Apple against our duly constituted authorities

In a Tweet on Friday, I put it as plainly as I could in 140 characters:

And since then, I’ve not seen a word that even comes close to justifying the outrageous position taken by Tim Cook. There was certainly nothing in his public letter that excused his behavior.

Probably the most outrageous part of the letter is when Cook essentially condescends to say the FBI’s intentions are no doubt quite honorable, and that Apple has cooperated with authorities (when Apple approved of how it was being asked to help), but the poor, simple creatures just don’t understand what they’re asking now. Fortunately we have the unelected wise men of Apple to countermand the requests of our duly constituted law enforcement authorities.

And I’ve seen quite a bit to confirm me in my view of the matter. Such as this piece today in the WSJ:

Apple was asked to adjust its software that wipes iPhones clean after 10 failed passwords, to enable the FBI to find the password. Prosecutors want this only for Farook’s phone, to “mitigate any perceived risk to Apple iOS software as to any other Apple device.” The local agency that employed Farook owns the phone and wants Apple’s help. “The user was made aware of his lack of privacy in the work phone while alive,” prosecutors note.Apple_Logo_Png_06

There’s no risk to encryption and the dead terrorist has no privacy rights. So what is Apple trying to protect?

The answer, according to the Justice Department, is a “business model and public brand marketing strategy.” Apple admitted as much last year in explaining to a federal court in Brooklyn, N.Y., why it refused to unlock the iPhone of a methamphetamine dealer. The company had unlocked some 70 iPhones in criminal cases since 2008, so the judge was surprised by its sudden refusal.

Apple’s lawyers explained that customers are so concerned about government access to data that compliance with court orders would “substantially tarnish the Apple brand.”…

Yeah, I bet the families of those murdered by the phone’s owner sit up nights worrying about poor ol’ Apple’s brand.

You want to improve your brand? How about not selling me a phone set to destroy all my data after 10 failed passwords?

I’ll anticipate my libertarian friends’ arguments and say you’re right — I don’t understand the technology. And maybe the fact that I don’t believe Apple when it says it can’t crack one phone without making all iPhones immediately insecure makes me an ignoramus. But I don’t believe it. And even if I did, I would consider granting Apple the power to choose which court orders it will obey to be far too high a price to pay for having an unhackable phone….

97 thoughts on “Apple against our duly constituted authorities

  1. Doug Ross

    If the killer is dead, what information are they looking to obtain? Oh, I know… just METADATA.

    The reason they need the phone unlocked is because the FBI screwed up and tried to change the password on the phone and locked it up. From Apple: “If the county didn’t reset the password, Apple would have likely been able to access the backup contents as it has done in past investigations without creating a back door to break the iPhone’s encryption.” And the FBI lied about that whole screw up before admitting they had done it.

    This is about setting a precedent that will allow the line to be moved again in the future.

    Reply
    1. Doug Ross

      And this is just a tiny step in the overall goal of forcing Apple to provide a backdoor into all phones. I know, I know, if you have nothing to hide, why would you care if the government has access to it?

      Reply
      1. bud

        Doug you raise the slippery slope argument but there’s no need to go there. If the government does want to go the next step then we’ll cross that bridge at the appropriate time. For the time being I have to side with the government. But I am willing to revisit this as developments warrant.

        Reply
        1. Brad Warthen Post author

          YES, Bud!

          Slippery-slope arguments are bankrupt. You make a decision. This does not obligate you to make similar decisions in the future. When you think something’s going to far, you say NO…

          Reply
    2. Bryan Caskey

      “If the killer is dead, what information are they looking to obtain? Oh, I know… just METADATA.”

      I would think the FBI would be interested in the killer’s contacts. You know, the people he called, texted, emailed with.

      Reply
        1. Bryan Caskey

          You misunderstand me. I’m simply putting myself in the FBI’s shoes. If it was my job to investigate this, I would be thinking: Hey, I want to know everyone that this guy called, texted, or e-mailed with.

          Maybe the contacts reveal innocent people, and maybe there are some bad guys in there. If Doug Ross comes up in the terrorist’s contact list, then the natural question is “Why?”.

          That’s the point of the FBI to, you know, investigate.

          Reply
        2. Brad Warthen Post author

          And Doug, what does learning the names of the people he contacted have to do with them committing crimes or not? Each of them is a source of information, a potential step to learning more about what happened and how to prevent it.

          I can’t begin to understand why that is not completely obvious.

