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Apple/FBI fight looks destined to go all the way to the Supreme Court as more background is revealed

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If Tim Cook’s strongly-worded response to the court order instructing it to assist the FBI in breaking into an iPhone left any room for doubt about Apple’s determination to fight the matter all the way to the U.S. Supreme Court, that doubt appears to be removed by further background emerging today.

The NY Times reports that Apple plans to press ahead with plans to increase its use of strong encryption.

Mr. Cook has told colleagues that he still stands by the company’s longstanding plans to encrypt everything stored on Apple’s myriad devices, services and in the cloud, where the bulk of data is still stored unencrypted.

“If you place any value on civil liberties, you don’t do what law enforcement is asking,” Mr. Cook has said.

The piece also reveals that Apple had asked the FBI to make its court application under seal – meaning that the legal arguments could be heard in private – but the FBI chose instead to make it a public fight …

This adds to suspicions that the FBI has deliberately chosen a high profile test-case likely to generate public sympathy for its position.

Curiously, the NY Times removed from an earlier piece three paragraphs quoted by Edward Snowden. One of the authors of the piece, Katie Benner, tweeted that “we did a full rewrite of the story so much of the original is gone,” adding that this sort of thing “happens all the time” before declining to comment further.

Steve Wozniak has also weighed-in on the side of the company he co-founded, telling CNBC that Apple’s reputation is built on the trust of its customers.

I believe that Apple’s brand recognition and value and profits is largely based on an item called trust. Trust means you believe somebody. You believe you’re buying a phone with encryption.

You can’t trust who is in power. It’s like believing the authority and police wherever they go. Generally, when they write the rules, they’re right when they’re wrong.

Woz also said he believed Steve Jobs would have made the same decision as Tim Cook to fight the court order, and that “the word ‘terrorism’ has been used way too often to scare people.”

The WSJ notes that privacy advocates are planning to hold rallies at Apple Stores across the U.S. in support of the company.

In the FBI’s corner is Manhattan District Attorney Cyrus Vance, who had previously claimed that Apple’s use of strong encryption meant that iPhones would be “the terrorists’ communication device of choice.” Vance said that the case was “the most visible example of how Silicon Valley’s decisions are thwarting criminal investigations and impeding public safety,” and that his office is planning to bring cases of its own before a NY court.

TechCrunch piece pointed out some misreporting of the issue, with some claiming that Apple had previously unlocked as many as 70 iPhones for law enforcement agencies. As Matthew Panzarino notes, Apple had previously (on receipt of court orders) extracted data from unencrypted phones running iOS 7 or earlier.

Apple also assisted the FBI in the San Bernardino case, cooperating with earlier court orders requiring it to hand over unencrypted data from iCloud backups of the phone in question. (Those backups are incomplete, which is why the FBI wants access to the phone itself.) This is important context, demonstrating that Apple is fighting a specific point of principle here rather than trying to be generally obstructive to law enforcement.

Of course, the whole legal battle could be avoided if the FBI took up the kind offer (via Business Insider) of noted eccentric John McAfee, currently running for President for the Libertarian Party.

So here is my offer to the FBI. I will, free of charge, decrypt the information on the San Bernardino phone, with my team. We will primarily use social engineering, and it will take us three weeks. If you accept my offer, then you will not need to ask Apple to place a back door in its product, which will be the beginning of the end of America.

If you doubt my credentials, Google “cybersecurity legend” and see whose name is the only name that appears in the first 10 results out of more than a quarter of a million.

McAfee gave no clue as to how he would use “social engineering” to persuade a dead terrorist to reveal his password.

Apple was yesterday given more time to prepare its response to the court order, with the deadline now falling on 26 February. Check out all our earlier reporting of the issue below:

Photo: Solitary Watch

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Comments

  1. I support Apple 100%! Go Tim!

    • bennynihon - 8 years ago

      you do realize that Apple (and Google, Microsoft, etc) were aiding the government in their exposed NSA PRISM program. Snowden has said as much. So now Apple wants to take a tough stance on encryption? Pfff…this has more to do about appealing to its customers (especially after the iCloud hack) and selling more iPhones that it does about moral justice. And besides, everyone wants to talk in absolutes and extremes. This is not a black and white issue. On one hand we can’t allow the balance of power to be fully in the hands of those that wish to plot and conspire against the government and cause harm to our law abiding citizens, especially as technology allows them to more easily do so. But we also can’t allow the government to simply spy on its citizens without transparency. A balance must be agreed upon, and that should be decided by the American people, NOT Tim Cook or the FBI.

