Community Reacts to Apple vs FBI Story

[Dembadon]

Here we go again.

https://www.yahoo.com/news/us-pushes-apple-iphone-access-two-more-cases-065722785.html

I don't understand. I thought the FBI has already found a way, with third-party help, to unlock iPhones.

 

[russ_watters]

I don't understand. I thought the FBI has already found a way, with third-party help, to unlock iPhones.

Some iPhones.

 

[Astronuc]

I don't understand. I thought the FBI has already found a way, with third-party help, to unlock iPhones.

Particular phone with a particular operating system. Upgraded iPhones and upgraded Operating Systems would require a different hack apparently.

 

[StevieTNZ]

In addition to Apple v FBI:

Microsoft has sued the US government for the right to tell its customers when a federal agency is looking at their emails, the latest in a series of clashes over privacy between the technology industry and Washington.

The lawsuit, filed on Friday (NZT) in federal court in Seattle, argues that the government is violating the US Constitution by preventing Microsoft from notifying thousands of customers about government requests for their emails and other documents.

http://www.stuff.co.nz/technology/78971322/microsoft-sues-us-government-over-data-requests

 

[joema]

...Can you make a strong case that a search warrant is not just _permission_ for government to search, that it confers on the government the power to conscript any party they deem necessary to execute the search to their satisfaction?...

I don't think this point has been adequately discussed and would be interested in what the current legal precedent is. Surely this situation must have arisen outside the digital domain.

Consider a wealthy criminal who has obtained a physical item wanted by law enforcement -- it could be a document, a key, an artifact, etc. The criminal has placed this in a fire-proof safe beneath molten lava inside an active volcano -- which he owns, along with the surrounding land. This is not impossible -- Mt. St. Helens was privately owned.

Law enforcement obtains a search warrant to his property and the safe. Does this grant them (a) The legal right to enter the property, climb the mountain, obtain and open the safe, or (b) The right to impress into service a mountaineering company, helicopter pilot, and volcanologists to obtain physical access?

If yes, what are the limits of this? If it turned out a former NASA astronaut was a criminal mastermind and had covertly stashed secret information in the Apollo Lunar Module on the moon which was later found vital to a criminal investigation, would a search warrant for NASA's lunar property compel them to build a rocket and travel there?

 

[rootone]

If it turned out a former NASA astronaut was a criminal mastermind and had covertly stashed secret information in the Apollo Lunar Module on the moon which was later found vital to a criminal investigation, would a search warrant for NASA's lunar property compel them to build a rocket and travel there?

It probably does mean that the FBI could legally compel NASA, but I think not without paying NASA appropriately for the work.

 

[russ_watters]

(b) The right to impress into service a mountaineering company, helicopter pilot, and volcanologists to obtain physical access?

Hire. They would hire a pilot/mountaineer/volcanologist.

 

[joema]

Hire. They would hire a pilot/mountaineer/volcanologist.

What if the best available volcanologist was previously engaged on a research mission he'd waited his entire life for, and he politely declined and referred law enforcement to other less capable volcanologists? Does the warrant give law enforcement the right to command the services (even if compensated) of any party to render any service whatsoever to facilitate execution of the warrant? Or is the warrant merely the legal right to conduct the search, not the right to force other parties to assist in the search?

 

[russ_watters]

What if the best available volcanologist was previously engaged on a research mission he'd waited his entire life for, and he politely declined and referred law enforcement to other less capable volcanologists?

That's fine.

Does the warrant give law enforcement the right to command the services (even if compensated) of any party to render any service whatsoever to facilitate execution of the warrant?

No, it doesn't.

Or is the warrant merely the legal right to conduct the search, not the right to force other parties to assist in the search?

If by "other parties", you mean uninvolved 3rd parties, no. But the owner and/or manufacturer of the device, probably yes. You seem to be drawing a false comparison. Apple is not a randomly chosen company in this case, of course.

 

[joema]

...If by "other parties", you mean uninvolved 3rd parties, no. But the owner and/or manufacturer of the device, probably yes. You seem to be drawing a false comparison. Apple is not a randomly chosen company in this case, of course.

Upon further thought, it appears the search warrant itself does not grant the authority to compel other parties -- whether involved or not -- to labor in the execution of that warrant. Rather it is the application of the 1789 All Writs Act which was used to command third parties’ assistance to execute a prior order of the court.

So although much of the above discussion was framed in terms of a warrant, it is really the 1789 All Writs Act that is key. The issue is to what extent does the All Writs Act grant government authority to conscript 3rd parties to labor against their will in furtherance of a court order. Whether they are compensated or not and to what degree is beside the point.

Also the issue exists whether you define it as two parties, three or more. E.g, what if the government felt that Google with their vast technical resources and prior competitive reverse-engineering study of iPhones could construct hardware/software to weaken iPhone encryption. Could Google be compelled under the All Writs Act to render this service? What if that service required dozens of engineers, developing new technologies, etc?