          That locked phone is a closed door in the investigation. The FBI needs to see what, if anything, lies beyond it.

          It could be nothing. The terrorist may have avoided calling anyone relevant on the phone, unaware that Tim Cook would defend to the death his privacy…

          Reply
          1. Bryan Caskey

            That locked phone is a closed door in the investigation. The FBI needs to see what, if anything, lies beyond it.” (emphasis added)

            Eh, I think the FBI wants to see. I’m not sure they need to see. And again, I don’t blame them for wanting to see the information. I’m just not sure that the FBI (through the Court system) has the power to dragoon the tech guys at Apple into service.

            Maybe in the UK, where they have the history of Naval impressment for service to Crown and country, but here in America? No thanks.

            Again, don’t get me wrong. If I were in charge of Apple, I would probably help out. Who knows, maybe I could score one of those cool Presidential Medals of Freedom, or at least a certificate of participation. But if Apple ain’t feeling like helping out, then I don’t see where the FBI gets the authority to command them to perform some task.

            Reply
          2. Doug Ross

            Ok, the FBI gets a list of all the phone numbers Farook called. Then what? Well, let’s get those people’s names and addresses. And then what? Well, this guy has a “foreign” name. Let’s go visit him and ask him why he talked to Farook. Oh, and while we’re there, let’s take HIS phone and see who he called.

            It’s a slippery slope of Crisco, motor oil, and KY Jelly.

            Reply
            1. Bryan Caskey

              Well, yes and no. Sure, the FBI can go visit someone. They can knock on the Mr. Contact’s door and politely ask to talk to him. Mr. Contact can either agree to talk, or he can politely tell the FBI to go pound sand and close the door in their face.

              The FBI certainly can’t take his phone or anything else, unless he consents or there’s a warrant, which has to be issued by a court based upon a certain amount of evidence.

              We’ve got a whole system in place. Really, you can go look it up. :)

              It’s not a slippery slope. It’s not even a slope. It’s just the playing field.

              Reply
              1. Doug Ross

                Yeah, let’s see what happens when you tell the FBI to pound sand. I bet your trashcan magically falls over and dumps its contents in the street. Or your car accidentally has a GPS device attached to it. Or you drive down the street and your taillight happens to be broken so you get pulled over.

                Reply
                1. Bryan Caskey

                  Well, if you’re going to argue that the FBI is going to improperly violate people’s rights and engage in illegal searches, or otherwise engage in the corrupt practice of framing people of traffic violations as a pretext for a search, then I guess we’re kinda done here.

                2. Doug Ross

                  So (using your favorite analogy reference), Michael Corleone should have just sat there and eaten his veal with Captain McCluskey like a nice-a boy.

                3. Bryan Caskey

                  You’re comparing standing on your Fourth and Fifth Amendment rights to…Michael killing Sollozo and McCluskey?

                  I really don’t follow, and I’m sort of on your side here.

                4. Doug Ross

                  There are too many examples of law enforcement overstepping their authority. It happens every single day despite whatever “rights” might exist. My rights only are valid when law enforcement chooses to value them.

                  It goes back to my original question – what information would be considered valuable to require Apple to unlock the phone at this point? And what will the FBI do with that information? We already know who committed the murders and they are dead. If the FBI has any other evidence that there were others involved, let’s see it. Otherwise it’s just a fishing expedition… that will likely cause innocent people to be investigated.

                5. Bryan Caskey

                  “Otherwise it’s just a fishing expedition… that will likely cause innocent people to be investigated.”

                  Ehhh, I’m not sure I would call it a pure “fishing expedition”. It’s reasonable to conclude that this could lead to the discovery of relevant evidence.

                  But I do catch your drift. It’s an investigation. It’s running down leads. Maybe those leads come up to something, maybe they comes to nothing. I agree that there are no exigent circumstances here, which is nice because we can really figure out what the law requires without the time factor just pushing us into a decision.

                  Did you read the Supreme Court case I linked?

                6. Brad Warthen Post author

                  I have trouble following Doug’s thinking, but this is not a first-time experience.

                  If the FBI knew what it would get from breaking into the phone, it wouldn’t need to break into the phone. I mean, this is a tail-chasing argument. By Doug’s standard, anything law enforcement authorities do to find out something they don’t already know is a “fishing expedition,” and therefore, I gather, somehow less than legitimate.

