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U.S. Says It May Not Need Apple’s Help to Unlock iPhone

nytimes.com

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Re: U.S. Says It May Not Need Apple’s Help to Unlock iPhone

#231

Post by rimantas »

DanBC wrote: post #202
oldmanjay wrote: post #111

Earlier quoted context omitted.

I definitely expect Apple to comply with valid warrants to the extent possible. Is there a serious belief that Apple should flout the law? Is there a company in the world that obstructs justice in their home country?

I need to explain myself a bit more clearly. For many years all tech companies have, as expected, complied with warrants. We don't expect otherwise. Now, in this one case, Apple is fighting the warrant. And some people are saying "Look how great Apple is; they really care about your privacy". Well, no, not really. Apple isn't as bad as some, but they still gather too much data and they still (as they should) obey any…

Can you tell more what exactly superfluous data is Apple gathering?

Re: U.S. Says It May Not Need Apple’s Help to Unlock iPhone

#232

Post by uxp »

greglindahl wrote: post #133
uxp wrote: post #128

Earlier quoted context omitted.

What is the alternative available to Apple, or any other technology company, when given a valid warrant for someone's data that isn't blatantly ignoring the law? I'm honestly not sure what you are suggesting. Apple has already given them Farook's iCloud backups, just not recent ones since they don't exist. If Alice was murdered, and Bob was circumstantially implicated, but had an iPhone that had some kind of data rec…

This discussion is a bit confused. There are plenty of "valid" subpoenas or search warrants which are squashed after being opposed in court. I'm not sure if the other commenters really believe that no company should ever oppose a search warrant, or if they think "valid" search warrants can't be opposed, or what. But opposing an over-broad or otherwise screwed up "valid" subpoena or search warrant is a necessary part…

Correct. That's what I was trying to deduce, the difference between a valid warrant (eg, a warrant following CALEA for communications data stored on a third party server), and a warrant that is currently being argued as invalid (eg, a warrant for Apple to create software that allows some party to brute force a PIN without restriction).

Sure, it would be nice for Apple to oppose even "valid" warrants for iCloud data backups, because I trust them to keep my data safe on my device, so why should I have a reduced expectation of privacy when using their services. After all, they have billions in cash in some Scrooge McDuck mansion just waiting to be spent on lawyer fees, right? /s

Re: U.S. Says It May Not Need Apple’s Help to Unlock iPhone

#233

Post by uxp »

zepto wrote: post #228
DanBC wrote: post #199

Earlier quoted context omitted.

Apple got a valid warrant here! But they fought back against this one. I'm not saying they're wrong to obey court orders. I'm saying that people will be saying that Apple fight against court orders when in fact they don't usually fight the court orders. They normally give out the information.

No - in this case it was clear to Apple that the warrant was not legal, which is why they chose to fight. When warrants are clearly legal, there is nothing they can do to fight them. They only give out the information they are legally forced to do, and are doing everything in their legal and technical power to reduce that as much as possible.

Yes. Exactly. Apple and every one else (company or individual) is required, by law, to comply with valid warrants. When one receives a warrant or any kind of legal request that they feel is invalid, the only way to challenge that potentially illegal or invalid request is to not comply and then let the courts decide. If there is existing precedent then they could be held in contempt. If there isn't precedent then hopefully one will be made by the result of the challenge.

The idea that the Govt can only issue "valid" warrants is flawed. The Government is just people, and like everyday citizens like myself, we're perfectly capable of breaking laws, either unintentionally (eg, giving a lift to a friend who has undisclosed controlled substances on their person (state dependent)) or intentionally (eg, murder).

Re: U.S. Says It May Not Need Apple’s Help to Unlock iPhone

#234

Post by ergothus »

brianpan wrote: post #136
adventured wrote: post #127

Earlier quoted context omitted.

For one, you have to try to go after the All Writs Act. If I were Apple, I'd deploy a billion dollars and buy everyone in DC as necessary. Not exaggerating. Defense contractors, conglomerates, energy companies, etc. spend in the mere millions to get their way on things. Apple should purchase the entire Congress, aggressively, and destroy the All Writs Act as far as this type of situation is concerned, and push for fa…

It's not Apple who would take down the All Writs Act, it would be a citizen who had evidence against them obtained via the All Writs Act. They would have to discover that is how the evidence against them was uncovered, argue in court that the specific application of the All Writs Act was not legal, and a court would have to address it in a ruling. The result would be a reduction in scope of the act. Source: IANAL, bu…

Also not a lawyer.

But who would do that, when it's unlikely to help them?

The evidence against them would likely stand, either a matter of inevitable discovery (Evidence gets tossed when it is "fruit of the poisonous tree", but if you can show that you'd have gotten that same evidence a different way, the evidence remains. Just like here: Had Apple folded, given the evidence, and then it was ruled inadmissible due to the methods, the FBI could just argue other hack options were available) or as a matter of "good faith" (where, if the cops didn't know what they were doing was illegal, they get to keep the evidence they obtained under "good faith"). My understanding is that good faith allowances have grown quite large in recent year, to the point of absurdity.

So our suspect, in this case, will only challenge the evidence if the chance of it helping THEM is high enough. They aren't going to do so for the good of society.

I don't like relying on the good will or desperation of suspects that have evidence against them to mold our legal rights.

Re: U.S. Says It May Not Need Apple’s Help to Unlock iPhone

#235

Post by johncolanduoni »

chaostree wrote: post #181
studentrob wrote: post #132

Earlier quoted context omitted.