The All Writs Act wording says use of it must be "agreeable to the usages and principles of law", IOW it can be limited by other statutes -- if those exist. In this case it would seem limited by the Communications Assistance for Law Enforcement Act, which states that law enforcement cannot "require any specific design of equipment, facilities, services, features, or system configurations".
https://en.wikipedia.org/wiki/Communications_Assistance_for_Law_Enforcement_Act

 

[russ_watters]

Upon further thought, it appears the search warrant itself does not grant the authority to compel other parties -- whether involved or not -- to labor in the execution of that warrant. Rather it is the application of the 1789 All Writs Act...

Yes, I assumed that was what you meant: the warrant allows the search and the All Writs Act provides for court orders in support of the warrant/search.

...which was used to command third parties’ assistance to execute a prior order of the court.

It was? Can you give an example of where the All Writs Act was used to command a third party's assistance? Also, if that is already true, I'm not sure what your point here is then, since the question would be already answered and therefore moot...

Also the issue exists whether you define it as two parties, three or more. E.g, what if the government felt that Google with their vast technical resources and prior competitive reverse-engineering study of iPhones could construct hardware/software to weaken iPhone encryption. Could Google be compelled under the All Writs Act to render this service?

Still no.

In this case it would seem limited by the Communications Assistance for Law Enforcement Act, which states that law enforcement cannot "require any specific design of equipment, facilities, services, features, or system configurations".
https://en.wikipedia.org/wiki/Communications_Assistance_for_Law_Enforcement_Act

As far as I can tell, those words do not appear in that wiki article. Where did you get them? It does say, though:
"CALEA's purpose is to enhance the ability of law enforcement agencies to conduct electronic surveillance by requiring that telecommunications carriers and manufacturers of telecommunications equipment modify and design their equipment, facilities, and services to ensure that they have built-in surveillance capabilities, allowing federal agencies to wiretap any telephone traffic; it has since been extended to cover broadband Internet and VoIP traffic."

It appears to me to say exactly the opposite of what you claimed. Can you show me where your quote came from or otherwise explain this discrepancy?

Also, that law wasn't part of the current line of discussion, unless you are saying that it adds/clarifies power to the All Writs Act. In either case, I do think most observers agree at this point that it would be best for that law to be updated to include (or explicitly exclude) the current situation.

 

[joema]

"Can you give an example of where the All Writs Act was used to command a third party's assistance? Also, if that is already true, I'm not sure what your point here is then, since the question would be already answered and therefore moot..."

In United States v. New York Telephone Co., 434 U.S. 159 (1977), NY Telephone Co argued that it wasn't part of the investigation or the criminal wrongdoing, it was just a third-party phone provider.

Writing for the majority in a 5-4 decision, Justice Byron White did not dispute they were a third party, but said: "...the power of federal courts to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed...the order issued here against respondent was clearly authorized by the All Writs Act ."

This was further discussed in this article: https://www.washingtonpost.com/news...san-bernardino-case-part-2-the-all-writs-act/

'It was not a problem that the phone company was an innocent third party: “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, and encompasses even those who have not taken any affirmative action to hinder justice.”'

...As far as I can tell, those words do not appear in that wiki article. Where did you get them?...It appears to me to say exactly the opposite of what you claimed. Can you show me where your quote came from or otherwise explain this discrepancy?

This is discussed here:
https://cyberlaw.stanford.edu/blog/...writs-act-and-protects-security-apples-phones
http://cyberlaw.stanford.edu/blog/2016/02/more-calea-and-why-it-trumps-fbis-all-writs-act-order

 

[russ_watters]

In United States v. New York Telephone Co., 434 U.S. 159 (1977), NY Telephone Co argued that it wasn't part of the investigation or the criminal wrongdoing, it was just a third-party phone provider.

Ok, then I was misunderstanding how they use the term "third party". In either case, it should be obvious per your previous line of questioning and my responses that not all third parties are the same. Apple has specific knowledge here that other companies would not, since they made the product in question and they alone hold an encryption key into it.

This is discussed here:
https://cyberlaw.stanford.edu/blog/...writs-act-and-protects-security-apples-phones

In the context of the wiki quote, I think you/the author misread the significance of the word "specific". CALEA requires companies build-in wiretapping capabilities, it just doesn't dictate (nor can it dictate) a specific method.

 

[nsaspook]

As expected.
http://www.reuters.com/article/us-usa-encryption-legislation-idUSKCN0YI0EM

Burr had said repeatedly that legislation was imminent.

But last week, he and Feinstein told Reuters there was no timeline for the bill. Feinstein said she planned to talk to more tech stakeholders, and Burr said, “be patient.”

In the meantime, tech companies have accelerated encryption efforts in the wake of the Apple case. The court showdown ended with a whimper when the FBI said it had found a way to get into the phone, and subsequently conceded privately it had found nothing of value.