DOJ Reached Out To San Bernardino Victims For Legal Support Before Going To Court Against Apple

from the and-they-want-us-to-believe-it's-not-a-pr-campaign? dept

The FBI keeps insisting that it's legal fight with Apple is not about the precedent and not about using the tragic incident in San Bernardino as an emotional plug to break down strong encryption. And yet... now it's come out that even before going to court, federal prosecutors from the DOJ went to the families of those killed in the San Bernardino attacks and asked them to file an amicus brief of support with the court:

Stephen Larson, the lawyer for the victims, told the Guardian the office of the US attorney for the central district of California contacted him on 14 February with a request to file a brief asking Apple to aid in unlocking the phone.

On 16 February, the federal attorney, Eileen Decker, requested a federal magistrate, judge Sheri Pym, issue a warrant for the unlocked iPhone 5C. Pym provided it that day.

Even more interesting? Larson himself hadn't previously been representing any of the victims. Instead, the local district attorney "connected him" with survivors and relatives of those killed.

It's not clear who he's actually representing right now. So far, at least a few of the relatives of those murdered have actually come out in support of Apple. We already mentioned Karen Fagan:

Karen Fagan, of Upland, is the ex-wife of Harry “Hal” Bowman and mother of their two daughters.

“This is a very different thing than asking for data that is Apple’s possession,” Fagan wrote in an email. “They have complied with all of those requests. This is asking them to build a new piece of technology that could be used to invade the privacy of any iPhone. Furthermore, the FBI is citing an act written in 1789 (instead of new legislative action) to justify their request.

“I know that it is a tempting argument to say that we should allow government access to private information in order to make people feel safe. After all, the argument goes, people who aren’t breaking the law have nothing to hide. While that may be true, American citizens have been granted privacy rights, and this request breaches those rights,” Fagan wrote.

And then there's Carole Adams as well:

Her son was killed in the San Bernardino, Calif., massacre — but Carole Adams agrees with Apple that personal privacy trumps the feds’ demands for new software to break into iPhones, including the phone of her son’s killer.

The mom of Robert Adams — a 40-year-old environmental health specialist who was shot dead by Syed Rizwan Farook and his wife — told The Post on Thursday that the constitutional right to privacy “is what makes America great to begin with.”

[....]

“This is what separates us from communism, isn’t it? The fact we have the right to privacy,” she said. “I think Apple is definitely within their rights to protect the privacy of all Americans.

I'm sure that plenty of others will sign on to Larson's amicus brief, but the fact that it was all pre-vetted by the DOJ certainly seems noteworthy, and highlights how the DOJ/FBI recognize how much of a publicity stunt this case really is.

Filed Under: amicus brief, doj, fbi, precedent, publicity stunt, san bernardino, victims
Companies: apple

Pew Asks Stupid Misleading Question About FBI Apple Fight, Gets Stupid Misleading Answers

from the shocking,-I-know dept

The folks over at Pew Research usually do pretty good work, but they decided to weigh in on the Apple / FBI backdoor debate by asking a really dumb poll question -- the results of which are now being used to argue that the public supports the FBI over Apple by a pretty wide margin. But, of course, as with everything in polling, the questions you ask and how you phrase them are pretty much everything. And here's the thing. The question asked was:

As you may know, RANDOMIZE: [the FBI has said that accessing the iPhone is an important part of their ongoing investigation into the San Bernardino attacks] while [Apple has said that unlocking the iPhone could compromise the security of other users’ information] do you think Apple [READ; RANDOMIZE]?

(1) Should unlock the iPhone (2) Should not unlock the iPhone (3) Don't Know.

But that's not the issue in this case!

As noted in the past, when it's possible for Apple to get access to data, it has always done so in response to lawful court orders. That's similar to almost every other company as well. This case is different because it's not asking Apple to "unlock the iPhone." The issue is that Apple cannot unlock the iPhone and thus, the FBI has instead gotten a court order to demand that Apple create an entirely new operating system that undermines the safety and security of iPhones, so that the FBI can hack into the iPhone. That's a really different thing.

