Apple v. FBI

[k-troop]

56 minutes ago, newtogolf said:

So are you contending that all the "monitoring" that NSA does under programs like PRISM, FACIA, Dishfire and Optic nerve are done with a warrant?  

An individualized warrant that authorizes the search for evidence of a specific crime in a specific place, typically tied to a specific suspect or investigation is the lodestar of Fourth Amendment compliance.  So in that sense, no--much of what the FBI (and other agencies) do under FISA or special authorities (many of which remain classified even though leaked by Snowden/Assange) are not done with a warrant.  They are "approved" in other senses, whether it's a blanket approval by a FISA court for a category of data retrieved and maintained in a specific way (which is technically a warrant), or an executive program that's briefed to the intelligence committes in Congress (not a warrant, obviously).

However...

The Farook case, and the other 89 (or so) phones the FBI wants to unlock, are exactly what the Fourth Amendment strives for.  There is no breach of privacy, or illegal searches under the Fourth Amendment, when a magistrate judge has issued a warrant related to a specific piece of evidence in a particular case.  (In fact in the Farook case the owner of the phone consented, so no search warrant is even required under the Constitution.)

The examples you cited are privacy issues, but the Farook case isn't about privacy at all (at least not in a legal sense).  There is no Fourth Amendment privacy issue at stake in that litigation.  It's strictly limited to how much assistance Apple can be compelled to provide.

Funny that you mention those other programs, which are real privacy concerns.  I'm sure if anyone from the CT or CE divisions within the DoJ read this forum they'd laugh at the uproar over privacy in the Farook case.  The Farook case is an example of maximum compliance with Constitutional privacy.  If you want to argue about systemic government violations of the Fourth Amendment, this is the last issue you should be worried about!

[saevel25]

38 minutes ago, k-troop said:

The Farook case, and the other 89 (or so) phones the FBI wants to unlock, are exactly what the Fourth Amendment strives for.  There is no breach of privacy, or illegal searches under the Fourth Amendment, when a magistrate judge has issued a warrant related to a specific piece of evidence in a particular case.  (In fact in the Farook case the owner of the phone consented, so no search warrant is even required under the Constitution.)

The examples you cited are privacy issues, but the Farook case isn't about privacy at all (at least not in a legal sense).  There is no Fourth Amendment privacy issue at stake in that litigation.  It's strictly limited to how much assistance Apple can be compelled to provide.

I don't see  a warrant being able to force Apple to unlock the phone when they are not in possession of the passcode or a means to generally do so already.  Each phone has unique hardware that acts as an encryption. There is no universal standard encryption for the iPhone and no database for the passcodes outside the phone.

In the end this demand by the FBI violates the very integrity of Apple and their ability provide the level of security they want for their consumer. This is the question that needs to be answered. Should the government be able to dictate the level of security provided to the consumer if that level of security is a burden to the government?

If you don't think this is a privacy issue you are just ignorant to the way technology works. If Apple does this and validates how this works hackers will be all over Apply trying to figure out how they did it. Once they do figure it out then Apple will just have to develop a new system that is even more secure.

Current example of how good hackers are, you think your car is safe. If your car has Bluetooth or Wi-Fi access it can get hacked.

https://www.youtube.com/watch?v=a-acTr4EFwM

 

 

 

[k-troop]

8 minutes ago, saevel25 said:

I don't see  a warrant being able to force Apple to unlock the phone when they are not in possession of the passcode or a means to generally do so already.

That part of it isn't a warrant, it's a writ under the AWA.  It's a two-part process:

1.  Warrant to seize and search the phone (or consent, if applicable).

2. Writ compelling Apple to provide assistance.

8 minutes ago, saevel25 said:

If you don't think this is a privacy issue you are just ignorant to the way technology works.

It's not a Constitutional privacy (AKA Fourth Amendment) issue.  @newtogolf talked about illegal searches; that's what I was responding to.  This is not a Fourth Amendment issue.  The FBI is doing everything that is legally possible to do to comply with the 4th.

The Fourth Amendment doesn't protect you from hackers, nor does it compel the government to protect you from hackers.

[saevel25]

1 minute ago, k-troop said:

It's not a Constitutional privacy (AKA Fourth Amendment) issue.  @newtogolf talked about illegal searches; that's what I was responding to.  This is not a Fourth Amendment issue.  The FBI is doing everything that is legally possible to do to comply with the 4th.