      • mytawalbeh - 8 years ago

        Repeat after me “THERE WAS NO iCloud HACK” ..
        LMAO

    • iSRS - 8 years ago

      @bennynihon – Repeat after me. There was NO iCloud HACK! What did happen, was people’s accounts were accessed via social engineering, weak passwords, and (the only part of this that was on Apple) lax restrictions on gaining access to iCloud. Apple has since changed things. Ironic, because some of those very changes are what are now being challenge to be weakened.

      As far as PRISM, Apple was one of the last to join the party. Not justification, but a fact. And Apple has stated that they have, and continue to support legal requests for data. I will use this quote about Twitter, from an article dated : June 2013

      “While handing over data in response to a legitimate FISA request is a legal requirement, making it easier for the government to get the information is not, which is why Twitter could decline to do so.”

      This is exactly the point Apple is making now. That is what they are fighting. NOT the legitimate response to requests. Which, I should point out, they have been doing in this case.

      Please, people, educate yourself on this matter, including obtaining facts.

      • bennynihon - 8 years ago

        you’re arguing semantics, which detracts from the real issue at hand. That we need to get past the emotion of this issue, and that a rational compromise needs to reached by the American people. It should NOT be decided by Tim Cook, who clearly benefits from taking such a hard stance. It’d be like a company that sells locks for your home standing against a law enforcement agencies being able to search your home even with a warrant. You’d have a lot of people lining up to buy such locks, even if they didn’t have anything to hide.

      • Ben Lovejoy - 8 years ago

        Tim Cook isn’t trying to decide the issue – he’s saying he wants a higher court to (ultimately the Supreme Court)

      • iSRS - 8 years ago

        Facts do not detract from the real issue at hand. Apple is cooperating with the law. There is no law requiring them to build a new operating system for this “one iPhone” to make it easier for the government to do their job.

        You can argue all you want that Apple should “just do it for this one case” but you would be wrong in doing so. That is not an opinion. That is a fact. It is wrong to request Apple take its resources off of other work to build a special “one time” OS, thus establishing precedent (meaning it would be EVERY iPhone, not just this one, and everyone knows that).

        That is about as unemotional as it is. That is fact. Emotions would be “I feel terrible for those victims of this terrorist attack. Apple, what are you thinking? Just do it” THAT is emotion influencing thought

        Rational thought is that Apple should oppose this straight up to the SCOTUS if needed. Failure to do so, and to just comply with this order because it is “terrorism” would take the victim pool of the attack, and expand that group to everyone who owns a smartphone. That would be a disservice to those who died. That would detract from the real issue at hand.

      • bennynihon - 8 years ago

        see, you sound very absolute in your stance. You’ve picked the extreme side of the argument that Apple (and other companies) should not comply with law enforcement. Honestly I’m done talking to you since you’re uncompromising in your stance, and continue to call your opinions facts. This is not a black and white issue. A compromise needs to be decided upon by the majority of the American people that protects the privacy of law-abiding citizens but also doesn’t allow for conspirators and criminals to hide behind the advancements in technology. This should not be decided by corporate CEOs or the FBI, both of who’s interests are not aligned with ours.

      • iSRS - 8 years ago

        Ok, if you can guarantee that if Apple does this for this one phone, this one time, that it will never fall into the wrong hands, nor be demanded by other governments, then yes, go for it.

        If this makes its way to the SCOTUS and they say Apple must create this one time iOS version for this one iPhone (it would shock me if they do) they Apple must do so, and I will accept that.

        I also never, not even once, stated Apple should not comply with law enforcement. If fact, they are complying with every request except the request to build what amounts to a backdoor/master key. They are choosing their legal option to fight for what they feel is right. Yet you seem to want to vilify them for that. Why, I wonder.

        I have said this case was brought against Apple for a very specific reason. To set a precedent. Apple is fighting it. As they should. It is a very dangerous precedent to set without a fight.

        So, yes, I fully support Apple in this. I support their intent to fight this order.

