Apple scored the knockout punch against FBI in House Judiciary Committee hearing

“It wasn’t a one-sided battle by any means. FBI Director James Comey made some solid arguments that clearly hit home,” Ben Lovejoy writes for 9to5Mac. “But my view is that Apple not only won on points, but also scored the knock-out blow.”

“Apple won on points, with a score of 7:5 – but it also won in a more meaningful way,” Lovejoy writes. “Apple had argued all along that this issue was far too important to be settled in court on the basis of a single case. That it has such huge implications that it should be a matter for legislators not judges. The case should, it said, be decided by Congress.”

“It looks to me like Apple is set to get its way. We’ve already had one hearing in Congress, and committee members on both sides appeared to agree that the issue is indeed so important that Congress is the appropriate forum. Even Comey seemed to accept as much, saying that ‘we must continue the current public debate,'” Lovejoy writes. “The court case will continue in the meantime, but it looks to me that the issue will indeed eventually be settled – one way or the other – by legislation passed in 2016, rather than by a court’s interpretation of an Act dating back to 1789. Apple scored the knock-out punch.”

See how Judge Lovejoy scored the bout in the full article here.

MacDailyNews Take: Let’s hope so.

SEE ALSO:
Within an hour of Malaysia Flight 370 disappearing, Apple was working with officials to locate it – March 2, 2016
John McAfee reveals how the FBI can unlock an iPhone in 30 minutes – March 2, 2016
Can the FBI force a company to break into its own products? No, says U.S. Magistrate – March 2, 2016
Apple CEO Cook decried Obama’s ‘lack of leadership’ on encryption during a closed-door meeting last month – February 29, 2016
Obama administration set to expand sharing of data that N.S.A. intercepts – February 28, 2016
Apple’s fight with U.S. could speed development of devices impervious to government intrusion – February 24, 2016
Petition asks Obama administration to stop demanding Apple create iPhone backdoor – February 19, 2016
Obama administration claims FBI is not asking Apple for a ‘backdoor’ to the iPhone – February 18, 2016
Obama administration wants access to smartphones – December 15, 2015
Obama administration war against Apple just got uglier – July 31, 2015
Obama’s secret attempt to ban cellphone unlocking, while claiming to support it – November 19, 2013

45 Comments

  1. One thing I noticed was a lot of use of words like “balance” and “compromise”. The problem is, when it comes to encryption, there is no balance or compromise. It’s either encrypted or it’s not. I fear that the members of congress may not understand this.

      1. I believe Walt Mossberg makes a very good point. Apple and other corporations renting server space may very well be liable for recovering data when a warrant asks for it. At least, that’s what Apple’s own iCloud user agreement says.

    1. Will the Congress make and informed decision? That’s the question. Hopefully, key congresshumans will get some of the key encryption expert’s opinions and guidance. It helps A LOT the General Michael Hayden, former director of the CIA and NSA, is on Apple’s side.

      “America is more secure with unbreakable, end-to-end encryption. It’s a slam-dunk if I widen the field of view to the broad health of the United States.”

      http://www.macobserver.com/tmo/article/former-director-of-cia-and-nsa-says-fbi-is-wrong-about-apples-encryption

        1. After watching the rabid Ashtray Goudy and That bumbleberger grouch screaming ignorant rants at Apple’s lawyer before even letting him explain, I highly doubt it and may even be inclined to “trust” the supreme court.

          Goudy’s and his ignorant buddy’s unwarranted anger, spouted with venom at Sewel, was unprovoked and identical to his disgraceful grandstanding performance in the Benghazi hearings.

          That an ignorant inbred biased ignoramus like this is a member of US congress, is shameful.

          1. Ah, I found the hearing online. I don’t have a direct link to the video. But it is embedded in this article over at VentureBeat. The Comey hearing is first, in this long video. The hearing with Bruce Sewell of Apple starts at about 3:28:00. Congressman Gowdy (R, South Carolina) begins addressing Mr. Sewell at about 4:33:00.

            http://venturebeat.com/2016/03/01/apple-goes-to-washington/

            What disturbed me most was Congressman Gowdy’s request for Apple to submit legislation that would ‘balance’ this situation.

            That is NOT how the US Congress is ‘supposed’ to work. That’s how a corporatocracy works. IOW: Congressman Gowdy is making it clear that he’s a corporatocrat. (I think I broke my dictionary). He expects corporations to propose US law. What happened to conversation with interested parties? What happened to elected officials in Congress doing their job of creating legislation? Instead, Gowdy wasn’t to usurp his job. I’m supposed to consider him ‘honorable’?

            What impressed me most was Mr. Sewell’s calm and logical demeanor throughout.

