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  • Apple says San Bernardino iPhone case is 'unprecedented,' cannot be decided in a vacuum

    In Apple's final response before a court hearing later set for next week in the ongoing San Bernardino iPhone encryption case, the company said the Department of Justice is asking making an unprecedented request that usurps due legal process, democratic policy and Constitutional rights.



    Apple's crack legal team, led by Theodore Boutrous, Jr. and Ted Olson, in today's response (via Christina Warren) reassert many of the same arguments posed in an initial response to the California court order, specifically limitations to the All Writs Act and potential infringement of Apple's First Amendment rights. The case, Apple says, is not about "one iPhone," but rather precedent for compelling private companies to hand over customer data at the behest of law enforcement officials.

    "It has become crystal clear that this case is not about a 'modest' order and a 'single iPhone,' as the FBI director himself admitted when testifying before Congress two weeks ago," the filing reads. "Instead, this case hinges on a contentious policy issue about how society should weight what law enforcement officials want against the widespread repercussions and serious risks their demands would create."

    Apple references a recent Congressional hearing on encryption attended by FBI Director James Comey, Apple's lead counsel Bruce Sewell and other associated parties. Comey at the hearing said he would "of course" leverage any precedent set in the California case to unlock iPhones in other investigations.

    In February, Apple was ordered by a federal magistrate judge to comply with FBI requests for assistance in unlocking an iPhone 5c used by San Bernardino terror suspect Syed Rizwan Farook. Specifically, the government is asking Apple to code, sign and deploy an intentionally flawed version of iOS susceptible to brute-force passcode attacks, something security experts warn weakens the inherent security of millions of devices worldwide.

    The company is resisting the ruling, saying the Department of Justice's application of the All Writs Act, a law that provides courts the ability to issue orders when all other judicial options are exhausted, is improper.

    "Furthermore, the Justice Department and FBI argue that this Court must decide the issue in a vacuum, without regard to either the swirling national debate about mandating a back door or the dangers to the security and privacy of millions of citizens posed by the relief they seek on behalf of the United States. But to determine whether this is an issue capable of judicial resolution under the All Writs Act and the Constitution, the Court not only can consider this broader context, it must do so. Indeed, the Justice Department and FBI are asking this Court to adopt their position even though numerous current and former national security and intelligence officials flatly disagree with them," Apple said.

    Those siding with Apple on the encryption debate foresee a quick deterioration of civil liberties if the DOJ is successful in garnering the motion to compel. Apple itself presented the slippery slope argument on multiple occasions, saying a government win would grant the DOJ limitless power in executing search warrants for digital information.

    When it comes to the All Writs Act, Apple takes issue not only with the statute's scope, but its application to the instant case. Government overreach aside, the company contends FBI officials have not yet proven necessity, a prerequisite to asserting AWA. Again recalling the early March Congressional hearing, Apple notes Comey said he did not know what avenues the FBI had exhausted in its attempts to decrypt Farook's iPhone. Some security experts have claimed the NSA has developed forensics tools capable of breaking iOS encryption, but the agency is reluctant to relinquish those assets to the FBI as they might end up exposed in court proceedings.

    In a footnote Apple notes "[t]he government is adept at devising new surveillance techniques."

    Importantly, Apple maintains that the political ramifications of creating a software bypass cannot be divorced from the case at hand, as the government is attempting in its assertions. For its part, the Justice Department claims concerns of a weakened iOS encryption backbone are unfounded because the requested software would only be applied to Farook's iPhone. Further, the court does not have authority to adjudicate policy issues, and such topics should therefore not enter discourse.

    The filing wraps up with a quote from Justice Louis Brandeis, who almost 90 years ago said, "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Apple seemingly chose the passage to reflect the government's ardent requests for access.

    [via Support Vacate San Bernardino Case]
    This article was originally published in forum thread: Apple says San Bernardino iPhone case is 'unprecedented,' cannot be decided in a vacuum started by Caiden Spencer View original post
    Comments 16 Comments
    1. King_O_Hill's Avatar
      King_O_Hill -
      Stand strong Apple.
    1. Rakim's Avatar
      Rakim -
      Absolutely, INCREDIBLE show of respect for the inherent liberties of the people. Just because the norm has always been Big Government over the masses for so long, by no means makes it acceptable, or in accordance with the design or intention of the very constitution they so conditionally refer to and apply at will wherever it strengthens their case for over reaching.