        Also, in my career, I deal with software and security on a daily basis. There is no “one time” backdoor. So, yes, I am absolute in my stance as to why this isn’t a good idea.

      • bammbammdlp - 8 years ago

        I am amazed that a group of people that don’t believe the government should be allowed to require it’s people to get healthcare or education can justify that it should be allowed to force a company to create something that currently doesn’t exist… An OS can cost millions to develop, is the government compensating apple for that development? Is it compensating Apple for the lost revenue due to the lost trust it would cost the company in sales? Of course not. If the government wants to decrypt something, they should employ some decryption specialists and not force people into servitude.

  2. 89p13 - 8 years ago

    Cyrus Vance is the KING of FUD (Fear, Uncertainity, Doubt) in today’s world of Dark, Deadly Danger!

    I Support Apple As Well.

    Straw man arguments — Please stifle yourself!

  3. iSRS - 8 years ago

    Ben, this case is of such importance, is it possible to set up a heading level link? This will likely be an important issue and remain in contention until it is ultimately heard by the SCOTUS. Maybe a separate Twitter account? Keyword/Tag for all the articles related? Something that would basically give me one link that collects all your bullets/links at the bottom of the article. I’ll be making sure all my friends see this on a daily/regular basis on Facebook – I am sure more than a few will get sick of it, so be it, this is too important. I’d love one trusted source to easily refer them to.

  4. applewatch20152015 - 8 years ago

    Funny how the FBI said “fuck it” and took the fight public. And then Apple said “fuck it, let’s do it LIVE, bitch!” LOL! If back doors are built then we all need to prepare for the public release of celebrity nudes and no-name crotch shots because the data WILL get out.

  5. I am with apple.

  6. This is more than a privacy and civil liberties issue. It is a national security issue that is broader than one terrorist case. The argument that a backdoor is limited is short sighted and sets a dangerous precedent. Moreover, the fundamental implementation of encryption on devices once broken opens the potential for state and non-state actors to seek to manipulate security across broad ecosystems of devices and services. While it is convenient to suggeset that it might prevent a potential terrorist attack or capture a potential criminal this over looks the importance of encryption in protecting human rights activists, journalists and average individuals around the world. Not to mention it overlooks the fact that back doors into the devices might provide access to passwords, sensitive information and more that might provide access to any number of other systems. This is not a security vs privacy issue it is a security vs. security issue and the potential economic and human costs of undermining encryption far exceed the toll of a single case.

  7. Harrison H. McDonald - 8 years ago

    Apple and Tim Cook make pond slime look wholesome. Unless you have evidence of criminal acts on your i Phone why would you want to protect it from a legally issued court order? The phone is question was issued to a mass murderer. It may contain information that could prevent future crimes. The court order is specific to this phone ONLY!!

    • Joel Senders - 8 years ago

      your net vary smrt

    • Dusty Relic - 8 years ago

      The fact that you could make such a foolish statement tells me that you know nothing of our judicial system. You should google the word “precedent”. Once Apple complies with this order it will be bombarded with court orders for every single other infraction. This will inevitably lead to the compromised OS leaking out into the wild, where both police agencies and hackers will abuse it. Smartphones will no longer be safe for anything.

    • mrmagoo85 - 8 years ago

      You’re voting Trump aren’t you? 😂

      Also, if you’re trying to sound intelligent, please properly spell words – it’s iPhone not i Phone.

    • Ray (@ps8388) - 8 years ago

      Did you not read the court order? The FBI wants Apple to create a backdoor master key that could unlock any iPhone when the FBI deems it necessary. It is not possible using technology to create a backdoor only for one iPhone, as obviously you don’t know in advance which iPhone will be used by terrorists. So you would have to create a backdoor on all iPhones, which some hacker will definitely find a way to abuse.

    • Jake Becker - 8 years ago

      People like you always use a lot of law terminology. Legal, crime, criminal. It would seem that the letter of the law is the apex of ethics for you.

    • Chen L. Zhao - 8 years ago

      as you said, it “may” contain information, what if not? This is exactly like going into someone’s home, and saying open the safety, I think something danger there. It never make any sense.

