Congressman Proposes Law Banning Government From Purchasing Apple Devices

Law Enforcement Groups File Amicus Brief In Favor Of FBI... But Which Undermines DOJ's Claim That This Is Just About One Phone

from the about-that... dept

Fri, Mar 4th 2016 10:37am — Mike Masnick

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So, we already wrote about the nutty amicus filing in support of the FBI by San Bernardino's District Attorney, as well as the tons of amicus briefs in support of Apple. However, there are two more amicus briefs that were filed in support of the Justice Department, and we didn't want to leave those out of our coverage either. The main one is a brief from a ton of law enforcement agencies, namely the Federal Law Enforcement Officers Association, the Association of Prosecuting Attorneys, and the National Sheriff's Association.

The argument is not a surprising one. It's basically "but we really, really, really want to see what's on these phones" combined with "this may inspire others not to obey us."

Amici believe that the position Apple has taken is a dangerous one. First, Apple's refusal to provide assistance has far-reaching public safety ramifications by making it difficult, and in some cases impossible, for law enforcement to fulfill its obligation to investigate crimes, protect the public by bringing criminals to justice, and enforce the law. Second, if Apple were to prevail, the public at large may itself think twice about cooperating with law enforcement when called upon to do so.

Of course both of these are hogwash. First of all, Apple has provided a ton of assistance. But providing some assistance doesn't mean it should be compelled to provide all possible assistance. In fact, this claim ignores the very heart of this case, which is just how far must Apple go, and can a company be compelled to go way beyond what any company has been compelled to do in the past. But this filing misleads the court and pretends it's simply about whether or not Apple should provide any assistance. Similarly, the argument that this kind of info is needed to "enforce the law" is similarly ridiculous. As we've noted, law enforcement never gets "all of the information." It never knows what information has been destroyed, or is hidden and not found, or is just in people's brains. The idea that they need every possible scrap of information has simply never been true, and in fact, our Constitution is designed on the principle that, no, law enforcement doesn't always have the right to access any and all information it wants. That's on purpose.

Separately, this amicus brief -- despite officially being in support of the Justice Department and the FBI may serve to undermine their case. After all, a key part of the DOJ's argument is that this case is just about this one phone. However, as we've discussed, tons of law enforcement folks are salivating over using this ruling as a precedent elsewhere. And this brief makes that quite clear, which might help the judge realize that the Justice Department is being misleading in arguing otherwise.

The other amicus brief in support of the DOJ is one filed on behalf of six individuals who are mostly family members of people who were killed in the San Bernardino attack (five of them, with the other person being the husband of a woman who witnessed the attack, but was not shot). This filing was also not unexpected given that, as we reported earlier, the DOJ reached out to a lawyer to file this amicus brief before even asking the judge for the order. For whatever reason, the actual brief does not appear on PACER, just the application for the amicus brief (it says the brief is attached, but as of my writing this, the full brief does not appear in PACER). I can certainly understand why these individuals would want to support the DOJ here (though, as noted in our earlier posts, at least three other family members have supported Apple's position). But I'm not convinced that their views have any legal impact on the case, just an emotional one.

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Filed Under: all writs act, amicus brief, doj, encryption, fbi, law enforcement, san bernardino
Companies: apple

18 Comments

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Anonymous Coward, 4 Mar 2016 @ 11:34am

"the public at large may itself think twice about cooperating with law enforcement"

That is already the case given that officials dont follow the law.
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Anonymous Coward, 4 Mar 2016 @ 11:38am

trust is earned not blindly given
once gone trust is not earned by empty promises
but, by good deeds
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Anonymous Coward, 4 Mar 2016 @ 12:21pm

Their statement worries me...
"...making it difficult, and in some cases impossible, for law enforcement to fulfill its obligation to investigate crimes, protect the public by bringing criminals to justice, and enforce the law."

Let's just look at what they're implying here. Is law enforcement in the US really obligated to bring criminals to justice? I thought they were supposed to investigate and enforce, full stop?

Secondly, as Mike pointed out, I see nothing in Apple's actions that makes it difficult or impossible for law enforcement to investigate anything. They make it more difficult to gain access to potentially correlated information, but there is plenty to investigate that doesn't require that -- and furthermore, the criminals are already dead. A secondary investigation might be a good idea to see if there is someone else pulling the strings, but that, as Mike pointed out, is a completely different kettle of fish.
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Anonymous Coward, 4 Mar 2016 @ 12:25pm

Apple has stated it will abide by the ultimate decision of the courts. That is to say, if the courts decide unconstitutionally in favor of the FBI, Apple will participate in said unconstitutionality. And if that's the case, make no mistake, the iPhone goes in the trash (likewise with any other participating phone vendor), and I'll encourage as many as will listen to do the same. We are not "obligated" to participate in your masochism.
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Anonymous Coward, 4 Mar 2016 @ 12:31pm

Re:
However, an occasional good deed does not make up for a multitude of badness, but only an newly established pattern of consistent good deeds.
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Anonymous Coward, 4 Mar 2016 @ 12:35pm

"...or law enforcement to fulfill its obligation to investigate crimes, protect the public by bringing criminals to justice, and enforce the law..."

