As part of their motion to vacate the court order to force the company to unlock an iPhone for the FBI, Apple argues that the U.S. Congress has already addressed these issues via law, specifically the Communications Assistance for Law Enforcement Act (CALEA).
From Apple’s motion to vacate:
Congress knows how to impose a duty on third parties to facilitate the government’s decryption of devices. Similarly, it knows exactly how to place limits on what the government can require of telecommunications carriers and also on manufacturers of telephone equipment and handsets. And in CALEA, Congress decided not to require electronic communication service providers, like Apple, to do what the government seeks here. Contrary to the government’s contention that CALEA is inapplicable to this dispute, Congress declared via CALEA that the government cannot dictate to providers of electronic communications services or manufacturers of telecommunications equipment any specific equipment design or software configuration.
In the section of CALEA entitled ‘Design of features and systems configurations’ … the statute says that it ‘does not authorize any law enforcement agency or officer —
(1) to require any specific design of equipment, facilities, services, features, or system configurations to be adopted by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services.
(2) to prohibit the adoption of any equipment, facility, service, or feature by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services.
Apple’s motion to vacate in full here.
MacDailyNews Take: Mic drop.
“Contrary to the government’s contention that CALEA is inapplicable to this dispute…”
Ignore that law, it doesn’t apply to us. Sounds like the federal government to me.
“Do as we say, don’t do as we do.”
“Pay no attention to that law behind the curtain!!”
Cook should say to Comey, “thank you for all the free advertising, now go away!”.
MDN’s take:
‘Cult of Personality?” 😉
Philip Elmer DeWitt has a pretty good summary of the issue as well: http://fortune.com/2016/02/26/san-bernardino-apple-will-win/
And here is a good – more technical – analysis of the issue from the EFF: https://www.eff.org/deeplinks/2016/02/technical-perspective-apple-iphone-case
For everyone who passes legislation without reading it?
Boom
That really ought to settle this, for now.
The problem remains, and I admit I’m conflicted on the matter. How is it that a legal cavity search be done on a person, wiretapping can be done, documents can be accessed, but checking a cell phone cannot.
I definitely oppose mass surveillance of communications, but with a warrant, on a case by case basis (due cause), I am not against it.
I am not against the protections of the 4th Amendment, but the 4th Amendment also assists in what is a reasonable search. Hence warrants.
Sadly, it’s a shame that government has earned such distrust, but that’s a bigger issue.
Here’s the problem in a nutshell. Right now it’s impossible to get into the iPhone of interest. No software exists which would allow it. Apple would have to write the software and digitally sign it in order for it to be installed on an iPhone. Only Apple holds the digital signature information required. Once Apple writes that software, it can be installed on your iPhone and allow access to your personal data. Who’s going to prevent that from happening? The government? The same government that has had its computers hacked and had the records of over 20 million former and current federal employees compromised? I think Apple’s point is that, once the software is written, it will only be a matter of time before someone else has it. That’s only the first step. If Apple creates this for the US Government, governments around the world will demand the same thing. And when THEY have it, for sure they’ll be interested in breaking into as many iPhones as possible. That’s my oversimplified explanation as to why Apple has to say NO. This is more intrusive than a cavity search. This is more like a judge authorizing and exploratory laparotomy to make sure you don’t have any evidence concealed in your abdomen.
Okay. Now convince me that these other forms of search that I mention shouldn’t be abolished as well.
There’s no warrant involved in this case. Apple is not a suspect, and the government owns the phone in question. They are trying to force Apple, a party NOT involved in the criminal investigation, to build them a tool to break a device they already own. Doing so would hurt Apple’s own business interests, so it would be an “undue burden” to force them to assist. There’s more to it than that, but warrants (or the lack thereof) are irrelevant to this case.
Repeat: Apple is NOT a suspect.
AGree that Apple is not a suspect, they are being asked to assist in a criminal investigation. The only reasons warrants are broght up at all is from the generalization of the conversation over government limits.
As I’ve pointed out here at MDN before: Apple is being forced to make a key to open a box of hurt (‘Pandora’s Box’). The FBI et al. get to do the opening and let out the demons. But APPLE has to deal with the backlash from every case of opening the privacy box, over and over and over. Apple suffers the loss of customer trust, anger at the loss of constitutional privacy rights, ad nauseam. That’s part of the ‘undue burden’ the FBI is attempting to shove onto Apple.
Wow.
http://www.nytimes.com/2016/02/26/us/politics/obama-administration-set-to-expand-sharing-of-data-that-nsa-intercepts.html?_r=0
I hope Apple doesn’t expect to protect itself from that fifth rate so called government with the law. Human beings had come to expect that no modern day civilized country in the world would dare sink as low as to torture a human being and now look at that lovely Guantanamo on the Bay resort.
Arm yourselves a little better Apple and have a contingency plan to get you and your families out of the country and to the free and civilized world if need be.
If there is one thing that this nemesis to global security understands it’s war and you are in their cross hairs.
Don’t let “the law protects us” be your final words.
When has the law ever stopped the government- especially the National Security State- from doing as it damn well pleases?
There are secret courts that have rendered secret decisions that are being used this very day to provide legal cover for blatantly illegal activity by our government and it’s private contractors. This had been going on in some capacity before 9-11, but is now on steroids and has not abated under Obama.
Today’s New York Times reports that the rules restricting the sharing of their signals intel with other agencies are being significantly relaxed. So much for hope, change and open government.
The hour is late, people.
MDN may be correct that CALEA cannot be used.. However creation of a system that circumvents the Fourth Amendment provisions for proper search and seizure to be executed may be considered unconstitutional and charged with breaking the law. CALEA only prevents the government “to require any SPECIFIC design of equipment, facilities, services, features, or system configurations to be adopted by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services.” Apple and all other such encrypted systems providers are free to choose any method of complying with the provisions of the Fourth Amendment.
I would probably side with the FBI, had the U.S. Government not been on record as having misbehaved so badly in recent years, using drones, stingrays, mass meta-data acquisition and storage, etc. These are the ones we know about. They have proven that if they think they can get away with breaking the law, they will do it without hesitation. I am not willing to give them the benefit of the doubt anymore.
great job