Apple and the FBI: Living in a Bubble

February 26th, 2016

I often wonder whether politicians and other government officials actually know what’s happening in the real world. At least, you would hope they read news from different sources, of different approaches, to get a balanced picture of the events of the day. This is particularly true of the U.S. Department of Justice, the FBI and the White House.

Worse, the media that is supposed to ask the hard questions of these people about the issues usually fall down on the job. Watch any of the cable news networks in the U.S. — it doesn’t matter which actually — and you will be given an online course in how to ask softball questions. All right, a few will ask something a little more nuanced, or question what someone says, but it doesn’t happen terribly often, and there are usually few followups because of time constraints.

When it does, the subjects of the interview will often complain about media “gotcha” questions, which means anything that attempts to divert them from their canned spiel.

With the Apple versus FBI case, the issues ought to be clear-cut, but they aren’t getting the proper coverage, nor is the government demonstrating they are even aware of the consequences of what they’re asking. Or maybe they are, which makes matters all the more troubling.

So Apple on Thursday filed an expected motion to vacate that court order that directed the company to develop software to unlock an iPhone 5c used by one of the San Bernardino shooters. Remember this gadget wasn’t even owned by the terrorist. It was actually a work phone owned by the employer. The phones these criminals actually owned were destroyed by them. They were smart enough to do that, but we are being asked to believe they would still leave incriminating data on a work phone.

Give me a break!

In its motion, Apple’s attorneys explain what would be involved in creating what they called a “GovtOS.” Supposedly it would mean developing a special version of iOS that would not just be able to install itself in a “tech mode,” meaning that it wouldn’t require a user login first to accept the download, but would defeat passcode security protections. So beginning in iOS 8, you have 10 chances to enter a correct passcode. As you continue, the delay between allowing the login requests increases. If, after ten tries, you fail to enter the correct passcode, the iPhone’s data essentially self-destructs. It’s erased.

Now ever since Apple released versions of iOS with encrypted data and the passcode protections, the authorities have made it clear they are unhappy. Early on the director of the FBI wanted Apple to make it possible for governments to access that encrypted data when it’s needed for a criminal investigation, and Apple said no.

It hasn’t helped that the authorities, including the White House press people, continue to misrepresent the essence of the request. Despite their claims that it’s all about retrieving data from a single iPhone, Apple’s response refutes the claim.

“This is not a case about one isolated iPhone. Rather, this case is about the Department of Justice and the FBI seeking through the courts a dangerous power that Congress and the American people have withheld: the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe.”

Their point is that the act of unlocking one iPhone creates a digital file that could then be used to unlock other iPhones. More important, it creates the legal precedent to allow such requests to be granted. Even as the FBI was claiming it was all about the unknown data on one work iPhone 5c, more than a dozen other requests have surfaced, according to published reports. In addition, other legal authorities in the U.S. are just waiting for the doors to open, for Apple to lose its appeal, so they can also submit demands to get access to Apple gear. And don’t forget other countries where such requests will also be made. Don’t forget what happened to BlackBerry in India, where they were forced to let the authorities have access to a smartphone’s data.

Apple’s claim is based on free speech interests, and also asserts that this effort to weaken privacy laws is “forbidden” by the Fourth Amendment of the U.S. Constitution. That’s the amendment that bars “unreasonable searches and seizures.” Just as interesting, after what appeared to be some equivocation on the matter, Microsoft has announced it will file an amicus brief in support of Apple’s position. Clearly they see the threat. And remember that, if successful, the government will happily go after Android and Windows phones to unlock them as well. So it is also expected similar briefs will be filed by Face-book, Google, Twitter and other companies.

I mean it’s one thing to demand Apple provide the data from the iPhone. It another to demand that Apple create software, which does not presently exist, to accomplish that task. This is what is referred to as the “backdoor” that defeats iOS security.

While I wouldn’t pretend to understand the legal niceties, it has to be abundantly clear that the mere fact that demands to unlock other iPhones awaits a final verdict on this case demonstrates a deeper motive. So the San Bernardino case is being used primarily as an excuse to advance the interests of the government to defeat Apple’s encryption.

At the end of the day, it’s very possible that Apple will lose, although you cannot always predict what the courts might do. But it also means that the U.S. Congress ought to consider the matter and see if legislation is called for. But in a climate where the two political parties agree on next to nothing, it is doubtful anything will come of it.

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