News Community Reacts to Apple vs FBI Story

[Astronuc]

Are you talking about the Notes application?

Yes.

If so, are you logged into your iCloud account on the Mac?

No. The Mac is provided by the employer, and as far as I know, is not linked to my personal iCloud account. I have no idea how the notes got from my iPhone to the Mac. I have not set up an iTunes account for the Mac, but if I did, it would be a separate identity, i.e., different email account and storage.

 

[vela]

It looks like any Exchange or IMAP account can also host notes. Do you have a work e-mail account set up in your phone? If so, see if you have notes enabled for it on the phone.

 

[Astronuc]

It looks like any Exchange or IMAP account can also host notes. Do you have a work e-mail account set up in your phone? If so, see if you have notes enabled for it on the phone.

Ok, that maybe it then. I didn't realize that. I'll have to check the phone.

 

[nsaspook]

http://bgr.com/2016/03/03/san-berdardino-iphone-hack-godfather-of-encryption-apple-fbi-iphone/


Shamir’s remarks beginning at the 13:50 mark.

I agree with Shamir, Apple can help the FBI so they should help the FBI in this one special case. Apple left a security loophole in for them (mainly for user convenience) to use so the FBI is demanding that they use that loophole for the governments investigation.

 

[russ_watters]

I agree with Shamir, Apple can help the FBI so they should help the FBI in this one special case. Apple left a security loophole in for them (mainly for user convenience) to use so the FBI is demanding that they use that loophole for the governments investigation.

I may have said it already, but that is why I find Apple's choice of where to make the stand odd. It seems like they are creating a potential to lose something they didn't need to risk (the ability to make totally secure phones). The only thing I see that they stand to gain other than avoiding the minor annoyance of assisting in a search every other month, is the ability to NOT make totally secure phones. Ie, retain their current back door.

 

[zoobyshoe]

Ok, that maybe it then. I didn't realize that. I'll have to check the phone.

Here, Astro: This story specifically states they reset the "iCloud password."

Comey also admitted that the FBI made a “mistake” when it asked San Bernardino County technicians to reset the iCloud password for the phone, which forestalled the possibility of trying to back it up again after that occurred. But he said even if that had not occurred, the FBI and Apple might have wound up in the same situation, since some data on the phone may not have been backed up.

Sewell, though, disputed that notion, saying that if the password was not changed, the court fight might have been averted.

“The very information that the FBI is seeking would have been available and we could have pulled it down from the cloud,” he said. “By changing the [iCloud] password ... it was no longer possible

https://www.washingtonpost.com/news...inging-fight-over-encryption-to-capitol-hill/

This is the only place I've found that distinction explicitly made. But, it seems to answer the question.

 

[DiracPool]

Ok, since nobody was compelled by my video of the CIA director stating why it was bad to give the keys to Apple's backdoor to the FBI, how about this showdown between the FBI and John McAfee, founder of one of the most popular anti-virus/security companies in the world, second maybe only to Norton/Symmantec:



Again, as far as I see it, it's more of this fear-mongering BS that these government entities use to try to scare the public into relinquishing their privacy and security. You can hear the FBI guy saying this, "We're talking about American lives here," (2:00 in) as if the risk of a few American lives was worth the risk of opening up every Apple phone across the planet to hackers from sinister state regimes. But that's even a joke, because he has absolutely no credible information that any more American lives are even at risk generally, or that hacking the phone in question would reveal any information to save an American life specifically.

 

[mheslep]

...

Again, as far as I see it, it's more of this fear-mongering BS that these government entities use to try to scare the public into relinquishing their privacy and security. You can hear the FBI guy saying this, "We're talking about American lives here," (2:00 in) as if the risk of a few American lives was worth the risk of opening up every Apple phone across the planet to hackers from sinister state regimes. But that's even a joke, because he has absolutely no credible information that any more American lives are even at risk generally, or that hacking the phone in question would reveal any information to save an American life specifically.

Where's the credible information indicating that every Apple phone on the planet would be opened up. Of course American lives are at risk from terrorists, as the San Bernadino shootings indicate. Of course the FBI has stopped would be criminals by electronic surveillance, of course they've caught others after the fact the same way. Law enforcement never has to guarantee future lives to inspect a phone, nor should they. They need to show reasonable cause, and in the cause of the *killer's phone*, they clearly have such cause.

 

[nsaspook]

There is fear-mongering BS on both sides. Security compromises are a way of life, you plan for it and react in an intelligent manner. How long do you think it will take Apple to release a patch specifically tailored to defeat any 'HackOS' it releases to the FBI for this phone?

 

[DiracPool]

Of course American lives are at risk from terrorists, as the San Bernadino shootings indicate.