Some technologists hold an anarchist view that the government is evil and should be displaced. There are extremists within any group. These folks do not want to bother fighting the government for rights because they think the public is too dumb and the government will win that fight. In thinking this way, they become apathetic themselves. They're not all bad. Some of them contributed a lot to free software. But some…

Well, the USG considers Linux users to be extremists also. I think the phrase "One person's terrorist is another person's freedom fighter" applies. There should be no moderation in freedom (outside of the absolutes of killing another or dispossessing them of their property). My response to these types of comments is precisely - when it is demonstrated that people make laws rather than governments in collusion with co…

> Well, the USG considers Linux users to be extremists also.

That's interesting, since the National Laboratories employ tens of thousands of people who not only use Linux, but use Linux at work. Perhaps you should let the FBI know about this so they can revoke their security clearances?

> My response to these types of comments is precisely - when it is demonstrated that people make laws rather than governments in collusion with corporations - then I will pay attention.

This sounds like an excuse to selectively not follow any laws you don't like. The core law surrounding warrants in the US, which is sufficient for a lot of cases (no All Writs Act or FISA needed), are in the Constitution and some very early bills. Were these also made by collusions between the government and the corporations?

Re: U.S. Says It May Not Need Apple’s Help to Unlock iPhone

#236

Post by malchow »

ChuckMcM wrote: post #45

I suspect this is a "Strategic Retreat" on the Justice department. The ability to reflash the phone and avoid triggering the unlock erase was a pretty obvious workaround. So after investing a lot of time and money in trying to get case law to expand the DoJ's power over corporations to conscript them into the War on the 4th Amendment, it become possible that they would see a judgement against them (especially if the…

J.D. here. The SCOTUS becoming more conservative would have helped your limited-government view (and mine). Not more liberal. On balance the group most likely to find hard limitations on the power of the government to control people, capital, and companies are the originalists.

Sometimes it seems as though in Silicon Valley everyone assumes conservative = bad, liberal = good. The truth is always more complex.

Re: U.S. Says It May Not Need Apple’s Help to Unlock iPhone

#237

Post by sixothree »

cturner wrote: post #36
nostromo wrote: post #27

I suspect that the intelligence and law enforcement communities are afraid that if this case goes to the Supreme Court the All Writs Act may be scaled back or ruled unconstitutional. The All Writs Act goes back to 1789 and is used for all sorts of things, like wire tapping, obtaining call and ISP records, etc., and now trying to force Apple to make malware for their own phone. It's definitely a risk for the FBI to fi…

I assume they are not particularly interested in the phone itself. Rather, that they have been shopping for a situation with the character of this one so as to try their luck at pushing their capture rights.

Don't worry, one will arise.

Re: U.S. Says It May Not Need Apple’s Help to Unlock iPhone

#238

Post by Bluestrike2 »

RichieAHB wrote: post #183
Bluestrike2 wrote: post #92

Earlier quoted context omitted.

The issue was never that the magistrate judge would be setting the precedent. No matter who prevailed, there is going to be an appeal and that's when precedent would be set. Even at that point, a negative ruling wouldn't necessarily be an insurmountable problem for the FBI as it wouldn't be binding until the issue has been decided by higher authority. It could still be cited as an example of persuasive authority (i.e…

That may all be true and I don't dispute the duration and the fact that it wouldn't be binding at this level. However, what the FBI need is something to get the ball rolling, the golden case that would set a precedent; that would almost definitely become binding in the higher court. They want a good foundation from which to proceed and I believe this case is now not it for them. They will wait for something that galv…

Yeah, but this was that case. I made the point in another comment, but this case had all of the emotional pull the FBI could ask for because it was a terrorist attack on US soil. Fear, anger, hate, even elements of Islamophobia combined to slant the PR field significantly in the FBI's favor. Even judges would be hesitant refuse the request unless it was blatantly flawed. Criminal cases aren't going to offer them anywhere near that sort of counterweight to the strong privacy concerns Apple has raised. So unless we're talking about Osama bin Laden's iPhone, and since he's dead that's kind of a non-starter, I don't see there being a better case.

But if there's an alternative method that's been proposed and the FBI is aware of it, the FBI can't claim that forcing Apple to act is the government's last resort. So that's the most likely reason they've halted proceedings and not any fear that they may lose.

Re: U.S. Says It May Not Need Apple’s Help to Unlock iPhone

#239

Post by simoncion »

Scea91 wrote: post #197
jacquesm wrote: post #104

Earlier quoted context omitted.

I'm all for it. If you bring suit the other party should be allowed to cause you to have to continue if you feel like dropping it. There is some potential for abuse there though, this is not a simple matter.

What if you run out of money for lawyers and want to drop the suit because of that?

In addition to the counterpoint that newjersey brings up, we could also restrict this power to cases where the plaintiff is the government (local, state, or federal).

While nuisance suits from private actors can totally be ruinous, the potential for harm from government actors is so much greater.

Re: U.S. Says It May Not Need Apple’s Help to Unlock iPhone

#240

Post by rmc »

scott00 wrote: post #230
pbhjpbhj wrote: post #218

Earlier quoted context omitted.

The XIV amendment says: "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Which sounds like all people should have the same protection from unlawful searches ... as I'm a conditional law novice can someone briefly outline why this doesn't stand, what removed the protections for "all peopl…

The 14th amendment is not relevant to actions taken by the FBI. It's an arm of the federal government, and the 14th amendment serves mostly to clarify that state governments (in addition to the federal government) must refrain from violating rights granted to US citizens through the constitution. However, the FBI must abide by the 4th amendment, which specifies that warrants are needed for searches. The issue of whet…

> However, the FBI must abide by the 4th amendment, which specifies that warrants are needed for searches. The issue of whether data of foreigners located on US soil is subject to warrant-less search/inspection is a matter of interpreting the 4th amendment.

And the interpretation is that a warrent isn't needed. The 4th doesn't protect me.

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