Countdown to doomsday: Apple, FBI face off in court Tuesday

“If you’ve been reading the headlines about Apple’s fight with the FBI, you know it’s easy to assume we’re all doomed,” Shara Tibken reports for CNET. “Either law enforcement will lose the ability to thwart terrorist plots, or we’ll be forced to live in a police state. Neither of those outcomes is exactly what you’d call appealing.”

MacDailyNews Take: The FBI is lying.

“The two sides will meet before a magistrate judge on Tuesday in Riverside to make their arguments on whether Apple should build a new version of its mobile software so the FBI can hack into an iPhone 5C used by one of the San Bernardino shooters,” Tibken reports. “Tuesday will be the first chance for both parties to make arguments before Magistrate Judge Sheri Pym. This could drag on for a while, even years. Judge Pym won’t make a ruling immediately, and her decision faces appeal, possibly all the way to the Supreme Court.”

Tibken reports, “Apple counters the government’s warning by saying the FBI shouldn’t be fixated on what it can access but realize there’s a ‘mountain’ of information that now is available because of technology. ‘Going dark — this is a crock,’ Apple CEO Tim Cook said during an interview with TIME. “‘No one’s going dark.'”

“And experts say law enforcement has to find a way to fight crime in a world with strong encryption,” Tibken reports. “‘The cost of maintaining a free society is that sometimes criminals won’t be caught,’ said John Hasnas, a professor of ethics at Georgetown’s McDonough School of Business. ‘Sometimes there are bad things we can’t prevent.'”

Read more in the full article here.

MacDailyNews Take: Thank you, Mr. Hasnas. It’s always nice to hear some solid pragmatism is a world seemingly full to the brim with clueless idealists.

SEE ALSO:
Apple sees weakness in FBI’s last-minute hearing request – March 18, 2016
The FBI has a big ulterior motive in its war against privacy and Apple’s encrypted iPhone – March 18, 2016
The law is clear: The FBI cannot make Apple rewrite iOS – March 18, 2016
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

30 Comments

  1. Too bad TV cameras are not allowed in court. If televised, this festivity would generate some huge ratings on TV. It would be like a World Wrestling Federation event, except only one side would be full of shit.

      1. This is from the NY Times yesterday from a article headlined “A View of ISIS’s Evolution in New Details of Paris Attacks”

        “Investigators found crates’ worth of disposable cellphones. All around Paris, they found traces of improved bomb-making materials. And they began piecing together a multilayered terrorist attack that evaded detection until much too late.”

  2. Idealists are not the problem. Cynics who rephrase idenrity theft as an enhancement are the problem. Complacency is the problem. People imitating lemmings is the problem.

  3. It’s ironic, after years of chanting the mantra “Apple is doomed” to read an article starting off with: “If you’ve been reading the headlines about Apple’s fight with the FBI, you know it’s easy to assume we’re all doomed.”

    The irony continues: “Either law enforcement will lose the ability to thwart terrorist plots, or we’ll be forced to live in a police state.”

    Just how is law enforcement going to lose the ability to thwart terrorist plots is beyond me. An iphone that is non-searchable does nothing to hinder any of the other forensic technologies, like hair, fiber, DNA and tissue analysis.

    “Because technology is moving at warp speed, we don’t have two to three years to wait for a solution here in this particular case or in the boatload of cases after it,” said Ed McAndrew, a former federal cybercrimes prosecutor and now a lawyer at Ballard Spahr.

    So I guess it’s no longer about a single phone is it?

    Next up: “Before these devices came around, there was no closet, basement or drawer in America that could not be entered with a judge’s order,”

    This is an important point because from my understanding when the constitution for that country was written basically everything was searchable, closet, basement, the person, everything was searchable. What’s changed? Everything but the iPhone is searchable. One thing is not searchable and look at the hissy fit.

    Can you imagine that horrible situation. Reminds me of a story, about some benevolent being making a lovely walled garden and told the inhabitants that they could eat the fruit off any tree except for that one.