                  Frankly, there’s a good chance the phone won’t yield anything of value — this, after all, was a work-provided phone, not a personal phone. But the chance that it could produce something of value seems good enough that not to pursue it to make sure would be insane…

                7. Doug Ross

                  So you’re not sure there’s anything of value on the phone and the FBI can’t express any specific information that would be obtained but Apple should just unlock it on the chance there might be something of interest. Is there any other evidence that the killers were working with someone else? If so, let’s see it.

                8. Brad Warthen Post author

                  Yeah, as soon as we have it, we’ll show you.

                  And if there is no such evidence, we’ll only know by pursuing this and every other lead.

                  I really have trouble understanding your demand for evidence that something exists before the authorities are allowed to look and SEE if it exists.

                  It really does not make logical sense…

  2. Brad Warthen Post author

    Aside from “protecting the brand,” looks like Cook is saying no to the FBI simply because he wants to; his own ideology compels such a response:

    Leading Apple’s charge is Cook, 55, who frequently talks about issues — from his support for gay rights to his objections to discriminatory “religious freedom laws” — with a passion more familiar to activists than corporate chieftains. Along the way, it has become increasingly clear that he values privacy in the same fundamental vein, some observers say.

    “The very public stance, where we are today, that’s Tim Cook. This is his social activism,” said Rich Mogull, a longtime security analyst with Securosis….

    And of course, doing it for ideological reasons is, to me, worse than doing it to protect Apple’s profits.

    Reply
    1. Bryan Caskey

      “And of course, doing it for ideological reasons is, to me, worse than doing it to protect Apple’s profits.”

      Huh. I would say it’s the other way around. At least I could respect someone who’s doing it for principle, rather than simply for a buck.

      Again, I don’t really care either way. I’d probably help the FBI out if it were up to me, but (in Don Corleone voice) it makes no difference, it don’t make any difference to me what a man does for a living, you understand.

      Reply
      1. Brad Warthen Post author

        Exactly, Vito. How another man earns a living is no business of mine. So the profit motive doesn’t bother me as much. I long ago accepted the fact that there are different kinds of people in the world, and lots and lots of them are motivated by making money. I don’t feel the same urge, so I can’t fully understand it (I just want enough money so that I don’t ever have to think about money, because I hate it, which is why I don’t have enough to meet my goal). But I accept it.

        But I have a personal animus toward ideologies. If someone does something bad for an ideology — that I will not forgive.

        Reply
        1. Bryan Caskey

          “But I have a personal animus toward ideologies. If someone does something bad for an ideology — that I will not forgive.”

          I see the Godfather reference at the end. It also sounds like a paraphrase of a quote I just ran across: “I attack ideas. I don’t attack people. And some very good people have some very bad ideas. And if you can’t separate the two, you gotta get another day job.

          Reply
      2. Brad Warthen Post author

        In fact, you know what I’d like to see? I’d like to see Apple estimate what it will cost in staff time and other expenses to write the backdoor, then to write more code to permanently close it once the FBI has what it’s looking for.

        Put it in dollars and cents. But do NOT give me this privacy ideology garbage, which makes me want to hurl under the circumstances.

        Reply
        1. Doug Ross

          You don’t understand technology yet you will come up with crazy ideas about cracking the encryption and then putting the genie back in the bottle.

          Reply
  3. bud

    If the FBI has a legitimate reason to see this one phone then they should get a court order and make Apple unlock it. Apple has no good reason to deny such a request.

    But you Brad what happens when the government loses the public’s trust. Even in issues where the government has a legitimate reason to do so they’ve so poisoned the well that people resist. Thank you PATRIOT act.

    Reply
    1. Bryan Caskey

      “If the FBI has a legitimate reason to see this one phone then they should get a court order and make Apple unlock it. Apple has no good reason to deny such a request.”

      Um, guys? What are we talking about, exactly? Let’s back up, a second.

      Typically, a court can compel you to produce documents or information that you have. If it’s in your possession, custody, or control, then a Court can typically compel production. However, that’s not what we have here. Apple doesn’t have the information. So what is the FBI asking for?

      The FBI is asking for Apple’s know-how and labor. They’re essentially asking a Court to compel Apple to work (against their will).

      That’s not the same thing as producing information.

      I can only think of a few instances where the Government can compel someone to do something against their will when they’re not a party to the case. Remember, Apple isn’t a party. They’re just minding their own business, selling phones and stuff.

      1. Jury duty. The Court can compel you to show up and be there. You can’t leave unless the Court allows you. You are required to perform your service to the Court in the administration of justice and decide something. I don’t think this is a good parallel.

