Apple Tells Court That The DOJ Is Lying About It Advertising The Fact That Encryption Keeps Out Law Enforcement

from the not-how-it-works dept

Wed, Mar 16th 2016 8:25am — Mike Masnick

We already covered Apple's reply brief in the fight over getting into Syed Farook's encrypted work iPhone, highlighting a number of lies by the DOJ's filing. But I wanted to focus on a few more highlighted in the additional declarations filed by Apple as well. The DOJ kept insisting that Apple built this feature specifically to keep law enforcement out, which is ridiculous. Apple notes repeatedly that it built the feature to keep its customers safer from malicious attacks, most of which are not from law enforcement. But the DOJ keeps pretending that it was a deliberate attempt to mock law enforcement. In the DOJ's filing:

Here, Apple has deliberately used its control over its software to block law-enforcement requests for access to the contents of its devices, and it has advertised that feature to sell its products.

As part of its reply, however, Apple has a company advertising director, Robert Ferrini, note that the company has never promoted keeping law enforcement out as a feature in its ads:

Since the introduction of iOS 8 in October 2014, Apple has placed approximately 1,793 advertisements worldwide—627 in the United States alone—of different types, including, print ads, television ads, online ads, cinema ads, radio ads and billboards. Those advertisements have generated an estimated 253 billion impressions worldwide and 99 billion impressions in the United States alone (an impression is an estimate of the number of times an ad is viewed or displayed online).

Of those advertisements, not a single one has ever advertised or promoted the ability of Apple’s software to block law enforcement requests for access to the contents of Apple devices.

Indeed, only three of those advertisements reference security at all, and all three related to the Apple Pay service, and then only to say that Apple Pay is "safer than a credit card, and keeps your info yours."

I'm assuming the DOJ, if it decides to push this point, will argue that it wasn't talking about those kinds of advertisements, but Apple's statements to the press, but still, there's a strong point here. Contrary to what the DOJ is saying, no, the company does not proactively advertise the encryption as a way to keep law enforcement out. Or, in short, no, FBI, strong encryption on the iPhone just isn't about you.

C D Cal 16 Cm 00010 Dckt 000177 021 Filed 2016 03 15 (PDF)C D Cal 16 Cm 00010 Dckt 000177 021 Filed 2016 03 15 (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: advertising, all writs act, doj, encryption, fbi, going dark, law enforcement, robert ferrini
Companies: apple

33 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Éibhear (profile), 16 Mar 2016 @ 8:42am

1984
I don't know. That ad from 1984 seemed quite anti-establishment...
[ link to this | view in thread ]
ysth (profile), 16 Mar 2016 @ 8:46am

Beautifully put
"malicious attacks, most of which are not from law enforcement"

Almost worthy of putting on a T-shirt.
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2016 @ 8:51am

Good. The US DOJ needs to keep being whacked on the nose with a newspaper until somebody finally realizes that government lawyers should not act like sleazy storefront lawyers chasing accident claims.
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2016 @ 9:00am

Re: 1984
To be fair, the establishment that the Macintosh was against was IBM, not the government. With IBM's history with Nazi Germany, that distinction seems less nuanced.
[ link to this | view in thread ]
Blaine (profile), 16 Mar 2016 @ 9:27am

Not as catchy as the original
You're so vain, you probably think this security feature is about you
You're so vain, I'll bet you think this security feature is about you
Don't you? Don't you?
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2016 @ 9:28am

Then grow a set people
and bar grieve the DOJ lawyers. Filing bogus paperwork with a court is supposed to be a no-no and could cost ya your bar card.

So figure out what States these clowns hold a bar card and bar grieve 'em. Most States ANYONE can file the grievance. I don't know of any State where you have to be a resident to file the paperwork in that State.
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2016 @ 9:31am

So according to their own legal presentation, Apple hardly mentions security at all in their advertising. I guess this means their customers aren't paying much attention to it. So it wouldn't hurt Apple much to cooperate with the FBI and crack the phone. It wouldn't do any damage to their brand or business model, to speak of.
[ link to this | view in thread ]
Rapnel (profile), 16 Mar 2016 @ 9:38am

Re:
Wat?