    Yup one item non-searchable all the other items searchable. You think that this situation would be acceptable but no the totalitarians want everything searchable. In the hypothetical situation of the garden it would not take long before some the inhabitants, cried, begged, then gave the finger to their host and tried out the fruit of the one forbidden tree. I would not be surprised if management evicted types like that.

    1. Nobody is going to move the data for their criminal enterprise to the one non-searchable place? And if only Switzerland had bank privacy, nobody would move their questionable assets to Swiss banks, too. How do DNA, fiber analysis, and fingerprints help prove a fraud case?

      1. Thanks for your post, though it’s left me a bit confused so I might not be addressing your questions properly, but I’ll give it a try.

        I can’t speak for criminals here but I think that there would be use for it on the iphone. Any technology can be used for humanitarian or nefarious purposes.

        I provided some examples of forensic techniques that can be used for crime detection and prevention, certainly nowhere near an exhaustive list. The examples I listed may not be appropriate for fraud cases but I’m pretty sure that there are others out there such as forensic auditing.

        I don’t know if this answers your question but I figure it’s worth a start.
        By the way, thanks for your input regarding the points that dswe has been bringing up.

      2. TxUser i’ve enjoyed some of your posts and I believe you said you are a lawyer prosecutor so I won’t contest your knowledge of law but I would take stand against law enforcement constant harping on encryption and contest the myth that today tech is making them more ‘helpless’.

        1) even if iPhone was made vulnerable criminals can still get third party encryption tools, many from overseas out of reach of USA legislation

        2) “How do DNA, fiber analysis, and fingerprints help prove a fraud case?”
        Tools available today to law enforcement is way more than just a few decades ago.
        Fraud cases? Most banks etc have data bases etc which are searchable, you can track atm, credit card, check transactions easily.

        (if I was pro fraudster I would use third party encryption for my personal files see point 1 which would make weakening iPhones etc moot. )

        For this and other types of crime the FBI, NSA, CIA have a whole host of advanced technology which was Science Fantasy just a short while ago.
        Advanced listening devices are available to security forces, that can listen by picking up vibrations on windows, snake for yards on a robot cable, microphones the size of pinheads, parabolic devices that can pick up conversations blocks away,
        There are military drones, cameras on satellites that can read license plates and track them, cameras on practically every street corner in most cities, in many buildings, phone cameras in hands of practically everyone (try being a ‘bad’ cop and you’ll have someone filming you), go pro cameras on helmets of couriers, dogs ! , recreational drones etc. All the footage can be collated and analyzed by computers using recognition software. You can even use recognition software on conversations .

        there are thermographic scanners that can see through walls.

        Not that long ago law enforcement can’t even properly use fingerprints as without computers you couldn’t build a national database or search through millions of fingerprints. All kinds of databases with search tools means disparate data like evidence can be linked together, patterns identified.

        In the past criminals crossing state borders were difficult to catch but today with computers it is much easier to track them. The biggest stumbling block seems to be law enforcement INABILITY TO EVEN HARNESS THE TOOLS AVAILABLE TODAY. Many local police forces don’t seem to have their files including evidence for example in a digital searchable format , they don’t share data properly, they don’t have staff who can deal with modern technology (RE: in even such a high profile case as the FBI/Apple terrorist case where you have the teams TOP GUYS you have “we reset the password by mistake” and DAs who spout ” Dormant Cyber Pathogen ” on official documents). It seems law enforcement is at least partially hobbled by tech incompetence and then perhaps ‘blaming encryption’ for not solving crimes. Imagine these are the top guys, what about the average cop, I shudder to think how they are unable to handle all the new tools available to them. Perhaps PROPER TECH TRAINING would help out more than blaming everything on encryption? Maybe if they can properly search through camera footage and have 25 shots of the mugger doing the crime they won’t need to read his phone?

        working as contractor to some govt agencies (not law enforcement though) I found that many govt. employees ability to handle tech is appalling . Easy to verify, walk into a typical school and you will usually find their computer gear underused or misused or unused (because ‘no one can fix the network’ ‘it crashed’ ‘ the software if buggy’) and these are TEACHERS.