    • Jesse Nichols - 8 years ago

      I don’t have anything to hide in my home either… But, I’m not keen on the idea of my lock company giving unlimited copies of my keys to the government. That’s what this is. They are asking for the equivalent of a MASTER key that can unlock everyone’s home, car, and safe. And Edward Snowden already showed us how our government will abuse the tools that it has at its disposal…

  8. Valentin Blank (@vblank) - 8 years ago

    Now, I’m confused: In the above-cited NY Times article they say that the bulk of data stored in iCloud is stored unencrypted. This seems to contrast starkly with Apple’s own description of the security measures found in iCloud, iCloud Drive and iCloud Backup in their own White Paper on Security (https://www.apple.com/business/docs/iOS_Security_Guide.pdf), p. 41/42: “The service [iCloud] is agnostic about what is being stored and handles all file content the same way, as a collection of bytes. Each file is broken into chunks and ENCRYPTED by iCloud using AES-128 and a key derived from each chunk’s contents that utilizes SHA-256.” … “iCloud secures the content [of iCloud backups] by ENCRYPTING it when sent over the Internet, storing it in an ENCRYPTED format.”. Can anyone enlighten me?

    • Eddie Krebs - 8 years ago

      It has to do with the private key used to encrypt the data. ICloud is encrypted on Apple’s servers with a private key Apple owns. Apple can decrypt with their key. Your iPhone has a unique private key on the hardware. Apple doesn’t have this key and cannot access it to decrypt the phone contents.

      • Valentin Blank (@vblank) - 8 years ago

        Thank you, Eddie, for this helpful explanation. According to the cited White Paper Apple seems to treat different groups of iCloud content differently. As for the iCloud backup of Keychain items the data is protected by a UID-tangled key and thus cannot be read by Apple. I wonder why they aren’t using the same method for user documents stored on iCloud Drive. Must be the law, I guess. But why does it not apply to Keychain items then?

      • friedmud1 - 8 years ago

        @vblank storing backups of encrypted data is hard. If Apple doesn’t have the key, them that means that the data would need to be encrypted ON the phone and then sent over the wire. In the case of an iCloud backup that could mean that the phone would need to encrypt its entire HD (up to 128GB) and then send the whole thing to Apple. Not only would that be technically difficult and slow, it also makes “checkpoint” style backups harder because all Apple gets is a big binary blob, so essentially, the entire iPhone qould have to be backed up every time instead of just what changed.

        These things can be overcome (in theory) but it is nontrivial to do so.

        On the other hand, the relatively small amount of data in the Keychain can be easily encrypted on the phone, using keys Apple doesn’t have and it’s no big deal for Apple to store it.

  9. RP - 8 years ago

    The fight against encryption and back doors hs been one that had been brewing long before San Bernadino. My guess is that the high profile nature of this case with terrorism and Apple made it the perfect ploy for the Feds to make their case. It seems its all politically motivated than anything else.

    • Ben Lovejoy - 8 years ago

      “This adds to suspicions that the FBI has deliberately chosen a high profile test-case likely to generate public sympathy for its position.”

      • Joe (@realofficialjoe) - 8 years ago

        Of course. They may have even plotted/excecuted themselves it for that purpose.

        Let’s face it, it’s fact the US and UK are guilty of staging fake “weapons of mass destruction” as a precursor for war in Iraq. This potential tiny terrorist activity to get their way is small fry in comparison…

      • Jake Becker - 8 years ago

        Joe is spot on and someone would have to be very, very, very naive to believe there’s not at least a good chance of that.

  10. Ramon Banet - 8 years ago

    Tim, move Apple to a safer country. One that respect privacy. My suggestion: Ireland

  11. Joe (@realofficialjoe) - 8 years ago

    “the word ‘terrorism’ has been used way too often to scare people.” +100000000000

    Well said Woz. This is so true and governments manipulate situations to pass powers etc that take away freedoms.

    Don’t believe me? Read Chapter 4 of the 9/11 Toronto Hearings entitled “A Comparative Analysis of State Crimes Against Democracy” by Lance deHaven-Smith…

  12. Andrzej Martynek - 8 years ago

    Don’t forget to use the Tor Browser if you’re concerned over privacy while browsing.

  13. taoprophet420 - 8 years ago

    This has always been about Apple refusing to give the government the keys to Apple’s encryption. Apple has aided the government when given specific warrants and given them the data, but has always refused to give them full access to the devices.