C'mon, man. If I'm reading what you threw down here the way you intended it to be read then go away and come back after the big kids are done with the pool.
[ link to this | view in thread ]
Ninja (profile), 16 Mar 2016 @ 9:48am

Or, in short, no, FBI, strong encryption on the iPhone just isn't about you.

FBI to DOD: MOMMY, THEY ARE BEING MEAN, THEY AREN'T TREATING ME AS THE CENTER OF THE UNIVERSE! I am entitled to every single bit of info ever produced just in case somebody is a criminal, right mommy? *pouts*
[ link to this | view in thread ]
Whatever (profile), 16 Mar 2016 @ 9:54am

I personally think Apple isn't telling the truth here.

https://www.apple.com/privacy/

"Finally, I want to be absolutely clear that we have never worked with any government agency from any country to create a backdoor in any of our products or services. We have also never allowed access to our servers. And we never will.

Our commitment to protecting your privacy comes from a deep respect for our customers. We know that your trust doesn’t come easy. That’s why we have and always will work as hard as we can to earn and keep it."

Mr Cook himself makes it clear that their intent is to keep the government out. Turning on encryption by default in 2014 was part of that process.

Did Apple just step in their own pile?
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2016 @ 10:04am

Re:
Except Apple is clearly telling the truth - their statement about their advertising history is solid and accurate. You certainly could argue that they are being disingenuous, but then you'd have to stop being disingenuous for thirty seconds, and we all know that aint gonna happen.
[ link to this | view in thread ]
That One Guy (profile), 16 Mar 2016 @ 10:09am

Re:
'Keep the government out' in the sense that 'No you're not allowed special access, and no you're not allowed access to the data directly, if you want something you ask us and if we can we'll get it for you' sure.

Encryption by default is meant to keep out voyeurs and unauthorized access from all groups, that it does so to those with badges as well unless they present a court-order to the owner of the device is just a happy coincidence.
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2016 @ 11:23am

Re: Then grow a set people
I doubt there exists a bar brave enough to risk annoying the DOJ.
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2016 @ 11:54am

Re: Re: Then grow a set people
a bar brave enough

Then we lack the Rule of Law in the Nation.

If you can't have an honest Court with honest officers of the Court, what's the point of this whole thing?
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2016 @ 12:18pm

Re: Re: Re: Then grow a set people
--If you can't have an honest Court with honest officers of the Court, what's the point of this whole thing?

To hold the wool over the sheeples eyes and keep them under control.
[ link to this | view in thread ]
Ninja (profile), 16 Mar 2016 @ 12:44pm

Re:
Mr Cook himself makes it clear that their intent is to keep the government out.

What I see is Cook expressly stating that they are not in cohorts with the government. Which is far from advertising the way the FBI implied.

This is about trust. People are severely distrustful of the Government these days and if you have any rumor or doubts that you are actively working with the Govt to share your users data freely then you should dispel said rumor. That's what they did.
[ link to this | view in thread ]
Mike Acker (profile), 16 Mar 2016 @ 1:43pm

important read
http://arstechnica.com/tech-policy/2016/03/fbi-v-apple-is-a-security-and-privacy-issue-what-about-ci vil-rights/

something about "the right of the people peaceably to assemble"
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2016 @ 3:23pm

>So it wouldn't hurt Apple much to cooperate with the FBI and crack the phone. It wouldn't do any damage to their brand or business model, to speak of.

To understand Apple's position, you have to remember the context. OK, they have raised control-freakery to an art form. But there is sanity in their method.

iPhones are expensive (that, you need to understand, is "business model") and it's in Apple's interest to make them desirable (that, you need to understand, is called "branding"). But ... things that are expensive, desirable, and portable are targets for thieves. And, surprise--not!--several years ago there were numerous reports of "iPhone snatch" rings.