So are you saying that exposing 100's of millions of iphones to hacking from terrorists and terrorist-related states is worth the mystery information we may or may not find on this one San Bernadino phone? Because this is what it sounds like you are saying. That doesn't sound like an even tradeoff to me as to what is going to keep American lives safer from would-be terrorists

 

[zoobyshoe]

So are you saying that exposing 100's of millions of iphones to hacking from terrorists and terrorist-related states is worth the mystery information we may or may not find on this one San Bernadino phone?

I don't believe terrorists are interested in the average person's phone. People want security against identity thieves and stalkers and unregulated government snooping.

 

[zoobyshoe]

Ok, since nobody was compelled by my video of the CIA director stating why it was bad to give the keys to Apple's backdoor to the FBI, how about this showdown between the FBI and John McAfee, founder of one of the most popular anti-virus/security companies in the world, second maybe only to Norton/Symmantec:.

I finally watched this and it's more persuasive IMO than the CIA director video.

Here's the recent hack of the FBI by a 15 year old McAfee refers to:
http://www.theguardian.com/uk-news/2016/feb/18/fbi-computer-hacking-boy-15-detained-glasgow-police

 

[vela]

McAfee isn't exactly the most credible source to weigh in on breaking into the iPhone.

http://arstechnica.com/security/201...shoe-because-he-doesnt-know-how-iphones-work/

 

[zoobyshoe]

McAfee isn't exactly the most credible source to weigh in on breaking into the iPhone.

http://arstechnica.com/security/201...shoe-because-he-doesnt-know-how-iphones-work/

But it looks to me like the author of the article has misunderstood what McAffee said when he used the term "secret code." He's referring to the "first access to the keypad," not the device's PIN. McAfee isn't claiming, as far as I can see, that the PIN is stored on the device, only that the "first access to the keypad" is.

Regardless, McAfee may be being disingenuous in that getting "first access to the keypad" actually doesn't get you much at all. I don't know. The fact he's running for president also raises questions about how much this is a publicity ploy.

In any event, his claims are testable. You could give him a locked phone of the same model and see if he could deliver it to the FBI ready for their brute force attack on it.

 

[Psinter]

I gave my opinion, I'm still waiting for OP's opinion on the matter. I'm all ears

 

[joema]

Where's the credible information indicating that every Apple phone on the planet would be opened up...

There are several answers to that. One from TheVerge:

http://www.theverge.com/2016/2/19/11064054/apple-fbi-lockscreen-encryption-passcode-backdoor

"while the precise software proposed by the FBI can’t be used to unlock other phones, it can still be useful to thieves. If the code fell into the wrong hands, it could potentially be reverse-engineered into a generic version, removing the code that ties the attack to a specific phone. That reverse-engineered version would still need Apple’s signature before it could be installed — something thieves are not likely to have — but that signature system would be the only thing protecting a stolen iPhone and the information inside it."

What Apple said is every iPhone -- even new ones with Secure Enclave -- would be vulnerable to FBI-mandated operating system. It is now well documented the government wants to use this on many iPhones. It's not a case of designing this once, using it once, then destroying it. The use would proliferate, which means risk of interception and nefarious deployment of that hack by various actors.

To try and prevent this, it appear Apple would have to construct a Secure Compartmentalized Information Facility (SCIF), which are about $50 million: http://money.cnn.com/2016/02/26/technology/apple-iphone-fbi-hack-cost/ However if the method is widely deployed as the government plans, it would possibly require multiple geographically-dispersed SCIFs.

Wouldn't the hack even if intercepted still require Apple's authentication signature to use? Another comment from the above Verge article: 'Forensics expert Robert Lee says he’s worried the volume of requests could lead agents to seek a signed, generic version of the software, which would bypass all lock screen protections if it fell into the wrong hands. "The FBI’s going to come back again and again, and finally they’re going to ask for a version of this that’s generic," says Lee. "And it’s that generic version that’s really dangerous."'

There was a good description of the actual "hacking" method in ArsTechnica: http://arstechnica.com/security/201...a-golden-key-backdoor-its-called-auto-update/

"When Apple says the FBI is trying to "force us to build a backdoor into our products," what they are really saying is that the FBI is trying to force them to use a backdoor which already exists in their products. (The fact that the FBI is also asking them to write new software is not as relevant, because they could pay somebody else to do that. The thing that Apple can provide which nobody else can is the signature.)"

The only technical element which makes this possible is the iPhone's ability to accept a new software update without a password, given Apple's signature. Since the government has now forced this issue, Apple may feel impelled to revise that protocol so no software updates are possible without a user-entered password, which would itself protected by Secure Enclave hardware encryption. That would eliminate any possibility of accessing iPhone content, except by using "chip decapping" and focused ion beam methods.

