Last week the Department of Justice filed a response to Apple in the ongoing case concerning whether or not Apple should unlock the iPhone used by one of the San Bernardino gunmen. At the time, Apple called the filing a “cheap shot” and said it was meant to “vilify” the company. Now, Apple has officially filed a formal response to the FBI’s submission. In the filing, Apple makes several assertions, including that the FBI is trying to “rewrite history” with its request.
Apple continues to argue in its latest filing, as it has done since the start of this case, that the All Writs Act does not give the government the power to force Apple to build a tool to unlock the iPhone in question. Apple says that instead of interpreting the Act as the “procedural tool that it is,” it is attempting to use it as an “all-powerful magic wand” by stretching it:
The government seeks an order here that is neither grounded in the common law nor authorized by statute. Indeed, the government has not pointed to any writ available at common law that would require a private non-party to perform burdensome forensics work, create new software, or compel speech to assist law enforcement.
Furthermore in the filling, Apple says that it is the job of the courts to “zealously guard civil liberties and the rule of law and reject government overreaching” and therefore deny the FBI’s request for Apple to unlock the iPhone 5c.
Apple also calls the fact that the FBI is asking the company to put its own beliefs aside to create the backdoor tool to unlock the device ‘deeply offensive’:
The government disagrees with Apple’s position and asks this Court to compel Apple to write new code that reflects its own viewpoint—a viewpoint that is deeply offensive to Apple.
Finally, Apple says that what the FBI is requesting would “appall” the Founding Fathers:
According to the government, short of kidnapping or breaking an express law, the courts can order private parties to do virtually anything the Justice Department and FBI can dream up. The Founders would be appalled.
Apple has also today submitted a statement from its head of software Craig Federighi:
“Apple designed the iPhone with users’ security in mind. It is my understanding that Apple has never worked with any government agency from any country to create a ‘backdoor’ in any of our products or services,” he said.
The full filing can be read below and we’ll continue to update this post with notable quotes as we make our way through it:
Reply Brief in Support of Apple s Motion to Vacate
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Encourage all companies to do everything in their power to improve security. Let’s not weaken these efforts with backdoors and crazy government demands. Please join me in signing the #FBIvsApple petition at http://1.usa.gov/1R9A4cM
Since it’s a free country you’re obviously fully entitled in keeping on posting a link to this petition. But please do understand that a petition won’t have any effect even if it miraculously gains 76,000 people singing up in the next two days. And that has nothing to do with the current rate of 23,000 / 28 = less than a 1,000 per day. Thank you.
Why can’t we just skip all this and send it to the Supreme Court? We all know this is where it’s going.
Because that’s not how our legal system works, and also because it would be beneficial for Apple if a couple of intelligent appellate court judges were briefed on the matter and wrote a favorable opinion in Apple’s favor, which is very likely. I’m an attorney and have read all of the briefing in this case – Apple has the superior legal argument by far.
During WWII, we didn’t go up to Hitler and say, “You’ve killed millions of innocent people. Hand over your encryption keys.” Even if we had, he would have told us to go fu** ourselves. Point being, we cracked his encryption methods but apparently the FBI doesn’t have anyone smart enough to figure it out Apple’s.
I’m pretty sure the FBI has other agendas since they are trying to push this through as quickly as possible.
This is a point that I’ve touched upon in the past. With Germany’s military Enigma machines, the number of possible permutations was 158,962,555,217,826,360,000 and therefore it’s not hard to understand why Germany firmly believed that it was impossible to decode. Defeating such a system was quite a daunting challenge and even using captured Enigma machines didn’t help much because of the astronomic number of possible settings. To decode a message, you needed both the machine and also the exact settings that were used to encrypt that message.
The first successes defeating early Enigma machines were achieved by Polish cryptographers in 1932, but subsequent Enigma machines became more sophisticated and the Polish team could no longer decode them. Alan Turing and his colleagues at Bletchley Park in England built upon that early work and set about defeating the military Enigma machines. Along the way, they ended up creating the world’s first electronic computer ( using thousands of vacuum tubes ). It took an enormous amount of effort, imagination and resources to achieve it, but they succeeded.
If the FBI devoted huge resources to circumventing iPhone security without Apple’s involvement and ended up having to create a special computer or device quite unlike anything that currently exists, then I wouldn’t have any problem with them doing that as the device they create would not be easily replicated elsewhere and Apple could not be leaned upon to co-operate with other nations.
The problem is that the FBI aren’t doing that. Effectively what they are demanding is that Apple must be forced to create a program that can be installed on a laptop and will defeat the security within iPhones. The problem is that the solution that they desire could be widely copied and other nations would inevitably demand that they too must have it, If the solution were something proprietary, expensive and created without Apple’s co-operation, that instrument would only be available to the US authorities and would only be available for major investigations. The solution that they are proposing could and will proliferate without limits and would be used routinely around the world for minor investigations or simply snooping on citizens.
When I look at who has come out against this attempted subversion of Apples rights – as a free business – to NOT write this security “breach” I am amazed.
From Ars Technica:
Another former national security official has spoken out forcefully against the FBI’s quest to get Apple to write code to unlock the iPhone 5c used by San Bernardino mass shooter Syed Farook. Richard Clarke served as the National Security Council’s chief counter-terrorism advisor to three presidents (George H.W. Bush, Bill Clinton, and George W. Bush) before becoming George W. Bush’s special advisor on cybersecurity. He told National Public Radio’s David Greene today that “encryption and privacy are larger issues than fighting terrorism,” taking issue with the FBI’s attempts to compel Apple’s assistance.
Clarke added that if he was still at the White House, he would have told FBI Director James Comey to “call Ft. Meade, and the NSA would have solved this problem…Every expert I know believes that NSA can crack this phone.” But the FBI wasn’t seeking that help, he said, because “they just want the precedent.”
Even the “master Spook” who ran the NSA and the CIA, Michael Hayden:
General Michael Hayden, who is the former head of the NSA and the CIA, has released his very own remarks regarding this case, explaining that, although he usually takes the side of the government, Apple should not be forced to break into an iPhone.
Specifically, Hayden has confirmed Tim Cook’s warnings that hacking an iPhone could create additional risks for users in the United States as software used to break into the device might actually be used by both good and bad guys.
“When you step back and look at the whole question of American security and safety writ large, we are a safer, more secure nation without back doors. A lot of other people would take advantage of it,” he is quoted as saying by USA Today.
What’s more surprising is that Hayden has also criticized the strategy of the current FBI director Jim Corney, who has attacked Apple several times in the last few days and has also pushed for backdoors built into phones sold in the United States since late 2015.
“In this specific case, I’m trending toward the government, but I’ve got to tell you in general I oppose the government’s effort, personified by FBI Director Jim Comey. Jim would like a back door available to American law enforcement in all devices globally. And, frankly, I think on balance that actually harms American safety and security, even though it might make Jim’s job a bit easier in some specific circumstances,” Hayden said.
This is just another attempt by our “government” to have another tool to spy on the populace!