      2. Law enforcement can commandeer your car I guess, when there’s an emergency. At least that happens a lot on movies. You know how it goes. The bad guy is getting away, and the officer is on foot, but he stops a random guy in a car and “commandeers” it to chase the bad guy. I assume this is a real thing. Again, however, I think this rule likely only applies to emergencies, so that’s probably not really applicable here. There’s no emergency. The phone has been in the FBI’s possession for awhile.

      3. Drafting. The Government can draft you to go to war, but I’m pretty sure that there would have to be a declared war or something. Could the US Army “draft” a few of Apple’s tech guys to be on some sort of military unit and require them to break the system? Eh, I doubt they’ll do that.

      I’m not saying that Apple should or shouldn’t help out. I’m saying that I don’t think a Court can compel them to. At least, I don’t think so. But you know, sometimes the FBI can’t run down every lead. Sometimes you get evidence that ends up being a dead end. That’s just sort of life.

      I get that the FBI is frustrated that Apple won’t help them out. But hey, in real life the good guys don’t always solve all the crimes.

      Reply
    2. Howard

      Apple has a great reason to deny such a request, the publicity of Apple phones being unsecure and it’s encryption hackable would cause people to move to other brands as soon as Apple were to cave into the FBI’s demands.

      “when the government loses the public’s trust”… didn’t that happen about 60 years ago? Does anyone trust the government today?

      Reply
  4. JesseS

    What a silly story. The idea that the FBI doesn’t already have access to the data is patently absurd. You have Farook’s computer, iCloud account, the phone (not to mention the iPhone in question doesn’t even have the touted cryptography coprocessor of later versions), etc. Something in that chain was breached days after the shooting, not in limbo almost 3 months later.

    The idea that Apple should build security vulnerabilities is equally absurd. You don’t do that, it’s bad policy. As far as Cook’s tone goes, who cares? He has shareholders and a buying public giving him an ulcer. In the real world we know Apple and the rest of Silicon Valley are more than happy to work with the DOJ so long as they never have to admit that to consumers.

    What matters is:
    a.) The iPhone looks impenetrable.
    b.) Cook gets good PR as a civil liberties champion.
    c.) The DOJ gets to knock a few balls around during the interregnum SCOTUS.

    Reply
  5. Karen Pearson

    Why can’t Apple create the software to unlock that phone, hand the phone over to the FBI, then keep or destroy said software?

    Reply
    1. Barry

      1) they don’t want to do it.

      2) Because China might be next to ask them to unlock a phone – just because

      3) Because such software has a way of leaking out and spreading. It’s happened before.

      Reply
        1. Barry

          Correct- and that’s because they haven’t created a backdoor into the phone, don’t want to create one, and don’t want to be compelled to do it because when the United States does it, China will want it done too, etc…..

          Reply
    2. Brad Warthen Post author

      Exactly, Karen.

      Perhaps someone more versed in these matters can explain to me why Apple can’t write the code to get in, then, in the very next update of the operating system that my phone is constantly downloading, make the phones invulnerable to that particular mode of penetration?

      Reply
    1. Mark Stewart

      This point is the real oddity of the situation.

      Since this is the perfect storm of publicly acceptable circumstances, I would have to believe that this very public and through the courts process has happened because the government has asked on many previous occasions for similar assistance, and Apple has consistently turned them down. So this time the government said “gotcha!” And that is what troubles me most about this case. It makes it sound less like a legitimate need, and more like the desire to be all knowing.

      On the other hand, if the government has made occasional and reasonable off the record requests of Apple in the past, and Tim Cook has in those cases similarly grandstanded instead of quietly unlocking the door, then I can see the government’s stance on this.

      The real problem is there is no way to reliably know which is the “true” story here. Following from that, the larger geopolitical issue arising from this is that by going public with this court order, the US government is in effect saying China and Russia also have the right, as do other countries, to have access to the Apple keys. That’s bad policy. For everyone.

      Reply
      1. Karen Pearson

        Exactly who’s privacy is being violated here? The phone’s user is dead, and the FBI has the phone. They will probably check his contacts, but they should be able to eliminate most very quickly.

        Reply
        1. Doug Ross

          “They will probably check his contacts, but they should be able to eliminate most very quickly”

          How would they eliminate most quickly? And doesn’t the NSA already have metadata that collects phone call information from a number to another number? Wouldn’t they hand that information over right away when asked?