Chip decapping is commonly done for reverse engineering and competitive analysis:

https://www.chipworks.com/competitive-technical-intelligence/overview/custom-analysis

Electron microscope examination of Apple A6 CPU by Chipworks: http://appleinsider.com/articles/12/09/25/teardown-of-apples-a6-processor-finds-1gb-ram-2-cpu-3-gpu-cores

 

[nsaspook]

McAfee isn't exactly the most credible source to weigh in on breaking into the iPhone.

http://arstechnica.com/security/201...shoe-because-he-doesnt-know-how-iphones-work/

http://www.dailydot.com/politics/john-mcafee-lied-iphone-apple-fbi/

 

[zoobyshoe]

http://www.dailydot.com/politics/john-mcafee-lied-iphone-apple-fbi/

So, that's cleared up. Glad you found that.

 

[Hornbein]

I once heard John McAfee say that cyberwar would be worse than nuclear war. I resolved then and there never again to pay any attention to any further utterance of John McAfee.

 

[russ_watters]

If Tony Stark spent 20 years too long in Key West:

 

[DiracPool]

Ok, so you didn't like the CIA guy, you didn't like the AntiVirus guy, and you didn't even like Zoobyshoe's Glasgow guy (I mean boy). Wow, talk about some serious muckraking. This thread is worse than a GOP debate. OK, let's see what you can come up with to discredit notorious iPhone hacker Will Strafach who says this dance with the FBI is a bad idea:

http://www.latimes.com/business/technology/la-fi-apple-hackers-20160303-story.html
http://www.cultofmac.com/413144/fam...why-fbis-backdoor-request-is-such-a-bad-idea/

“Although the passcode attempt counter on the iPhone 5c can be handled without much work, the FBI request to allow it to electronically make passcode attempts is a considerable issue,” writes Will Strafach.

“This would specifically require Apple to modify the source code of SpringBoard (which powers the lock screen) to specifically add code that enables this capability, and sign it with the company’s production certificate so that the device will run the code. The reason Apple stresses that this is a ‘backdoor’ in its statement is because the order is specifically requesting that Apple make a modification that serves no purpose other than to weaken iOS security by allowing brute force attempts.”

 

[russ_watters]

Ok, so you didn't like the CIA guy...

I like the CIA guy just fine, I just don't think his argument has merit. That has nothing to do with "muckraking". But McAffee? You can't be serious about him, can you? That last bit was a joke, but you are aware that he's generally considered to have gone bonkers and evaded a murder investigation, right? I won't even entertain the things a guy like him has to say. But yes, his hair is a joke like Trump's hair is a joke.

OK, let's see what you can come up with to discredit notorious iPhone hacker Will Strafach who says this dance with the FBI is a bad idea:

http://www.latimes.com/business/technology/la-fi-apple-hackers-20160303-story.html
http://www.cultofmac.com/413144/fam...why-fbis-backdoor-request-is-such-a-bad-idea/

The first article is fine. The second one doesn't say anything other than "don't do it", which is an opinion. He's entitled to his and I am entitled to mine. I disagree.

 

[nsaspook]

http://www.bloomberg.com/politics/a...keptical-silicon-valley-at-south-by-southwest

"You cannot take an absolutist view on this," Obama said at the South by Southwest festival in Austin, Texas. "If your argument is strong encryption no matter what, and we can and should create black boxes, that I think does not strike the kind of balance we have lived with for 200, 300 years, and it’s fetishizing our phones above every other value."

What's wrong with an absolutist view of the right to use math? Phones are just computers today, so is every device with a CPU now a "black box" that will require a mandatory access routine in the code? IMO, an unbelievably condescending statement for mandatory back-doors.

 

[russ_watters]

What's wrong with an absolutist view of the right to use math? Phones are just computers today, so is every device with a CPU now a "black box" that will require a mandatory access routine in the code? IMO, an unbelievably condescending statement for mandatory back-doors.

Huh? I don't understand any of that. Are you suggesting there should be no such thing as digital crime because it is all just math? And that math itself can't be a tool used in crime? And "condescending" - what was condescending?

 

[nsaspook]

Huh? I don't understand any of that. Are you suggesting there should be no such thing as digital crime because it is all just math? And that math itself can't be a tool used in crime? And "condescending" - what was condescending?

Sure there can be crime but that should never be an excuse for the loss of liberty or freedom on a permanent and massive scale in this country. A future USA prohibition on some types of security schemes with encryption would just never work when anyone with a 25 cent micro-controller can code encryption algorithms into a product built on the other side of the planet.
Phones and personal digital devices are becoming an extension of our thoughts, minds and lives, it's not a fetish to have a position that defaults to current law.