        3) as Cook pointed out there’s a host of data on individuals available online. So many criminals have their profiles on Facebook ! Some even describe their criminal activities ! Some convicted killers have photos of their guns, their accomplices and all kinds of stuff on social media. Much of these stuff you CAN’T EVEN ERASE IF YOU WANTED TO. they are recoverable.

        Most data like banks etc. even Apple’s iCloud data today is searchable by Law Enfor. with warrants.
        I think most companies make a difference between personal devices like phones which are vulnerable to criminals vs their servers which are defended by pro system security. but if law enforcement and govt. keep up their overreach surveillance tactics I think eventually they would make their servers unsearchable.

        4) Data on people travelling are now so much detailed and again searchable via computers. Many countries are incorporating biometrics in IDs for example.

        I can go on and on on technology that’s available , MEANWHILE MOST CRIMINALS have NOT ADVANCED. A mugger a hundred years ago smacked people with a club, today they smack people with a club but police have a lot more tools. There might be a camera on the street.

        5) at the end of the day GovtOS hack tools and backdoors etc will cause a tsunami of new cyber crime which our law enforcement which can’t even deal with Credit card Fraud today (credit card companies had to solve it with Chip cards with strong encryption) will be overwhelmed. People will be hacking into personal info, bank accounts, passkeys to houses, cars, etc.

        1. The current TC FBI face off will result in the iCloud finally being encrypted so NOBODY will be able to access it. Apple will state that our customers privacy is paramount. Then the stories of lost/misplaced/forgotten passwords will flood the media when a lifetime of memories is stuck or lost in the iCloud because NOBODY can access it…….
          Be careful what you wish for………

      3. Road Warrior,
        I guess my main point is that this is a genuine dilemma. There are only two choices—write a back door for iOS or not—with no obvious third way or path to compromise. Both choices further important human values, but either choice has negative consequences for the other set of values.

        The minority of posters here are plainly incorrect when they claim that an FBI win is all gain for public safety with no meaningful downside for privacy. Unlike a lot of you, I basically trust the US Government and the safeguards of the Fourth Amendment. I profoundly distrust all the local, state, and foreign governments and third parties that would have access to the back door when it inevitably leaked. The potential mischief is incalculable.

        However, the majority are also incorrect in claiming that unbreakable encryption is all win for privacy with no downside for public safety. I spent years handling child abuse and neglect cases. The domestic and international abuse networks are largely financed by sales of child pornography. DNA, fingerprints and all that CSI stuff are irrelevant here; by definition, you have to prove that the defendant possessed the material (we aren’t talking topless cheerleader selfies, but six-year-olds being raped). If the seller and buyer are careful that ordering, delivery, and storage are all done behind strong encryption, the offense is effectively decriminalized. The same thing applies to many financial crimes. That may be an inevitable side effect of protecting privacy, but it isn’t a good thing.

        Either way, we have a lot to lose.

        1. Thank you TxUser for injecting some perspective into this debate. You are spot on: both sides have good reasons, and there is no simple black and white answer. Either way it is a tradeoff.

          Yet people on both sides want to make hyperbolic arguments invoking some end of the world as we know it scenario. It’s like people are so insecure that they don’t want to admit that there is no solution that is 100% perfect; they don’t want to admit that life is imperfect and that we face tradeoffs all of the time.

          It’s like in politics. Both sides have to pretend that they have all of the answers and are infallible, and that the other side is the devil out to destroy our world. It’s rather foolish and immature.