      Apple is taking a hard stand at a point where we as a country have been duped before based on our human compassion for one another.....Historically tragedy has been the tool by which great and far reaching precedents have been set, precedents which would have ever been considered as a realistic option, without the state of duress under which the Govt. pushes some of it's most "loaded agendas"....

      I'm even happier to be an Apple product owner now....Not in light of the people who have suffered already by Terrorists but rather by the way we don't realize that we are aligning ourselves to be the facilitators AND THE recipients of a different form of victimization, by allowing this to happen.... And instead of sitting down and allowing it APPLE is standing up!
    1. King_O_Hill's Avatar
      King_O_Hill -
      Bravo Rakim!
      Nice to see a post by someone that totally gets it!
    1. Feanor64's Avatar
      Feanor64 -
      Sorry but if the police have a warrant they can search your house and if it's locked they can tear the lock off. Why is a phone different?
    1. Caiden Spencer's Avatar
      Caiden Spencer -
      Quote Originally Posted by Feanor64 View Post
      Sorry but if the police have a warrant they can search your house and if it's locked they can tear the lock off. Why is a phone different?
      It's within the persons rights. You choose whether to give the passcode or not.
    1. King_O_Hill's Avatar
      King_O_Hill -
      Quote Originally Posted by Feanor64 View Post
      Sorry but if the police have a warrant they can search your house and if it's locked they can tear the lock off. Why is a phone different?
      Then let the police do it! I have no problem with this.

      If the door is locked, do they contact the lock manufacturer to open it? If they find a Dell computer in my house that has a password on it, do they contact Dell to hack into it?
    1. Feanor64's Avatar
      Feanor64 -
      Quote Originally Posted by Caiden Spencer View Post
      It's within the persons rights. You choose whether to give the passcode or not.
      If you have a safe in your house and the police think it may have something illegal inside they can get a warrant and crack the safe how is this different? The safe isn't crack proof. Whether u provide the combination or not.
    1. SpiderManAPV's Avatar
      SpiderManAPV -
      Quote Originally Posted by Feanor64 View Post
      If you have a safe in your house and the police think it may have something illegal inside they can get a warrant and crack the safe how is this different? The safe isn't crack proof. Whether u provide the combination or not.
      The difference is that they aren’t asking for the key to THIS phone. They aren’t breaking the door in on a single house to get the data. Instead of doing that, they went to the key manufacturer and said to give them a key that works on every single house, but they super pinky promise they’ll only use it on this house. When the key company said no and gave them a key to work on just that house, they broke the key so they needed a super key to get in.

      If Apple could get into JUST this phone, they would follow the warrant’s orders without complaint. The reason I know this is because they could and they did. Apple gave the FBI copies of the shooter’s icloud backups so they could access the data on the phone that way. The FBI’s response was to change the password so the backup wouldn’t work.

      “Woopsie! Now the only option is for you to give us something that works on every iPhone out there. We promise we’ll only use it on this one . Oh, before you go Apple, we have 12 more phones to use it on, but that’s it. Oh, wait, nevermind, the chief of police in NYC has 175 more to use it on. After that we won’t use it again, promise.”

      That is why people don’t want the FBI to get this code.
    1. Feanor64's Avatar
      Feanor64 -
      Quote Originally Posted by King_O_Hill View Post
      Then let the police do it! I have no problem with this.