I'm with Congressman Darrell Issa

"The President's speech today showed a fundamental lack of understanding of the tech community, the complexities of encryption, and the importance of privacy to our safety in an increasingly digital world. There's just no way to create a special key for government that couldn't also be taken advantage of by the Russians, the Chinese, or others who want access to the sensitive information we all carry in our pockets everyday."

http://www.npr.org/2016/03/03/46900...fbi-s-strategy-to-get-into-terrorist-s-iphone

I still think that Apple should use the back-door they left into help the FBI with this phone but requiring them to keep back-doors in future products is a massive overreach in government authority.

The president.

"the country needs to re-imagine the relationship between government and the private sector "so that we use technology data, social media in order to join forces around problems."

When I re-imagine that relationship I see danger for the citizens.

 

[russ_watters]

...it's not a fetish...

Oh, I see it now - you are saying it is condescending to describe the position as a "fetish". I can see how it can be taken that way and that isn't the direction I would have gone, but I do agree with where his head is at on it.

It isn't a sexual thing to me and I doubt he thinks it is - it's probably an analogy, which is probably what makes it seem insulting. What I think he's saying is that it defies logic in a way that is bizarre and that was the best parallel he could come up with. But IMO, it is more directly related to the logic/illogic of religion. People are placing Apple above their country in a way that is usually reserved for religion. Specifically, they are simultaneously trying to deny helpful information to the government - even in the case of assisting in investigating a crime - while providing more and more of the same type of information to Apple (and Google).

I get the feeling that most people believed Apple when they said this phone was totally secure and that by now most people recognize they maintain a "back hatch". But even after becoming aware of that Apple misled them about it, people are still siding with Apple! I find that bizarre. Do people not get that what is at stake in this case isn't whether Apple should install a back door for the FBI, but rather whether Apple can be allowed to keep theirs?! Let me say that again: if Apple wins this case, it will enable them to keep their back hatch into their products.

More broadly, the type of information the FBI is after, we already provide to Apple/Google for free and nothing about this privacy/security fight will change that. For example, when I get a delivery from Amazon, a notification pops up on my phone. How does my phone know I got a package? There are only three ways: either Amazon told Google, UPS told Google, or Google read my email and extracted the tracking number. My bet is on the latter, but I didn't consciously give any of them permission for that.

I find it bizarre that people want to deny information to the government while simultaneously providing so much to these companies -- perhaps even without thinking about it. That's why I agree with where Obama's head is at even if not the specific choice of expressing it.

...to have a position that defaults to current law.

Well, as I'm sure you are aware, the position fits current law only insofar as current law hasn't kept up with the technology and therefore doesn't address this specific issue one way or another. It is for all intents and purposes loophole and a potential self-contradiction in the current legal framework. I say "potential" because I don't think the courts are going to see it that way: I think it is adequately covered by current law and Apple is going to lose - but we'll see. If they win, though, the contradictions will remain and will still need to be clarified in the law.

Sure there can be crime but that should never be an excuse for the loss of liberty or freedom on a permanent and massive scale in this country.

I know that that that is the common way the narrative is expressed, but it is wrong/backwards: The capability Apple says they want to provide doesn't exist yet. You can't lose something you've never had. Indeed, what this will provide IS something you've never had: the ability to evade a legal search warrant.

I'm with Congressman Darrell Issa
"There's just no way to create a special key for government that couldn't also be taken advantage of by the Russians, the Chinese, or others who want access to the sensitive information we all carry in our pockets everyday."

If by "others" he means Apple, then yeah, I agree. Nevertheless, basically everyone is already ok with it, except (for some) when it helps the FBI execute a legal search warrant.

When I re-imagine that relationship I see danger for the citizens.

No doubt - and I recognize that that's where people's heads are at: they fear giving the government access to their data more than they fear giving it to Apple/Google.

Anyway, I didn't see the word "calculator" in that post, so I'm still not sure where you were going with that...

 

[nsaspook]

If by "others" he means Apple, then yeah, I agree. Nevertheless, basically everyone is already ok with it, except (for some) when it helps the FBI execute a legal search warrant.

Apple doesn't have the key to every iPhone in escrow but they do have capability to allow for faster and safer hacking of the phone to extract that key. The FBI or some other agency could eventually crack this phone without Apple writing a special version of the OS but I side with the FBI in forcing them to use the existing capability to hasten that process because the user is not just a suspect in a possible crime to be proven in court, they were killed in the act of a crime where this phone may have been used. I fail to see how the rights of a dead terrorist need protection but I do see how the FBI and Apple are trying to twist this one case into a more general argument on privacy. I don't agree that general argument on privacy needs to be decided by this case.

 

[Dembadon]

Heh. Like clearly stated in the link Astronuc posted, in courts, when prosecutors or defenses want to do something, they base themselves on whether it was done in the past or not. If this is done, in the future other prosecutors will use this case as basis to justify that they can do it. Basic law. It is the first thing books about law have in them. Exercises for the students in the form of cases where other cases have been used as example to boost and/or justify prosecutors and/or defenses arguments/motions.