            1. Furthermore, when Comey was asked multiple times if he could suggest Paramaters or guidelines much the same as Sewell, he pretty much said the same…

            2. Also watch how Sensenbrenner seta witchhumnt in motion by tisteing facts and mis stating facts and accusations….

              Congress is a fucking disaster.

            3. Yes, Congress is a fucking disaster. But then I look at the voters: People are voting for Donald Trump, who doesn’t even bother to understand the details of the job, for President. – – Let’s vote in a 1%er, a corporatocrat, a loud mouth lout, a bully, a TV star, a classic ‘ugly American’… as US President. Yes, the rest of the world thinks that’s crazy.

              So echoing in my mind is: We get the government we deserve. Of course NOT what you and I deserve! But what the under educated, consumer culture, manipulated sheeple, geocentric… populace deserve. Not a happy thing.

            4. But Note:

              tRump os going for the fringe vote…

              He is now giving away public tickets to his rallies to white supremacist groups in addition to courting the white trash igmorant which he blatantly says he loves ” because ignorant people are loyalest”

              If he rounds up all the ignorant, embittered and lowest scum in haterd to support him, they might get him elected becuase of low turnout by tje “educated, hateful republikans that underestimated him and by doing so got him to here.

              Trump will turn us into a third world country and destroy world econimies and democracies everywhere…

              http://www.theguardian.com/us-news/2016/mar/02/donald-trump-jr-james-edwards-radio-interview-white-supremacist

            5. because ignorant people are loyalest <–Did he actually say that?!

              He just gave away the secret reason the, ahem, certain powers-that-be demand that the US edgamacation system be compromised to the point of squeezing out lots of ignorant citizens. Naughty naughty Mr. Trump! The powers-that-be are gonna hate on you for giving that one away!

              Regarding the USA becoming a third world country: There have been strong pressures for decades for US wages to decline to the point of competing with actual third world countries (despite the fact that oddly China is no longer considered a third world country, despite the slave wages). I consistently see the self-destructive drive in the USA due to various other pressures to make the country irrelevant in the world. One raw indicator is the build up of 1%er investment in real estate in specifically Dubai, Arab Emerates. It's called 'planning ahead'.

            6. ” As early returns came in, CNN and Fox News had Rubio in second place with about 25 percent of the vote and Cruz in third place with about 22 percent.

              Trump said his win was broadly based.

              “We won the evangelicals. We won with young. We won with old. We won with highly educated. We won with poorly educated,” he said.

              “I love the poorly educated. We’re the smartest people. We’re the most loyal people.”

    2. Aren’t you oversimplifying, chef?

      The balance that law enforcement wants is the legal mechanism for court-ordered warrants to grant access to digital information.

      That means if you’re under investigation for a crime, and the court issued a warrant, then you would be held in contempt of court if you did not allow authorities to see your files.

      So now the question is, if the suspect is dead, and his phone contains contact information to reveal other terrorists, then who is responsible for unlocking the phone? Everyone knows that if Apple can encrypt something, they can unencrypt it. There is no difficult super coding involved if you are the one who set up the encryption method in the first place. So either Congress will figure out something (a miracle, given their obstructionist tendencies) or the Supreme Court will decide. But the balance is simple: does a court warrant have the authority to force manufacturers to unlock devices that would absolutely have been unlocked had the criminal been alive?

      If we ask the same question for physical security, the answer is pretty clear. The public believes that a warrant does authorize law enforcement to use any means necessary to access your private property. They can ask a bank to open your safety deposit box, they can ask your storage locker company to open your rented garage, and they can have a lock manufacturers open the physical safes and locks that they made.

      It is interesting to point out that Apple’s own iCloud user agreement (http://www.apple.com/legal/internet-services/icloud/en/terms.html) states this:

      “You acknowledge and agree that Apple may, without liability to you, access, use, preserve and/or disclose your Account information and Content to law enforcement authorities, government officials, and/or a third party, as Apple believes is reasonably necessary or appropriate, if legally required to do so or if Apple has a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (a) comply with legal process or request; (b) enforce this Agreement, including investigation of any potential violation thereof; (c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect the rights, property or safety of Apple, its users, a third party, or the public as required or permitted by law.”

      So while Apple may want to take exception to warrants for digital access in the future, right now Apple is telling its users that they have no guaranteed security protection and that Apple reserves the right to decide what access it grants law enforcement.

      I think I would be much more comfortable if Apple updated its user agreement to allow the user to have final say on access and be able to name the inheritor of digital access rights in case of death. It is bad legal precident to allow any corporation final decision over legal matters. The end user deserves to control his data, not just Apple.

      1. It’s not that complicated…

        If there is no way to break the encryption, a warrant would be useless.