And it does a massive disservice by Pew to (1) ask the wrong question and then (2) make people think that the public supports the FBI's view when Pew itself misrepresented the issues in the case in the first place. And of course, the mainstream media, like the Washington Post (who normally is better than this) puts out a bullshit story claiming that "Apple is fighting a war most Americans don't believe in." But that's not what the poll actually says. You'd think that reporters might actually take the time to understand the story and the poll first, but apparently that's too difficult, as compared to the easy, if misleading headline.

As Ed Snowden himself pointed out, this is nothing more than misinformation:

Pew poll finds when the government misinforms the public, the public is misinformed. Scientists baffled. https://t.co/8LcRg7ismw

— Edward Snowden (@Snowden) February 22, 2016

But even that's not entirely accurate. In this case, it really seems like the fault is with Pew for asking a misleading question over an issue that is not up for debate here. And the press is similarly at fault for running with it and appearing to not understand either. Yes, the government is partially responsible for being misleading, but in this case, I'd put them third in line behind Pew and reporters. If people were accurately informed and actually understood the real issues, the poll would likely be quite different. But Pew didn't bother to understand the issue, and asked a questions that totally misrepresents the issue to the point that the results are actually completely meaningless to the ongoing debate.

Filed Under: all writs act, backdoors, doj, encryption, fbi, iphones, polls, san bernardino, unlocking
Companies: apple, pew

FBI Director: We're Only Forcing Apple To Undermine Security Because We Chase Down Every Lead

from the bull-and-shit dept

Over the weekend the narrative the FBI has been trying to spread around the legal effort to get Apple to build a system that lets the FBI hack Apple customers began to crumble, as it was revealed that the FBI's own actions were largely responsible for the fact that the information on Syed Farook's phone was no longer accessible. That gave more and more weight to the argument that the whole reason that the FBI did this was to set a precedent that judges can force companies to hack their own customers, should the FBI want them to do so. Again, it seems fairly obvious that the FBI chose this case in particular, because basically everyone agrees that Farook and his wife were bad people who murdered a bunch of Farook's co-workers. That obviously makes the FBI's case more sympathetic for setting a precedent. But with the shady actions that resulted in the data being locked up, that nice story was starting to slip away.

Apparently the FBI decided to send in the big guns to try to rescue the narrative. FBI Director Jim Comey -- the guy who's been fear mongering the longest about strong encryption -- put up a blog post on the surveillance apologist blog Lawfare -- in which he insists that this case isn't about all the things it's really about:

The San Bernardino litigation isn't about trying to set a precedent or send any kind of message.

No, he claims, it's really because the FBI wants to "look the survivors in the eye" and say they followed every lead:

It is about the victims and justice. Fourteen people were slaughtered and many more had their lives and bodies ruined. We owe them a thorough and professional investigation under law. That's what this is. The American people should expect nothing less from the FBI.

The particular legal issue is actually quite narrow. The relief we seek is limited and its value increasingly obsolete because the technology continues to evolve. 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. I hope thoughtful people will take the time to understand that. Maybe the phone holds the clue to finding more terrorists. Maybe it doesn’t. But we can't look the survivors in the eye, or ourselves in the mirror, if we don't follow this lead.

Of course, if you know anything about the FBI and how it operates, this is guffaw inducing. There are tons of cases where the FBI doesn't follow every lead possible. In fact, it has a pretty long history of ignoring important leads. And, lately, the FBI's main focus seems to be on creating its own terrorist plots so it can have its agents play dress up and pretend they took down a terrorist ring. In many of those cases, the FBI failed to chase down tons of leads, and instead entrapped or framed otherwise innocent people. The idea that it suddenly is concerned with chasing down every lead is ludicrous.

Comey is playing politics here, not giving a legitimate reason. And, yes, while some of the families of victims in San Bernardino are supporting the FBI, some of them think the FBI is going too far.

The ex-wife of another deceased victim, meanwhile, said she is concerned that the court might be jeopardizing iPhone users’ privacy rights.