What you're referring to is "legal precedent". However, legal precedent does not guarantee a specific ruling. Even in case law, when a decision in a similar case and same jurisdiction was made, it does not automatically mean the same ruling must be given again. Legal precedent can strengthen a case, but does not automatically decide the ruling. A (federal) judge is not bound by oath to "precedent", but to "the constitution and the laws of the United States".

I know I'm late to this conversation, but I wanted to comment on this part or your post. The hacker in the article makes it seem like it would be impossible for Apple to defend themselves. Not all court decisions qualify as "legal precedent".

Edit: Crossed-out misleading statement

 

[zoobyshoe]

What you're referring to is "legal precedent". However, legal precedent does not guarantee a specific ruling. Even in case law, when a decision in a similar case and same jurisdiction was made, it does not automatically mean the same ruling must be given again. Legal precedent can strengthen a case, but does not automatically decide the ruling. A (federal) judge is not bound by oath to "precedent", but to "the constitution and the laws of the United States".

I know I'm late to this conversation, but I wanted to comment on this part or your post. The hacker in the article makes it seem like it would be impossible for Apple to defend themselves. Not all court decisions qualify as "legal precedent".

This raises the issue of why Apple decided to draw the line where it did.

It seems that what prompted their taking action was that the NY judge, Orenstein (who recently decided in their favor) had questioned law enforcement's legal grounds as far back as October, and alerted Apple to the possible "out" for them:

But the seeds of the government's fight with Apple were sown in the Brooklyn courtroom of U.S. Magistrate Judge James Orenstein.

The government is basing its authority in both cases on the All Writs Act. In recent decades, judges have allowed the government to use the law to require phone companies to assist law enforcement conducting investigations; more recently judges have extended its scope to cover companies like Apple.

But, overseeing the run-of-the-mill drug case involving Feng, Orenstein first raised doubts about whether the All Writs Act applied to Apple. Instead of approving the DEA's request to order Apple to help break into Feng's phone, as other judges routinely have done in other cases, Orenstein asked Apple to weigh in.

According to the Justice Department's court filings in Brooklyn, Apple has cooperated with All Writs Act orders more than 70 times, though those cases involved older model iPhones.

"Only more recently, in light of the public attention surrounding an All Writs Act order issued in connection with the investigation into the shootings in San Bernardino, California, has Apple indicated that it will seek judicial relief, in that matter," according the DOJ court filing. "Apple's position has been inconsistent at best. The overwhelming weight of law and precedent continues to support the government's application in this case."

http://www.cnn.com/2016/02/23/politics/apple-justice-department/index.html?iid=EL

In other words, the judge, Orenstein, who recently decided in their favor, is also actually the person who originally let them know they had a legal reason to question the FBIs demands. Before this, Apple didn't realize any such ammunition existed, so they had gone, begrudgingly, along with it.

This is a different picture than the one I had. I thought Apple had been complying, more or less, happily all this time, and that the occasion for their balking was their plans to upgrade to phones they actually couldn't get into themselves. In fact, it seems the occasion was this judge who suggested the All Writs Act should never have been used this way all along.

What seemed like a routine request — after all, this was a phone using an operating system, iOS7, that Apple had bypassed for the federal government at least 70 times before — suddenly hit a roadblock. In an Oct. 9 ruling, Orenstein identified what he thought was a problem with the government’s argument. Though prosecutors cited a 1985 decision that found that the All Writs Act is a source of authority to issue writs “not otherwise covered by statute,” he said they failed to cite another part of the decision that found that the act does not authorize the issuance of “ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate.”

Thus, he said, the question was whether the government was seeking to fill a gap that Congress had failed to consider, or instead sought to have the court give it authority that Congress chose not to confer.

https://www.washingtonpost.com/worl...76783e-db3d-11e5-925f-1d10062cc82d_story.html

So, this is an example of a judge not accepting a precedent.

 

[Dembadon]

What seemed like a routine request — after all, this was a phone using an operating system, iOS7, that Apple had bypassed for the federal government at least 70 times before — suddenly hit a roadblock. In an Oct. 9 ruling, Orenstein identified what he thought was a problem with the government’s argument. Though prosecutors cited a 1985 decision that found that the All Writs Act is a source of authority to issue writs “not otherwise covered by statute,” he said they failed to cite another part of the decision that found that the act does not authorize the issuance of “ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate.”

Thus, he said, the question was whether the government was seeking to fill a gap that Congress had failed to consider, or instead sought to have the court give it authority that Congress chose not to confer.

https://www.washingtonpost.com/worl...76783e-db3d-11e5-925f-1d10062cc82d_story.html

So, this is an example of a judge not accepting a precedent.

