The law is clear: The FBI cannot make Apple rewrite iOS

56 Comments

“The problem for the president is that when it comes to the specific battle going on right now between Apple and the FBI, the law is clear: twenty years ago, Congress passed a statute, the Communications Assistance for Law Enforcement Act (CALEA) that does not allow the government to tell manufacturers how to design or configure a phone or software used by that phone — including security software used by that phone,” Susan Crawford writes for Backchannel.

Susan Crawford is a professor at Harvard Law School who, in 2009, served as Obama’s “Special Assistant for Science, Technology, and Innovation Policy.”

“CALEA was the subject of intense negotiation — a deal, in other words. The government won an extensive, specific list of wiretapping assistance requirements in connection with digital communications. But in exchange, in Section 1002 of that act, the Feds gave up authority to ‘require any specific design of equipment, facilities, services, features or system configurations” from any phone manufacturer,'” Crawford writes. “The government can’t require companies that build phones to come to it for clearance in advance of launching a new device. Nor can the authorities ask a manufacturer to design something new — like a back door — once that device is out.”

Crawford writes, “No gaps; no interpretive sunlight: CALEA stops the government from doing what it wants to do to Apple.”

Read more in the full article here.

MacDailyNews Take: If the U.S.A. is stil workig correctly, the U.S. government will come to deeply rue this egregious and despicable overreach attempt.

SEE ALSO:
Apple engineers, if ordered to unlock iPhone, might resist – March 17, 2016
Apple’s Tim Cook on FBI fight: ‘No one’s going dark’ – March 17, 2016
Harvard Law professor and former Obama special assistant dismisses FBI’s claims – March 17, 2016
Apple: The law already exists that protects us from U.S. government demands to hack iPhone – February 26, 2016

56 Comments

  1. Easily fixed, all the government that country has to do is simply rename Apple employees “enemy combattants” and they’ll be able to get them to do anything. They won’t even be legally human anymore, at least according to the laws of that nation. Down the slippery slope they will slide.

    Reply

      1. Just a bit, but the Guantanamo on the Bay resort is way way over the top.

        In a 2005 Amnesty International report, the facility was called the “Gulag of our times.”

        In 2006, the United Nations called unsuccessfully for the Guantanamo Bay detention camp to be closed.

        In 1992 years before all this happened there was a TV show called Star Trek: The Next Generation. A two part episode called “Chain of Command” dealt with torture. It left an impression back then, especially a scene a young girl watches part of the torture that her father is inflicting on the protagonist Captain Picard. He says afterwards:

        “When children learn to devalue others… they can devalue anyone. Even their parents.”

        It’s not over the top. The world has seen what your country’s government has done against humanity in recent times. It’s only a matter of time before they do the same to their very own citizens because that government has learned to devalue others.

        Reply

        4. Some Americans may not like to hear what Road Warrior is saying, but it is true. The establishment of the Guantanamo facility with the intent to illegally and indefinitely detain enemy combatants without recourse to the laws of this country was incredibly hypocritical. We lost the high ground on the issue of human rights. That was compounded when “enhanced interrogation” torture was added to this crime against humanity. This act disgusted me, and the subsequent actions of the states that prevented the closure of Guantanamo also disgusted me.

          Sometimes you do not what you like when you look in the mirror. USA, it is time to look very deeply into thst mirror and act to improve our future.

    2. Apple interprets the CALEA in its filing. But that doesn’t mean its interpretation will win the day. One issue with Apple’s interpretation is making a sort of logical leap from operating system to individual Apps themselves.

      What the FBI is requiring Apple to do may not properly fall within exemptions resulting from CALEA as a result of the latter and other issues.

      Also, with Apple making it purposely more difficult for law enforcement to crack an iPhone in 2014 and marketing this specific thing, the case may be about Apple having to “undo” what it did to “frustrate justice”.

      Another point is that the government isn’t asking Apple to design something here that all of us would be using on our iPhones daily. This is one specific case involving one phone. The government isn’t really dictating how Apple designs and makes its iPhones. But on this point, again, this case could be about Apple having to undo what it did, which makes it unique.

      Further, CALEA governs what companies are doing PRIOR to court orders to ensure wiretapping is possible. Under the Ninth Circuit, “regulation in a distinct area of law should not ‘curtail the government’s powers in domestic law enforcement’ under the AWA”.

