Apple v. FBI

[boogielicious]

Polls mean nothing as to constitutionality and in many cases neither does a vote. You could today have a poll and a vote that said slavery was OK, but it would be unconstitutional. Even laws enacted by congress can be struck down as unconstitutional. 

The media game by the FBI does not hold water. I think this will go to SCOTUS.

[iacas]

14 minutes ago, Ernest Jones said:

Pardon my ignorance, but how would Apple install a new iOS on a locked phone? Wouldn't they need the pass phrase to install the new software in the first place?

You can put the iPhone into recovery mode.

Then Apple, with a new version of the OS and the private key they have, can force the OS onto the phone without simultaneously deleting everything else as you would as a normal user just doing a "refresh."

[saevel25]

http://www.foxnews.com/opinion/2016/02/25/whats-really-at-stake-in-apple-vs-fbi-fight.html

Quote

The warrant was improperly granted because Apple was not given notice of the DoJ application. So, the judge who issued the order denied Apple due process -- its day in court. That alone is sufficient to invalidate the order. Were Apple a defendant in a criminal case or were Apple to possess hard evidence that could exonerate or help to convict, the secret application would have been justified.
But that is not the case here.

Instead, the DoJ has obtained the most unique search warrant I have ever seen in 40 years of examining them. Here, the DoJ has persuaded a judge to issue a search warrant for A THING THAT DOES NOT EXIST, by forcing Apple to create a key that the FBI is incapable of creating.

In reality the only location of a passcode is on the phone. The search warrant should be invalidated because it's searching for nothing that Apple has. The FBI have the passcode, it's on the phone in their possession. Search warrant has been completed ;) 

 

 

[Gunther]

11 minutes ago, saevel25 said:

http://www.foxnews.com/opinion/2016/02/25/whats-really-at-stake-in-apple-vs-fbi-fight.html

In reality the only location of a passcode is on the phone. The search warrant should be invalidated because it's searching for nothing that Apple has. The FBI have the passcode, it's on the phone in their possession. Search warrant has been completed ;) 

 

 

Yes, I saw this a few days ago and it confused me.  I don't think it's actually a "warrant", rather an "order".  Don't know the legal difference but I believe there must be one otherwise, why would the judge have signed it?  When a search warrant is issued, the other party does not get to contest it, they are not informed until the warrant is actually served.  Not sure why Apple would be entitled to contest it.

[Keep It Simple]

I would guess to say Apple likely developed their security without considering this scenario (FBI asking them to hack an iphone) or considered it to be a remote possibility.  Maybe this event will prompt Apple to R & D an encryption method even they can't circumvent thus removing any question of their patriotic duty to help in this kind of circumstance.

 

 

  

 

[k-troop]

6 minutes ago, Keep It Simple said:

I would guess to say Apple likely developed their security without considering this scenario (FBI asking them to hack an iphone) or considered it to be a remote possibility.  Maybe this event will prompt Apple to R & D an encryption method even they can't circumvent thus removing any question of their patriotic duty to help in this kind of circumstance.

 

 

  

 

Watching the news tonight apparently Apple is currently working on an iOS that even they wouldn't be able to break into. 

Looking over some of the law blogs today I learned that apparently there is some legal precedent or at least an argument that by creating such a secure system they incur some increased obligation to provide assistance to the government. This issue is pretty complex and I suspect were not even scratching the surface of the debate yet. 

[k-troop]

Good rundown providing alternate answers to all of Apple's arguments. 

https://www.lawfareblog.com/demystifying-apples-faq-%E2%80%93-rebuttal

[newtogolf]

3 minutes ago, k-troop said:

Good rundown providing alternate answers to all of Apple's arguments. 

https://www.lawfareblog.com/demystifying-apples-faq-%E2%80%93-rebuttal

There are two sides to every story, doesn't mean the governments (FBI's) is any stronger because of this piece. Apple is making their customers and their privacy their priority, I will continue to support Apple for making this stand even if they lose the court battle and are required by court order to do as the FBI demands.  

The FBI and SB police were incompetent in handling the phone which is why they must force Apple to expend time and resources on a project that conflicts with their business ideals, marketing efforts and customers wishes.  

[iacas]

8 minutes ago, k-troop said:

Good rundown providing alternate answers to all of Apple's arguments. 

https://www.lawfareblog.com/demystifying-apples-faq-%E2%80%93-rebuttal

"By Apple’s own estimates it would take 6-8 engineers less than a month."

That's not what I define "trivial."

And, I'm sorry, but stuff like this is just garbage:

Quote

The dangers implicated if Apple is to prevail here are quite clear. Should Apple win, and the company is legally able to preserve their devices as “dark” to law enforcement, criminals of all stripes have their marching orders: use iPhones exclusively and turn off iCloud backup. It’s not a bad new market for Apple, but would be a public safety disaster.

Please.

http://atp.fm/episodes/158

[saevel25]

http://www.nytimes.com/2016/03/01/technology/apple-wins-ruling-in-new-york-iphone-hacking-order.html?_r=0

Not associated with the terrorist case, but another similar one where the judge denied the US Government's request to hack the iphone in a drug case. 