I was under the impression the FBI had been compliant with statutory procedures (warrant issued, due process, etc.). Did the judge indicate how the FBI violated statutory procedures?

 

[zoobyshoe]

I was under the impression the FBI had been compliant with statutory procedures (warrant issued, due process, etc.). Did the judge indicate how the FBI violated statutory procedures?

My reading of the article is that there is some 1985 "decision" about All Writs that the government had previously cited to allow them to do what they wanted to do. The judge, however, found they had failed to cite another part of that 1985 decision that does not authorize them to do that. So, apparently, all this time they actually had no known legal authorization. I would suppose they were complying with what statute they thought existed. The problem was it didn't exist. So, he is questioning the precedent, which was flawed for being based on an incomplete reading of a prior "decision."

 

[Dembadon]

My reading of the article is that there is some 1985 "decision" about All Writs that the government had previously cited to allow them to do what they wanted to do. The judge, however, found they had failed to cite another part of that 1985 decision that does not authorize them to do that. So, apparently, all this time they actually had no known legal authorization. I would suppose they were complying with what statute they thought existed. The problem was it didn't exist. So, he is questioning the precedent, which was flawed for being based on an incomplete reading of a prior "decision."

Interesting. I did a little digging and found judge Ornstein's ruling: https://assets.documentcloud.org/documents/2728314/Orenstein-Order.pdf

JAMES ORENSTEIN, Magistrate Judge:
The government seeks an order requiring Apple, Inc. ("Apple") to bypass the passcode
security on an Apple device. It asserts that such an order will assist in the execution of a search warrant
previously issued by this court, and that the All Writs Act, 28 U.S.C. § 1651(a) (the "AWA"), empowers
the court to grant such relief. Docket Entry ("DE") 1 (Application). For the reasons set forth below, I
conclude that under the circumstances of this case, the government has failed to establish either that
the AWA permits the relief it seeks or that, even if such an order is authorized, the discretionary
factors I must consider weigh in favor of granting the motion. More specifically, the established rules
for interpreting a statute's text constrain me to reject the government's interpretation that the AWA
empowers a court to grant any relief not outright prohibited by law. Under a more appropriate
understanding of the AWA's function as a source of residual authority to issue orders that are
"agreeable to the usages and principles of law," 28 U.S.C. § 1651(a), the relief the government seeks is
unavailable because Congress has considered legislation that would achieve the same result but has not
adopted it. In addition, applicable case law requires me to consider three factors in deciding whether to
issue an order under the AWA: the closeness of Apple's relationship to the underlying criminal
conduct and government investigation; the burden the requested order would impose on Apple; and
the necessity of imposing such a burden on Apple. As explained below, after reviewing the facts in the
record and the parties' arguments, I conclude that none of those factors justifies imposing on Apple
the obligation to assist the government's investigation against its will. I therefore deny the motion.

emphasis mine

I believe what I've bolded are the statutory requirements judge Ornstein believes the government has circumvented or ignored. I imagine there will be an appeal since this was a district court case and I don't see the government just giving up. In the case of an appeal, it will be up to the New York Supreme Court to decide whether to uphold or reject his ruling, I guess.

Edit: Actually, the next step is probably the USSC since this was handled in the US District Court. (Thank you, wife) =)

 

[zoobyshoe]

In trying to read through that (extremely long and dense) ruling, I came across his reference to this, CALEA, law:

As part of its effort to ensure that the law[CALEA] would not stem technological progress, the legislature included several provisions exempting certain kinds of entities from the more general requirement to assist law enforcement in the execution of court orders authorizing various forms of electronic surveillance. These "Limitations" on CALEA's scope, 47 U.S.C. § 1002(b), fell into three categories. First, Congress limited the ability of law enforcement to prescribe or constrain the services communications companies could offer their customers and the equipment and systems used to market them:

Design of features and systems configurations. This subchapter does not authorize any law enforcement agency or office

(a) to require any specific design of equipment, facilities, services, features, or system configurations to be adopted by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services;

(b) to prohibit the adoption of any equipment, facility, service, or feature by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services.

https://assets.documentcloud.org/documents/2728314/Orenstein-Order.pdf
-Pages 15 &16
I mention it because it seems to have a clear bearing on the FBIs overall stand against "going dark."

 

[zoobyshoe]

I believe what I've bolded are the statutory requirements judge Ornstein believes the government has circumvented or ignored.

