Harvard Law professor and former Obama special assistant dismisses FBI’s claims

“Harvard Law professor Susan Crawford and former special assistant to President Obama has written a blog post setting out the reason why she believes it is legally impossible for the FBI to win its case,” Ben Lovejoy reports for 9to5Mac. “The piece is entitled ‘The Law is Clear: The FBI Cannot Make Apple Rewrite its OS.'”

Lovejoy reports, “While the FBI is relying on an extremely broad interpretation of the All Writs Act, Crawford points out that it is an accepted principle that specific laws take precedence over more general ones – and there is a specific law which outlaws what the FBI is asking for.”

“That law is the Communications Assistance for Law Enforcement Act (CALEA),” Lovejoy reports. “CALEA grants the government a lot of wiretapping powers, she says, but also clearly sets out the limits to those powers.”

Read more in the full article here.

MacDailyNews Take: As we remakred about this last month when Apple cited CALEA:

Mic drop.

SEE ALSO:
Apple: The law already exists that protects us from U.S. government demands to hack iPhone – February 26, 2016

32 Comments

  1. So plain and simple, citizens have a right to privacy and that includes limits as to possible government tyranny?!
    Isn’t that the reason for the U.S. Constitution? What a great concept the forefathers had…

    1. The Constitution indeed does that — unless you commit a crime. Then you lose your rights. Suspects of a crime lose their right to privacy when a warrant is granted in a public court. And as we all accept, many more freedoms are revoked when criminals are convicted.

      > 250 years of precedence on this. I don’t know why people here forget that the court system is also clearly spelled out in the Constitution.

      1. And, given that the criminal in question here is dead, he has no privacy to infringe.

        Which is why the issue being debated here has nothing to do with the metabolically-challenged criminal, and everything to do with an attempt to force a company to, among other things, violate a specific law (CALEA), and to violate several of the company’s Constitutionally-protected rights in the process.

    1. While the Fan Belt Inspectors are at it perhaps they could get the formula for Coke, KFC chicken, and aNyTHinG eLsE their little heart deams problematic or too expensive to reverse engineer themselves. PS– Don’t forget the NSA pays hackers for their NON-DISCLOSURE of backdoor vulnerabilities in a wide range of products.

      Perhaps the FBI could get on their private GV and go to China. Go to the local phone kyosk and they will find someone who has been breaking into iPhones for YEARS………………………
      But i digress………………………..!

      1. Exactly and this has already been done according to Snowden.

        “In text released ahead of a lengthy interview to be broadcast on Sunday, ARD TV quoted Snowden saying the NSA does not limit its espionage to issues of national security and he cited German engineering firm, Siemens as one target.

        “If there’s information at Siemens that’s beneficial to U.S. national interests – even if it doesn’t have anything to do with national security – then they’ll take that information nevertheless,” Snowden said, according to ARD, which recorded the interview in Russia where he has claimed asylum.”

        Simply put that’s industrial espionage and it’s a potent argument for encryption…to keep the bad guys out.

        Digress away Bill and thanks for pointing out the obvous.

  2. Wow! Just WOW!
    The entire framework of the FBI’s position is utterly demolished and left for dead in a smoking pile of rubbish.
    I am completely overawed at the incisive logic and argumentation in this article. Apple legal needs to add her to their team and Apple marketing needs to get her on multiple TV shows.
    For a former Obama “special assistant” that article is absolutely scathing.

    1. Yeah it makes you wonder why Apple Legal didn’t come out with this on Day One, or in response to the first FBI request. Why would you save it up except maybe as a Mic Drop moment somewhere along the way, but why put yourself through that?

      1. If you had read Apple’s Reply Brief (filed a few days ago), you’d have known that it makes these arguments and quotes and cites CALEA extensively. It’s common practice to keep strong arguments for last, for a couple of very good reasons. First, judges tend to read briefs in reverse order – that is, last brief first. Second, it restricts the amount of time the other side has to research the issue to find someway around it or to rebut it.

          1. I’d have thought that was obvious. The media, for the most part, are complicit, incompetent, ignorant, or bought. They always have been, despite a knightly Code of Journalism to disguise the back room dealing in past years — one that no longer exists, as panicking publishers promote clickbait to the detriment of the relevant information that a free citizenry relies upon to make their considered choices at the ballot box.

          1. The FBI dropped this on everyone in the midst of a contentious presidential election. It was no coincidence. They could have continued to work behind the scenes with Apple on this and other cases but deliberately selected this case as the one which could harness public sympathy and candidate opportunism to crassly advance their personal agency agenda. Later, when pressed, they claimed error but no reasonable person believes that.

            They are bluffing, playing chicken, to get what they want through the courts. They have seen how ill the courts have treated Apple with its IP lawsuits, and judges don’t have degrees in Computer Science, and have shown a propensity to be hornswoggled by authorities’ mumbo jumbo. This was the FBI’s best shot. They should not have tried an end run around Apple.

  3. The law is not clear, that’s why the court will decide it.

    Let’s look at the CALEA text, Section 1002:

    Authorities cannot “require any specific design of equipment, facilities, services, features or system configurations”.

    But the FBI is not asking Apple to change its iPhone design. It is not asking for iOS to be rewritten. No configuration is going to be changed on the iPhone model or any other products Apple sells. The FBI is asking Apple to do the hard work of unlocking the password lock on one iPhone. Apple themselves say it can be done, they just don’t want to be in the business of doing so every time a terror suspect is rounded up with an iPhone. That is understandable, but it does not overturn the law as I understand it.

