Apple: The FBI’s demand is unconstitutional

“Apple shouldn’t have to comply with a search order for an iPhone used by one the San Bernardino, California, terrorists because the Constitution forbids it, the company said Tuesday,” Shara Tibken reports for CNET.

“Apple, in a reply to a Department of Justice filing from Thursday, said the All Writs Acts — the 227-year-old law used to compel Apple to assist the FBI — can’t be applied in this case. It also sought to show that prior cases cited by the Justice Department can’t be used as precedent to make Apple redesign its mobile software,” Tibken reports. “‘The All Writs Act cannot be stretched to fit this case because to do so ‘would be to usurp the legislative function and to improperly extend the limited federal court jurisdiction,” Apple’s filing said, quoting a decision from the 9th US Circuit in 1979.”

“Apple argued Tuesday that Justice Department is trying to give the Act more reach than it actually contains,” Tibken reports. “‘The government attempts to rewrite history by portraying the Act as an all-powerful magic wand rather than the limited procedural tool it is,’ Apple said in its latest filing. “‘This Court should reject that request, because the All Writs Act does not authorize such relief, and the Constitution forbids it.”‘”

Read more in the full article here.

MacDailyNews Take: As we wrote last month:

The day the U.S. government can force anybody to write something is the day the United States of America as we know it dies.

If this keeps up, you won’t need to build a wall. Nobody will want in.

Of course, Apple has in its power to render even these methods, should they be forced upon the company, moot with future iOS updates that protect user privacy from government overreach.

It would be nice, however, not to have to depend on a company to enforce U.S. Constitutional rights, but rather to have a government – made up of people who swear oaths to the Constitution, no less – that protects citizens’ Constitutional rights jealously instead of wiping their asses with the document daily.

SEE ALSO:
Apple says U.S. ‘Founders would be appalled’ by DOJ order – March 16, 2016
U.S. Senator Lindsey Graham finally talks to tech experts, switches side to Apple vs. FBI – March 15, 2016
Obama administration begins to realize it may have made a big time mistake going after Apple over iPhone encryption – March 15, 2016
Tech companies join Apple to fight back against government overreach, prep to expand encryption of user data – March 15, 2016
Google’s Eric Schmidt is joining the Pentagon’s new How Apple realized it was at war with the FBI: The DOJ was poised to launch PR campaign designed to pull the public’s heartstrings – March 15, 2016
Richard Clarke: U.S. government more interested in setting legal precedent than solving the problem of one iPhone – March 15, 2016
Obama criticized for ‘tone deaf’ comments at SXSW regarding Apple’s fight against government overreach – March 14, 2016
The U.S. government’s fight with Apple could backfire big time – March 14, 2016
John Oliver just smartly explained Apple’s fight against U.S. government overreach – March 14, 2016
U.S. Congressman Darrell Issa at SXSW: ‘Hold your iPhone a little bit higher, so the FBI can hear us better’ – March 14, 2016
Obama pushes for iPhone back door; Congressman Issa blasts Obama’s ‘fundamental lack of understanding’ – March 12, 2016
U.S. Attorney General Loretta Lynch backs U.S. government overreach on The Late Show with Stephen Colbert – March 11, 2016
Former CIA Director: FBI wants to dictate iPhone’s operating system – March 11, 2016
U.S. government takes cheap shots at Apple – March 11, 2016
FBI warns it could demand Apple’s iPhone code and secret electronic signature – March 10, 2016
California Democrat Diane Feinstein backs U.S. government overreach over Apple – March 10, 2016
Snowden: U.S. government’s claim it can’t unlock San Bernardino iPhone is ‘bullshit’ – March 10, 2016
Apple: The law already exists that protects us from U.S. government demands to hack iPhone – February 26, 2016
Apple said to be prepping iOS version that even it can’t hack – February 25, 2016
Apple could easily lock rights-trampling governments out of future iPhones – February 20, 2016
Apple CEO Tim Cook lashes out at Obama administration over encryption, bemoans White House lack of leadership – January 13, 2016
Short-timer U.S. Attorney General Eric Holder blasts Apple for protecting users’ privacy against government overreach – September 30, 2014
Obama administration demands master encryption keys from firms in order to conduct electronic surveillance against Internet users – July 24, 2013

43 Comments

    1. Nobody is claiming Apple should work for the US Government.

      Apple did, however, have a contract with the terrorist. That terrorist paid Apple to store his data. According to the 4th Amendment, a proper warrant allows law enforcement access to that data. If the data was encrypted by the terrorist and NOT Apple, then Apple would have a clean case. But Apple did the encryption. Hence, law says they need to open the lock.