Karen Fagan, of Upland, is the ex-wife of Harry “Hal” Bowman and mother of their two daughters.

“This is a very different thing than asking for data that is Apple’s possession,” Fagan wrote in an email. “They have complied with all of those requests. This is asking them to build a new piece of technology that could be used to invade the privacy of any iPhone. Furthermore, the FBI is citing an act written in 1789 (instead of new legislative action) to justify their request.

“I know that it is a tempting argument to say that we should allow government access to private information in order to make people feel safe. After all, the argument goes, people who aren’t breaking the law have nothing to hide. While that may be true, American citizens have been granted privacy rights, and this request breaches those rights,” Fagan wrote.

How will Comey look Karen Fagan in the eye and tell her he jeopardized the privacy and safety of millions of Americans just to find out that there's nothing useful on the guy everyone already knows murdered her husband?

Comey, meanwhile, reverts back to the same talking point he's been making for months, that he just wants a "public debate" on this:

Reflecting the context of this heart-breaking case, I hope folks will take a deep breath and stop saying the world is ending, but instead use that breath to talk to each other. Although this case is about the innocents attacked in San Bernardino, it does highlight that we have awesome new technology that creates a serious tension between two values we all treasure: privacy and safety. That tension should not be resolved by corporations that sell stuff for a living. It also should not be resolved by the FBI, which investigates for a living. It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before. We shouldn't drift to a place—or be pushed to a place by the loudest voices—because finding the right place, the right balance, will matter to every American for a very long time.

And yet, we've had that discussion and the public spoke out by buying and using tools with strong encryption -- and by telling Congress they didn't want a law outlawing strong encryption. So, contrary to Comey's claims, it is the FBI that's trying to force the issue by going to court over this particular search warrant.

Filed Under: backdoor, encryption, fbi, going dark, hacking, james comey, precedent, san bernardino, syed farook
Companies: apple

Footnote Reveals That The San Bernardino Health Dept. Reset Syed Farook's Password, Which Is Why We're Now In This Mess

from the well,-that's-interesting dept

We already discussed the many issues with the DOJ's motion to compel Apple to create a backdoor to let them brute force the passcode on Syed Farook's iPhone. However, eagle-eyed Chris Soghoian caught something especially interesting in a footnote. Footnote 7, on page 18 details four possible ways that Apple and the FBI had previously discussed accessing the content on the device without having to undermine the basic security system of the iPhone, and one of them only failed because Farook's employers reset the password after the attacks, in an attempt to get into the device. The key line:

... to attempt an auto-backup of the SUBJECT DEVICE with the related iCloud account (which would not work in this cases because neither the owner nor the government knew the password to the iCloud account and the owner, in an attempt to gain access to some information in the hours after the attack, was able to reset the password remotely, but that had the effect of eliminating the possibility of an auto-backup).

The "owner" of course, being the San Bernardino Health Department, who employed Farook and gave him the phone. Basically, what this is saying is that if the password hadn't been reset, it would have been possible to try to connect the phone to a "trusted" network, and force an automatic backup to iCloud -- which (as has been previously noted) was available to the FBI. But by "changing" the password, apparently that option went away.

In other words, the San Bernardino Health Dept may have been the ones who really mucked things up for the FBI. But, of course, to be honest, the FBI is probably kind of happy about that. At this point, very few people honestly believe that there's anything of much value on that phone. But this situation allows the FBI to present the most sympathetic case it probably can to try to force backdoors onto tech companies.

Filed Under: doj, encryption, fbi, password, reset, san bernardino, san bernardino health department, syed farook
Companies: apple

DEA Loses Big Drug Case, Thanks To Illegal Wiretap Warrants Prosecutor Calls 'Procedural Errors'

from the self-inflicted-wounds-all-someone-else's-fault dept

The DOJ's counsel warned the DEA that its illegal wiretaps would get them into trouble.

"It was made very clear to the agents that if you're going to go the state route, then best wishes, good luck and all that, but that case isn't coming to federal court..."