I am not sure they would be called Statutory Requirements. Rather, my reading is that, at least some of what what you bolded probably would better be characterized as 'Discretionary Guidelines':

If an application under the AWA meets all three of those requirements, the court "may" issue the requested writ in the exercise of its discretion – but it is never required to do so. See, e.g., Application of U.S. in Matter of Order Authorizing Use of a Pen Register, 538 F.2d 956, 961 (2d Cir. 1976), rev'd on other grounds, United States v. N.Y. Tel. Co., 434 U.S. 159 (1977); Morrow v. District ofColumbia, 417 F.2d 728, 736 (D.C. Cir. 1969); Paramount Film Distributing Corp. v. Civic Center Theatre, Inc., 333 F.2d 358, 360 (10th Cir. 1964); Chemical & Indus. Corp. v. Druffel, 301 F.2d 126, 129 (6th Cir. 1962). A court deciding whether to take such discretionary action should consider three additional factors:

1. the closeness of the relationship between the person or entity to whom the proposed writ is directed and the matter over which the court has jurisdiction;

2. the reasonableness of the burden to be imposed on the writ's subject; and

3. the necessity of the requested writ to aid the court's jurisdiction (which does replicate the second statutory element, despite the overlapping language).

https://assets.documentcloud.org/documents/2728314/Orenstein-Order.pdf-Page 11

The court *may* issue the requested writ. It doesn't have to. It's up to their discretion. The guidelines guide their discretion. As I read it.

 

[Dembadon]

I am not sure they would be called Statutory Requirements. Rather, my reading is that, at least some of what what you bolded probably would better be characterized as 'Discretionary Guidelines'

Agreed. I spoke with my wife about it and she corrected me; pretty much exactly how you've interpreted it.

In any case, in the likely event of an appeal, it will be interesting to see how it's handled.

 

[zoobyshoe]

Agreed. I spoke with my wife about it and she corrected me; pretty much exactly how you've interpreted it.

Your wife is involved in the law? Studying law?

In any case, in the likely event of an appeal, it will be interesting to see it's handled.

I've seen other judges already weigh in (not that I remember where since I noted it in passing while pursuing other questions) and it's clear they each have their own style and emphasis. This judge can't be used as a predictor of how future rulings will go. But this judge has, at least, put forth an argument that has to be refuted or agreed with. He's set the perimeter of the battle, I think.

 

[Dembadon]

Your wife is involved in the law? Studying law?

Yes, her father has been in (private) practice for 30 years and she's been working as his paralegal for 10. Since it's just the two of them, she's been able to do some pretty cool stuff, such as draft motions and other documents in federal cases for our state's supreme court. However, she did acknowledge that knowing everyone in one's local court system (personalities, proclivities, pet peeves, etc.) plays a huge role in managing a case. At the federal level, unless you're taking federal cases all the time in a smaller state, you usually know very little about who's on the other end and have to rely on past rulings of similar cases to direct your efforts and points of focus.

 

[zoobyshoe]

Yes, her father has been in (private) practice for 30 years and she's been working as his paralegal for 10. Since it's just the two of them, she's been able to do some pretty cool stuff, such as draft motions and other documents in federal cases for our state's supreme court. However, she did acknowledge that knowing everyone in one's local court system (personalities, proclivities, pet peeves, etc.) plays a huge role in managing a case. At the federal level, unless you're taking federal cases all the time in a smaller state, you usually know very little about who's on the other end and have to rely on past rulings of similar cases to direct your efforts and points of focus.

That's good to hear because it confirms what I've read about how it works: knowing a lot about the judge is often better than knowing the law.

 

[nsaspook]

Great one by John Oliver, even Graham now understands it's a technological/math issue rather than a political issue.

 

[russ_watters]

This raises the issue of why Apple decided to draw the line where it did.

It seems that what prompted their taking action was that the NY judge, Orenstein (who recently decided in their favor) had questioned law enforcement's legal grounds as far back as October, and alerted Apple to the possible "out" for them:

http://www.cnn.com/2016/02/23/politics/apple-justice-department/index.html?iid=EL

In other words, the judge, Orenstein, who recently decided in their favor, is also actually the person who originally let them know they had a legal reason to question the FBIs demands. Before this, Apple didn't realize any such ammunition existed, so they had gone, begrudgingly, along with it.

That's an interesting theory, but I find it hard to believe that one of the largest companies in the world had put so little thought into the issue that they needed someone to suggest to them that they think about it before they decided to think about it.

 

[russ_watters]

[deleted]]

I don't generally look to comedians for legal advice, but since a few people expressed approval of this I tried watching and I'm proud to say I got 3 minutes into it before I got bored with mediocre jokes that had nothing to do with the issue, so I stopped...though I left it running while typing this and at the 2:55 mark he mischaracterizes the issues when he says "Apple cannot currently get into the phone..." Not a good start with the first relevant thing he said.

Not sure if this is an acceptable source for PF or not.

