The news is that the FBI has requested that Apple comply with a court order to crack a single iPhone---that belonging to one of the suicide killers at the San Bernardino massacre last year. A lot has been said about this case that is wrong. I've read a few articles and comments from relatively knowledgable sources and what they have to say makes a bit more sense than the typically hyperbolic interpretation in the major media---and, of course, social networking sites. <h>The Law is Bigger than You</h> The article <a href="http://blog.simplejustice.us/2016/02/17/the-department-of-homeland-apple/" source="Simple Justice" author="Scott H. Greenfield">The Department of Homeland Apple</a> provides a good primer on what the government is likely to think when the demands of law enforcement collide with the so-called principles of a large corporation. <bq>I explained that a judge, faced with tech impossibility, would just order that it happen. <b>Like ordering the sun to rise in the west, the law doesn’t recognize technological capability or impossibility.</b> The judge orders an outcome and it becomes a party’s problem to make it happen. Can’t be done? Courts enforce the laws of the United States, not the laws of physics.</bq> Why do things work this way? Well, because the law of the land is that the government needs to obtain a warrant in order to search through effects. Once it <i>has</i> a warrant, though, then it damned well better be able to search through those effects and heaven help whoever gets in the way. The government is eminently uninterested in philosophical discussions about whether information to which no-one has access even exists. It will instead claim that Apple could gain access to this data if it truly wanted to. When Apple claims that it's technically impossible, this is viewed as dissembling. <bq>From the government’s perspective, as well as the court’s, it doesn’t give a damn what Apple wants. It wants in because that’s what the government says is critical to whatever hyperbolic claim of saving lives from terrorists it spouts. And from the government’s point of view, that’s its job. And the government gets what it wants.</bq> The government has the weight of being right almost 100% of the time about this: <i>can't</i> almost always means <i>won't</i>. With warrant in hand, the government is under no further obligation to justify its demands. It does not care that the information will likely lead nowhere new. It does not care that the trail it could follow is most likely very, very cold. And it really doesn't seem to care that its actions would be opening Pandora's box, if I'm allowed a bit of hyperbole of my own. Greenfield again: <bq>Precedent says that the government can do this, and so it can. How unreasonable and ridiculous you think it may be is no longer the issue. Welcome to the law.</bq> Politicians with terrible ideas, motivations and reputations---e.g. Francois Hollande, Hillary Clinton, David Cameron---have all been clamoring for backdoors in everything. The FBI is just launching a salvo---likely in coordination with others---to see if it's possible to get those back, back to where we were just a few short years ago before Edward Snowden played a large role in spurring tech companies to build phones with end-to-end encryption to which even didn't have keys. The technical solution proposed by the government may sound quite convoluted, but it is likely the deformed child of a conference table full of lawyers. <h>Is It Better if Apple Wins?</h> The article <a href="http://blog.simplejustice.us/2016/02/18/the-last-bite-of-apples-iphone/" source="Simple Justice" author="Scott H. Greenfield">The Last Bite of Apple’s iPhone</a> expands a bit more on the views outlined above. It's important to note that Greenfield is not <i>for</i> allowing the hack, but trying to talk some sense into techies that don't seem to realize the true gravity of the situation. Many in the tech world are crowing about how the government can't win, when all precedent is on the government's side. Apple can't win...unless the government lets it. Below, Greenfield explains why tech writes like a certain Manjoo from the New York Times are incorrectly framing the issue. <bq>A fundamental precept of American jurisprudence is that “the law is entitled to every man’s evidence.” What Manjoo fails to grasp is that law enforcement holds the trump card: neither the courts, nor the government, care more about Apple’s problems, technologies problems, the fate of world privacy, than they do about their own hegemony. In a battle between the law and all the arguments against compelling tech companies to do as they’re ordered, the courts have a weapon that cannot be dismissed. Judges get to decide which side wins. Judges will not be dismissed because some tech-lover like Manjoo loves tech more than law.