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Feb 19 2016

Apple’s Fight of Court Order Is About Democracy Not Terrorism

It sounds like a simple request: The FBI would like Apple to help it un-encrypt San Bernardino terrorist Syed Rizwan Farook’s iPhone to find out information about who he and wife Tashfeen Malik collaborated with. After all, who wouldn’t want to help Uncle Sam fight terrorism? Well, Apple, that’s who; after months of negotiation with the Justice Department failed to get an agreement, the corporate giant has now ignored an Federal Court order requiring it to assist the government in getting past the Apple encryption software. While many pundits and even some Presidential candidates have barked and howled about Apple’s stance as being un-American, I suggest to you that it is not as simple as it seems. In fact, Apple’s stance could be the most American thing the company has ever done. Apple, after all, is holding $181 Billion overseas (more than any other company doing business in the US) and its various tax dodges will save it from an estimated 2015 tax bill of $59.2 Billion.

But Apple’s defiance of the court order is not about the San Bernardino case – its about what the government will do next. Apple CEO, Tim Cook, in an open letter to Apple clients, warned about the chilling effect the court order would have on privacy and security in the future. The government has not been able to get into the phone on its own and the court order requires Apple to engineer a way around its encryption security; Apple insists that such software does not currently exist and that the order amounts to a demand that Apple hack itself. But Apple’s encryption technology was developed in response to Edward Snowden’s revelations about the NSA and other government agencies spying on Americans. And Cook states he is concerned what the government may use the new technology for. He also argues that the court exceeded its power in forcing Apple to create this “backdoor” into its security measures.

Apple-logoThe FBI did not get a warrant here because a search warrant is not enough – it can’t search the phone because it can’t get in. No current law covers this type of situation so the FBI dusted off the All Writs Act of 1789. That law allows judges to “issue all writs necessary and appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Of course, back in 1789 we were a new country and the founding fathers likely thought a “catch-all” type bill like this was a good way to cover their bases. But we live in a country today where just about everything we touch, smell and see is governed by one regulation or another. And if no law specifically allows this, then Congress should simply enact it if such a law is in fact necessary. So it should come as no surprise that the Obama administration in 2010 proposed and submitted to Congress a law requiring technology companies to provide access to the government to unencrypted information in certain cases. That law would basically bring tech companies in line with phone companies. The bill was not pushed after the Snowden information leak and it sits unpassed and unreviewed in the Senate.

There is no debate that the government can get a court order to obtain copies of text messages and other data that are saved in plain text. But their is no law that allows the government to get an order to force a company to write software or re-design its system to allow access to encrypted data. Without a law specifically defining when the government can get this access, there would be no check against unfettered government intrusion into our private information. Putting this capability into the government’s hands would damage the work Apple did to create this security firewall in the first place and could lead to abuse. And that’s Apple’s argument as set forth in their open letter:

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.

The government smartly chose the San Bernardino case to test the limits on its power and to make Apple look like it was “aiding terrorists.” They argue that the terrorists are dead and that this is the only way to gather intelligence on who they were working with. But even were that true, we still live in a nation of laws and we should not give up all of our rights in the name of “national security.” The fix here is easy – pass the legislation proposed so that the courts have guidance and so that limits are placed on the government’s reach into our personal data. I’m no fan of Apple, not by a long shot. But they are right to take a stand here and say “Not so fast.” Congress can put a swift end to this impasse by doing their job and passing a law governing this situation. Then all sides can have a voice in the debate and we can get a law that balances the government’s need for information and our right to privacy.

4 comments

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  1. Tender Vittles

    I’m not a security expert but each security expert I’ve read on the topic seems to be of the opinion that you can’t build a backdoor just for the “good guys.” Either there is no backdoor or the “bad guys” so to speak can get in as well.

    The privacy v. security seems not an honest way for the Government to frame the debate. it’s more like we feel the need to get in is worth the risk that other more oppressive governments, criminals and various other bad actors will be able to access the info as well. This doesn’t even go to the fallout on Apple’s business.

    1. Oscar Michelen

      Agreed. And the government simply has not shown that it can be trusted to NOT use the technology in other ways

  2. New Orleans Data Recovery

    The big story here, that NO ONE is covering is just how easy it is to hack into an Android phone. I am a forensic data recovery technician with 12 years experience, but even a noob could recover files off an Android phone. I have recovered countless data from Androids by simply taking out the MicroSD card and putting it into a USB reader. They sell for under $10 on eBay.

    The guys at Avast bought 20 Android phones from pawn shops and were able to recover OVER 20,000 PHOTOS along with sensitive data such as passwords, adult pictures, emails, ect. Don’t believe me, you can read it here: https://blog.avast.com/2016/02/24/avast-finds-personal-data-on-phones-sold-at-pawn-shops/

    Apple doesn’t have this problem. It’s nearly impossible to perform data recovery on an iPhone unless you know that passcode. Android fanboys complain that iPhone doesn’t have a removable SD card, but removable media is the single weakest link in the security chain. I have had clients drop their Android phones in swimming pools and still recovered the data because the MicroSD card was still in tact.

    So now the FBI wants to for Apple to make iPhone less secure so that criminals with basic tech skills can pull off sensitive data… THAT IS NOT OK. The fate of the world rests in the hands of a few lawyers and judges.

  3. New Orleans Data Recovery

    The big story here, that NO ONE is covering is just how easy it is to hack into an Android phone. I am a forensic data recovery technician with 12 years experience, but even a noob could recover files off an Android phone. I have recovered countless data from Androids by simply taking out the MicroSD card and putting it into a USB reader. They sell for under $10 on eBay.

    The guys at Avast bought 20 Android phones from pawn shops and were able to recover OVER 20,000 PHOTOS along with sensitive data such as passwords, adult pictures, emails, ect. Don’t believe me, you can read it here: https://blog.avast.com/2016/02/24/avast-finds-personal-data-on-phones-sold-at-pawn-shops/

    Apple doesn’t have this problem. It’s nearly impossible to perform data recovery on an iPhone unless you know that passcode. Android fanboys complain that iPhone doesn’t have a removable SD card, but removable media is the single weakest link in the security chain. I have had clients drop their Android phones in swimming pools and still recovered the data because the MicroSD card was still in tact.

    And it’s not like Google just hands over your data to the authorities when they come with a warrant… No, it’s much bigger than that, THEY LEAVE THE BACKDOOR OPEN!

    There are countess ways that authorities and criminals with basic tech skills can pull sensitive data off an Android phone and they want to make iPhone just as vulnerable… The fate of the world rests in the hands of a few lawyers and judges and THAT IS NOT OK!

    In my expert opinion, loosening iPhone’s security won’t help catch terrorists, it will assist terrorists and cyber-hackers in getting our data.

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