      This is something Apple does everyday. When a user forgets his password, he calls Apple for help, proves his identity, and Apple resets phone passwords. EVERY DAY.

      In this case, the terrorist is dead, the FBI used up the password attempts to open the phone, and so now they are using a valid warrant to ask Apple to do what they would do with any living customer: reset the password on this one phone.

      Just because Apple doesn’t like the All Writs Act doesn’t mean that the law is invalid. It just needs updating, and Apple hasn’t put forth a clear proposal of how to reform existing law.

      1. The data are not stored by Apple as you claim; the data are on his phone.
        The data was not encrypted by Apple as you claim; the data was encrypted by his phone.
        This is not merely a case of “resetting” the password.
        This is not something Apple would do for any customer.

        Your “facts” are really out to lunch. Do you even understand what is going on here?

        1. The data on the iPhone was backed up to iCloud. Some have reported that Apple gave the FBI a 6 week old backup of the iCloud data already — but not a recent one.

          Apple has the encryption key. But that’s not the point. The point is iPhone password locking. Apple can, and does, unlock phones all the time. Explain why you think Apple can’t, or doesn’t.

          If Apple wants to do a service to users, let them choose the encryption on their iOS device. Similar to, but with more user options, than File Vault on a Mac.

          1. You are so far off in your understanding of the facts in this case as to take my breath away. Apple fully cooperated with the FBI to give them all the iCloud backups that exist. They cannot provide iCloud backups after the user turned backups off because they never existed. The only data, if any, created after October that now exists is physically located on the phone itself.

            It is precisely the point that Apple does NOT have the encryption key. They do not unlock iPhones all the time because they can’t without the key, which is derived from the passcode that no living person knows in this case.

            Explaining why Apple doesn’t or can’t unlock current phones with existing means would require a long explanation of how encryption works, which you would not believe.

            If Apple offered people a choice about encryption, there would only be two choices—on or off. That is the nature of the technology. Given that choice, you would probably be the only person to turn it off.

            1. You speculate that I would not believe in irreversible encryption. I don’t.

              But don’t take my word for it. Apple’s motion in court claimed it would take the company 6-60 engineers about 2-4 weeks to unlock the “unlockable” iPhone.

              http://www.marketwatch.com/story/how-many-engineers-and-weeks-apple-says-itd-take-to-give-the-fbi-what-they-want-2016-02-25

              Sorry, but it is up to the court to decide if inconvenience on Apple’s part is unconstitutional. Warrants in the past have had ample authority to compel companies to do a lot more than 2-4 weeks of work to reveal data for crime investigation, as you should know. Perhaps it’s just Apple with the balls to appeal a warrant, but perhaps not. We will both learn much as the case progresses.

      2. Bad, bad, naughty Mike.

        Apple DID NOT have a contract with the shooter.
        The phone was owned by the shooter’s employer.
        Its just that simple.

        Apple handed over the last data backup they had of that employer owned work phone that happened to be used by the shooter.

        Apple consulted with law enforcement, but the FBI didn’t listen and had someone attempt to reset the password. The FBI screwed up, plain and simple.

        Apple DOESN”T hand over dead people’s passwords. Remember the wife who was so pissed off after Apple wouldn’t give her the password to her dead husbands iTunes account?

        1. Okay, Apple had a contract with the employer. I’m not sure that changes the legal context here.

          Do you honestly believe that Apple CANNOT unlock password protected phones, or are we just both waiting for the court to decide IF Apple has to do so?

          As to the matter of the dead husband’s iTunes account: Apple’s iCloud user agreement explains clearly that anything there is Apple’s, not the user’s. That is why all our data, including easily replaceable music and other media, is stored locally, not on Apple’s servers. I bought most of my music on CDs, and I damn sure will give it to my kids when I die.