          I guess they are hoping the killer has a contact named “Osama Bin Laden’s Replacement” or “Bomb Guy” or “Ahmed’s House of Terrorism”.

          How much time and effort is being spent on this activity? And let’s say Apple unlocks the phone – do you think the FBI will ever actually say what information was obtained? Without a FOIA request that they’ll stonewall for years?

          Reply
          1. Bryan Caskey

            Again everyone, remind me not to put Doug in charge of the FBI. I think Doug would be an excellent candidate for Secretary of Transportation, though. :)

            Reply
            1. Doug Ross

              I don’t want the job. There are too many laws that I wouldn’t enforce. And I wouldn’t be able to cover up bad behavior by agents. It’s a political office more than law enforcement.

              Reply
              1. Bryan Caskey

                You’re not getting that job; you’re already spoken for. When I get elected President, you’re my Secretary of the Navy.

                Reply
  6. Doug Ross

    The heads of Facebook and Google both support Apple’s position. They understand what opening the backdoor means.

    Reply
      1. Doug Ross

        Because the FBI is pure and has never done anything they shouldn’t have done.

        Here’s a website devoted to all the information the FBI collected on John Lennon and wouldn’t release for 23 years due to “national security” concerns. This is exactly why every attempt to open up personal, private information should be fought.

        http://www.lennonfbifiles.com/

        Reply
      2. Barry

        I wouldn’t trust the FBI to open my front door.

        It’s entirely reasonable position for the CEO’s of APPLE, FACEBOOK, etc

        Reply
    1. Brad Warthen Post author

      I started to read it, but it pushed me away with the assertion that Cook’s letter is “clear and convincing, and it lays out the tensions well.”

      It may be clear, but it’s not convincing.

      I’ll go back and try to read the rest again…

      Reply
      1. Doug Ross

        There is a key point in that link – as soon as you open the backdoor into the encryption, those who WANT to keep their stuff private will just switch to another tool. You think terrorists care whether they can get Flappy Birds on their iPhone?

        As fast as you open the backdoor, some app developer can create another app that will allow for encrypted communication.

        Reply
    2. Brad Warthen Post author

      OK, I read it. Thanks for sharing. It provides a window into the thought processes of the folks who come to this with an entirely different set of assumptions — about right and wrong and what is valuable and the obligations of citizenship — from my own.

      Reply
      1. Doug Ross

        ” the obligations of citizenship”

        Your view starts with the government is always right and that anyone should be willing to do whatever the government asks. It’s what you’d expect of someone who grew up a military kid. You’re a product of your environment just like the rest of us.

        Reply
        1. Brad Warthen Post author

          “Your view starts with the government is always right…”

          No, it does not. Nothing I have said indicates that.

          But Apple’s absolutist position is that the government is always WRONG. Or at least, never right enough to override the will of Tim Cook.

          My upbringing, my worldview, tells me that citizens have obligations, and that sometimes (not ALWAYS, as you say) the country’s, the society’s, the community’s claim has greater weight than what the individual WANTS to do. To be a citizen, you sometimes set aside your interests in the greater interest.

          There are times when the individual interest outweighs the general. That lies mostly in the arena of conscience, which is the first and most important individual freedom that the Bill of Rights guarantees. That’s why, although there is a compelling national interest in having a draft in a time of general military mobilization, we have laws allowing for conscientious objectors…

          Ultimately, what is most objectionable here is Apple’s assertion of itself as a law unto itself. But if we respect the notion of a nation of laws and not of men, that is completely unacceptable. Apple is neither the executive, legislative nor judicial branch of government. It is not supposed to check and balance or negate the legitimate functions of government. And it’s hard to imagine a more legitimate function than getting to the bottom of what happened in San Bernardino.

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          1. Doug Ross

            ” we have laws allowing for conscientious objectors…”

            Think about that phrase for a second. Why would we need LAWS to allow people to object to war, conscientiously or not? A just war would have plenty of citizen volunteers.

            Reply
            1. Brad Warthen Post author

              Doug, that’s a lovely thought, but it doesn’t match reality.

              The Civil War was, for the union, as just as a cause can get — and national survival depended on winning it. But it could not have been fought without a draft.

              In WWII, which we all think of as the ultimate patriotic war in which everyone was eager to pitch in, only 38.8 percent of servicemen were volunteers.

              Or perhaps you don’t consider those to be just wars. Perhaps you don’t believe there is such a thing. In which case, once again, it will be impossible for us to reach agreement…

              Reply
              1. Doug Ross

                We haven’t had a just war in my lifetime. But then we haven’t had a declared war in my lifetime so there’s been no opportunity to decide whether it was just or not.