The Fourth Amendment doesn't protect you from hackers, nor does it compel the government to protect you from hackers.

So warrants can force a person to break their on technology, violate the integrity of their own product?

[k-troop]

5 minutes ago, saevel25 said:

So writs issued under the All Writs Act can force a person to break their on technology, violate the integrity of their own product?

FIFY.

At least one Court thinks so, and that's the only one that's really relevant to Apple right now.  Congress could pass a law specifically applying to compelled assistance to device manufacturers, and then the District Court Judge's ruling under the AWA would be meaningless.  Whatever law Congress passed would apply.

[k-troop]

32 minutes ago, saevel25 said:

In the end this demand by the FBI violates the very integrity of Apple and their ability provide the level of security they want for their consumer. This is the question that needs to be answered. Should the government be able to dictate the level of security provided to the consumer if that level of security is a burden to the government?

FWIW I 100% agree with you that this is the key question.  Apple always has the option of creating a 1-time solution for each case, but that's not practical and probably would increase the chances that the tech would leak (as they'd have to have a full-time division drafting code in response to LE requests).

They only practical way for Apple to provide this assistance is to create a less secure OS.  I agree with that.

CONGRESS needs to speak on this.  SCOTUS could take years to settle this issue.  Until then, Apple could be subject to dozens (if not hundreds) of courts' individual interpretations of whether the AWA permits this.

[inthehole]

I think what rubs a lot of people wrong is as a US based company, Apple SHOULD want to help the govt develop a method to assist in terrorism or other criminal mitigation on their product, rather than being an obstruction.   Listen, if this type of search is protected by the issuance of a warrant through due process, what's the problem with providing the govt with a tool that can be used to attain lawful information obtained via warrant ?

[Big Lex]

Totally with Apple on this. What is wrong with using the existing legal system to get the information? As iacas points out, things like text messages, phone calls, times of things, etc., are obtainable through telecom.

There may be a lot more on the phone that they can't get, however, because they can't crack the software. So obtain a court order that Apple provide all available data on that specific phone. There is no need to share HOW they obtain the information. There is no need to compel Apple to provide general, proprietary information which threatens the security and privacy of millions of innocent people.

This is the _real_ reason the FBI wants the information. They want it for a surveillance tool. The terrorist case is just a convenient way, and end-around, to try to get it. Law enforcement justifies all sorts of intrusive, illegal actions as necessary to "protect" us, and this is no different, IMO.

[k-troop]

2 minutes ago, inthehole said:

I think what rubs a lot of people wrong is as a US based company, Apple SHOULD want to help the govt develop a method to assist in terrorism or other criminal mitigation on their product, rather than being an obstruction.   Listen, if this type of search is protected by the issuance of a warrant through due process, what's the problem with providing the govt with a tool that can be used to attain lawful information obtained via warrant ?

Because the "tool" requires Apple to create a version of their product that is less secure.  Security is one of their defining characteristics (at least if you agree with them).

A warrant entitles the FBI for the information, for sure.  But it doesn't entitle them to help from Apple.  That's a separate question, and one that needs a definitive answer.

2 minutes ago, Big Lex said:

There may be a lot more on the phone that they can't get, however, because they can't crack the software. So obtain a court order that Apple provide all available data on that specific phone. There is no need to share HOW they obtain the information. There is no need to compel Apple to provide general, proprietary information which threatens the security and privacy of millions of innocent people.

This is what happened.  The California court didn't tell Apple to turn over it's code, or anything like that.  They told Apple to write code that allowed them to unlock the phone.  The FBI's request even allows Apple to delete/destroy it afterwards.

[14ledo81]

6 minutes ago, inthehole said:

I think what rubs a lot of people wrong is as a US based company, Apple SHOULD want to help the govt develop a method to assist in terrorism or other criminal mitigation on their product, rather than being an obstruction.   Listen, if this type of search is protected by the issuance of a warrant through due process, what's the problem with providing the govt with a tool that can be used to attain lawful information obtained via warrant ?

 

Like @saevel25 had mentioned, the "hack" (eventually) would fall into the hands of other governments.  This could cause issue for Americans working/living abroad.  