      If the door is locked, do they contact the lock manufacturer to open it? If they find a Dell computer in my house that has a password on it, do they contact Dell to hack into it?
      No they knock it down with a battering ram and the fbi has a cyber division. Dell isn't making its computers hack proof. If you commit a crime the fbi should be allowed to look at your phones contents just like your house or your car or your safe or your bathroom or your pc. If you are worried about abuse then when it happens the American people need to stand up and hold officials accountable. Instead half the people in this country want bigger government. I'm worried about abuse too but the fourth amendment protects against UNREASONABLE search and seizures. There is nothing in the constitution that says you or me or Apple is above the law. So are you guys gonna start defending pedophiles who get arrested and their computer gets searched and hacked without their consent?
    1. Feanor64's Avatar
      Feanor64 -
      Quote Originally Posted by SpiderManAPV View Post
      The difference is that they aren’t asking for the key to THIS phone. They aren’t breaking the door in on a single house to get the data. Instead of doing that, they went to the key manufacturer and said to give them a key that works on every single house, but they super pinky promise they’ll only use it on this house. When the key company said no and gave them a key to work on just that house, they broke the key so they needed a super key to get in.

      If Apple could get into JUST this phone, they would follow the warrant’s orders without complaint. The reason I know this is because they could and they did. Apple gave the FBI copies of the shooter’s icloud backups so they could access the data on the phone that way. The FBI’s response was to change the password so the backup wouldn’t work.

      “Woopsie! Now the only option is for you to give us something that works on every iPhone out there. We promise we’ll only use it on this one . Oh, before you go Apple, we have 12 more phones to use it on, but that’s it. Oh, wait, nevermind, the chief of police in NYC has 175 more to use it on. After that we won’t use it again, promise.”

      That is why people don’t want the FBI to get this code.
      No that's not a viable argument because The FBi doesn't need a key they break the door down if there is reasonable cause.
    1. Feanor64's Avatar
      Feanor64 -
      They don't want the fbi to get this code in order to prosecute criminals?
    1. Feanor64's Avatar
      Feanor64 -
      Please explain how you think the fbi is going to abuse this. Do you think it's ok if a gun manufacturer came out with a pistol that had a grip that wouldn't leave fingerprints? What would be the reaction to that? What if g.m. made a vehicle and the emissions couldn't be tested? Instead it's mandated by law that that vehicle has to have emissions equipment and it has to be up to code and it has to be testable. You have no say in this neither does g.m.
    1. SpiderManAPV's Avatar
      SpiderManAPV -
      Quote Originally Posted by Feanor64 View Post
      Please explain how you think the fbi is going to abuse this. Do you think it's ok if a gun manufacturer came out with a pistol that had a grip that wouldn't leave fingerprints?
      You mean... Like most handguns?

      Seriously. Look up images of handguns on google right now. They ALL have rugged grips. Rugged grips don’t provide a surface for fingerprints. Sure other parts of the gun can provide fingerprints, but that's where most of them would be.

      What if g.m. made a vehicle and the emissions couldn't be tested? Instead it's mandated by law that that vehicle has to have emissions equipment and it has to be up to code and it has to be testable. You have no say in this neither does g.m.
      Yes, and your emissions contain no personal information about citizens, so nobody cares. If your emissions broadcasted your exact location to the government at all times, you can bet they would be more heavily regulated.


      They don't want the fbi to get this code in order to prosecute criminals?
      Yes, because the FBI only goes after criminals and has no interest in going after people purely for exercising first amendment rights or entrapping them to make an example and “accidentally” withholding important evidence for almost 10 years. They’ve certainly never planted evidence to meet quotas or anything like that. I even hear some crazy people suggesting the US government is illegally spying on its own citizens even when the data doesn’t offer any protection whatsoever! Can you imagine the horror if it came out the fbi was doing things like spying on journalists? I swear! These people almost make it sound like living in Nazi Germany! I guess it’s good we don’t have the gestapo though. Now that’d just be too much. No, I think you’re right. We can trust the government with the ability to get into any American data without being filtered or needing a warrant or anything. I guess it's good we're trusting the FBI with the info since they'd never get hacked and lose important data or anything. They'd certainly never let important data like secret agents over seas out. No, your iPhone key is safe with them.
    1. Feanor64's Avatar
      Feanor64 -
      Quote Originally Posted by SpiderManAPV View Post
      You mean... Like most handguns?