      Reply

    3. It’s not that simple. When the government wants to declare someone an “enemy combatant”, they have to show something more than disobedience and the desire to enforce the constitution. None of Apple’s engineers have booked flights to Syria to fight for ISIS, after all.

      -jcr

      Reply

    1. threat contained to china, infected apps removed.
      —
      MEANWHILE android malware:
      As I can’t have space for it all I list ONLY THE TOP OF THE ALPHABET and to save space they are CONTAINED IN ‘FAMILIES’ otherwise we’ll need a pages for just the ‘As’ :

      AccuTrack
      This application turns an Android smartphone into a GPS tracker.

      Ackposts
      This Trojan steals contact information from the compromised device and uploads them to a remote server.
      Acnetdoor
      This Trojan opens a backdoor on the infected device and sends the IP address to a remote server.

      Adsms
      This is a Trojan which is allowed to send SMS messages. The distribution channel of this malware is through a SMS message containing the download link.

      Airpush/StopSMS
      Airpush is a very aggresive Ad-Network.

      AnServer/Answerbot
      Opens a backdoor in Android devices and is able to steal personal information which will be uploaded to a remote server afterwards.
      Antares/Antammi
      This is a Trojan which steals personal information from the infected device.
      Arspam
      This malware represent the first stage of politically-motivated hacking (hacktivism) on mobile platforms.AVPass
      This malware family tries to detect and circumvent Android security tools (like AntiVirus apps) installed on the infected device. Afterwards, the app tries to steal sensitive data and receives additional comands via SMS.

      THAT’S JUST THE UNDER “A”
      we’ve got ‘b, c, d… ‘
      down to
      Z
      Zsone
      Sends SMS messages to premium rated numbers related to subscription for SMS-based services”

      🙂

      Reply

      1. opps my bad,

        I’ve just given the CURRENT threat list!!

        there are LOTS more! (transmission apps removed, dormant etc)

        also ANDROID USERS PLEASE PAY ATTENTION to the DAILY NEW threat list and the WEEKLY MOST DANGEROUS Android Malware warnings available on the best android security sites !

        Davewrite is here to serve.

        Reply

        1. oh Shoooot,

          about half a day since my post…
          it’s TIME ANDROID FANBOYS…

          to check the android the daily NEW MALWARE THREATS!
          if you don’t check every once in a while you will MISS A FEW DOZEN NEW ONES!

          🙂

        2. Davewrite special help Post for our regular Android loving trolls.

          SHORT GUIDE TO REMOVE MALWARE from Android Phones — most probably you’ll need it (courtesy of Android Central):

          “Shut your Android off and use another computer to research things if you can here. You’ll want to install and run one of the many Android AV apps (here are some free ones) to see if you can find any malware and get it removed. Read what we have to say about the various applications, read the forums to see what other folks have to say about the different Android AV apps, and decide which one you think is the best. Turn your Android back on, install it from Google Play, and let the app do it’s thing.

          Access and address any damage
          Never assume that you get away from something like this with no ill effects. Call your bank and change your online credentials. Do the same for your credit card companies, and get new cards sent with different numbers. Change the password for your Google account. Do the same for any other online accounts, like Yahoo or Microsoft or PlayStation or Android Central. If you see anything that looks like you didn’t do it — credit card charges, crazy postings on FaceBook, or wire transfers from your bank to anywhere — be sure to let the people in charge know that it wasn’t you who did it and that you had a bout with some malware during those dates. It happens. There is no need to be embarrassed about it and you’ll find that people are willing to assist you any way they can. That’s because they have seen it often enough to know that one day, they may be in your situation.

          If that didn’t work
          First, see the top bullet point above and don’t panic. You might not like doing it, but know that a factory reset will remove any malware you have inadvertently installed and kill it with fire.

          Malware is usually hidden inside something you want to install, or something you’re tricked into installing.
          If you have reason to believe your Android is infected but normal Android AV apps aren’t finding anything, your last course of action is a factory wipe of all your data. This means all of your data, and the only thing you’ll have left is what backed up online (think Google Play Games services) and media like pictures. We want to remove any and everything local that might be executable.

          Back up all your pictures (and music and videos) to your Google account. Google+ is a great place to store your pictures, drop your videos in your YouTube account, and you can store up to 20,000 songs in your Google Play Music account. Utilize this free space Google gives you, even if it’s just to store a few things while you pour digital bleach on everything.

