2016 elections - because it's never too early

[Admiral Yi]

Yakie: Biscuit and Beeb have done a much better job than I could have done.

Biscuit in particular rocked my world with all his learned shit.

No disrespect on you Beeb.

[Martinus]

As always, when it comes to law enforcement issues, I disagree with BB. What a surprise.

And yeah, BB, as I said many times before, the only reason you are an Apple fanboy is because of your latent homosexuality and not because of any sympathy for the values Apple purports to uphold.

The reason I was/am an Apple Fanboy, is because in 1984 my parents bought our family an Apple //c.  I'm not saying that is a good, or bad, reason, but it is what it is.

So are you saying your parents made you homosexual or did they simply foster your inborn tendencies? 

I'm curious why you'd try to press the "homosexual" point as somehow being a negative.

I have nothing against Teh Gays.  I respect them greatly.  Sadly, however, I am far to obsessed with Teh Bewbz to join that group.

I can remember having conversations in the mid 80s with my school-age nerd friends.  Some were IMB-PC fans.  One was an Commodore-Amiga fan.  I was, at the time, the token Apple fan.  Thinking back, I can't believe how Apple has come to such a resurgence since then.

It's only negative when one denies it.

[The Brain]

Wait, The One Who Pleats supports intrusive government?

[Razgovory]

Berkut, exactly what action does the government need to do to look at the cell phone?

[jimmy olsen]

That was my question - how is not unlocking Johnny Terrorist's phone dumbass? Apple has outlined their reasoning - presumably you have some sort of reasoning as to why that reasoning is faulty?

You know, there's nothing preventing you back from laying out why you think Apple's position is not dumbass.

I think it's dumbass because I am not in the least chilled at the thought of the FBI examining a known terrorist's phone, nor do I think it undermine's any freedom's worth protecting, as I don't think a known terrorist's right to privacy is a freedom worth protecting.

...except that there are only about a million examples of where the state and police have leveraged powers they demanded they needed to fight terrorism to then turn around and fight not-terrorism.

Rights don't work like this - we either have them, or we do not. We do not have them only so long as some state official has not branded us as "terrorists".

If the state has the power to peek into a terrorists iPhone, they have the power to peek into your iPhone as well.

The key phrase you are missing is "with judicial authorization".

The State is free to search around your house... with a warrant.  Approved by a judge in advance.

Apple is saying that they shouldn't be able to be forced to do such actions, even with prior judicial authorization.  That is contrary to almost everything the common law has to stand for.

The FBI is not asking for a carte blanche backdoor here.  Instead they are asking that, after a court order, that Apple take steps to allow them to access this particular phone.

The American government has proven again and again since 9/11 that they couldn't care less about niceties like judicial authorization. I'm sure there are some governments that could be trusted with this, and Canada may be one, but America isn't one of them.

[jimmy olsen]

I think you are well known as someone who has a well established "government power to compel people to do as I think fit" fanboy. Weren't you the one who argued that since the government had the right to look at someone physical, paper address book they are carrying on them, they also have the right to examine any data on someone's smartphone (to of course include any data that the smartphone can connect to) - and completely absent a warrant at all?

The government has a warrant to look at this guys iPhone. Good for them - let them look all they like.

The idea that because they have a warrant they have the power to compel Apple to help them execute that warrant by destroying their own products security is preposterous.

Ah, a good 'ole ad hom argument - how I've missed thee!

Yes, I always said that if the government could check your physical address book and daytimer if you were arrested, it made no difference if such documents were electronic.

But this goes beyond that point.  Being arrested and police having the ability to go through your physical property is well established.  here, the question is whether police can go through your electronic property with a warrant.  As I said, that ability is well established through the centuries.  It's even mentioned in the very language of the US 4th amendment.

This is not a case of letting the US government have carte blanche to search through people's cellphones.  It's a case on whether the state should be allowed to do so after getting prior judicial authorization.  And to me it seems the answer seems obvious.

Though clearly not to Berkut, who uniquely is able to judge what "liberty" means.

You seem to be missing the point that very few Americans (on either side of the political divide) believe that the government will limit their searches to when they have a valid warrant.

[Razgovory]

Okay, Tim what is the proper procedure the government should undertake to look at the Cell phone?

[jimmy olsen]

Okay, Tim what is the proper procedure the government should undertake to look at the Cell phone?

The Beeb laid out the proper procedure. As I said that's not the problem. The problem is that the government will not follow the procedure.

[Martinus]

Berkut, exactly what action does the government need to do to look at the cell phone?

Wha?

[Martinus]

Okay, Tim what is the proper procedure the government should undertake to look at the Cell phone?

The government can do all they want to look at the cell phone. What they are asking for is for the manufacturer of the said cell phone to devise a back door allowing them to do so - there is no proper procedure they can undertake to get that.

[OttoVonBismarck]

A few points of clarification:

1. I don't believe the government has a search warrant for the phone. It doesn't need one because it was never Farook's phone, it was his work phone. He worked for San Bernardino county government, so the phone was actually already government (albeit it local government) property. It was also his coworkers he shot up, so the owners of the phone have no problem with the FBI investigating the phone. In fact, they want the FBI to look inside the phone. So this isn't a case where a search warrant is even required since the owner of the phone is 100% on board with the FBI.

This is why many large enterprises that issue cell phones are starting to load corporate device management software onto corporate issued phones. This software would allow IT to remotely wipe the phone for example, or to unlock the phone without knowing the individual user's PIN code. But SB County I guess didn't use stuff like that.

That's why this is a court order pursued under All Writs, the DOJ is asking Apple to help them with a criminal investigation.

2. Since this has nothing to do with warrant searches I don't find that line of discussion particularly relevant or interesting. The question instead is to what degree are private companies required to help the government in criminal investigations, when helping them requires some degree of effort?