        If it can be unencrypted, then that’s not really strong encryption.

        In regards, to iCloud. Want to protect your data? Don’t sync.

        How is that complicated?

        1. Yes, agree with chefpastry. It is simple. If Apple has access to your data and receives a (legitimate) warrant to provide same to government, then Apple is obliged to do so. This explains the iCloud user agreement statement.

          But if Apple has no access to your data, no warrant can force Apple to turn over what it does not have.

          This concept underlies the encryption debate. It is not that hard to follow, is it?

          1. Again, read the iCloud user agreement. Apple owns the data, not the user.

            “Apple reserves the right at all times to determine whether Content is appropriate and in compliance with this Agreement, and may pre-screen, move, refuse, modify and/or remove Content at any time, without prior notice and in its sole discretion, if such Content is found to be in violation of this Agreement or is otherwise objectionable.”

            So clearly Apple can monitor whatever you send to your iCloud account, encrypted or not. Apple, not the user, has final say on what you can and can’t save on their servers. So I don’t buy Apple’s argument that they can’t recover data from iCloud.

            Apple is just like any cloud perveyor — they obviously know what they are storing. That’s why none of the guarantee user privacy or security. They imply it strongly, but they do not guarantee it.

            1. I have. I don’t recommend that anyone use remote servers from any company as a backup for personal data. Local backups and personally-managed secure NAS systems are faster, more private, and more secure.

              But as I mentioned above, local backups are not exempted from warrants. If a court allows investigation, then anything on any criminal’s local computer is fair game. All the FBI is saying is that the same data backed up to Apple servers should also be available under warrant access. That is not as unreasonable as MDN and others here keep repeating ad nauseum.

        2. Precisely. When police comes with a warrant to open your storage room, they ask for a key. The storage management doesn’t have it (they never do, as a matter of policy), so the police proceeds to break the lock. They don’t ask the lock maker to spend engineers and resources to re-design the tumbler part of the lock, in order to swap it out, so that the police would be able to pick a lock and ultimately unlock it. If they did, the judge would throw the request out (although in most cases, they don’t need to, as they can physically break/destroy the lock by brute force and get in).

        3. You are leaping to the conclusion that the encryption is unbreakable. IT IS NOT. Apple encrypted it, and Apple can therefore decrypt it. Otherwise how do you think users are able to use iCloud at all? Apple does all the encrypting and decrypting with each backup, not the user. Unless Apple is lying to its users about how it protects their data and the aren’t doing the encryption they claim to do. That is unlikely.

          I think what Apple is taking a stand against isn’t the decryption at all. They just don’t want to do any pro bono work for anyone else any more. It has already cost Apple millions to support every law enforcement data request, and they don’t want to do it anymore.

          We shall soon see if the warrant is upheld in a higher court or not. If the warrant is upheld and Apple is ordered to decrypt data that a crimiinal stored on Apple servers, then so be it. A warrant is a critical tool for law enforcement and if it’s already okay for warrants to cover any data a criminal stores locally on his hard drives, or even hard drives that are locked in Safety Deposit boxes that are locked by a 3rd party (bank), then I am not sure I see a huge problem with a warrant allowing officials access to data that criminals could be putting on Apple’s servers.

          After all, Apple’s user agreement clearly states that your data is their data — you can’t unencrypt it from their server without them, can you?

  2. The same congress that met and determined that phone companies need to make phones so secure that thieves would be deterred from stealing them? Just a few years ago Apple was made the gold standard because they made it so a phone was inoperable without knowing the iCloud password…after a rash of violent thefts..so bad that our government assembled a panel to force phone makers to make their phones less appealing to thieves.

    Given recently disclosed info regarding this phone (like..it was a work phone with profile(s) installed and all activities monitored by employer, etc), Apple will make the Gov look idiotic in a public debate.

  3. Leaving the issue to our brilliant, incorruptible, trustworthy leaders in Congress doesn’t exactly inspire my confidence that this will end well.

    Maybe Apple is set to fill their campaign coffers with all that cash Apple is sitting on. Paying off our elected officials seems to be the only way to get them to decide in your favor.

    1. You make a cogent observation. However, I ask who is going to give money to Congress to persuade them to weaken he encryption? Almost everyone is on Apple’s side. I doubt if big banks want weaker encryption. Big retailers? Nope. China, well probably, but they can’t take money from Chinese companies.

  4. 😺😎

    Of course, this is still in the abstract. We’ll see what happens on the floor of the Congress. But this probably makes the Apple court hearing this month a mute point.

    The soap opera continues. But who’s going to get pregnant, and who’s the baby’s father?! Join us next time on ‘The Edge Of Unconstitutional’. Cue the organ music… ♪♪♪♩ 🍼👶

    1. Don’t forget if there’s a pregnant woman involved and she’s fooled around that much she may be wondering if the baby belongs to her.