</bq> Even granted that we don't want the government to get a rootkit that they could then apply to anyone's phone to crack it (once again, returning us to the situation in the early 2010s), do we really want the tech companies to win? They're not answerable to anyone but themselves whereas the Justice Department is at least tangentially beholden to the voter, at some level. <bq>[...] if Apple, Google, Facebook prevail, and prove themselves mightier than our government, any government, then their CEOs become our new Overlords, omnipotent kings who cannot be stopped or controlled. At the moment, they seem like benevolent kings, standing up for something with which we agree. But did you get to vote on Tim Cook ascending to the throne? As Lord Acton explained, power corrupts. Absolute power corrupts absolutely. We may despise the government’s assertion of power over our privacy, but does that mean we’ll like it better when the power is in Tim Cook’s hands? Or Mark Zuckerberg’s?</bq> This is an excellent question. I'm not really comfortable with <i>anyone</i> having that level of control, but if someone's going to have it, it would better in the hands of an organization that is at least structurally democratic. <h>Legal Background and Salvos</h> The next article is <a href="http://blog.simplejustice.us/2016/02/20/us-v-apple-the-government-seizes-the-narrative/" source="Simple Justice" author="Scott Greenfield">US v. Apple: The Government Seizes The Narrative</a>. <bq quote-style="none">"Although Apple had yet to submit a piece of paper in response to the warrant granted by Magistrate Judge Pym, the government made a tactical decision to pre-empt its response by filing a motion to compel Apple to comply. <bq>Rather than assist the effort to fully investigate a deadly terrorist attack by obeying this court’s order, Apple has responded by publicly repudiating that order.</bq> n itself, this is a remarkable claim. After all, Apple has retained counsel to represent its interests in this matter, and its lawyers have yet to express Apple’s legal position. Public announcements, such as Tim Cook’s letter to Apple customers, are of no legal significance, and Apple’s opportunity to respond to the initial warrant had not elapsed. But the government saw the opportunity, and seized it. The motion to compel is a brilliant tactical move by the government."</bq> He goes on to discuss the All Writs Act from 1789 and how there were previous attempts to establish precedent in the case of U.S. v. New York Telephone. In that case, the Second Circuit held that <iq>the government could not compel innocent third parties to do its bidding</iq>. The Supreme Court reversed, though. In the words of Justice White, <bq>The government had obtained a valid warrant, and “[t]he assistance of the Company was required here to implement” the warrant. [...] citizens have a duty to assist in enforcement of the laws.</bq> This may seem like a weak pile of precedents on which to base a case, but a Supreme Court decision is the law of the land. Greenfield writes that the question really is as follows, <bq>if this issue was determined by a geek, the technological issues would predominate. But it will be decided by a judge, and this warrant raises the issue of hegemony. Will the law allow technology to dictate what the government is permitted to do? Will tech rule, or law?</bq> Even assuming that a corporation/citizen does have a duty to help the government---which sounds kind of hyperbolic and suspicious, even coming from a Supreme Court justice---just how much help are they expected to give? As much as the government needs, no matter how much they screw things up? Who foots the bill? <h>What Does the FBI Hope to Gain?</h> Which data does the FBI actually want? What do they already have? And which gap are they trying to fill? As <a href="https://twitter.com/snowden/status/700823383961792512" source="Twitter" author="Edward Snowden">tweeted</a>, the FBI <iq>already has all of the suspect's communications records---who they talked to and how---as these are stored by service providers, not on the phone itself.</iq> Metadata? Check. Also, <iq>The FBI has received comprehensive backups of all the suspect's data until just 6 weeks before the crime.</iq> In case you weren't aware, Apple makes iCloud backups available to law enforcement when presented with a warrant. They complied. <iq>Copies of the suspect's contacts with co-workers---the FBI's claimed interest---are available in duplicate from those co-worker's phones.</iq> The metadata they want is probably already in their hands, but they suspect that there are <i>new</i> contacts that they need to see, related to the case. Also, <iq>[t]he phone in controversy is a government-issued work phone, subjected to consent-to-monitoring, not a secret terrorist communications device. The "operational" phones believed to be hiding incriminating information, recovered by the FBI during a search, were physically destroyed, not "shielded by Apple".