Apple’s fight against U.S. government overreach rages on in Brooklyn

“The tug-of-war between Apple Inc. and the FBI over encryption shows no signs of easing as the company reiterated its reasons on Friday for refusing to help investigators in Brooklyn,” Christie Smythe and Alex Webb report for Bloomberg. “After months of fighting, both sides are now deeply entrenched in their positions — arguments that have drawn other technology companies and government officials into an intensifying public debate over privacy.”

“In the Brooklyn case, Apple said a New York magistrate judge’s ruling was correct in determining that the company doesn’t have to help prosecutors crack into a drug dealer’s iPhone,” Smythe and Webb report. “‘The government’s failure to substantiate the need for Apple’s assistance, alone, provides more than sufficient grounds to deny the government’s application,’ Apple said in its filing.”

“The outcome of the case could influence what individuals can expect in terms of privacy, as well as how technology companies and law enforcement interact. The U.S. has a week to respond to the Friday filing, and on Tuesday Apple General Counsel Bruce Sewell is set to testify at a Congressional hearing on encryption issues along with representatives from the FBI and the New York police department,” Smythe and Webb report. “Apple argued Friday that the magistrate’s ruling should stand, saying it’s Congress’s responsibility to define what technology companies must do to aid investigators.”

Read more in the full article here.

MacDailyNews Take: Let Congress, the peoples’ representatives, decide.

Oppose government overreach.

Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety. – Benjamin Franklin, Historical Review of Pennsylvania, 1759

SEE ALSO:
U.S. government to continue effort to force Apple to unlock iPhone in Brooklyn – April 8, 2016
U.S. government appeals Apple win in Brooklyn iPhone encryption battle – March 7, 2016
Can the FBI force a company to break into its own products? No, says U.S. Magistrate – March 2, 2016

9 Comments

    1. Humility on both sides would be a welcome change. There have been a lot of fairly silly assertions already, and we don’t need more.

      I fully support Apple in this dispute, but I can’t help cringing at some of the rhetoric from the company’s supporters. If we are to move this debate to Congress, we have to do better. A few points from thirty years of watching politics at close range:

      1. It is not always the case that your opponents are fools or scoundrels. More often than not, they are simply mistaken. That is usually because they put too much faith in someone who got the facts wrong. The remedy for that is to show them the true facts. That will be much easier if you have not called them a fool or scoundrel before trying to persuade them.

      2. Decision-makers do not like reversing positions unless they have a plausible and politically harmless explanation. “I was misinformed because I trusted the FBI” works, while “I was stupid or venal” won’t. Always offer politicians a way out. Never paint them into a corner. As Huey Long said, “Don’t  slap a king unless you can kill him.”

      3. Don’t just claim, “This is horrible.” Be quite specific about the consequences that will follow a bad decision. Explain in detail why requiring Apple to have a back door into their devices will inevitably lead to everyone having access to that back door, including foreign governments and private criminals. The key would be far too valuable to remain secret. If Apple (and other companies) were required to bake the back door into their hardware, there would be no way to patch the hole when it became public.

      4. Explain in detail why Apple cannot provide access to agencies following U.S. law without providing similar access to foreign agencies following their local law, which may amount to “We are legally allowed to access this phone because Dear Leader says so.” If the USA makes providing access a condition of doing business, so will every other country where Apple operates. The key is even less likely to remain secret from criminals in those counties, thus making iPhones insecure everywhere.

      5. Give concrete examples of ways this will harm the public, and specifically the politicians’ constituents. Talk about Granny who can lose her life shavings if criminals access the banking information on her phone. Talk about what can happen to women and children whose photos and realtime location become accessible to stalkers. Point out that the world economy is increasingly dependent on the fast, reliable, and secure exchange of information that is increasingly accessed through mobile devices. All that may seem obvious to you, but it obviously isn’t obvious to them.