 

[Big Lex]

4 minutes ago, k-troop said:

This is what happened.  The California court didn't tell Apple to turn over it's code, or anything like that.  They told Apple to write code that allowed them to unlock the phone.  The FBI's request even allows Apple to delete/destroy it afterwards.

I thought the issue was that the information, if provided, would not only unlock the phone in question, but ANY iPhone.

[k-troop]

14 minutes ago, Big Lex said:

I thought the issue was that the information, if provided, would not only unlock the phone in question, but ANY iPhone.

It would work on any iPhone with a compatible OS.  But Apple wouldn't have to use it on every iPhone the FBI wants.  Only on the ones for which LE has a valid warrant and a writ compelling assistance.  Apple doesn't have to provide the FBI with this capability, they have to perform the assistance for the FBI.

Which is essentially exactly what you asked for in your post. 

The problem becomes when Apple has to provide this assistance on a regular basis, they have basically 3 options:

1. Rewrite iOS so that it's less secure.

2. Maintain a division of programmers to write unique code in response to every FBI request, and then destroy it afterwards.  Of course they would be training a significant number of people to hack their devices, which is bad.

3. Write and maintain a code that they can re-use in response to requests, and risk that it leaks.

[Big Lex]

On ‎2‎/‎18‎/‎2016 at 6:28 PM, nevets88 said:

Here's a more detailed technical explanation of why Apple can't crack its own phones and what's being asked for.

Here's the big picture:

http://www.vox.com/2016/2/17/11037748/fbi-apple-san-bernardino

The San Bernardino terrorist disabled iCloud backup a month and a half before the attack.

http://www.vox.com/2016/2/17/11031902/apple-encryption-fbi-san-bernardino-backdoor

Wish I'd read this first.

It's complicated.

Not as simple as I thought....of just forcing Apple to hand over the information, because they can't. Hence the request for a back door.

I can see both sides, and while the FBI's request is made in a fashion that makes it seem like it's specific to Farook's phone and doesn't affect the security of other phones, it sets a precedent. Farook is dead, forfeited his privacy right, etc., so it seems on the surface to be reasonable to do what the FBI asks. But doing it sets a precedent, and the next argument will be to do something similar for surveillance, etc. I'm still with Apple.

[newtogolf]

2 hours ago, k-troop said:

An individualized warrant that authorizes the search for evidence of a specific crime in a specific place, typically tied to a specific suspect or investigation is the lodestar of Fourth Amendment compliance.  So in that sense, no--much of what the FBI (and other agencies) do under FISA or special authorities (many of which remain classified even though leaked by Snowden/Assange) are not done with a warrant.  They are "approved" in other senses, whether it's a blanket approval by a FISA court for a category of data retrieved and maintained in a specific way (which is technically a warrant), or an executive program that's briefed to the intelligence committes in Congress (not a warrant, obviously).

However...

The Farook case, and the other 89 (or so) phones the FBI wants to unlock, are exactly what the Fourth Amendment strives for.  There is no breach of privacy, or illegal searches under the Fourth Amendment, when a magistrate judge has issued a warrant related to a specific piece of evidence in a particular case.  (In fact in the Farook case the owner of the phone consented, so no search warrant is even required under the Constitution.)

The examples you cited are privacy issues, but the Farook case isn't about privacy at all (at least not in a legal sense).  There is no Fourth Amendment privacy issue at stake in that litigation.  It's strictly limited to how much assistance Apple can be compelled to provide.

Funny that you mention those other programs, which are real privacy concerns.  I'm sure if anyone from the CT or CE divisions within the DoJ read this forum they'd laugh at the uproar over privacy in the Farook case.  The Farook case is an example of maximum compliance with Constitutional privacy.  If you want to argue about systemic government violations of the Fourth Amendment, this is the last issue you should be worried about!

The warrant is required in the Farook case because there currently isn't a way for them to access the data without it.  Once they have tools to circumvent the Apple security they will just access that data like they do with their other systems under FISA.   

[Big Lex]

15 minutes ago, k-troop said:

It would work on any iPhone with a compatible OS.  But Apple wouldn't have to use it on every iPhone the FBI wants.  Only on the ones for which LE has a valid warrant and a writ compelling assistance.  Apple doesn't have to provide the FBI with this capability, they have to perform the assistance for the FBI.

Which is essentially exactly what you asked for in your post. 

