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Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work

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Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work

#61

Post by harryh »

BlackFly wrote: post #58
twoodfin wrote: post #13

This is a good reminder that "Corporations aren't people!" is something of a know-nothing argument, and also didn't suddenly spring into relevance with Citizens United . Of course Apple can invoke the First Amendment just like you or I could to avoid compelled speech. They may win or lose that argument, but it's not going to be thrown out just because they're a corporation.

The first amendment argument can be made notwithstanding that corporations are not people. Forcing developers to implement and sign code goes against their first amendment rights.

No developers are being forced to do anything. Any Apple employee who feels like it is more than welcome to quit. Otherwise, they're required to do the job their employer asks them to do which, it turns out, might include modifying iOS on a court order.

Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work

#62

Post by [deleted] »

rm_-rf_slash wrote: post #56
zimbatm wrote: post #39

What if Apple was in the business of safes and built a really strong to crack safe. There would be 10 attempts to open it or all the content would catch on fire. Is it unheard of that the government would seek the help of that kind of company in similar cases ? The argument that the newly-developed technique could be stolen by unwanted adversaries is the same. In both cases the government has to get hold of the physi…

No safe contains as much value to a person as a phone does. A phone contains everything. Everything. All your texts, all your browsing data, all your apps and the things you record in them, safe from the world behind a passcode. To apply your argument, your safe is a Narnia portal that brings you access to every facet of someone's life, all to track down the contents that fit on a few pieces of paper. Equating smartp…

[deleted]

Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work

#63

Post by harryh »

jasonlaramburu wrote: post #33

Would it be a reasonable compromise for the FBI to turn the phone over to Apple, allow Apple to access the data using whatever method it deems necessary, transfer whatever data is recovered to the FBI and then destroy the phone along with any custom FW Apple had to develop in the process?

That's actually what the FBI is asking for in this case (except for the destroying the phone part). They aren't after control of the modified software themselves they just want the data from this one particular phone.

Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work

#64

Post by jasonlaramburu »

harryh wrote: post #63
jasonlaramburu wrote: post #33

Would it be a reasonable compromise for the FBI to turn the phone over to Apple, allow Apple to access the data using whatever method it deems necessary, transfer whatever data is recovered to the FBI and then destroy the phone along with any custom FW Apple had to develop in the process?

That's actually what the FBI is asking for in this case (except for the destroying the phone part). They aren't after control of the modified software themselves they just want the data from this one particular phone.

My understanding is that they still want the actual brute force attack of the phone to occur within FBI custody. Apple could easily do that in-house, inside their own network and then share the data with the FBI.

Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work

#65

Post by exelius »

mspecter wrote: post #59
lawnchair_larry wrote: post #30

Earlier quoted context omitted.

You have some details mixed up there. Stuxnet did not use any domestic certificates. You're likely thinking of Flame, which still did not involve stealing keys or certificates, but rather exploiting a flaw relating to how certificates were issued to the general public.

Yeah, stuxnet used a stolen signing cert from Realtek.

Yeah, just saying that with Apple's level of access to the information on people's phones, it would be a very attractive target - and the best way to obtain access and keep it would be an insider. The NSA/CIA are spy agencies, after all, and they DEFINITELY have the capability to infiltrate a company like Apple (either through a vendor or by getting an agent on Apple's payroll).

Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work

#66

Post by zimbatm »

rm_-rf_slash wrote: post #56
zimbatm wrote: post #39

What if Apple was in the business of safes and built a really strong to crack safe. There would be 10 attempts to open it or all the content would catch on fire. Is it unheard of that the government would seek the help of that kind of company in similar cases ? The argument that the newly-developed technique could be stolen by unwanted adversaries is the same. In both cases the government has to get hold of the physi…

No safe contains as much value to a person as a phone does. A phone contains everything. Everything. All your texts, all your browsing data, all your apps and the things you record in them, safe from the world behind a passcode. To apply your argument, your safe is a Narnia portal that brings you access to every facet of someone's life, all to track down the contents that fit on a few pieces of paper. Equating smartp…

Certainly that's an issue with the scope of the warrant. Similarly to the judge only giving access to the car or the living room. I agree that smartphones are blurring the distinction between the brain and the physical world and the day where devices exist to read our thoughts we will have to make a decision if that is off-limit or not.

Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work

#67

Post by jasonlaramburu »

carbocation wrote: post #36
jasonlaramburu wrote: post #33

Would it be a reasonable compromise for the FBI to turn the phone over to Apple, allow Apple to access the data using whatever method it deems necessary, transfer whatever data is recovered to the FBI and then destroy the phone along with any custom FW Apple had to develop in the process?

One of the strengths of Apple's arguments is that they do not have software that the government is trying to compel them to provide. The government compelling the creative act of making this software is not something that has occurred under the All Writs Act previously, as far as I am aware, so this would set precedent. Once the software is already created, it is, at worst, just a question of getting the timing right…

Not exactly. My understanding is that the FBI wishes for the phone in question to remain within FBI custody at all times, which makes it more likely that any custom FW Apple develops could be leaked or replicated. What I propose (obviously a compromise) is for everything (FW creation, brute force attack, download of data) to occur within Apple's custody, network, and for Apple to then destroy the phone. Apple would not even need to disclose publicly how they accessed the data on the phone.

Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work

#68

Post by jasonlaramburu »

CocaKoala wrote: post #35
jasonlaramburu wrote: post #33

Would it be a reasonable compromise for the FBI to turn the phone over to Apple, allow Apple to access the data using whatever method it deems necessary, transfer whatever data is recovered to the FBI and then destroy the phone along with any custom FW Apple had to develop in the process?

How can the FBI verify that the data they get from Apple is the same data that was on the phone?

They would have to trust that Apple is acting in good faith. I can't see any incentive or reason for Apple to falsify the data. They already provided the most recent iCloud backup in good faith.

Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work

#69

Post by khedoros »

PascalsMugger wrote: post #23
studentrob wrote: post #2

So, signing the code constitutes Apple saying this code is safe to run. But Apple doesn't think this code is safe to run. The argument will be that forcing them to sign the modified code is compelled speech. Interesting. Is there any reason Apple can't use more than one argument in its defense? According to USA vs. New York Telephone, "unreasonable burdens may not be imposed". I think Apple will bear quite a burden i…

> go against company value I wonder how it would go down if they said it was against their religion, a la Hobby Lobby.

Hobby Lobby's argument (and the supreme court decision in their favor) involved the element of being "closely held". Apple would need to have over 50% of its stock owned by 5 or fewer individuals to satisfy that requirement.

Re: Apple May Use a First Amendment Defense in That FBI Case. And It Just Might Work

#70

Post by swehner »

exelius wrote: post #17
swehner wrote: post #15

This argument sounds so hokey. Similar to the non-exectation-of-privacy-when-using-tor argument, https://news.ycombinator.com/item?id=11166991 The US legal system appears as a special case

It has to be - our legal system is based on rule of law. You often see lawyers go after First Amendment defenses because the First Amendment is legally part of the constitution, and thus overrides any and all other laws. Of course, a judge has to agree with the argument - and considering when the Bill of Rights was written, that argument is likely going to be a bit roundabout given the progress we've made in ~250 yea…

Not sure what you're saying, what has to be?
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