          But to the point of iCloud data ownership, not to this specific terrorist case: Apple muddied up the issue big time on this. Practically all cloud server rental outfits in their user agreements, including Apple, promise nothing to the user. Not security, not privacy, not availability, not data integrity. They reserver the right to data mine your stuff, to delete your stuff, and yes, to give your stuff to law enforcement, which Apple does all the time. Data on the cloud, for all practical purposes, is owned by the owner of the server, NOT by the person who rented the server, unless the contract specifically states otherwise. Apple’s does not.

          The FBI, to its credit, has never held Apple liable for aiding and abetting criminals who have “given” their data to Apple for safekeeping. Is it clear how liable Apple could be if they knowingly stored criminal data and did not share it with law enforcement?

          Honest question — and something that every iCloud user needs to think about. Just because Apple has trustworthy policies on most things, does not make the iCloud a desirable place to store your data UNLESS you yourself encrypt your data without relying on Apple to automate the process for you.

          1. You are now officially struggling for even a shred of credibility.
            Like the know-all bar-room lawyer troll that you are with your snake_oil_180_about_turns with no acknowledgement of your utterly-dismantled fud, you then come up with a strawman in a last ditch attempt to please your up other troll mates.
            Listen up cloth-eared old man…I’m guessing…
            Apple clearly states in their iCloud T&Cs that users iCloud data “…can and will be shared with law enforcement agencies with a legal warrant…”
            “The FBI, to its credit, has never held Apple liable for aiding and abetting criminals who have “given” their data to Apple for safekeeping” WHAT!!
            How the effing hell could the FBI go after Apple given a) the previous sentence or b) that both the FBI and Apple have stated their previous cooperation on iCloud backups?
            The only clear thing here is you ….totally troublemaking transparent you.

            1. So I take it you haven’t read the iCloud user agreement.

              Here it is: http://www.apple.com/legal/internet-services/icloud/en/terms.html
              Take some time to read Parts IV and V and VI.B., as well as the usual Apple indemnification clause which Apple uses to ATTEMPT to protect itself if a user stores illegal content.

              Governing Law is identified in Part X.B, which cites California, which of course is subject to federal jurisdiction on many matters.

              Where’d you get your law degree?

  1. Weak sauce Apple.

    Apple has very little to support these arguments. Not even citing sections. I’m shocked at how weak this is. And so should all of you be.

    I’m more supportive of the government on this, but if I was supporting Apple, I’d be concerned with these arguments. It’s basically conjecture and easily attacked with statutes and case law.

    1. Did you read the full brief? It was a staggering smackdown of the FBI’s claims. Case after case of a home-run hit completely obliterating claims and assertions in the FBI’s brief.
      It was like a AA pitcher serving up meatballs against the MLB’s best in a homerun derby. It was actually kind of entertaining to read.

      I’d be very surprised if any court wouldn’t side with Apple on this.

    2. Weak sauce, dswe. You criticizing Apple’s arguments in a lengthy legal document based on a few sentences of press summary is right up there with all the arguments I have heard for or against the President’s SouthBySouthwest speech based on the same sources. Hint: some journalists do not understand either the legal or technological issues involved.

      1. I have read Apple’s entire response.

        I bet you haven’t read the government’s filing.

        I’ll say it again. Apple’s arguments are weak sauce.

        Go ahead and copy and paste some sections from Apple’s filing that are such a homerun.

      1. Well thanks as always for contributing your vast knowledge to the conversation!

        /S

        When you can’t refute what dswe says and you’re too lazy to read up on the topic, you can always count on dickheads like silverhawk to offer brainless attacks!

  2. In other news, the FBI has demanded that the CDC labs turn over a sample of ebola virus in order to use it in the fight against terrorists. The FBI assures the CDC that they will only use it to dispose of one terrorist cell, and they will not use it for any other terrorists or criminals. The CDC employees that refuse to be assist in producing this ebola sample, on the grounds that this is too dangerous to the general public, will be tried as traitors.

    1. After the ebooks miscarriage, I certainly wouldn’t count on them for any anything.

      Besides, until a new justice is appointed it’s as likely as not that Apple would end up with a split court decision.

      1. With the republicans doing everything possible to prevent the appointment of a new Supreme Court justice — i.e., NOT DOING THEIR JOBS — it would make it that much harder for Apple to prevail. The conservative justices are not likely to side completely with Apple on this.