                When Congress decides to declare war, then we can talk about whether a draft is necessary.

                Reply
                1. Doug Ross

                  WWII was a just war. We (and are allies) were attacked. My father volunteered as a teenager and served again in the Korean War. He stated without equivocation that had my older brother been drafted for Vietnam, he would have sent him to Canada to live with relatives. He saw the difference.

                  But forcing someone onto the battlefield doesn’t seem like the best way to staff an army.

                2. Brad Warthen Post author

                  But it is a necessary way when something close to total mobilization is called for. Without the draft, your Dad would have been pretty lonely on the battlefield. Our troop strength would only have been 38 percent of what it was…

                  Despite the cliche of every man and boy dropping everything to join the Marines the day after Pearl Harbor, most of our fighting men did NOT enlist on their own…

          2. Michael Bramson

            I don’t fully understand your position. A federal court ordered Apple to do something. They disagree with the legality of the order and presumably are appealing. Isn’t that within the scope of our legal system and not special Apple Law?

            Reply
  7. Brad Warthen Post author

    This ideology, this religion, this fetish, this worship of privacy über alles is nicely encapsulated in Cook’s preface to his privacy policy:

    Finally, I want to be absolutely clear that we have never worked with any government agency from any country to create a backdoor in any of our products or services. We have also never allowed access to our servers. And we never will.

    That’s supposed to make me feel GOOD? It makes me despise the company that would proudly proclaim such a thing.

    When I read, “never worked with any government agency from any country,” my reaction is, not even your OWN? There’s such a thing as being a good corporate citizen, that statement proclaims that Apple never, ever wants to be one…

    Reply
    1. Doug Ross

      You left off the “to create a backdoor” from Cook’s statement. That changes the whole meaning. Apple has worked with the U.S. government on any number of requests. Just not the one that destroys any assurance of privacy. There is no need for any government to have special access. None.

      Reply
  8. Burl Burlingame

    Could not Apple simply have provided the contents of the suspect phone without also providing the “key” to get into everyone’s phone?

    Reply
    1. Barry

      They don’t have the ability – yet- to get into the phone. They don’t want to create a way into the phone at all.

      Reply
  9. Bryan Caskey

    Ultimately, what is most objectionable here is Apple’s assertion of itself as a law unto itself. But if we respect the notion of a nation of laws and not of men, that is completely unacceptable. Apple is neither the executive, legislative nor judicial branch of government. It is not supposed to check and balance or negate the legitimate functions of government. And it’s hard to imagine a more legitimate function than getting to the bottom of what happened in San Bernardino.

    I don’t see it that way. Currently, there’s no law that requires a phone manufacturer to have a backdoor in it for use by law enforcement in situations such as this. So, I don’t see that Apple is acting as a “law unto itself”. There’s no law here. To me, it’s simply:

    FBI: “Hey, Mr. Cook, will you do this work that we can’t do and help us out?”

    Cook: Sorry, it’s against my principles, and I’m not in the FBI, so I don’t work for you.

    So I don’t see this as Apple being a “check” against anything. They’re just citizens who have the right not to assist law enforcement. Now, since I would probably decide to help them out, I might go another way, but I can see that Apple has the right to decline in the absence of some law affirmatively requiring them to help out.

    Now, if the people of the United States, through their elected representatives, make a value judgment and pass a law that says something like “Phone makers are required to put in a law enforcement back-door into phones” then I guess we wouldn’t have this problem.

    The thing is, I think Doug has made one value judgment in this case and Brad has made another. And that’s totally fine. The proper way to resolve the issue is through legislative action — not through having a Court just create a requirement out of thin air and bring back the British system of impressment.

    Reply
      1. Bryan Caskey

        And here’s what appears to be the controlling case law: United States v. New York Telephone Co., 434 U.S. 159 (1977).

        I have to say, I find Justice Stevens’ dissent more persuasive than the majority opinion, so maybe I’m not such a law-and-order right-winger. By the way, for those of you scoring at home, that’s a 5-4 case. I wonder how that question would shake out now at SCOTUS.

        Reply
        1. Doug Ross

          Where do I go to get back the time I wasted trying to read that legal mumbo-jumbo? If that isn’t an indictment of the legal profession, I don’t know what is.