          Take the SD card out of your phone if it has one. Visit a computer (or a friend with a computer) and wipe and repartition it using the built-in software for disk management. Don’t save anything — you need to be brutal to make sure anything nasty gets nuked.

          On your Android, go into the settings and look for the backup and reset options. You want to perform a full factory reset of all your data, including any local storage space. Let it do it’s thing, and when you set it back up be sure to not restore any backed up data from your Goggle account.
          You still want to change passwords and contact your credit card companies. You also want to take a close look at the way you do things to try and prevent this from happening again. None of that changes.

          f you rooted your Android, you may have bigger issues here. Forget the app sandbox, forget Google’s Bouncer, and throw out most of the rules that apply to people who didn’t root their phone. The solution is simpler, but more brute-force.

          Back up your media as described above. Next, go into a custom recovery and wipe everything. Flash a completely new ROM.

          If you don’t have a custom recovery installed, or one isn’t available for your phone, talk to the guys and gals who are hacking and developing custom software with the same phone that you’re using.

          Going through the pain of a factory reset then finding out that some malware is written to the system files and not your user data means you did everything in vain. Take a few minutes to talk to other people with the same hardware as you.”

          ——
          SEE? EAAAAASSSSSY as PIE! if that don’t work the advice is to DITCH the phone.
          your helpful friend Dave. 😉

      2. You’re the quintessential Apple fanny …

        Denial, Denial, Denial, Denial, Denial !

        For Apple fannies, Apple security is all about DENYING all facts!

        BTW, I love Microsoft Windows Mobile, not Android.

        Cheers.

        Reply

        4. It’s not denial, Ace, it’s perspective.

          Meanwhile, your original post assumes that the device is running and able to install the malware. In case you hadn’t noticed, the iPhone at issue with the FBI fulminations isn’t.

  3. Wanting a back door in and of itself is egregious, but the arrogance and contempt of the FBI and Comey in demading and seekenig t yto order Apple to be forced to work for them is audaciius and un American.

    There is no way they will get their way without serius repercussions and revolt.

    Reply

  5. CALEA seems to be clear enough. Apple cannot be compel to make any changes. Note this is not a constitutional augment. Susan Crawford deserves to be paid by Apple, Apples current group of lawyers on this case should be dismissed, and they should give any money paid to them back.

    This is what apple’s lawyers should have brought to the court’s attention, instead they and apple wasted tremendous time and money with a non defendable argument.

    There are some things the American people should have learned from these actions, cause they missed it in high school, the courts using legal means, subpoena and warrant, pursued and executed legally can get your private information even if it’s on an Apple iPhone. A wallet or a purse is just as personal if not more so, and if the court can take and view their contents an Apple phone is not above the law.

    As for the question of over reach, there has been no over reach. All the actions have been legal, done in public view, and overseen by congress, and there by the american people. Americans can be proud of their governments performance in this manner.

    But it’s not over. The phone still has to be opened. One other thing, another government has different rules.

    Reply

    1. You seem very confused, BOB. Apple’s lawyers made the CALEA argument in their briefs. They also made other arguments that are just as strong and persuasive. Apple does argue that the government is over reaching, something that Susan Crawford agrees with. So you contradict yourself. Congressional oversight of the court case is irrelevant and in any case, a contradiction in terms.
      Given your spelling errors, I suspect you’re not American and know little about the US Constitution or the US legal system. It seems you don’t know what you’re talking about.

      Reply

      3. Your Truthiness seems incomplete.

        Please read CALEA Title II Section 108 completely. Then let’s have a discussion.

        MDN has always been an echo chamber, but this issue is getting ridiculous. The armchair legal eagles are selectively picking out blog reports that support their biased pro-Apple views instead of reading the actual laws as written.

        Apple chose this fight, and I don’t think they are ready for it.

        Reply

    1. And BTW: As Apple aptly pointed out, what the FBI is asking for violates the US Constitution.

      So no folks. Creating a law that ‘allows’ the FBI to force Apple to partially pry open the security software on the iPhone would NOT actually be legal. The CALEA argument is excellent and very direct. But take away CALEA and what the FBI wants is still UNCONSTITUTIONAL.