    Apple claims an iPhone is an unsearchable data cache, but the law to date has never recognized that it is even possible for a crime suspect to have any unsearchable possessions. I don’t see how CALEA changes this.

    I could be wrong, and will gladly admit so if the court does decide in Apple’s favor. But pre-case opinion — mine included — mean nothing. Apple still has to win this case, and I don’t see this being the silver bullet some of you here think it is.

    1. Actually, no. FBI is precisely asking Apple to re-write iOS. What FBI wants is a special version of iOS that will allow unlimited number of attempts to unlock with passcode. The current version only allows a few attempts before it locks the user out; first for one hour, then for a day, then it wipes out the phone. FBI needs this feature removed, so that they can try as many times as they wish. They also want the ability to enter the passcode through an external input device; current version of iOS requires touchscreen entry.

      In other words, FBI is NOT asking Apple to unlock the passcode. They are asking Apple to have their engineers develop a different, custom version of the iOS (“just this phone, just this one time” is he FBI’s excuse).

      I’m not a lawyer, but even to me, it is quite clear that this is simply unlawful.

  4. I think the US president may be right on this one. Here’s the plausible scenario.

    Apple wins this one. Freedom lovers celebrate victory for protecting privacy against government intrusion. All is great, FBI has to find other, legal ways to access information it wants. And then, some major terrorist event happens somewhere in the world. And tabloids quickly announce that the terrorists had been using encrypted phones to organise the attack, and the intelligence and law enforcement couldn’t track them. What could happen then would be much worse than the Patriot Act that stripped ordinary Americans of their privacy. There would be no way to keep anything protected or encrypted anymore.

    Obama is arguing that, should such an event happen after a victory for Apple in this case, the public backlash, and action of the Congress, would be swift, rash and extreme. Today, there is plenty of time for a rational discussion and rational solutions, goes the argument. Tomorrow, after a cataclysmic event, rational discussion will simply be replaced by a rapid, knee-jerk paranoid reaction, and the result, for privacy advocates, would be much worse.

    The validity of this argument hinges on the probability of a major terrorist event.

    1. POTUS is, as he often does, trying to find a compromise. He’s the President, and he has competing interests to balance. He’s not an encryption expert – if he was, he’d be president of a tech company, not the US. He’s being advised by law enforcement, who clearly want one outcome. I suspect he’s unsure of what’s best, because as you rightly point out, a major terrorist event could lead to a knee jerk reaction of an extreme kind. His defense of LE’s stance was weak, suggesting he doesn’t agree with their position. But you can bet that he’s being pushed by governments all over the world to back LE’s position.
      As Jefferson is reputed to have said, “eternal vigilance is the price of liberty.” That can be construed several ways.

    2. Even if Apple loses and is forced to give the bad guys (FBI, etc) access to the data on the iPhone/iPad etc. there are over 800 encryption apps and growing every day, and over 500 of these are developed outside the USA.

      What are the chances the FBI would be able to access iPhone data for more than a week before nearly every one of them have third-party encryption apps installed?

      I assure you all my iOS devices will have one or more of those apps installed and in use WAY before this case gets to the U.S. Supreme Court. Actually, I have several installed right now, just in case. And I have multiple backups of those apps outside iTunes, just in case.

    3. re “The validity of this argument hinges on the probability of a major terrorist event.”

      I’d suggest there is no validity to any argument of this type.

      If the FBI were able to force Apple to break the security of iOS, any major terrorist or criminal that MATTERED would be sure to avoid the basic iOS, or any other phone or tablet — and use either the Dark Web, or any one of numerous encryption programs available. How many of those are there freely available – hundreds?

      So all that would be accomplised is catching more small-time idiots too dumb and trivial to matter, except to keep up the US’s world leadership in incarceration of small-time idiots.

      1. I disagree. US President has a point, regarding the knee-jerk paranoid reaction following a terrorist act. You can bet that the US Congress would likely pass a sweeping surveillance law within weeks, with little review, public discussion, or opposition, if all the people are hearing is how the terrorists used encrypted iPhones to communicate and how intelligence and law enforcement couldn’t spy on them.

        The only real question is, whether there would be any difference if some “back door” law were to be enacted today, presumably after a protracted public debate and consideration of all sides… More than likely, it wouldn’t matter much after a terrorist attack. If iOS were weakened, those who need encryption would move to WhatsApp, or any of the hundreds of apps that provide encryption that cannot be accessed by the American intelligence or law enforcement. And it is quite possible that the public would still want to change the laws after that.

        There is no good, positive outcome for the law enforcement here.

        1. Predrag: you are correct: in the event of another castrophic terror attack here in the US, if there was any whiff that any of the terrorists used any smartphone, there would be quick legislative action to enable access to these devices for government agents.

          Remember what happened after 9-11? Major major freakout, understandably so, but we had Bush who exploited it for his own personal political gain. So we had the Patriot Act passed, we invaded Iraq, even though they had nothing to do with 9-11, and the Bush admin got away with breaking the Geneva Convention and using torture. Compared to all that, breaking into an iPhone is peanuts.

          And let’s all keep in mind that this debate is going on in Europe right now, and Apple may lose their fight over there for the same reasons. France was attacked, and now we have a reaction against that.

          When people feel their lives are threatened, they tend not to care as much about the security of their iPhones. If you lose sight of that fact, then you will lose this debate.

          1. I was saying the argument isn’t valid in the sense I explained. Nobody that matters is going to be caught that way.

            It IS valid in the sense that the majority of the electorate and way too stupide and uninformed to know that they are being fed bullshit, and that, therefore, such a tactic could be used. “Oh yes, please keep us safe by spying on us all.”

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