          1. I don’t doubt there is hysteria. Never mind that, we always have it about any rot wharsoever. The issue is that some things are strictly binary, not politically negotiated tradeoffs. Folklore records it. Pandora’s Box, the Genie in the Bottle: all cultures have ancient cautionary tales handed down for generations that warn of irreversible choices. Today, we have several technological candidates for these all-or-nothing choices. A thousand years from now, the fairy tale told to children could be about the 1945 Genie we let out, the atomic bomb. Or it could be about the unlimited power assumed by a world surveillance state through their control of electronics and the emasculation of a Bill of Rights that, sadly, was not updated in time to keep the cork in.

            1. I get what you are saying…but to compare the advent of the atomic bomb with hacking into a phone is a rather large stretch.

              And quite frankly, this is not a binary thing with regards to security. One could have an iPhone that is secure against most people, but one that more sophisticated govt hackers can get into. In fact, that’s what we had with the earlier iPhones. The world did not end. That’s what many have with other devices and it’s not cataclysmic. Apparently iCloud backups are not encrypted and that is not dooming the world to oblivion until Apple fixes that.

              My home is not 100% secure, but I do feel secure, even though if someone wants to break in they can surely do so. It’s a false notion to argue that either we have total unbreakable encryption of everything digital or we have nothing. Because if that’s true, then at every point on the way to perfect encryption the world should be experiencing huge calamity because of it. And make no mistake: all during the digital revolution we have had imperfect security.

              I agree with Apple on this case, and I am all in favor of strong security. But extreme arguments prove nothing.

            2. I agree that extreme arguments prove nothing. My point is that there can exist inescapable tipping points that change everything, which is something being claimed in this case. I cited folklore and social history to remind everyone that the issue is not new but primordial, appearing in every culture, warning about forks in the road with no way back. These messages come down to us from before recorded history. That attests to their perceived importance, and to the humanity of those who had made a wrong choice in their own generation. I like to think that some of us today have the same generous instinct of the ancient story tellers, that of actually caring about future generations as opposed to absorption in one’s own.

              It comes down to whether one believes it’s a tipping point or not. If the matter gets adjudicated, we can all get together for a beer and hail fellow well met. I hope that’s the case.

            3. The problem with tipping point arguments, which are also slippery slope arguments, is that they can be used for anything and often are. How many times in politics does one side make a tipping point argument warning that if a particular bill is passed, or a particular person elected, etc…that will be doomsday, and then it happens, and life goes on. All of a sudden the party that warned of dire straits doesn’t seem so worried.

              Yes the tipping point argument has been used for ages, but that doesn’t make it so in this case. The problem with it is that often when a dramatic change takes place and it seems like a tipping point, it in reality is the culmination of forces accumulating for a long time.

              The reality is that when 9-11 hit, it set off a series of shock waves through the US and the world that we are still trying to cope with today. This Apple case is but one data point on that curve. Until we as a species come to terms with how to react to the threat of terrorism, we will see all types of moves to react to the fears of people being attacked.

        2. since you brought up the difficulties of child porn cases etc

          I’m no lawyer so I’m just wondering, why can’t suspects be compelled to open their devices? For example companies can be fined thousands of dollars a day if they don’t comply with search warrants, why can’t suspects be charged with contempt and put in jail until they reveal a password if a proper search warrant is issued? or police can forcibly use their fingerprints on sensors like they can order DNA swabs? Someone said that the law doesn’t allow that as it’s ‘self incrimination’ or something, if that’s the case and if the world has changed with strong encryption then maybe the law should be changed?

          I agree with you there is a dilemma as nobody wants criminals to get away.

          1. The issue of ‘why can’t suspects be compelled to open their devices’ comes down to the Fifth Amendment of the US Constitution.

            No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

            The key phrase is: nor shall be compelled in any criminal case to be a witness against himself.

            Therefore, since a password consists of something the suspect ‘knows’, holds inside his mind, he cannot be compelled to provide it as it would result in testifying against himself. Meanwhile, however, nothing stops law enforcement from acquiring the other two common forms of security protection, something the suspect ‘is’, such as their fingerprints, or something they ‘have’, such as a USB dongle used as a security pass.