Precedent establishes that Apple would have to help if a few conditions are satisfied, this quote is from United States v. New York Telephone (1977):

The power conferred by the Act extends, under appropriate circumstances, to persons who (though not parties to the original action or engaged in wrongdoing) are in a position to frustrate the implementation of a court order or the proper administration of justice. Here respondent, which is a highly regulated public utility with a duty to serve the public, was not so far removed as a third party from the underlying controversy that its assistance could not permissibly be compelled by the order of the court based on a probable cause showing that respondent's facilities were being illegally used on a continuing basis. Moreover, respondent concededly uses the devices for its billing operations, detecting fraud, and preventing law violations. And, as the Court of Appeals recognized, provision of a leased line by respondent was essential to fulfillment of the purpose for which the pen register order had been issued.

So the court at least has established a precedent that if you're in a position to "frustrate the implementation of a court order of the proper administration of justice" and you are "not far removed from the controversy", your assistance is "essential" and you already have the reasonable ability to help. New York Telephone satisfied all of those requirements. Does Apple?

I'd argue they are essential--no one but Apple can sign custom firmware for iPhones. I'd probably argue it's "debatable" if they are removed from the controversy or not. Apple sells hardware that becomes someone else's property once sold, so unlike New York Telephone this does not involve infrastructure Apple owns, this involves a product they manufactured then sold. New York Telephone owned all of its lines, so they were deeply connected to the controversy, Apple less so. However it muddies the water because on the hardware Apple sells is software, that Apple "licenses." Software makers have long held that when they write source code and compile it into an application and sell it, they are selling a license to use the software, not the software itself. So DOJ will almost certainly argue that since Apple is still the owner of the iPhone firmware software it is deeply connected, Apple will make a contrary argument focusing on the fact they do not own the iPhone in question. The final standard outlined in New York Telephone is "undue burden", in New York Telephone setting up a pen register couldn't be argued to be an undue burden--New York Telephone already had this technology, and used it regularly for maintenance/utility purposes. The court ruled that the phone company could bill the government market rates for setting the pen register up. That is different from this situation because Apple doesn't have "just laying around" custom firmware for iPhone 5Cs to circumvent the PIN code, in my opinion if the FBI was coming to Apple with already built custom firmware and was only asking for Apple to digitally sign it, the "burden" would be lower. But as a later case involving All Writs and OSHA explained, opening a company to undue liability under All Writs is also not kosher, and Apple will likely make such an argument about being forced to circumvent its security system for a Federal investigation, as this strikes directly at part of the iPhone's value proposition.

So in summation the questions are:

-Is Apple far removed from this case? Maybe, maybe not. It's not as clear cut as in New York Telephone.
-Is Apple essential to the government's investigation? Yes.
-Is Apple subject do an undue burden in complying? This is debatable. Unlike New York Telephone, Apple is being asked to create new technology de novo
-Does complying potentially cause Apple undue harm/liability? This is again debatable.

Personally I lean toward Apple with this, I think the case is different enough from New York Telephone, and imposes on Apple enough negative consequences that it does represent both an undue burden in complying and would cause Apple undue harm.

3. The concern about the software leaking from FBI to the rest of the world isn't necessarily a true concern. The court order allows Apple to setup a system where they create this custom firmware, and inside of Apple's facilities, load it onto Farook's iPhone 5C. Then they can create an interface that allows the FBI from outside to pass PIN code attempts to the phone, and once the phone is unlocked, Apple can remove the PIN, then remove the custom firmware and revert back to its original firmware, and return the phone to the FBI. So the court order neither gives the FBI right to the source code of the firmware, or even a single running copy of the compiled/loaded firmware. Additionally as I explained, firmware doesn't control PIN security in iPhone 6 and newer, and because iPhones only run signed firmware, and the signature of this firmware will have a device specific, hardware UUID in the signature, and new signatures can only be created by Apple, even if Apple accidentally leaked the firmware it couldn't be loaded onto other iPhone 5C's "in the wild."

[MadImmortalMan]

Apple says they've complied with similar requests more than 70 times in the past. So it doesn't seem like an undue burden if they never fought it before. As long as the authorities keep doing it on a case-by-case basis and don't ask Apple for some sort of master key.

[CountDeMoney]

I would not be as concerned about this issue, were it not for the fact that the FBI is involved.

Marshals Task Force wanted to get this guy to his front door at zero dark thirty once;  asked the power company to park a couple of trucks in front of his house, make it look like a gas emergency. 
FBI guy showed up when it was all over, but was thoroughly impressed how the Bureau "really made these trucks look real". 

True fucking story.  They're absolute fucking morons.  Seriously.

[Berkut]

OvB provides some great specifics on the case.

My objection is more general, and it is that what this is REALLY about is the State being pissed off they cannot snoop somewhere they want to snoop, and they are demanding that Apple provide them a key even when the very basis of the product is designed such that no such key should exist.

This is basically about a lot more than this guys iPhone, which is why the Beebs of the world just LOVE a case like this. This is about a  much more fundamental question.

Does anyone have the right to own something the government *cannot* get at? Is it acceptable to create a product that the Beebs of the world cannot break into no matter how much they REALLY REALLY want to?


Perhaps I am maybe too paranoid, but I am very skeptical of the timing of this. Sure, it is a actual terrorist attack where this issue first comes up, ever? The Feds or state never ever wanted to break into one of these phones before? I suspect this is a golden opportunity for them, a bona fide terrorist that they can have Trump rant and rave about. Of course, once they get their back door, they can then use it for whatever they like...

[Eddie Teach]

It's kind of interesting, even the Presidential election thread isn't immune to hijacking.