s a search warrant here, issued on good cause.

      Ragspierre in reply to janitor. | March 18, 2016 at 1:46 pm

      Really? Are the two mens’ positions the same? Or are they completely different while reaching what APPEARS to be the same conclusion?

      Cultist.

This all comes down to a question of whether a government search and seizure is justifiable under the Fourth Amendment. Is there probable cause? Have warrants been issued? Those are the usual considerations.

Now if this were evidence locked in a house, I don’t think there would be any controversy. With warrant in hand the Feds would unlock the door then enter the house and remove the evidence.

Yet if the house had an iPhone embedded into the lock circuit in such a way that it couldn’t be circumvented without destroying the evidence contained in the house, we’re supposed to accept that law enforcement is out of luck?

It just doesn’t make sense for Apple to refuse to unlock any phone that’s the object of a court ordered search warrant.

    ss396 in reply to fmc. | March 20, 2016 at 12:54 am

    The police can come to my door with a warrant allowing them to search the place. That doesn’t mean I have to unlock the door and let them in. They would then have the right to bust my door down, but I DO NOT have to facilitate their entrance.

    And suppose I have a safe in my house? If they want to search it, I am NOT obliged to open it for them. Again, it would be their charge to figure how to get into it without my help.

    There are upsides to cooperating with the authorities (house left intact, kids not shipped off to CPS, arrest avoidance, more favorable treatment while in their custody). My life is easier if I cooperate with them, but I am not obliged to.

“Yet if the house had an iPhone embedded into the lock circuit in such a way that it couldn’t be circumvented without destroying the evidence contained in the house, we’re supposed to accept that law enforcement is out of luck?”

That would be a bomb on the house. The FBI would bring in their bomb squad and if they weren’t good enough to disarm the bomb than they would lose the evidence. They sure aren’t going to call the explosives manufacturer and ask them to change the composition of the explosives so that they won’t blow up. So what has happened is that the FBI’s bomb squad either isn’t good enough or screwed up and now they are trying to get Apple to fix it for them.

    fmc in reply to gmac124. | March 18, 2016 at 6:05 pm

    I’m not sure why you’re introducing a bomb into this scenario, or why the practical impossibility for law enforcement to accomplish the task themselves somehow justifies Apple’s intransigence. Apple has the capability to resolve this WITHOUT compromising their customer’s precious selfies.

    I suppose we’ll have to wait until this wends it’s way up through the legal system. Anyone have any idea what the ratio of iPhones to Android phones is among Supreme Court justices?

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