Oh, the smack down on the moral side of this argument, 

Quote

 "Apple cannot reap the legal benefits of licensing its software in this manner and then later disclaim any ownership or obligation to assist law enforcement when that same software plays a critical role in thwarting execution of a search warrant." Govt. II at 13-14. That opinion may be perfectly defensible as moral precept (however much it may be in tension with the legal system's otherwise broad support for free enterprise), but it has nothing to do with the pertinent legal inquiry.27

Here is a big one for Apple. I would find it very hard for another judge to say otherwise when the precedent has now been set so clearly by this judge that the government is imposing an unreasonable burden on Apple to bypass their passcode security the way the government wants them to. 

Quote

If, as the government would have it, the only cognizable measure of an unreasonable burden in this case is the extent to which Apple might have unreimbursed financial costs arising directly from the work needed to bypass the passcode security on Feng's iPhone, then granting the requested order would not impose an unreasonable burden. But the category of unreasonable burdens is not nearly so narrow, not even as described in the Supreme Court opinion on which the government primarily relies. Taking into account the several other burdens to which Apple objects – burdens that are no less real or cognizable simply because they are harder to quantify – I conclude that granting the government's Application would impose an unreasonable burden on Apple.

Another big hit to the Government. DHS, Department of Homeland Security has indeed hacked an Iphone and the Government has admitted to this fact, 

Quote

[T]he lack of a passcode is not fatal to the government's ability to obtain the records.That is because [the Department of Homeland Security ("DHS"), Homeland Security Investigations ("HSI")] is in possession of technology that would allow its forensic technicians to override the passcode security feature on the Subject iPhone and obtain the data contained therein. In other words, even if HSI agents did not have the defendant’s passcode, they would nevertheless have been able to obtain the records stored in the Subject iPhone using specialized software. The software works to bypass the passcode entry requirement and "unlock" the cellular telephone without having to 

It seems the technology they use is "fairly new" and "finicky". Meaning the Government would rather try to force Apple to get this hack so they don't have to use a technology that only works sometimes, yet it still can work. 

A good win for Apple in a case very similar to the one that started this thread. 

[k-troop]

1 hour ago, saevel25 said:

http://www.nytimes.com/2016/03/01/technology/apple-wins-ruling-in-new-york-iphone-hacking-order.html?_r=0

Not associated with the terrorist case, but another similar one where the judge denied the US Government's request to hack the iphone in a drug case. 

Oh, the smack down on the moral side of this argument, 

Here is a big one for Apple. I would find it very hard for another judge to say otherwise when the precedent has now been set so clearly by this judge that the government is imposing an unreasonable burden on Apple to bypass their passcode security the way the government wants them to. 

Another big hit to the Government. DHS, Department of Homeland Security has indeed hacked an Iphone and the Government has admitted to this fact, 

It seems the technology they use is "fairly new" and "finicky". Meaning the Government would rather try to force Apple to get this hack so they don't have to use a technology that only works sometimes, yet it still can work. 

A good win for Apple in a case very similar to the one that started this thread. 

There is a legal argument that Apple has created the burden by increasing the level of security. In that regard, the court's "no legal pertinence" isn't really so simple. And this decision would be precedent in only one court. 

However...

wins like this are huge for Apple. If they can split the circuits they virtually guarantee the USSCt will hear the issue. IMO it makes more sense for Congress to deal with this first though. 

[iacas]

1 minute ago, k-troop said:

There is a legal argument that Apple has created the burden by increasing the level of security.

That reads really ridiculously.

Apple set out to make a more secure product, so it's pretty lame to imply or whatever you want to call it that by making a more secure product they've increased the burden for anyone - including themselves - to break into it.

That's like saying that a safe maker who adds a layer of security to their safe has increased the burden. Of course! That was the whole point!

1 minute ago, k-troop said:

wins like this are huge for Apple. If they can split the circuits they virtually guarantee the USSCt will hear the issue. IMO it makes more sense for Congress to deal with this first though. 

What does Congress have to do with this? Congress can't just pass any law they want, of course. There are also issues beyond our Congress (international) implications here.

[k-troop]

22 minutes ago, iacas said:

That reads really ridiculously.

Apple set out to make a more secure product, so it's pretty lame to imply or whatever you want to call it that by making a more secure product they've increased the burden for anyone - including themselves - to break into it.

That's like saying that a safe maker who adds a layer of security to their safe has increased the burden. Of course! That was the whole point!

What does Congress have to do with this? Congress can't just pass any law they want, of course. There are also issues beyond our Congress (international) implications here.

Saying it reads ridiculously doesn't make it an untrue statement. It is, for lack of a better phrase, what it is. 

And you've got the other point a bit backwards. The courts can't just say whatever they want. They have to interpret laws. Right now they're left with the AWA which says nothing about this particular factual situation, so the court has broad discretion to "interpret" a solution. If congress passes something then the Court will be stuck with the reasonable limits of interpreting that law. 