      ♩♪

      On another note, great article, let’s hope sanity prevails, but I’m not holding my breath.

      Oh and on another note, isn’t it great to read what people have to say on this issue. Heck I feel the Mac community spirit again. Lettuce prey.

  5. I believe it was Congresman Jeffries made the point that:

    1. People have to choose to enable a password lock.
    2. People have to choose to enable a data wipe after 10 failed attempts.
    3. People have to choose to whether or not data is sent to iCloud

    The people have spoken. They want encryption and privacy.

    1. Yes, and Apple claims that people all have that.

      The people have also said that when a court issues a warrant following public due process in order to investigate criminals, they are all in favor of law enforcement officials taking everything the criminal has, wherever he stashed it. Tons of legal precedence there.

  6. The best comment I have seen elsewhere is that the governments biggest, most important secret was how to build an atomic bomb and they could not keep that secret.

    1. Interesting revisionist history. Physics isn’t, and never was, a secret. Many nations were developing nuclear technology. It just so happens that the USA was the first to put atom bombs to use.

      Agree with Truman’s decision or not, I have never heard of any military superpower that withheld the use of dominant war-ending weapons just to keep them “secret”.

      Do boxers tie a right hand behind their back for a few rounds to keep the opponent from knowing how strong his right hook is? Yeah, that’d be a new one.

      1. A story concerning the need for military secrecy. During WW2, the British managed to crack the German Enigma encoding machines ( and no – they didn’t force the Germans to install a back door! ).

        The Germans were utterly convinced that a code with 150 million million ways would be unbreakable ( yes, the word million is used twice ). It was therefore vital that once the code was broken, there had to be no clue that they had achieved it. One of the ruses that they employed was that there always had to be a plausible alternative explanation about why actions triggered by code intercepts might have happened. For instance, if an intercepted message revealed the whereabouts of a particular ship and the Allies decided to attack it, a reconnaissance aircraft would first be sent to the area and would make sure that it was spotted by the crew. Then when the attack happened, it would be attributed to a chance observation by that plane.

        The code breaking project was so secret that when WW2 was over, all the devices were dismantled and those working on it were under strict orders to never ever talk about it. People didn’t even tell their spouses and many went to the grave without ever mentioning it, even to their closest relatives. It was only after a senior officer wrote an autobiography comparatively recently that the full story started to emerge and after that, some people felt that it was finally OK to talk about their contribution after 50 years or so. Many relatives were astonished to read these books and discover that their mother or father were named as working on this project and died without ever mentioning it.

  7. I keep trying to come up with an appropriate analogy for this. It seems impossible because we have never had anything like this. However, here is an attempt.

    Suppose you could make a modern vault that was impenetrable (New kind of metals, etc.), and millions of people bought one to store their important stuff (bank account passwords, money, diamonds, etc.) because this outstanding security was a huge selling point.

    Further suppose that you and your key employees had, or could create a secret way to open the vault by entering a special combination. However, this combination would work on anybody’s vault of this type.

    Now suppose that government wanted to gain access to a particular vault because it contained evidence that ‘might’ have information in it that ‘might’ save countless lives. So you gave them the combination with their promise that they would not reveal it and would only use it with a court order.

    How long do you think it would be before other governments would demand to have that same combination of the same reasons?
    How long do you think it would be before the combination was well known in the whole world?
    Even if government had not asked for the information yet, how safe would that combination be, even among key employees?
    How many people could come up with other ‘legitimate’ reasons that their vault should be opened?
    How long do you think it would take for people to stop buying these vaults? People could still use the vault. They could still keep it as a storage cabinet.

    1. The analogy you propose isn’t what the FBI is asking for.

      1) The FBI has a suspect under investigation.
      2) That suspect has a contract with Party X.
      3) Party X is a storage facility that can be opened by either the suspect or by Party X — both hold keys.
      4) The suspect conveniently loses his key when authorities close in on him.
      5) The FBI asks for a warrant to investigate the home and property of the suspect.
      6) The court, using due process following the presentation of strong evidence that the suspect is guilty, is granted the warrant.
      7) Following procedure and legal precedent, the FBI visits Party X and asks them to open up the storage unit.
      8) Party X in the past would comply. They have multiple times in the past. This time they refuse.

      I think you can see that Party X is Apple and that the storage unit is the iCloud account.

      Even if Apple isn’t held in contempt of court for this incidence, it is very likely that Congress will ensure that server storage companies including Apple in the future will be bound to turn over any data that they hold the key to open. And you know that Apple can read anything you upload to iCloud. That’s what it says in the user agreement.

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