</iq> The device was monitored the whole time---and not by Apple--during the six weeks in question. What more do they want from the phone itself? This seems much more like an attempt to very publicly prove that the government can force a company to bypass its own encryption. All of the information they could hope to gain from the phone would seem to already be in their hands. Any additional information can be obtained from other sources. <h>The Fibbies Fumbled the Ball</h> As detailed in <a href="http://arstechnica.com/tech-policy/2016/02/apple-we-tried-to-help-fbi-terror-probe-but-someone-changed-icloud-password/" source="Ars Technica" author="Cyrus Farivar">Apple: We tried to help FBI terror probe, but someone changed iCloud password</a>, Apple had already tried several times to give the FBI access to the phone legally and within the definition of its own user agreements. <bq>After days of working with the FBI [...t]he idea was to force the iPhone 5C to auto-backup to Farook’s iCloud account. With a legal court order, Apple can and does turn over iCloud data. [...] Apple suggested that the FBI take the iPhone 5C, plug it into a wall, connect it to a known Wi-Fi network and leave it overnight. [...]When that attempt did not work, Apple was mystified, but soon found out that the Apple ID account password had been changed shortly after the phone was in the custody of law enforcement, possibly by someone from the county health department. With no way to enter the new password on the locked phone, even attempting an auto-backup was impossible. Had this iCloud auto-backup method actually functioned, Apple would have been easily able to assist the FBI with its investigation.</bq> So, somebody messed with the phone and triggered the auto-lock feature so that no backups to a warrant-friendly source could be made. The article <a href="http://arstechnica.com/tech-policy/2016/02/if-fbi-busts-into-seized-iphone-it-could-get-non-icloud-data-like-telegram-chats/" source="Ars Technica" author="Cyrus Farivar">If FBI busts into seized iPhone, it could get non-iCloud data, like Telegram chats</a> cites the FBI as claiming that, <bq>[...] we know that direct data extraction from an iOS device often provides more data than an iCloud backup contains.</bq> This contravenes Apple's statements about its own iCloud backup service. It's also what I would be led to believe: if Apple lets me back up to the cloud, then I damn well better be <i>backing up to the cloud</i>. If my phone is stolen or damaged, I don't want to only get <i>some</i> of my data back. I've made a deal with the devil and agreed to give Apple a copy of all that I hold dear---they better actually deliver on their promise. The FBI claims that certain apps don't back up to the cloud, that there are messengers that are end-to-end encrypted. That app's messages will only be on the phone. But won't they also be in an undecryptable format with a separate password, one that Apple can't possibly hope to help the FBI use? The FBI wants Apple to crack the phone so that they can get access to data to which Apple has no access? And what chance does the FBI have of cracking an app that specifically designed to prevent cracking? <h>Wild Speculation!</h> While the article <a href="http://www.cringely.com/2016/02/19/the-fbi-v-apple-isnt-at-all-the-way-you-think-it-is/" source="I, Cringely" author="Robert X. Cringely">The FBI v. Apple isn’t at all the way you think it is</a> ends up floating a pretty specious and utterly unfounded, though hopeful conspiracy theory, it does remind us quite correctly that maybe all is not as it seems with the FBI's order. <bq>There’s something that doesn’t smell right here. The passage of time, the characters involved, the urgency of anti-terrorism make me strongly suspect that the innards of that iPhone are already well known to the Feds. If I were to do it I wouldn’t try cracking the phone at all, but its backup on a Mac or PC or iCloud, so maybe that’s the loophole they are using. Maybe they didn’t crack the iPhone because they didn’t have to. Or maybe some third party has already cracked it, leaving the FBI with that old standby plausible deniability.</bq> It is likely that the FBI has already gotten all of the information it wants and is either (A) trying to set up a case as precedent to allow future cracks with a far better turnaround time or (B) trying to appear helpless in order to assuage a public that has their hackles at least a little bit of the way up. Cringely's theory that Obama has deliberately fooled the FBI into going for it on this case in order to lure them up to a Supreme Court that is currently missing a right-leaning justice who would have almost certainly tipped the scales in the direction of allowing the government access to any and all evidence that can even be purported to exist---well, that strikes me as not just far-fetched, but utter hogwash.