        And while the typical fanboys are attacking dswe, he is correct. Apple’s filing simply claims that the All Writs Act shouldn’t apply because … because why? No answer. Apple claims that following the All Writs Act, which is valid law, would “improperly extend the limited federal court jurisdiction”. That’s BS. Federal Courts have jurisdiction over everything that happens in these United States. So Apple needs to comply with the federal court when a warrant is issued.

        Apple’s weak arguments and has not offered any legal reference or precident to explain why the All Writs Act should be upturned. And if you read the Apple user agreements, clearly they undermine their own claims — Apple tells users that when ordered to by authorities, they will share user data. They have before.

        Seriously, people, an internet campaign and media interviews have been all over the map, but all lacking substance. Cook can’t even explain the situation, he resorts to BS terms like “cancer”. That’s pathetic.

        Apple needs to propose legal reform and explain WHY the All Writs Act needs updating. That is more convincing than Apple just telling the world that they shouldn’t have to comply with the law. I sympathize with Apple, but this has not been well played by Apple either.

            1. Obama and Biden have both opposed judicial hearings for judges nominated by late-term presidents.
              They have no argument (without being the hypocrites that they are).

              My response may sound uncivil because I grow tired of your non-facts.

            2. So being uncivil is just your way, is that it?

              I am not defending this administration, nor the corrupt democrats. Their past obstructionism does not excuse current obstructionism.

              Reality is, if Apple wants a favorable ruling in the SCOTUS, then it is important that Congress appoint a judge with some technical knowledge.

              So don’t attack me because I am calling it based on the situation today. So drop the partisan hackery and personal attacks, okay?

        1. Just as I caught my breath, you took it away again:

          ” Federal Courts have jurisdiction over everything that happens in these United States. So Apple needs to comply with the federal court when a warrant is issued.”

          Let us assume that a mad Federal Magistrate Judge issued an order for you to rape and murder your daughter, as he lawfully could if he indeed “had jurisdiction over everything that happens.” Would you quietly obey the order or would you at least appeal it to the District Judge who appointed the Magistrate? That is all that Apple has done so far—appeal a ruling that it believes unlawful, and that would adversely affect it, to a higher court.

          Your reading (and dswe’s) that the All Writs Act allows a judge (one who is politically unaccountable, at that) absolute discretion to order absolutely anything goes far beyond even what the Justice Department is suggesting. Sure, a judge can order a telephone company that is the subject of a wiretap search warrant to cooperate in executing the search of their own assets for information that is in the company’s possession. That isn’t the same as ordering somebody who is not the subject of the warrant to write custom software that would help the government to interpret the data on a device that is already in the exclusive control of the FBI.

          Are you suggesting that if the data were not encrypted, but in Navajo, that the government could force someone to learn the language so they could provide interpretation services? I guess so, if the federal courts have the power to do anything they please.

          1. In your hypothetical case, of course not. One would appeal the warrant, as Apple has done, and have it decided by a sane judge in a higher court.

            But this is not what is happening here. Apple iPhones have been jailbroken since day one by dumbass hackers all over the world, yet Apple now claims they can’t disable a password lock they implemented themselves. That’s disingenuous. It would take a couple weeks for Apple to crack the phone, at most.

            I am not taking sides on this issue, I am just pointing out that inconvenience on Apple’s part does not invalidate an old law. If Apple wants to change the world for the better, it should propose legal reform instead of going public with rather weak arguments.

          2. If Apple coded a criminal’s data in Navajo, then yes, Apple would be required to decode the Navajo code to comply with the warrant.

            That is the law. If you don’t like how the court systems work, or if you believe that all judges are unaccountable and incompetent, then please do get your legal degree and reform the system from the inside.

            Problem is, on these forums, the default emotion is that Apple is always 100% correct. Look, I wish Apple was 100% correct. But that’s not how the law was written, and that’s not how the legal system works.

            I am just saying that Apple is being VERY clumsy in its appeal. I don’t think they’ll prevail with the argument they presented. And they certainly need to educate congress, a body of corporate puppets who have been brainwashed by decades of fear mongering that the American people need a nanny to keep them safe.

            Reform the law, and reform the political system. But don’t just attack the law and those who have dedicated their careers to uphold the rule of law. That’s never going to do Apple a bit of good.

