Tuesday, February 16, 2016

Thoughts on a pending legal case of epic proportions! Or huh? it really only took less than 2 years?

In a way, I'm not surprised that it took just a couple months under 2 years for the FBI to go drudging up old unresolved legal questions. Yet it's been less than that even, because over the past 4 months, Apple has been challenging legal orders that are coming out of the Eastern District of New York, (of all places.) I thought all national security cases originated out of that miserable land of where all legal cases go to die, ( Virginia?) Apparently not, some come from New York. This means that when Apple files an appeal, (as they likely will,) it will go to the Second circuit, instead of the Fourth. If I'm remembering recent history correctly, I'm thinking the Second Circuit has a bit better track record than the Fourth, when it comes to these kinds of cases. However, the Second circuit does not make public either a transcript or an audio file of their oral arguments. They do however provide them on CD, (for purchase.)
For reference, I'll link to apple's statement that was posted yesterday, I think they got most things right here, but they did get one thing incorrect.

We can find no precedent for an American company being forced to expose its customers to a greater risk of attack.

Apple failed to take a look at PACER before they wrote this letter, it's customary to research past cases when preparing these things, but I can understand the oversight. While if Apple does lose their case, it will have much larger implications, the FBI has done this kind of thing before. That is asking for encryption to be circumvented and/or disabled, when they couldn't get there way, they asked for the keys themselves, (which is what they're essentially doing here.) They did get several things correct however:

"The government suggests this tool could only be used once, on one phone. But that’s simply not true. Once created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks — from restaurants and banks to stores and homes. No reasonable person would find that acceptable."


The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge." " "And while the government may argue that its use would be limited to this case, there is no way to guarantee such control."

The :"all writs act," we used to use this for issuing writs of assistance, or general warrants back in the 1700's. In other words, the FBI does want future access to iPhones, they just aren't asking for that right now. We know this from continuing and ongoing comments from FBI director James Comi. He's continued to say over the past at least 2 years or so, that encryption prevents the FBI from accessing the devices of terrorists and child pornographers.
Let's look at the order filed today: note: I had to use my screen reader's OCR feature to get this to convert to text.

Apple's reasonable technical assistance shall accomplish


5 the following three important functions: (1) it will bypass or


6 disable the auto-erase function whether or not it has been enabled;


7 (2) it will enable the FBI to submit passcodes to the SUBJECT DEVICE


8 for testing electronically via the physical device port, Bluetooth,


9 Wi-Fi, or other protocol available on the SUBJECT DEVICE; and (3) it


10 will ensure that when the FBI submits passcodes to the SUBJECT


11 DEVICE, software running on the device will not purposefully


12 introduce any additional delay between passcode attempts beyond what


13 is incurred by Apple hardware.


14 3. Apple's reasonable technical assistance may include, but is


15 not limited to: providing the FBI with a signed iPhone Software


16 file, recovery bundle, or other Software Image File ("SIF") that can


17 be loaded onto the SUBJECT DEVICE. The SIF will load and run from


18 Random Access Memory ("RAM"

So, they're ordering Apple to do 3 things. First, disable the auto-erase features of the phone, or any auto-lockout features that the phone may have, also to negate any additional delays that may be created, (beyond processing ones,) so that the FBI, and any other government agency that they may wish, can eternally try to hack the phone. Second, and this is where the NSA will probably come in, they want to be able to submit passwords to the phone externally via any means possible. If the NSA has a big cluster of devices waiting to break encryption keys, they'll probably just send it on over. Third, and this gets a bit contradictory, they want a "signed iPhone file," a completely specific version of iOS just for this purpose, but they don't want Apple to make any modifications to the operating system. " Apple shall advise the government of the reasonable cost of providing this service." If I were Apple, I'd charge the FBI $50000 or something ridiculous like that! Maybe they'll think twice about trying this again, then again, it's the FBI, they never think twice about anything!

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