This hurts Apple customers in two ways. They lose their valuable property, and they lose even-more-valuable information. It is therefore critical to Apple's business strategy to reduce theft, and reduce its consequences when it happens.

OK, so first they encrypt the phone. Thieves have a harder time using it, right, and that reduces the incentive to steal. But, thieves being thieves, they hire hackers to jailbreak the phones....

Second, Apple works harder to block jailbreaking: if they can be perfectly successful, that reduces iPhone value to zero--for thieves, at least. They are (right now) very close to successful, and iPhone thefts have dropped by an order of magnitude from their height.

Now, device-jailbreaking isn't inherently a moral offense, or even a legal offence. For over a hundred years, "tinkering" has been considered a laudable national pastime, and the knowledge gained has started innumerable young people on the road to engineering careers. Most jailbreakers aren't criminals and don't want to be: they're insatiably curious.

But from Apple's point of view, jailbreaking an iPhone is a necessary step in the iPhone-theft process. All iPhone thieves have to be jailbreakers, even if the converse is not true. So preventing jailbreaking _is_ preventing iPhone theft. That makes iPhones more valuable to honest customers, and -- making your products more valuable to your customers is the _only_ honest business model.

And all these changes the Fibbies want, are aimed at making jailbreaking easier. Which reduces security for every iPhone customer in the world, and is a direct positive contribution to every would-be iPhone thief in the world.

So it's not a choice between helping terrorists or helping a company brand. The terrorists are pushing up the daisies. They have gone to meet their maker. They are ex-terrorists.

It's a choice between helping phone thieves, and protecting honest customers.

Now, some people apparently think Apple has the ability, right, and obligation to determine which of their customers are "honest" and deserve protection, and which of their customers are "rotten" and deserve to have their iPhones stolen by people with allegedly-good motives. Without discussing right or obligation, I merely suggest, as a programmer, that I believe they have not that ability.
[ link to this | view in thread ]
John Fenderson (profile), 16 Mar 2016 @ 5:39pm

Re: Re: 1984
Not to mention that the ad was for the Macintosh, which represented a 180 degree about-face for Apple, from a free-as-in-speech platform that was friendly to hobbyist hardware and software people to a closed, tightly controlled one that was unfriendly.

In the day, that ad seemed more a case of projection on the part of Apple than anything else, and even more so in hindsight.
[ link to this | view in thread ]
Anonymous Coward, 16 Mar 2016 @ 5:40pm

Re:
Are your arms still attached to their sockets?

Just checking, because holy fuck that was a massive stretch.
[ link to this | view in thread ]
Whatever (profile), 16 Mar 2016 @ 8:30pm

Re: Re:
Exactly. But it is clearly marketing Apple by saying "we will keep the government out of your phone". If that isn't marketing, what is?

Read the first three paragraphs here from 2014, and the roll out of IOS 8... http://arstechnica.com/apple/2014/09/apple-expands-data-encryption-under-ios-8-making-handover-to-co ps-moot/

It's clear the intention is to make it so that Apple can no longer cooperate with police to decrypt phones. It's a key part of the ios 8 update, something they took to the media. No matter how you slice it, they very intentionally moved themselves out of the line of fire and crowed about it.
[ link to this | view in thread ]
Whatever (profile), 16 Mar 2016 @ 9:48pm

Re:
"Now, some people apparently think Apple has the ability, right, and obligation to determine which of their customers are "honest" and deserve protection, and which of their customers are "rotten" and deserve to have their iPhones stolen by people with allegedly-good motives."

Apple isn't being asked to make any deterimination as to who is good or bad. That's crap. The courts get to decide if the police / feds meet the standard of probable cause. Apple isn't being asked to be a judge or jury on anything, just to stop helping people hide what the courts have ordered revealed.
[ link to this | view in thread ]
That One Guy (profile), 16 Mar 2016 @ 11:16pm

Re: Re: Re:
Oh noes, the police and government no longer get to do a run-around of the fifth, and are forced to go to the owner of the device, with all that entails, if they want access to it.