            1. Telling somebody who got his law license in 1974 and who has 30+ years in law enforcement that he is “attacking the law and those who have dedicated their careers to uphold the rule of law” is essentially telling me that I have “tiny hands.” It is an ad hominem attack that I am not going to dignify with a response. I am not interested in getting into a pissing contest with someone who can’t even take the trouble to learn the basic facts of the case.

              Apple did not encrypt a criminal’s data; a non-reversible computer algorithm did that. Stomping your tiny feet and insisting that Apple make the tide roll back is not going to make it the irreversible reversible.

            2. Apologies for any personal slight you interpreted. I am debating, not attempting to attack others like many do on this site.

              However, you are essentially parroting Apple’s claim that their automated encryption cannot be reversed. That is naive on your part. ALL algorithms can be reversed. I understand that Apple doesn’t want to do so, but that doesn’t resolve the legal question.

              Apple’s appeal is not settled, so don’t just assume they are right, as most people here have done — including you.

        2. Mike:

          You nailed it. I’ve read through Apple’s ~33 page response to the DOJ and chunks of it are absurd. Apple says that “X is the case”, “X is true”, “X is happening”, when many of these X’s aren’t the case; many aren’t true; and many aren’t happening.

          An example from Apple’s response:

          “They are asking this Court to resolve a policy and political issue that is dividing various agencies of the Executive Branch as well as Congress.”

          Ya, whatever Apple. What a load of BS. Trying to create an issue and say there’s an issue like this when in fact they’re creating this drama. There is ESTABLISHED case law on these exact matters and ones that compel the companies to cooperate. Nice try at a reality distortion field…

          The AWA has been used many, many times. It’s not going anywhere, and it’s not just for cases like this. Apple’s response is loaded with a bunch of rhetoric. They have to do this because they know they’re outflanked by the law. So they’re trying to create a distracting story that they may half-believe in, the other half in their bottom-line.

          I keep saying this and I’ll say it again:

          Apple does NOT CARE ABOUT YOU. They only care primarily about money. To prove this point, phone them when you’re sick and ask for help. Phone them when you’re broke and ask them for a new computer. Phone them when the country is being attacked. You’ll be talking to an empty telephone. Phone them when 5000 people die in a terrorist attack and ask them to get access to an iPhone that belonged to one of the terrorists? Where does a person draw the line? You see the problem…

          Apple has no business in law enforcement. They are not experts in national security. They are not experts in government administration. They are not experts in law enforcement. They also don’t have the same security clearances and access to information as government officials like FBI agents.

          I have a background in national security. I’m educated and trained in it and have worked in it. Here’s something to help shed light on Apple’s argument that we’re all going to be unsafe and our privacy at risk if they comply with the order…

          Every country follows the same security classification system. This is the system that classifies information as say “Top Secret”. Level 1 is Confidential. Level 2 is Secret. Level 3 is Top Secret. There are over 20 Levels…

          The criteria in classifying something is simple: the more damage the information causes to national security if made publicly available, the higher the security classification.

          The bottom line is, a lot of stuff on most people’s smartphones would never even qualify to be classified.

          It’s absurd and irresponsible of Apple to try and strike fear in the citizenry like this, and particuarly since before 2014, Apple didn’t have the “guard dog” in place to thwart law enforcement. And it’s simply a weak, hypothetical argument that Apple advances that their solution to provide access to the FBI COULD, MIGHT, PERHAPS MAY, get into the hands of terrorits or “bad boogie men” in the future at some point.

          This is a fantastic argument coming from a highly secretive, do the impossible company. And it is simply not clear in any fashion whatsoever that any damage would come to anyone if such a thing circulated. Again, where were all of you pre-2014 running scared? Where were you when the hacker hacked into OS X in 30 seconds and said it was like an unlocked farm shed?

          I can assure people of one thing. What you’re seeing is a softer approach to Apple from the government. This is a dispute that has culminated over years. This is about Apple thwarting law enforcement and law enforcement trying to work with Apple to no avail. Nuggets of this are included in the evidentiary record.

          The only reason Apple isn’t getting pushed harder is because they’re a very profitable company and the government respects that. But that respect only goes so far. The government has a job to do, and one is to keep people safe.

          If the average person only knew how many threats to national security occur everyday, some serious, they’d be alarmed. The only way to stop terrorism is to stop it before it happens. And the defence community needs the framework and tools to do this job.