"They'd want to bring these cases into the U.S. Attorney's Office, and the feds would tell them no (expletive) way," a former Justice Department official said.

But the DEA persisted, because it had a man [read: magistrate judge] on the inside. Judge Helios Hernandez, a state-level judge, approved five times as many wiretap warrants as any other judge in the country, acting as a rubber stamp for the DEA and the California law enforcement agencies it collaborated with. The DEA should have been running these warrant applications through a federal judge, but it seemed much happier with this arrangement.

The highly-questionable wiretap warrants have finally started to cause it problems. Brad Heath and Brett Kelman of USA Today -- the journalists who uncovered the massive, illegal wiretap program -- are now reporting that one of the faulty warrants has just cost the DEA a year's worth of surveillance efforts and, quite possibly, a significant amount of seized assets.

Federal drug agents spent months watching a tiny California jewelry store sandwiched between an auto parts shop and an apartment house with bars on its windows. They secretly recorded its owner’s phone calls and intercepted couriers carrying away boxes full of cash, sometimes stuffed with $100,000 or more. For more than a year, they gathered evidence that the store was laundering millions of dollars for drug traffickers.

[...]

Prosecutors determined that wiretaps the U.S. Drug Enforcement Administration used as the core of its investigation were illegal and couldn’t be used in court. Four suspects went free, and they want the government to give back nearly $800,000 drug agents seized.

The problem with the warrants used in this case were numerous. First, many of the suspects were prosecuted in San Bernardino while the wiretap warrants themselves were issued by the friendly courts in Riverside. On top of that, the warrants -- which were supposed to be signed only by a top prosecutor -- were signed by lower-level lawyers. This practice ran afoul of a restriction enacted in response to the FBI's abuse of wiretaps to surveil civil rights leaders in the 1960s.

Because Riverside District Attorney Paul Zellerbach rarely felt the need to comply with this restriction, hundreds of granted warrants are equally suspect. More cases are likely to be tossed in the future. Defense lawyers as far away as Kentucky and Oregon (where Riverside-granted warrants were deployed) are taking a closer look at the government's paperwork.

The most ridiculous reaction has come from the head of the office that just saw all of its evidence tossed. According to San Bernardino's top prosecutor, illegal wiretap warrants are no big deal -- certainly not worthy of having a yearlong investigation nullified.

“These people were dealing in drugs, and they are guilty, and because of a procedural issue and a suppression motion, they got away with it,” said Mike Ramos, the district attorney in San Bernardino, Calif., whose office prosecuted the case.

Man, those "getting away with it" grapes look incredibly sour. For many years, it has been the DEA and local law enforcement "getting away with it." These "procedural errors" never seemed to concern the agencies that used illegally obtained evidence to put people in prison. It's not until one gets away that anyone expresses an opinion on hundreds of illegal wiretap warrants. And the statement that's delivered isn't one of regret or contrition, but one of resentment that "guilty" people can also benefit from "procedural errors."

Filed Under: 4th amendment, dea, helios hernandez, riverside, san bernardino, warrants, wiretaps

'Insert Probable Cause:' Pen Register Boilerplate Hides Sheriff's Department's Hundreds Of Stingray Deployments

from the nothing-to-see-here-[hides-everything] dept

Despite the combined secretive efforts of nearly every law enforcement agency everywhere (including the FBI), some more Stingray documents have made their way into the public domain, thanks to an FOIA request by Cyrus Farivar of Ars Technica. The San Bernardino Sheriff's Department has released 17 pages of documents that show -- among other things -- that it never seeks a warrant before deploying Stingrays.

The sheriff in San Bernardino County—east of Los Angeles County—has deployed a stingray hundreds of times without a warrant, and under questionable judicial authority.

In response to a public records request, the San Bernardino Sheriff’s Department (SBSD) sent Ars, among other outlets, a rare example of a template for a "pen register and trap and trace order" application. (In the letter, county lawyers claimed this was a warrant application template, when it clearly is not.) The SBSD is the law enforcement agency for the entire county, the 12th-most populous county in the United States, and the fifth-most populous in California.