          Reply
  10. Doug Ross

    As you can tell, this is something I am very passionate about. We are a government of the people, not people of the government. We should always strive to limit government’s access to or control of our lives and our property. It’s the fundamental aspect of freedom and liberty.

    Reply
  11. Bart

    If anyone is interested, read the 2-22 op-ed in the NYT about the subject. It was written by William J. Bratton, the New York City police commissioner and John J. Miller, the deputy commissioner for counterterrorism and intelligence. It may or may not convince anyone either way but it does offer a perspective from the law enforcement point of view.

    Most of the comments in the NYT support Apple’s decision to not cooperate with the government and apparently, others are following Apple’s lead. My take is that Apple, Google, YouTube, FaceBook, and so many other companies are international and as such, if they agree to work with the US government on this issue, then how can they refuse to cooperate with other countries that buy and use their products and services?

    Then the question becomes one of loyalty and cooperation when something as heinous as the slaughter of innocents by a couple and the information stored on a phone issued to the killer by his employer that may be of use identifying other involved. If the employer has no problem with accessing the private information on the phone and the person who used it and stored the information is dead, who has the authority to make the final decision? Maybe if the employer had set up a password for the phone so they could access it at any time, then it would be a moot point because the employer then has final authority over the phone and cooperation then becomes their choice.

    One interesting comment or point was made about the government and what it can and cannot demand from citizens and business. If the government can establish a set of rules for a company that manufactures a product and the product must meet government standards, then can the government set a standard for companies like Apple that they must provide a means to access a cell phone under certain conditions and obtain a court order prior to obtaining an encryption key to access the information? In this instance, it is obvious that law enforcement would have probable cause to ask for and obtain a court order for the encryption key due to the nature of the crime and the fact that six weeks prior to the attack, there was no activity on the phone.

    It is indeed a slippery slope and after 9/11, security became a hot issue and the reaction and action taken by congress was to enact the Patriot Act. The Patriot Act is another prime example of over-reacting and over-reaching after the fact. It was hastily cobbled together and at the time, the American citizens were more than willing to forego some freedoms in exchange for safety.

    My final comment on the subject is to remind everyone that it is very likely the government already possesses the ability to open an Apple phone if they so desire. I think Doug can attest to the fact that there really is no such animal as a totally secure communications device and a backdoor does exist for any encryption code or program, otherwise, how could it ever be changed if it cannot be accessed by someone? And if it can be accessed by one or more on the inside, someone on the outside will eventually find a way. That is the nature of things, like it or not.

    Reply
    1. Doug Ross

      I appreciate your comments Bart. They are well balanced. You make a good point – are we REALLY supposed to believe that the only entity capable of cracking the phone is Apple? Our NSA people couldn’t do it? I think it’s just a case of the FBI wanting to open as many doors as it can to make investigations The FBI is not pure. For murders that happened months ago and where the killers are dead, there is no compelling reason to do this. Unless Obama tells us there are terrorists in our midst that the NSA and CIA cannot track…. will he do that?

      Reply
      1. Michael Bramson

        I’m no expert, but I’m pretty sure you and Bart are both wrong on the technology here. Properly implemented encryption really cannot be cracked with known technology. In this case, neither the FBI nor Apple can crack the encryption, but the password is short enough that it could be guessed by brute force with a computer in a few hours. The catch is that the phone has a feature that slows down password entry after nine incorrect attempts and will delete all of its data if the wrong password is used ten times. Due to a quirk in the software update system, however, Apple could create a new version of the operating system that skirts those limitations and load it on the phone. The phone will only run software that has been “signed” with Apple’s encryption key, however, which is why the FBI can’t do this on its own. I’m not sure what would happen if they subpoenaed the encryption key, though.

        Reply
        1. Bart

          Michael,

          I understand where you are coming from based on your comments. However, I am somewhat familiar with cyber security and the National Geospacial Intelligence center in Springfield, VA. I am not directly involved but someone close to me is but if I tell you who, the guys driving the large, black SUVs may come after me. :-)

          Apple may believe they have an encryption code that is unbreakable but the various intelligence agencies have the ability to crack any code that is written by humans or programs specifically designed to create codes. Even though the phone has been signed with Apple’s encryption key, the programs specifically designed to break them do exist and they do work.

          I learned a long time ago that if a code can be written and safeguards put in place, there is always a way in and finding it is no longer as difficult as it once was. Whether the person or persons designing the encryption code admit it or not, there is always a backdoor because as I noted, a backdoor must exist otherwise no one can access the code and make changes. Someone will always have a key code to enter even if the phone locks up after several attempts to access the information. Apple phones are not Gordian’s Knot, they can be “untied”.