            There cannot be any recrimination against a suspect if they plead the Fifth Amendment. The fact that they plead the Fifth Amendment can be considered implicative of guilt. In the case of Apple vs the FBI, the Fifth Amendment doesn’t apply in the sense that the suspect is dead, and he therefore does not have a Fifth Amendment right, and he can’t witness against himself in any case.

            …Unless he’s reanimated. But that’s necromancy, which gets very nasty.

        3. Thank you for your insight, not only you TxUser but to all that have posted with such excellence this weekend. I’m glad that there are enough of us here to evaluate, muse and reflect upon this issue.

          I’m going to focus on one point you made, that there is “no obvious third way or path to compromise.” That’s really Apple territory, and just for fun I’m going to look at an analogy, the pendulum of building a better mouse trap and a better mouse. Right now, it’s full swing into the mouse trap. What if Apple builds a better mouse?

          What if Apple’s approach is to simply give every government a key code to all iphone devices designated for their country based on the unique number of the device. Each government would have their own code, code 1111 as I call it. Each government can then decide what they will do with it, they can burn it, lock it up, give it law enforcement agencies or to everyone in their country. Those with the code can hack into it as a representative of the government provided that they have the secondary code 22222 that corresponds to the number assigned to that unique iphone device. You’d have to build all sorts of safety features, say a GPS locator program to ensure that the uniquely numbered iPhone is in the physical jurisdiction of the country that has their code but you get the idea hopefully. You might have a third code just to make it extra hard to proceed but the point is that basically all law enforcements now have a key code that can access the iPhone. Not a backdoor key but a transparent front door skeleton key.

          Of course there is a catch. You can use the code to access the iPhone so you can you look at the data and get that recipe to disarm the doomsday device, but using the code engages a total erase program, so when you shut it off that’s it, game over. All data is erased on the iPhone when it shuts down and a programmed physical failure as a result of using the code will render the iPhone as useful as a brick. We are talking mission impossible here, but no longer will Apple be burdened by a headline like “An organization with initials forgets to keep iPhone plugged in so the doomsday device cannot be disarmed, the world will end tonight”.

          Now this may be a silly and totally impractical idea, the point however is that I’m aiming to have the sort of dialogue, the sort of creativity that Apple has. What a product, a service, an idea a resolution that would be because that is what it takes to deal with “no obvious third way or path to compromise.” and I’m sure that Apple is looking at that elusive compromise, because as TxUser has stated, this issue is a dilemma.

          This particular hypothetical solution has great short comings to it unfortunately but for a while it was nice going through a variety of scenarios.

          For example, what happens when one of the nasties gets the code? They can steal a bunch of iphones and access them…once. Not really good for thieves though there might be a short fad of “hey Mr. wanna buy an iPhone? I only used it once.” that will sizzle quite quickly. Data theft, well that’s always an issue, probably be a big one, so keep your iPhone in a safe, because now it’s searchable.

          For a while as I went through various scenarios I thought Eureka, what a simple elegant solution. Then I realized that there is one group that would use and abuse this concept totally… college drunks. Yup, I can just see the sordid decadence of some fraternity that has just acquired the code online, and then deciding that in order to join the frat, a pledge would have to use the code on some college gal’s iPhone. What a discussion that would be, until of course the slow loss of sobriety causes them to try it out just for fun on one of their phones. To see if it really works. Oh goodness what’s this Apple warning in big bold flashing red letters? “ALL DATA ON WILL BE PERMANENTLY ERASED AND THE IPHONE WILL SELF-DESTRUCT ONCE POWERED DOWN. PROCEED? Y/N.”

          The frat lads no doubt would start that “Do it, do it” chant with some “power it down” suggestions coming from some of the ones nearly passed out in a corner. One can imagine the horror that results when the “what do you know, it works” realization makes it to the mind. Someone’s gonna be pissed in a nasty way and lament the lost photos, phone numbers and photos of hot babes and will definitely make a go for someone who suggested the idea in the first place. It gets ugly right about there cause likely there will be some physical altercation potential that will reach the skyrocket level. As if that isn’t bad enough, sooner or later there is bound to be a party of this nature where an entire fraternity in a drunken stupor wipes out all their personal dating information on their iPhones and it makes headlines. Then it became a fad, and the Guinness World Book of Records has all sorts of requests to attend parties of people who will be bricking their iphones, because the are rich and bored or whatever.