[iacas]

2 minutes ago, k-troop said:

Saying it reads ridiculously doesn't make it an untrue statement. It is, for lack of a better phrase, what it is. 

I stand by what I said. It reads ridiculously. It is almost like saying Apple is faking it, or something like that. They didn't make it tougher to break into an iPhone to thwart the FBI or to protect terrorists. They made it tougher to break into an iPhone because they wanted to make it tougher to break into an iPhone. It's irrelevant, then, where the "burden" comes from, just that it exists now.

2 minutes ago, k-troop said:

And you've got the other point a bit backwards. The courts can't just say whatever they want. They have to interpret laws.

In doing so they effectively make the laws, because they determine how what's written is interpreted and enforced.

2 minutes ago, k-troop said:

Right now they're left with the AWA which says nothing about this particular factual situation, so the court has broad discretion to "interpret" a solution. If congress passes something then the Court will be stuck with the reasonable limits of interpreting that law. 

Unless that law is struck down by the courts as inappropriate (unconstitutional, whatever).

[k-troop]

@iacas it sounds as if you think the Courts are the right body to write this law. They're not. The 9th Circuit could decide whatever they want. It'll be years before the USSCt decides, and there's no guarantee they'll side with Apple. In the intervening years device and OS creators are left with producing devices and code that comply with the law then current, and five years is generational for technology. 

Congress is an elected, representative body. Sure they're dysfunctional but they're the closest thing we have to something responsive to popular will. If they wrote a law protecting tech companies from assistance orders that diluted the value of their IP, the courts would have to find a specific constitutional provision that invalidated it. Given that all of the relevant Constitutional provisions are written to protect citizens against the government I have a hard time seeing how that would happen. 

[saevel25]

29 minutes ago, k-troop said:

There is a legal argument that Apple has created the burden by increasing the level of security. In that regard, the court's "no legal pertinence" isn't really so simple. And this decision would be precedent in only one court. 

However...

wins like this are huge for Apple. If they can split the circuits they virtually guarantee the USSCt will hear the issue. IMO it makes more sense for Congress to deal with this first though. 

Congress will not touch this. First this issue is with the AWA act and its application. So they would probably have to amend the constitution to modify the AWA for modern application with tech companies. There are bigger issues concerning the populus of this country than this one.

I don't think this gains traction no matter how hard the FBI pushes negativity against Apple. 

The judge in this case talked specifically about the security burden, 

Quote

In considering the burden the requested relief would impose on Apple, it is entirely appropriate to take into account the extent to which the compromise of privacy and data security that Apple promises its customers affects not only its financial bottom line, but also its decisions about the kind of corporation it aspires to be. The fact that the government or a judge might disapprove Apple's preference to safeguard data security and customer privacy over the stated needs of a law enforcement agency is of no moment: in the absence of any other legal constraint, that choice is Apple's to make, and I must take into account the fact that an order compelling Apple to abandon that choice would impose a cognizable burden on the corporation that is wholly distinct from any direct or indirect financial cost of compliance.

Basically it doesn't matter if the security is a burden Apple made. They have a right to make that burden because it's in line with the quality of product they want to achieve and provide to their customers. Unless the government is willing to create a law saying that a tech company can not provide a certain level of security, and in fact providing a product that could in fact be insecure and could provide a major risk to their own personal data and possible identity theft, then Apple has the right to create whatever security level they want to provide. 

6 minutes ago, k-troop said:

@iacas it sounds as if you think the Courts are the right body to write this law. They're not.

Yet there is such a thing as legislating from the bench. Judges do it, and it has happened in the past. 

 

[iacas]

8 minutes ago, k-troop said:

@iacas it sounds as if you think the Courts are the right body to write this law.

I don't think that anything I've said implies that. I know how the branches of government work. But you also know that in interpreting law, it determines how laws are enforced.

The first result in Google for a phrase I've already forgotten demonstrates all I've said:

https://www.washingtonpost.com/local/crime/us-appeals-court-strikes-down-one-gun-a-month-law-in-district/2015/09/18/137fa290-5e22-11e5-8e9e-dce8a2a2a679_story.html

A law was struck down as unconstitutional. Courts changing laws. Not writing them, literally, no. Just saying "nope, not a valid law."

8 minutes ago, k-troop said:

It'll be years before the USSCt decides, and there's no guarantee they'll side with Apple.

I never said differently.

8 minutes ago, k-troop said:

Congress is an elected, representative body. Sure they're dysfunctional but they're the closest thing we have to something responsive to popular will. If they wrote a law protecting tech companies from assistance orders that diluted the value of their IP, the courts would have to find a specific constitutional provision that invalidated it. Given that all of the relevant Constitutional provisions are written to protect citizens against the government I have a hard time seeing how that would happen. 

And a company could contest that law in court, too, and such a law can't really be enforced retroactively either. So what's that got to do with this? That's why I don't really see why you continue to mention Congress. It has no play in this right now.

[k-troop]

And I just looker at the NY ruling 

it was a magistrate judge. ZERO precedent outside of that case. 

And it was an iOS7 case, before the security measures at issue in the Farook case. So it's not even deciding the same issue.