      6. Do not minimize the costs of your approach. You will simply not be credible if you do not acknowledge the risks of allowing terrorists and other criminals the means to communicate and store data without having to worry about a search warrant. Child pornography really does finance human trafficking, and it really is almost impossible to prosecute if the perverts use reliable end to end encryption. That isn’t just “Think about the children” BS. The lives that are ruined may be inevitable collateral damage from avoiding the greater harm  from unreliable encryption, but the damage is still a terrible thing.

      7. If you aren’t sure about legal details, don’t guess. For example, it is not a violation of the Fourth Amendment when law enforcement seizes, searches, and hacks an encrypted device pursuant to a proper warrant. I doubt that the courts would have any more trouble with the constitutionality of a law prohibiting device manufacturers from selling a phone that would be immune from such access. The law would be horrible public policy with appalling unintended consequences, but not every bad law is unconstitutional. 

      1. One of the very best posts that I read on this forum in many a year, TxUser! Logical, well written, and concise given its breadth of content. Truly well done and a model for Apple and Apple legal to follow. I, too, support Apple’s position in this matter. But it is the American public must be convinced that Apple is on their side. Otherwise the government may be successful in making a disingenuous argument based on the ambiguous “common good.” The government has the simple, fear-based arguments of terrorism and criminal activity on its side. And fear is easily spread and internalized at the gut level. How many times in the 2000s were we advised to “trust your gut” and “what does your gut tell you?” The government wants the electorate to act like emotional sheep, easily herded along the desired path using a few dogs or, if necessary, frightened and scattered widely to avoid having to deal with a strong leader that might unite and motivate them. Except for the sanctioned groups (e.g., political parties) or the groups that are too powerful to publicly oppose (e.g., NRA), the government and the powerful and wealthy people of this nation despise organizations formed and run by the unwashed masses – unions, activist groups, etc. – that cannot be controlled through political influence or money.

        In particular, I like the honesty of admitting the cost of Apple’s approach to security and privacy. It is false to deny that cost…nearly every course of action has both positive and negative consequences. And Apple should seek ways to help mitigate the collateral impacts as we move forward.

      2. This is a brilliant post TxUser, thank you for the time you took to make it, I hope many people read it.

        I’ve often found that when debating ideas that there are three approaches:
        a. A ad hominem attack on the person, discredit the person to discredit the idea.
        b. Smoke and mirrors, bringing in something irrelevant to the issue.
        c. Dealing with the complexities of the issue.

        I’m not against using a and b as long as c is addressed, however that is often not the case.

        Regarding this issue I see it as a technological one and any technology in my opinion can be used for useful or nefarious purposes. My classic example is the sharp blade, it can be used on a plough to increase crop production or on the sword to remove human life. Encryption is no different, it can protect an honest individual’s bank account just as well as protecting a criminal’s notes. That’s the quality of it. A quantitative aspect can also be important, what are the social benefits of encryption and what are the drawbacks.

        I don’t see a perfect encryption process at this stage but like a safe it can be hard to break and obtain the information within. Here the intent and trust is important. Many governments have trust that has been eroded and lost, corruption is as rampant as it is criminal, or non-ethical. The principles as lovely as they are, are only as good as their implementation. As such Apple right now has the moral high ground and no doubt the now nefarious forces are at work to corrupt and degrade Apple on as many fronts as possible. That’s the way I see it.

        I could write more but I did want to offer some feedback to your excellent post. I’m glad you care enough to share.

  1. MDN should really stop using the Franklin quote, if for no other reason that many an iOS user uses iOS precisely because of it’s gated, curated, and selectively censored environment. This gives the perception of safety at the expense of liberty.

    So stop, just stop.

    1. applecynic, the iOS ecosystem gives me what I am seeking. I made a conscious choice to use iOS and I have the freedom to jailbreak my devices or switch to Android or whatever. So your argument is more than a little off point.

      1. Those who would “give up essential liberty” to purchase a little “temporary safety” deserve neither liberty nor safety.

        Emphasis mine. I believe the Franklin quote to be correct, but it’s correct in your context as well. I don’t think that’s the message MDN wants to convey, though it is correct.

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