At least they admit it's an OBLIGATION.
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sigalrm (profile), 4 Mar 2016 @ 12:55pm

Re:
Firmware is Firmware. If Apple is forced to do this, iPhones will be the least of the issue.

Substitute "iPhone" with "Device with updatable firmware". the same precedent will work. The specific details wont matter.

"Under the All-writs act, Amazon has been compelled to provide a custom operating system for their Alexa devices"

"Under the All-writs act, Ford has been compelled to provide a custom operating system for their in-vehicle entertainment systems"

"Under the All-writs act, Samsung has been compelled to provide a custom operating system for their smart TV's"

Nothing that's upgradable will be trustable.
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Anonymous Coward, 4 Mar 2016 @ 4:02pm

Finds another leyer of encryption...
If it plays out that Apple is forced to assist in a backdooring process only to find another layer of encryption.. it's LOL time. Seriously people, never trust a hardware provider/ISP/Transit Service to keep your comms secret.
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Bergman (profile), 4 Mar 2016 @ 6:44pm

Re: Their statement worries me...
They've never needed to know everything about a suspect down to the tiniest, most insignificant detail before in order to get convictions, so why are they claiming they can't do their jobs without that level of detail now?
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Anonymous Coward, 4 Mar 2016 @ 9:48pm

Re: Re:
No doubt. Thus the phrase "...likewise with any other participating phone vendor...". The point here, is that, in the absence of "trustable hardware", there is no obligation to "make do" with what's available. Both you and the vendor do without. However, seeing as the scenario is secondary to bending over and allowing the cock of injustice to sodomize your company to begin with, it only makes sense to CONTINUE fighting it, vigorously, in the courts, and if necessary, beyond them.
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Anonymous Coward, 4 Mar 2016 @ 11:18pm

Full Amicus Brief from Families
Found posted copy of full brief
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Anonymous Coward, 4 Mar 2016 @ 11:19pm

Re: Full Amicus Brief from Families
Apparently URL field doesn't post so here:
http://www.scribd.com/mobile/doc/302024267/Amicus-briefs-in-Apple-v-FBI-case
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Anonymous Coward, 5 Mar 2016 @ 11:46am

The NSA could get into the phone if the FBI wanted.
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tqk (profile), 6 Mar 2016 @ 12:44pm

Re:

"the public at large may itself think twice about cooperating with law enforcement"

That is already the case given that officials dont follow the law.

Yes, they are intentionally misinterpreting the law because they're foolish and lazy. There's a hell of a lot of that going around this century.

What are they going to use for information sources once they've soured everyone on them to the point no-one wants to talk to them? What boneheaded, muddled thinking this is. "Fools R us, and proudly so!"
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tqk (profile), 6 Mar 2016 @ 12:57pm

Re:
We are not "obligated" to participate in your masochism.

I think a better word would be emasculation. Cf. Loreena Bobbett.
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tqk (profile), 6 Mar 2016 @ 1:08pm

Re: Finds another leyer of encryption...
Seriously people, never trust a hardware provider/ISP/Transit Service to keep your comms secret.

Sadly, that would only protect those who've found a need to bother learning about all this complex computery stuff, leaving the vast majority of mere users wide open for predation by grasping, psychotic authorities. They don't need this power, they shouldn't have it, and they're wrong to even ask for it. They need to re-think their intentional mis-interpretation of the Constitution.
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JBDragon, 7 Mar 2016 @ 10:37am

Re:
Any Android phone can install any number of 3rd party Encryption software, made out of the U.S. and so there's not a single thing the U.S. Government can do to stop it!

If the Government gets their way, I say Apple should have a Wide open iPhone, and the Government can use that, but in the setup process, if you want Encryption, to grab a copy out of the U.S. Designed by a company, in Apple's control enough where the U.S. Government can't stop Apple. Have a warning if you're a U.S. Government employee, you can't install it. Everyone else can. Needs to be, fast, simple and easy.

Though I guess the U.S. Government could issue a take down request as a terrorist site.
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Hermitian Conjugate, 7 Mar 2016 @ 2:07pm

Federal Butt Inskies
Obviously, it's not just about one phone. Any code that apple writes will have to be thoroughly tested and determined to be robust before it's ever used on that one phone. So that Comey's assertion about code being somehow magically tied to just one phone means he Is stupid enough to believe his own bullshit or that he is willing to let apple run untested code on the phone in question, because he is more stupid. He may be a fascist, be he is not stupid.

This about as many phones as law enforcement can get the courts to order apple to unlock and once the code is written the first time, the burden will be much less for the next phone and the next...
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