          I thought it was a good idea until I came up with that scenario but the point is that the folks at Apple have a solution focused spirit and figuring out something like that is what they excel at, a solution for the world, a global solution is the way of the future, as opposed to this insular “be our puppet” demands that is causing Apple to focus locally.

          Apple, think locally, act globally. Build a better mouse trap and give cheese for a better mouse.

          I better put the /shjtt (satire, humor, joke tall tale) tag just to be sure that people know I’m not serious.

    2. No one, including Apple, is preventing the government from searching the contents of this or any other iPhone, or Android phone, for that matter. The warrant remains a viable tool for authorizing the government to proceed with its search. Apple has simply said they don’t want to break the security of their products and potentially very likely put hundreds of millions of its customers at risk, and has declined to help beyond what they have already provided. Their position is that nothing in current law forbids companies from using encryption to protect their products, and Apple currently doesn’t possess the technology to break this encryption. Nothing is keeping the government from turning to its other resources, including the NSA and hardware specialists from taking apart the iPhone and scanning its chips to try to gain access.

      The FBI is simply trying to do an end run around the law and intimidate a private company into creating a tool to do the work for them. They may or may not have the skill set to get the job done at present, but nothing is stopping them from investing the resources to acquire that competency. This is not Apple’s problem.

      Congress has repeatedly declined to give law enforcement the tools they’re now attempting to use the All Writs Act to acquire via some favorable court ruling. Since at least two different courts have reached opposing opinions concerning the FBI’s assault on specific current law (CALEA) using this 1789 Writ, this issue is destined to go to the Supreme Court, if Congress doesn’t clarify the issue itself in the meantime.

    3. The article is wrong when it says there were no warrant-proof places before the iPhone. There have always been places that could not be accessed by a warrant. Society decided that the trade-off in protecting those places was worth the difficulties it would pose to law enforcement. Read more here:
      http://www.zdziarski.com/blog/?p=5912

      Also, one place that technology may make searchable in the not-so-distant future: your mind. Should that just be allowed with a warrant once possible?

      1. Oh the technology to extract information from a live mind is alive and well and being practices at Guantanamo on the Bay Resort. It’s called torture. I’m sure a weekend then for most of us and we’d be begging to give them the code to unlock our iphone.

        While this technology does exist there is a catch, it’s only practiced by some of the lowest scum known to humanity.

    4. There has been a “non-searchable” place in existence since forever. It’s called “the inside of your head” and under the Constitution, there is no warrant for that place.

  4. What scares the crap out of me is the new hire out of the NSA, Eric Schmidt(CEO- Creepy Executive Officer). Hiring an unethical turd like that tells me those mindsets have a compatibility that’ll trample through any moral or constitutional outcome. We know that Schmidthead still has strong ties, and is still employed with google. And any negative outcome of this case for Apple would be a plus plus for google. I doubt google would care how low they crawl to win King of the Hill (market cap) sumpremacy.

    Read the video description under this vid, it provides more info as to the tactics(scary)

  5. “law enforcement has to find a way to fight crime in a world with strong encryption”

    If Apple has to weaken their built-in security, then only the criminals will have encryption.

  6. The question at hand is whether the judge will uphold her oath of office and tell the FBI to go fuck themselves, or side with those who think the constitution is merely an impediment to be brushed aside whenever the government finds it convenient to do so.

    -jcr

  7. They are just trying to cover their embarrassing blunders and the fact they couldn’t prevent the incident with the plethora of data they have but are too incompetent to know how to “filter and process” . They are also trying to make it easy for themselves, there are many ways they can get to the data on this phone they just don’t want to put in the hard work.

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