          And finally, there is no “BACKDOOR”. You Americans and these silly names. Apple is simply being asked to undo what it did to thwart law enforcement. There is no breaking of encryption within the logic of the OS.

          1. Thanks dswe for all the info you’re sharing.

            I get it that most people on these boards just back whatever Apple does, but I think current Apple leadership is showing more and more poorly thought out decisions. Appealing the warrant on this particular cell phone may or may not be the right thing to do, but Apple is clearly not prepared for this case.

            Win or lose, Apple need to give users more information and control over their data. Unlocking password-locked iPhones shouldn’t be any harder than authenticating yourself to your bank when you lose your ATM card.

            Apple’s proposal that they should have the right to create unsearchable data caches that no law enforcement can ever see is unprecidented in history. But Apple doesn’t seem to have thought out how users feel about this. Most people actually do trust the court system over a corporation — any corporation, including Apple. This is especially true since Apple doesn’t even store user data on their own servers — they outsource that too. So much for privacy when all your iPhone data is in Google’s hands!

            Good luck, Apple, you’re gonna need it.

  3. Yes, well Apple, the FBI’s demand might be unconstitutional but torture is morally bereft of ethics and inhumane, just so that you know what you are dealing with.

    1. If the authorities were smart, they would simply lock up silverhawk in the same cell as a terrorist suspect. In a matter of hours, the terrorist would reveal all and ask to be put out of his misery.

  4. This is an unprecedented use of the All Writs Act. It is essentially asking a Federal Court to compel Apple to create something that does not exist. This arguably falls well outside the scope of the Fourth Amendment and, if upheld, would give law enforcement authority to compel technology companies to do almost anything conceivable in the name of a purported investigation or surveillance of a target. That seems to go well beyond what the Constitution and existing law permits law enforcement to do.

    1. Though Apple locks an iPhone after 6 wrong passcode attempts (http://support.apple.com/kb/ht1212), there have been many workarounds in the past.

      While Apple pretends that “jail breaking” is impossible, hackers have picked away at the iOS garden wall ever since the first iPhone. Up through iOS8, cracking an iPhone password was actually fairly trivial, as John Oliver pointed out.

      Backing up an iOS device to an authorized computer using iTunes does not require an iOS password, but it does require access to the master computer. If I understand correctly in the Sand B terrorist case, however, Farook’s iPhone was backed up to the iCloud, not a local computer. Reports say that Apple provided a 6 week old iCloud backup to the FBI, and the FBI asked for more recent backups.

      So the authorities, having been comissioned to leave no stone unturned, have asked for access to the phone … which means Apple would have to comply with the warrant by disabling the password lock.

      Today, thanks to the Patriot Act, anti-terror authorities have been chartered to spend unlimited funds to chase down data like this. If Apple wants to serve the security and privacy needs of its customers, it needs to do a better job 1) teaching users about encryption and the law, 2) providing users better control of encryption and notification of what data is where, and 3) don’t get into the business of automatically locking things. Make it a user setting that Apple cannot crack. As it stands today, Apple can disable the password lock, and Apple can read anything on your iCloud. But they pretend like they cant.

      1. Apple has not said ‘jailbreaking’ is impossible.
        They have said that if you choose to jailbreak, you void the warranty on the phone, and lose any Apple technical support.

        Don’t know why you even tak about jailbreaking, since its irrelevant to this issue. Jailbreaking the shooter’s iPhone would destroy all the data.

        1. Jailbreaking isn’t a well defined term, sorry to add to the confusion. I meant to write that Apple can crack its password lock, just as hackers and jailbreakers have done so (and far more) in the past.

          It seems the prevailing ASSUMPTION here is that some people think Apple erases your iPhone immediately when the password lock occurs. Not so. It just needs to be unlocked, which of course Apple does not want to do. But they have reported that it can be done in the motion filed in court.

          Secondly, many people here believe that the US Constitution is clear enough to protect Apple from having to do any work to unlock the iPhone. I am NOT taking sides on that debate, I am pointing out, like Bob and dswe, that it’s not cut and dried. In the past, legal warrants have prompted individuals and companies to do a lot more in the past.

          And remember, renewing the hideous Patriot Act is pretty much the last thing Congress ever did, so you can see full well where the people’s fine congressional representatives stand on this issue.

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