Apple, Encryption, and Compliance

If you haven’t heard by now about the FBI attempting to force Apple to create a customized hacking tool to investigate the contents one the San Bernadino shooters iPhone by now, just realize that this is an important story.

Go here for the industry insider reason why creating a customized hacking tool for a “single iPhone” is not feasible: If you only read one blog post about this issue, that is the one to read (except for this one of course since you are already here).

If that doesn’t convince you, lets look at this argument here:

It seems to me that almost all the comments I have read about this issue miss the point.  What the government is asking Apple to do is provide technical assistance in conducting a search pursuant to a validly issued search warrant.

All you supporters of Apple’s position: do you believe there is ever a valid reason for a judge to issue a search warrant, based on a presentation of probable cause?  If there is just cause for a warrant that authorizes a thorough search of your home, your computer, your records, etc., what logical justification is there for the contents of your phone to be exempted?

In our system of laws, what justification is there for Apple to set itself up as an authority superior to a judge?  That way lies anarchy, I think.

Of course Apple has the right to appeal and make its case, but I don’t see why the standards or privacy considerations applying to searching phones should differ from those that apply to other searches. – Robert Halstead comment to :

I’d like to point out that issuing a search warrant for a dead man’s phone is literally the dumbest thing I’ve read on the internet lately. The guy who committed the crime is dead, and no warrant shall be issued but based on probable cause. There is no one to arrest, so without further evidence of an actual crime with a living criminal to hunt down, any evidence found on the iPhone is simply a “fishing expedition” to see if the FBI can’t find more people to dig into.

Point two, what logical reason is there for you to encrypt your phone? The right to avoid self incrimination is one. Even if you didn’t do the crime for which you are being investigated (if you happen to be alive, which isn’t the case in these circumstances) you probably have SOMETHING on your phone that could be used to build SOME case against you. You are under no legal obligation to assist in your own prosecution (and your defense attorney would really like it if you didn’t make their job any harder) so yes, you as John Q. Citizen have the right to encryption for legitimate purposes of giving Federal Prosecutors who have a 96% conviction rate any more ammo to charge you with

Point three, in our system of laws if a Judge tells you to commit an act that will make millions of people all over the world vulnerable to crime, extortion, and identity theft, do you? In essence this is what a Judge is telling Apple to do based on the assurance of the FBI that once the completely customized piece of software that they are requiring Apple to generate without any compensation will never be used for evil after they turn it over to the FBI. In other news a 16 year old British kid just got arrested for hacking the CIA directors emails: the Office of Personnel Management doesn’t figure out it has been hacked for over a year  and the FBI can’t even keep it’s personnel details off the web

So here is the real crux of Robert Halstead’s argument, “I don’t have any clue about how a phone is different from a house in terms of a search warrant.” Really I’m glad that Robert Halstead admits ignorance, because a proper search warrant outlines WHAT THE HELL IT IS THE POLICE ARE AUTHORIZED TO SEARCH FOR! If your house is being searched for drugs, they can’t take your laptop or phone unless the laptop and phone are specifically named in the search warrant. If they are, great, they can take what they want from the house.

Lastly, the FBI can crack that phone without Apples assistance. It would just cost time and money (and possibly some of that inter-agency coordination that the FBI is so famous for resisting). The easy way to do it is to buy the same model iPhone, load the same IOS version on there, and get a bunch of programmers into a room somewhere where they make the tool to crack that particular security problem. No telling how long it would take, but if the FBI really wants that data, they have the means to do so without Apple’s assistance. After all putting a bunch of people in a room to work on the problem is what the Apple would have to do to comply with the “reasonable” FBI request.

In the slide towards fascism, people like to make the argument “If you’ve got nothing to hide you won’t mind the intrusion of privacy.” Which is basically saying, “if you are a heterosexual man you won’t mind this digital rectal examination because a female cop will be inspecting your insides.” The problem is that every time we make it easier on the Government to get into our personal data and information we make it easier for bad guys (who may be indistinguishable from the government some days).

You wouldn’t go around with your bank account, credit card with info, pin number, birthday, mothers maiden name, and all sorts of other data on a business card that you just handed out to everyone to use as they saw fit, so why would you not encrypt the one device that has ALL that data ripe for the picking? The San Bernadino shooter is dead, and so he probably doesn’t care too much about his private information getting out there, but before he died he encrypted his phone, and asking Apple to make MILLIONS of other people less safe because of it is morally wrong and a complete abuse of the “reasonable assistance” clause and utter failure of the All Writs Act.

In the case U.S. v. New York Telephone Co. 434 U.S. 159 (1977), the Supreme Court established a three-factor test for the admissible application of the All Writs Act: the party ordered to perform an action cannot be too far removed from the case, the government’s request cannot impose an undue burden on that party, and the party’s assistance is necessary. – from Wikipedia’s entry on the All Writs Act

The only thing that applies to Apple in this case is that Apple is not too far removed from the case as they were the corporation who manufactured the iPhone. I believe the FBI request imposes an undue burden on Apple and Apple consumers, and I also believe that the FBI does not need Apple’s assistance to develop a hacking tool.

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One Response to Apple, Encryption, and Compliance

  1. Pingback: Don’t trust the Government to protect your information | Wandering Through The Night

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