      Seriously. Look up images of handguns on google right now. They ALL have rugged grips. Rugged grips don’t provide a surface for fingerprints. Sure other parts of the gun can provide fingerprints, but that's where most of them would be.

      Ok bad example but it is lifted from other parts as you say imagine if if they couldn't lift any at all...


      Yes, and your emissions contain no personal information about citizens, so nobody cares. If your emissions broadcasted your exact location to the government at all times, you can bet they would be more heavily regulated.

      Of course they contain personal info. Car registration is one way. When you get an inspection sticker for example it's tested and all your personal info is wrote down. Newer Cars already broadcast your location at all times.




      Yes, because the FBI only goes after criminals and has no interest in going after people purely for exercising first amendment rights or entrapping them to make an example and “accidentally” withholding important evidence for almost 10 years. They’ve certainly never planted evidence to meet quotas or anything like that. I even hear some crazy people suggesting the US government is illegally spying on its own citizens even when the data doesn’t offer any protection whatsoever! Can you imagine the horror if it came out the fbi was doing things like spying on journalists? I swear! These people almost make it sound like living in Nazi Germany! I guess it’s good we don’t have the gestapo though. Now that’d just be too much. No, I think you’re right. We can trust the government with the ability to get into any American data without being filtered or needing a warrant or anything. I guess it's good we're trusting the FBI with the info since they'd never get hacked and lose important data or anything. They'd certainly never let important data like secret agents over seas out. No, your iPhone key is safe with them.
      Sarcasm aside your perfectly right but who let this happen? We did. By not holding our elected officials accountable. Who are you going to call when a crime is committed against you? If your car gets stolen your not going to call the police? If the police say they can find your car because of gps are you going to tell them no don't do that I'll go drive around till I find it. Of course not! You would be more than willing to take advantage of this tech because it is common sense and benefits you. The info on this phone and other phones may benefit the victims or potential victims of this crime or other crimes yet you want to deny them that? Why? What is your constitutional reason for doing so?
    1. Feanor64's Avatar
      Feanor64 -
      Didn't quote you right sorry lol
    1. SpiderManAPV's Avatar
      SpiderManAPV -
      I’ll be honest, as a computer science student I’m not that familiar with Constitutional law and its application to the current case. I’ll leave that to the lawyers. What I do know is that what the FBI is asking for is that it is morally questionable at best and outright orwellian at worst. The way the FBI has handled this and other similar cases is very telling and to be quite honest I don’t trust them one bit.

      In the example you give about using GPS to find the car, I would be very disturbed to find out that the government is tracking the location of my vehicle at all times. If I could give them MY GPS login info or something and they could then find my car, I’d be quite pleaded, but if my options are to have my car stolen or to have myself be tracked by the FBI at all times, I’d honestly go with losing the car.

      Many of the examples I listed above are the result of us as Americans trusting the government. Every time we give them an inch to protect us from a legitimate threat, they take a mile. The NSA’s powers were given to them as a result of 9/11. 9/11 obviously proved that a terrorist attack on American soil was a legitimate possibility. We wanted protection from that, so we gave them more power. They took that power and decided it meant they could spy on every American without any restrictions or consequences. I feel terrible saying this, but if giving all the info on American’s cell phones prevented San Bernandino 2 from happening, I still wouldn’t do it. I don’t feel like the federal government deserves to have access to the information of whoever they want without any restrictions.

      As you say, the fact that the things I cited above happened is because we let them happen. We haven’t held the government accountable. The problem is that giving the FBI whatever they want only makes the problem worse. The way to hold them accountable isn’t by giving them more power. When 9/11 happened, we gave the NSA power. It stopped no attacks. It didn’t prevent anything. They did manage to spy on all of us. Now a shooting has happened. We can either make the EXACT same mistake by giving the government more power to “protect” us, or we can fight to keep our rights.

      I’m not for Apple in this case because what the FBI wants is against the law, I’m with Apple because it should be. What the FBI wants can be abused, and it will be abused; the last 10 years prove that. We may not find out how or why until 2030, but the way the FBI has handled this case so far only shows that it isn’t the info on this phone they want, it’s the info on everyone’s phone.