          Reply
          1. Michael Bramson

            Frankly, I just don’t believe you. If the FBI can break “any code that is written by humans,” then it’s with a level of technology that is not publicly known to exist. A quick Google search could find you an explanation of the mathematics as to why proper AES encryption, for example, cannot be cracked with the computing power that exists today, and it’s not just a problem of building a big computer cluster in the desert. I suppose it’s possible that the NSA has secretly developed quantum computers or something, but it would be the most shocking revelation of the century thus far if it were true.

            As to your claims about backdoors, I don’t mean to be rude, but you are really betraying an ignorance of the technology, or at least the terminoloy. Making changes to signed code does not require a backdoor, it just requires the key. That’s what this whole kerfuffle is about: the FBI cannot change the code on the phone because they do not have Apple’s encryption key. A backdoor implies that the encryption can be circumvented without the use of the encryption key.

            Reply
            1. Bart

              My initial response was deleted but I will respond to your comments.

              First of all, I really don’t care one way or the other what you believe. Next, at least have the nerve to call me a liar instead of using a passive aggressive comment. At least I can respect that.

              Next, the terminology commonly used in most articles addressing breaking an encryption code, i.e., “backdoor” is not an obsolete term.

              As most who read this blog will attest, my comments are vetted before I submit and they are based on first person experience and due diligence when researching a subject other than politics or a social issue. Then my comments can and/or will be based on personal opinion.

              Third, there is a group of physicists who in 2015 applied for a patent for a quantum computer. The computer is the next generation in the development of working prototype quantum computers. And if the private sector is so close to developing one that will perform well enough to crack the encryption code, it is a safe presumption that the government is already well ahead of the curve. If you had been paying attention to the technology unveiled during the Iraq war, you would understand that we are not privy to everything the government has already and is still developing.

              The apparent reason for anyone capable of thinking instead of reacting will understand that the government probably has no real interest in the phone involved, they are looking to set a precedent in court and establish a law that will allow the FBI, CIA, or any other intelligence branch access to any encrypted device on the market whether the private sector company agrees or not.

              Fourth, anything pertaining to a private sector product one can find on the internet by “Googling” is information usually provided or released by the private sector company. Apple is no exception and if I was at the helm of Apple, there is no way I would admit publically that the company possessed an encryption key that would allow unfettered access to any product the company produces. That would be suicide both financially and credibility wise especially if the products are being sold with the claim that the protection “wall” cannot be penetrated.

              There are ways to open the information on a silicon chip in an Apple phone but it is difficult and would most likely destroy the chip but it is there and not via the use of a quantum computer. When the first iOS encryption was introduced, it did not require any special skills to crack the code and access the information on the phone. As each iOS version evolved, Apple made it more and more difficult to access without a passcode authored by the end user or owner. Therefore, for the average user being protected from a hacker, they can enjoy using an Apple product with a great sense of security, that is a given.

              It is not my policy to be rude to anyone but you pissed me off with your comments that were not meant to be friendly or anything other than what they are, condescending and elitist. Something I can do without except when it comes to bud and he has earned the right to say whatever he wants and I sincerely appreciate his straightforward honesty whether I agree with him or not.

              End of discussion on my part. No further responses coming.

              Reply
    2. Brad Warthen Post author

      By the way, the NYT is on Apple’s side… At least, I think I saw an editorial to that effect. I’d go find it and link to it, but I’m worried about running out of my allotted free reads for the month…

      Reply
  12. Brad Warthen Post author

    By the way, did y’all like my little graphic I created for this post?

    I made that myself, from a couple of images grabbed from the Web.

    Yeah, I know, it’s pretty primitive. But I’m a word guy, not a graphics guy, so I was kinda proud of myself…

    Reply
  13. Bryan Caskey

    “So you’re not sure there’s anything of value on the phone and the FBI can’t express any specific information that would be obtained but Apple should just unlock it on the chance there might be something of interest. Is there any other evidence that the killers were working with someone else? If so, let’s see it.” – Doug Ross

    Note to self: When elected President, do not appoint Doug Ross to head up the FBI.

    Reply
    1. Doug Ross

      Hey, Bryan, I’m sure you have represented people with criminal records in the past. You okay with the FBI cracking their phones to see who they were talking to? You know, just to see if there’s anything of interest…

      Maybe I missed it. What information is the FBI looking for?

      Reply

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