Ah, the old "an IMSI catcher is really just a high-tech pen register" argument, one that has been deployed by other law enforcement agencies. It really isn't. A pen register is a targeted order seeking calls made from a specific number. A Stingray hoovers up everything in its vicinity (including, in some cases, communications), with disposal of "non-hit" calls/communications left to the discretion of the law enforcement agency that has already hidden its use of this technology from the magistrate signing the order.

This Sheriff's Department hides its use behind pen register orders -- which is either a front-loaded lie or back-end reconstruction, but either way, it definitely is not a "warrant application." This agency has deployed its Stingray 303 times -- apparently often enough that the department felt it wise to streamline its bogus PR/TT orders using a fill-in-the-blank template.

DetectiveName, a Detective for the San Bernardino County Sheriff's Department. hereby applies to the Court for an Order (1) authorizing the use of a PEN register on the telephone lines currently designated by the numbers; Telephone Number (The “Telephone Line”); (2) authorizing the use of a trap-and-trace device on the Telephone Line: and (3) requiring the disclosure of subscriber name and address, whether listed or unlisted. for numbers called by the Telephone Line or numbers calling the Telephone Line. or found during investigation of this case upon oral or written demand of agents of the San Bernardino County Sheriff‘s Department. In support of this application, he states the following:

1) I am a detective for the San Bernardino County Sheriff's Departmant and am requesting an Order authorizing the installation and use of a PEN register and a trap-and-trace device. and the disclosure of subscriber information.

2) I certify that the San Bernardino County Sheriffs Department is conducting a criminal investigation of Crime in connection with possible violations of Crime Definition. It is believed that the below named persons and other unknowns are using the Telephone Lines in furtherance of the subject offenses and that the information likely to be obtained from the PEN register and the trap-and-trace devices is relevant to the ongoing criminal investigation being conducted by the above named agency.

AFFIDAVIT "Insert Probable Cause"

It's that last line -- the one that implies PC is almost an afterthought -- that is a bit problematic. The Sheriff's Department obviously wants to hide its Stingray use from magistrate judges (as per the now-standard non-disclosure agreement with the FBI and DOJ) but its application includes something not needed to acquire pen register orders: probable cause.

Curiously, in the SBSD template application, it includes a section for the detective to "insert probable cause," which is not required under the federal pen register statute.

"The fact that order requires probable cause but isn’t labelled a warrant is also interesting," [Hanni] Fakhoury [EFF] said. "[It's] definitely good that the Sheriff and the court are using the probable cause standard but a warrant is about more than just probable cause; a warrant also requires particularity and continuing oversight by the judge who has to review the inventory and receipt to make sure only authorized things were taken."

"So it’s like this order does some of the stuff a warrant would do, but not all," he said.

And, for whatever reason, also included in the responsive document is what appears to be a boilerplate form for judicial approval of (faux) pen register requests. It certainly gives the appearance of judicial rubber stamping (which, considering the low evidentiary bar for actual pen register order requests, isn't that surprising), but it may be nothing more than an example of an approved order for use in training or as reference material.

Notably, the documents include the NDA agreement with the FBI and DOJ, which states the San Bernardino Sheriff's Department is to route FOIA requests through the feds. Did it? The documents returned here don't technically fall into the areas the agreement specifies (mainly Harris Corp. docs that would expose technical details, etc.), but similar requests have returned fewer documents, with the standard NDA being cited as justification for withholding documents. It's far too early for the DOJ's plan to eventually compel the release of more Stingray documents to have kicked in (something like this seems to take at least a half-decade to implement), so it may be that the Sheriff's Department made its own logical determination as to what fell outside of the FBI's many FOIA restrictions. Still, it's considered bad form to show the public how your agency abuses its legal authorities to hide its surveillance activities.

Filed Under: 4th amendment, imsi catcher, pen register, probable cause, san bernardino, sheriff's department, stingray