      No, we won’t be changing the constitution in order to enable the USA becoming a totalitarian surveillance state. However, ignoring the US Constitution and taking away citizen’s legal rights is another matter. That already happened with the wrongly named ‘Patriot Act’ and the warrant rubber-stamping joke called the FISA Court (Foreign Intelligence Surveillance Court). Read up on the Snowden revelations if you want to be buried under unconstitutional acts by #MyStupidGovernment.

      Reply

      3. You are making circular arguments, Derek. If Apple uses CALEA as its defense, then they are not making a constitutional argument, and they certainly do not have a slam dunk since the CALEA was a compromise deal that is not as watertight as the pro-Apple blogosphere suggests. The AWA has enormous case law and precedent, so it will be up to the court to decide.

        The FBI is not asking Apple to redesign the iPhone or iOS. They are asking Apple to unlock the iPhone used by a terrorist to kill Americans. If that takes Apple a handful of engineers and a few weeks, well, the court will decide if that is unacceptable. This is not a “back door”, it is enforcing a company to unlock something that it locked (okay, it designed to automatically lock, which is the same thing in the eyes of the law).

        If Apple wins, then they had better get their lobbyists to DC before the anti-terror hawks in Congress rewrite CALEA.

        If the FBI wins, then Apple will need to unlock one phone and then they will win the admiration of the American people and droves of new customers who will have learned that Apple is the more secure platform.

        Reply

        1. One more thing about CALEA: it specifically does grant law enforcement the right, with legal warrant, to make a telecommunications provider do work. The law spells out how that work would be compensated.

          My recommendation to MDN: read CALEA yourself. And please reign in the uncivil attackers here on this forum that can’t act like adults.

        3. I’m confused – didn’t Mike just say CALEA does apply, and Apple is using it in its defense?

          I haven’t read this law but i get the impression that it was written with windows 95 and telephone answering services in mind, long before everyone carried cell phones everywhere. That’s why the court has to hear the case. And given how old and vague the law may be, it probably isn’t easy to judge either way.

          Here’s what worries me: the FBI has got to have a pretty good legal team, I’ve never heard of them ever losing. But Apple’s lawyers have a pretty bad record in court. How many cases have they lost in just the last year?

        4. no, he’s taking only parts of Calea not the
          part that says I quote

          : “CALEA was the subject of intense negotiation — a deal, in other words. The government won an extensive, specific list of wiretapping assistance requirements in connection with digital communications. But in exchange, in Section 1002 of that act, the Feds gave up authority to ‘require any specific design of equipment, facilities, services, features or system configurations” from any phone manufacturer,’” Crawford writes. “The government can’t require companies that build phones to come to it for clearance in advance of launching a new device. Nor can the authorities ask a manufacturer to design something new — like a back door — once that device is out.”

          Green you keep writing as if you are so wise and such and we’re all fanboys, but did you actually read article written by the law prof before commenting? You know the article that all these posts are referring too?

          https://backchannel.com/the-law-is-clear-the-fbi-cannot-make-apple-rewrite-its-os-9ae60c3bbc7b#.d87b0f9o4

  9. The FBI should just require terrorists to use Android phones. They’d have all the barn er … back doors they can dream of without the legal crap.

    … but … these terrorists didn’t use Android phones.

    I wonder why ?

    Reply

  10. for the trolls, the CALEA statement wasn’t made by MDN alone or ‘apple fanboys’, it was made by that Harvard Prof who was obama’s aide, MDN is just reporting her statement.

    so if you trolls want to argue
    saying ‘Apple fanboys’ are stupid etc is waste of time because you aren’t arguing with the Apple fans, your job is to prove that you know more than the Harvard Law prof , begin by saying “MY GREATER LAW EXPERTISE…. “

    Reply

  11. I am getting tired of reading the fanboy versus troll attacks on this forum. I used to enjoy learning about Mac events here, but lately it seems there are just 6 people here shouting insults at each other.

    I read this, and I agree with the the assessment:
    https://www.yahoo.com/tech/really-understanding-apples-legal-brief-192405309.html

    Who knows if this journalist Nilay Patel has any legal background, but he is absolutely correct that Apple’s appeal was hastily written, with grammatical errors and all. The article has a link to the All Writ’s Act, which essentially says that the court system has final say on all writs (warrants). Not the FBI, and definitely not a corporation.

    I’m trying to follow the arguments both ways, but the only thing I see on MDN is a bunch of mud slinging from the usual suspects.

    Reply

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