    Can we again point out this was a work phone, not the suspects personal phone, his personal phone and computer were destroyed by him.

    Apple just does not want to give the government the ability to look at the data on any iPhone. This should be their stance. If given proper warrants with proper background Apple has cooperated with various agencies.

  14. taoprophet420 - 8 years ago

    Nice that when its hits the supreme court there will be only 8 justices. if the rulings splits 4-4 the lower courts ruling will stand.

    Is circumstances like this why a 9th justice needs to be nominated and go through the appointments process. It is way past time we get our civil liberties back.

  15. Doug Aalseth - 8 years ago

    The Oligarchy has decided it wants this access. What us mere citizens want is irrelevant.

  16. John Smith - 8 years ago

    Apple protects the privacy of a dead murderer in relation to a phone that actually belongs – not to him – but to San Bernadino county.

    Good luck in court with that one.

    Yes, the FBI has chosen a high profile case. I’d like them to throw in a few cases where Apple’s policy is obstructing the investigation/prosecution in child molestation cases. Much more difficult for Apple to pretend they are the poor victims of government persecution in those kind of cases.

    No sympathy for greedy, super rich corporations who think they are above the law.

  17. airmanchairman - 8 years ago

    Apple made things even worse by recently announcing the detection of the BILLIONTH active iOS device on their platform.

    Now the security services of the whole world and their pet rabbit can’t stop salivating and flooding their offices like Pavlov-induced dogs at the thought of so much access to such a wealthy demographic of disposable income to be spied on, raided, hounded, taxed and exploited “every which way but loose”.

    Abandon all hope, ye who enter the Walled Orchard…. although the remainder outside those walls will soon be visited before sunset, that’s for sure…

  18. Jake Becker - 8 years ago

    Even newcomers to the situation are getting tired of the alarmist, rude, uninformed yelping of the bootlicker army, ready to devour any individual who would dare to question the great men in the ivory tower; these threads are proof.

  19. André Hedegaard - 8 years ago

    This is good news! I sure do hope Apple is forced to comply with helping the FBI. Can’t imagine why people are against helping law enforcement.

    • Jake Becker - 8 years ago

      Denmark is just a little bit of a different story than the U.S.

      • André Hedegaard - 8 years ago

        Now you sound like Hillary :)
        Still, both countries are democratic are they not?
        Lets just help law enforcement any which way we can – problem solved.
        The problem with Americans, is that Americans are so paranoid, they even paranoid about paranoia, thats how bad it is.
        Its unfortunate, the country has such great potential, but is hampered by this inate subconscious fear.

  20. pretsky - 8 years ago

    This is so ridiculous – the people in question are not “suspects” but confirmed terrorists that attacked our country and died in the process. We are not talking about spying en masse with no warrant, this data is part of a critical investigation and we are stalled because Tim Cook wants to be an ideologue. Apple could easily cooperate with this one situation and also refuse to assist with others that are baseless phishing expeditions.

  21. James Kuang - 8 years ago

    I believe the social engineering Afee is referring to is on Apple customer support.

    • Ben Lovejoy - 8 years ago

      That could get him into iCloud (which Apple already did for the FBI), but not the phone …

  22. Thomas Marble Peak - 8 years ago

    If you’d like to support Apple’s stance on privacy, there is a White House petition at https://petitions.whitehouse.gov/petition/apple-privacy-petition

  23. Joe Mecca - 8 years ago

    Go for it Apple, put one or two people on the job and then change encryption with every new version. I propose two Keys, one for the customer and one for the FBI. The FBI key will disable “Keychain” Bank Apps, “Wallet” and Text messages. IF the FBI requires bank records, they can go to the bank; if they want phone records, they can go to the service provider; emails, go to the email provider, and so on…

  24. hocachynik - 8 years ago

    Did that phone by any chance have Touch-ID? If so, dig up the body to access the terrorists finger print. Problem solved.

Author

Avatar for Ben Lovejoy Ben Lovejoy

Ben Lovejoy is a British technology writer and EU Editor for 9to5Mac. He’s known for his op-eds and diary pieces, exploring his experience of Apple products over time, for a more rounded review. He also writes fiction, with two technothriller novels, a couple of SF shorts and a rom-com!


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