The problem becomes when Apple has to provide this assistance on a regular basis, they have basically 3 options:

1. Rewrite iOS so that it's less secure.

2. Maintain a division of programmers to write unique code in response to every FBI request, and then destroy it afterwards.  Of course they would be training a significant number of people to hack their devices, which is bad.

3. Write and maintain a code that they can re-use in response to requests, and risk that it leaks.

The more I read, the more interesting it gets, and the more confused I get.

So, is this the issue? Apple chooses to create their iPhone with security in the form of encryption, and this powerful encryption is a part of their product, the guarantee of the privacy and security of the product. The FBI is asking Apple to compromise that by creating software to circumvent the security. So Apple's right to create a secure product is compromised if the court issues an order to comply with the FBI's request.

So even though the request is seen as a one-off for one phone, in reality it compels Apple to do something which is against their guarantee of security of data for all customers?

Is the FBI asking Apple to do something the FBI could do itself, but is just much easier for Apple to do?

[k-troop]

7 minutes ago, newtogolf said:

The warrant is required in the Farook case because there currently isn't a way for them to access the data without it.  Once they have tools to circumvent the Apple security they will just access that data like they do with their other systems under FISA.   

Banging head against wall.

8 minutes ago, newtogolf said:

The warrant is required in the Farook case because there currently isn't a way for them to access the data without it.  Once they have tools to circumvent the Apple security they will just access that data like they do with their other systems under FISA.   

 

4 minutes ago, Big Lex said:

The more I read, the more interesting it gets, and the more confused I get.

So, is this the issue? Apple chooses to create their iPhone with security in the form of encryption, and this powerful encryption is a part of their product, the guarantee of the privacy and security of the product. The FBI is asking Apple to compromise that by creating software to circumvent the security. So Apple's right to create a secure product is compromised if the court issues an order to comply with the FBI's request.

So even though the request is seen as a one-off for one phone, in reality it compels Apple to do something which is against their guarantee of security of data for all customers?

Is the FBI asking Apple to do something the FBI could do itself, but is just much easier for Apple to do?

You got it. FBI has tried but can't. (They also may have intentionally sabotaged the effort by losing the iCloud password.) Even if they could write the OS they'd need Apple's key to load it on the phone. 

[newtogolf]

8 minutes ago, k-troop said:

Banging head against wall.

 

You got it. FBI has tried but can't. (They also may have intentionally sabotaged the effort by losing the iCloud password.) Even if they could write the OS they'd need Apple's key to load it on the phone. 

Why do you pretend the US government isn't actively spying on their citizens and constantly violating our rights to privacy and the 4th amendment?  

[k-troop]

10 minutes ago, newtogolf said:

Why do you pretend the US government isn't actively spying on their citizens and constantly violating our rights to privacy and the 4th amendment?  

Not sure where you got that impression  

2 hours ago, k-troop said:

An individualized warrant that authorizes the search for evidence of a specific crime in a specific place, typically tied to a specific suspect or investigation is the lodestar of Fourth Amendment compliance.  So in that sense, no--much of what the FBI (and other agencies) do under FISA or special authorities (many of which remain classified even though leaked by Snowden/Assange) are not done with a warrant.  They are "approved" in other senses, whether it's a blanket approval by a FISA court for a category of data retrieved and maintained in a specific way (which is technically a warrant), or an executive program that's briefed to the intelligence committes in Congress (not a warrant, obviously).

However...

The Farook case, and the other 89 (or so) phones the FBI wants to unlock, are exactly what the Fourth Amendment strives for.  There is no breach of privacy, or illegal searches under the Fourth Amendment, when a magistrate judge has issued a warrant related to a specific piece of evidence in a particular case.  (In fact in the Farook case the owner of the phone consented, so no search warrant is even required under the Constitution.)

The examples you cited are privacy issues, but the Farook case isn't about privacy at all (at least not in a legal sense).  There is no Fourth Amendment privacy issue at stake in that litigation.  It's strictly limited to how much assistance Apple can be compelled to provide.

Funny that you mention those other programs, which are real privacy concerns.  I'm sure if anyone from the CT or CE divisions within the DoJ read this forum they'd laugh at the uproar over privacy in the Farook case.  The Farook case is an example of maximum compliance with Constitutional privacy.  If you want to argue about systemic government violations of the Fourth Amendment, this is the last issue you should be worried about!