 

[nsaspook]

I don't generally look to comedians for legal advice, but since a few people expressed approval of this I tried watching and I'm proud to say I got 3 minutes into it before I got bored with mediocre jokes that had nothing to do with the issue, so I stopped...though I left it running while typing this and at the 2:55 mark he mischaracterizes the issues when he says "Apple cannot currently get into the phone..." Not a good start with the first relevant thing he said.

Not sure if this is an acceptable source for PF or not.

Apple cannot (but I'm pretty sure our government outside of law enforcement can) currently get into the phones data until they build an update to the OS to add a vulnerability that still leaves the internal secret key intact to extract that data. That's their main argument, they do not want to make a tool to give them that capability using their signing key.

 

[zoobyshoe]

That's an interesting theory, but I find it hard to believe that one of the largest companies in the world had put so little thought into the issue that they needed someone to suggest to them that they think about it before they decided to think about it.

Despite your incredulity, it appears to be what happened:
http://blogs.reuters.com/alison-fra...nspired-apples-encryption-fight-with-justice/

INTRODUCTION AND SUMMARY

In its October 9, 2015 Memorandum & Order (“Order”), the Court raised concerns about the government’s application to compel Apple to take possession of an Apple device the government obtained from a suspect during the investigation of alleged criminal activity so that Apple could bypass the security mechanisms on that device and extract data from it for the government. The Court raised two categorical questions: (1) Does the All Writs Act, 28 U.S.C. § 1651(a), authorize the relief the government seeks? (2) Is the assistance sought from Apple technically feasible and not unduly burdensome? On October 19, 2015, Apple provided its views regarding technical feasibility and burden.1 The Court has now asked Apple to address the other question posed in its Order—whether the All Writs Act can properly compel Apple to render the services the government requests...

http://blogs.reuters.com/alison-frankel/files/2016/02/applebrooklyn-appleonallwrits.pdf

 

[russ_watters]

Despite your incredulity, it appears to be what happened:

That's just a re-statement of the theory. It doesn't provide any actual evidence that Apple's thousands of lawyers hadn't considered this issue until then and it only speculates as to the cause-effect relationship. It doesn't offer any actual direct evidence. If that case has really had such an impact, Apple hasn't mentioned it.

 

[russ_watters]

Apple cannot...currently get into the phones data until they build an update to the OS...

So...are we we agreed that his statement was intentionally misleading? Apple can't "currently" get in because they haven't made the effort to get in, but when they choose to get in they will be able to. Right?

 

[zoobyshoe]

That's just a re-statement of the theory. It doesn't provide any actual evidence that Apple's thousands of lawyers hadn't considered this issue until then and it only speculates as to the cause-effect relationship. It doesn't offer any actual direct evidence. If that case has really had such an impact, Apple hasn't mentioned it.

There is enough circumstantial evidence for me to say, "It appears...," which is all I did. If you have some actual direct evidence that Apple was, in fact, working on this defense even before Orenstein brought it to their attention, and that their lawyers had already decided to draw the line at the Farook phone, post it and I'll be enlightened.

 

[russ_watters]

There is enough circumstantial evidence for me to say, "It appears...," which is all I did. If you have some actual direct evidence that Apple was, in fact, working on this defense even before Orenstein brought it to their attention, and that their lawyers had already decided to draw the line at the Farook phone, post it and I'll be enlightened.

I haven't looked into the timeline for the NY case, but the evidence that the Farook case is where they chose to make their stand is that the Farook case is the one where they publicly chose to make their stand.

 

[zoobyshoe]

I haven't looked into the timeline for the NY case, but the evidence that the Farook case is where they chose to make their stand is that the Farook case is the one where they publicly chose to make their stand.

You're all confused. I wasn't asking for evidence of when they took their stand but why they took it when they did:

This raises the issue of why Apple decided to draw the line where it did.

It seems that what prompted their taking action was that the NY judge, Orenstein (who recently decided in their favor) had questioned law enforcement's legal grounds as far back as October, and alerted Apple to the possible "out" for them:

So, again, If you have some actual direct evidence that Apple was, in fact, working on this defense even before Orenstein brought it to their attention, and that their lawyers had already decided to draw the line at the Farook phone, post it and I'll be enlightened.

 

[256bits]

Edit: Actually, the next step is probably the USSC since this was handled in the US District Court

The appellate court ie US Second Circuit Court of Appeals would be bypassed you think and go directly to Supreme.
Would they accept. I guess they would, I suspect.

 

[russ_watters]

You're all confused. I wasn't asking for evidence of when they took their stand but why they took it when they did:

So, again, If you have some actual direct evidence that Apple was, in fact, working on this defense even before Orenstein brought it to their attention, and that their lawyers had already decided to draw the line at the Farook phone, post it and I'll be enlightened.

The "when" might inform about which drove which. But regardless, no I don't care enough about this particular nuance to investigate it at the moment. So we should just let it go.