Apple Signals Its Craven Capitulation To FBI Backdoor Demands

Among civil libertarians, Apple has — hitherto — garnered many plaudits for its very public defiance of an FBI-obtained court order to create a new backdoor in iPhones, one that would allow anyone in possession of same to easily unlock the device. Apple's open letter to its customers makes very clear what is at stake:

Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation. In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession.

The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a backdoor. And while the government may argue that its use would be limited to this case, there is no way to guarantee such control.

The DOJ has invoked the All Writs Act, a very old, general-purpose law (emboldening mine):

It is essential to this story that the order to Apple is not a subpoena: it is issued under the All Writs Act of 1789, which says that federal courts can issue “all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Read as a whole, this simply means that judges can tell people to follow the law, but they have to do so in a way that, in itself, respects the law. The Act was written at a time when a lot of the mechanics of the law still had to be worked out. But there are qualifications there: warnings about the writs having to be “appropriate” and “agreeable,” not just to the law but to the law’s “principles.” The government, in its use of the writ now, seems to be treating those caveats as background noise.  If it can tell Apple, which has been accused of no wrongdoing, to sit down and write a custom operating system for it, what else could it do?

 In fact, this legal strategy appears to have been decided upon when the political winds for legislation turn sour last year:

In a secret meeting convened by the White House around Thanksgiving, senior national security officials ordered agencies across the U.S. government to find ways to counter encryption software and gain access to the most heavily protected user data on the most secure consumer devices, including Apple Inc.’s iPhone, the marquee product of one of America’s most valuable companies, according to two people familiar with the decision.

The approach was formalized in a confidential National Security Council “decision memo,” tasking government agencies with developing encryption workarounds, estimating additional budgets and identifying laws that may need to be changed to counter what FBI Director James Comey calls the “going dark” problem: investigators being unable to access the contents of encrypted data stored on mobile devices or traveling across the Internet. Details of the memo reveal that, in private, the government was honing a sharper edge to its relationship with Silicon Valley alongside more public signs of rapprochement.

You might think that this would apply only to terrorism cases, but as Jim Comey made plain, the FBI intends to use such backdoors in even such common instances as car wrecks. So it was with great sadness I read a story today in Gizmodo that Tim Cook now is calling for the creation of a government commission to arbitrate the request. The reading I have of this is

1. He does not think Apple can win the court case.
2. He is perfectly aware of who would populate such a commission, i.e. surveillance state apologists who would immediately roll over for the government.

Which is to say, charges that Apple is making a show of opposing this order for purely commercial reasons appear now to have more weight than they did Friday. Jim Comey's cynical Lawfare blog post on the subject could be right, for the wrong reasons, but then, he's the one putting Apple's neck in a noose.

Footnote: Why did Gizmodo understand what's at stake here on Wednesday...

If Apple makes this software, it will allow the FBI to bypass security measures, including an auto-delete function that erases the key needed to decrypt data once a passcode is entered incorrectly after ten tries as well as a timed delay after each wrong password guess. Since the FBI wants to use the brute force cracking method—basically, trying every possible password—both of those protections need to go to crack Farook’s passcode. (Of course, if he used a shitty password like 1234, the delay wouldn’t be as big a problem, since the FBI could quickly guess.)

The security measures that the FBI wants to get around are crucial privacy features on iOS9, because they safeguard your phone against criminals and spies using the brute force attack. So it’s not surprising that Apple is opposing the court order. There is more than one person’s privacy at stake here!

... yet utterly forget it today?

The feds disagree. In a Sunday night editorial on Lawfare, a national security blog supported by the Brookings Institute, FBI director James Comey claims that the case “isn’t about trying to set a precedent or send any kind of message.” Comey begs:

We simply want the chance, with a search warrant, to try to guess the terrorist’s passcode without the phone essentially self-destructing and without it taking a decade to guess correctly. That’s it. We don’t want to break anyone’s encryption or set a master key loose on the land.

So it’s a classic he-said-he-said situation. ...

No, it's not. Gizmodo got blinded by Comey's authoritarian lunacy.