Yeah, not seeing a problem, they should have been going to the owners of the devices from the get-go, Apple just removed a loophole they shouldn't have been using in the first place.
[ link to this | view in thread ]
Anonymous Coward, 17 Mar 2016 @ 12:33am

hopefully apple will be allowed to slap opposing council with with the full ream of paper containing all of the claims about cyber-security, cyber-warfare, and cyber-terrorism. the government is just getting lazy it used to be when they made up a threat they actually acted like they were doing something about it to placate the american people, now their getting people scared and complaining that they're going elsewhere for their protection.
[ link to this | view in thread ]
Anonymous Coward, 17 Mar 2016 @ 12:39am

Re:
but the cyber-terrorist arent you afraid of the cyber-terrorist, identidy theft, cyber crime, and the dark web. your supposed to be afaid whats wrong with you please report to your closest government facility to be examined for communism. the gvernement seems to have screwed up here and tried to make us afraid of two things that are at odds here i guess taking on apple was a good smoke screen to distract us while they work out how to come up with a terrorist plot that sorts out their priorities.
[ link to this | view in thread ]
Anonymous Coward, 17 Mar 2016 @ 12:44am

Re: Re: Re:
i believe you glossing over all the trials and tribulations that got them there. I would suggest googling snowden. just in case that doesn't lead you somewhere

https://tech.slashdot.org/story/13/10/30/1735257/nsa-broke-into-links-between-google-yahoo-datacente rs

the government pretty much declared war on silicon valley then wants to know why they don't want to share there toys anymore.
[ link to this | view in thread ]
Anonymous Coward, 17 Mar 2016 @ 12:47am

Re:
read the bill of rights its not that long. once you get to the bottom start over at the top. repeat until all the voices quite down.
[ link to this | view in thread ]
Ninja (profile), 17 Mar 2016 @ 5:49am

Re: Re: Re: Re:
He either doesn't care or is incredibly dumb and can't understand. Seems he's allergic to facts.
[ link to this | view in thread ]
Anonymous Coward, 17 Mar 2016 @ 6:33am

Re: Re: 1984
oh YES
because the US government has no history with Nazi Germany,
no project paperclip, nothing !
[ link to this | view in thread ]
Anonymous Coward, 17 Mar 2016 @ 12:20pm

I have to wonder when did the US government give itself the legal right to lie to the courts, the public, and anyone listening, with total impunity. Are they now completely above the law? Everything they have stated in this case, is pure bullshit and there is just no way they can claim they just mis-spoke themselves, or misunderstood the law. They are literally fabricating falsehoods in an attempt to trick the courts into giving them more power. It is truly disgusting to watch. Even more so knowing there is no legal repercussion or reason for them to stop lying.
[ link to this | view in thread ]
Anonymous Coward, 17 Mar 2016 @ 1:33pm

Re:
I have to wonder when did the US government give itself the legal right to lie to the courts, the public, and anyone listening, with total impunity

Don't confuse the Government with just being a lawyer.
[ link to this | view in thread ]
Anonymous Coward, 17 Mar 2016 @ 1:46pm

Re:
is no legal repercussion or reason for them to stop lying.

On occasions there are. Craig Neidorf and the phrack case is an example where a lie was actually acted by on the Judge. United States V. Riggs. And the lawyers who were caught out were never seemingly punished.
[ link to this | view in thread ]
Studious Mugwump, 18 Mar 2016 @ 5:20pm

Re: Re:
If the government's lawyers lie, specifically to trick the courts into giving the government legal powers it has no right to possess and does not actually need, then this is ok?? This is legal? Does lady justice remove the blindfold for the government and those it employs?

Concerning legal repercussions for lawyers lying to the courts:

"And the lawyers who were caught out were never seemingly punished."

Somehow this final sentence above appears to negate the first sentence:

"On occasions there are."

Confusing.

Are you a lawyer?
[ link to this | view in thread ]