DOJ To Court: We Got Into The iPhone, So Please Drop Our Demand To Force Apple To Help Us... This Time

from the moving-on dept

So it appears that the mainstage event over the DOJ's ability to force Apple to help it get around the security features of an iPhone is ending with a whimper, rather than a bang. The DOJ has just filed an early status report saying basically that it got into Syed Farook's work iPhone and it no longer needs the court to order Apple to help it comply by writing a modified version of iOS that disables security features.

The government has now successfully accessed the data stored on Farook's iPhone and therefore no longer requires the assistance from Apple Inc. mandated by Court's Order Compelling Apple Inc. to Assist Agents in Search dated February 16, 2016.

There's also an associated one line proposed order that magistrate Judge Sheri Pym will almost certainly sign off on shortly.

And thus... the big showdown between the tech industry and the Justice Department goes nowhere. Just a little over a month after the DOJ swore to a court that it had exhausted all possibilities that didn't involve co-opting Apple to hack its own phones, the DOJ is admitting that the FBI has found a way in. Still, this was just one fight in a war that is still ongoing. It seems fairly clear that the DOJ and FBI expected their side of things to get a lot more support, which is why they chose the Syed Farook case to make a big public stand, rather than one of the many other cases where similar issues are at stake.

However, the overall issue is not over. There are still plenty of questions: What method did the DOJ use to get into Farook's iPhone? And what will happen in the other cases involving iPhones or involving other companies such as Whatsapp? And what will happen as Apple and other companies increasingly strengthen their encryption and security, making it more and more difficult for the FBI to get in?

In short, this is far from over. However, in the short term, the DOJ has learned that it isn't easy to win over public opinion on this issue, which suggests that future battles may play out under the cover of a bit more darkness, as the DOJ seeks to seal various filings and orders off from the public. My guess is that perhaps the next big fight will be in revealing what kinds of orders come through under the cover of darkness.

Filed Under: all writs act, doj, encryption, fbi, going dark, iphone, syed farook
Companies: apple

FBI Denies It Lied About Ability To Crack iPhone, Also Suggests Cellebrite Rumor Is Wrong

from the but-who-do-you-believe dept

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As we pointed out earlier this week, it's pretty obvious that the Justice Department lied to a federal magistrate judge in saying that it had exhausted all possible opportunities to get into the work iPhone of Syed Farook, given that it has now put the case about it on hold to test out a "new way" to get into the phone. The DOJ had made a filing claiming that Apple's help was the only way to get into the phone, yet now is saying that's probably not true. However, the FBI is insisting that the DOJ wasn't lying. In a letter to the Editor at the Wall Street Journal, FBI Director James Comey reacts angrily to a similar opinion piece at the WSJ suggesting the DOJ lied:

You are simply wrong to assert that the FBI and the Justice Department lied about our ability to access the San Bernardino killer’s phone. I would have thought that you, as advocates of market forces, would realize the impact of the San Bernardino litigation. It stimulated creative people around the world to see what they might be able to do. And I’m not embarrassed to admit that all technical creativity does not reside in government. Lots of folks came to us with ideas. It looks like one of those ideas may work and that is a very good thing, because the San Bernardino case was not about trying to send a message or set a precedent; it was and is about fully investigating a terrorist attack.

James B. Comey

It's difficult to take much of that at face value -- especially as the government continues to push for similar court orders in other cases. And especially as Comey has been whining on and on about "going dark" for well over a year and a half now. At the very least, it does seem clear that the FBI failed to truly explore all possible options. As some iPhone forensics folks have noted, if this were truly a brand new solution, the FBI would need a hell of a lot more than two weeks of testing to make sure it really worked.

In the meantime, I'd heard from a few folks, and now others are reporting as well, that the assumptions that many had made about the Israeli company Cellebrite providing the solution are simply not true -- along with the idea that the solution involves reflashing the chip. The FBI itself now says it's a "software-based" solution.

FBI Director James Comey, in response to a reporter's question at a briefing, said making a copy of the iPhone’s chip in an effort to circumvent the password lockout “doesn’t work.” Comey wouldn't identify the company that's helping it or discuss details of the technique.

[....]

Law enforcement officials speaking on background debunked another report that had named Israeli forensics firm Cellebrite as the mystery firm helping it break into the phone.

Of course, this is after Cellebrite got a ton of free publicity from press reports claiming that it was the company (all of which was based on a few rumors from within the forensics world): At this point it's not clear that you can trust the FBI or DOJ on anything about these issues, as they've managed the messaging very, very carefully, and at times have made statements that are somewhere in that gray zone between "misleading" and "outright lies." But Comey's actions over the last year and a half make it quite clear that this is not just about this one iPhone and he very, very much wants a precedent that will effectively stop the possibility of encryption that the FBI can't easily circumvent.

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Filed Under: all writs act, doj, iphone, james comey, lies
Companies: cellibrite

Apple Asks Judge Overseeing NY iPhone Case To Wait Until More Is Known About FBI's New Magic Unlocking Trick

from the let's-hold-off-here... dept

While there are 10 (known) cases covering 13 Apple devices that the DOJ is asking Apple to help unlock, there are two "big ones" that are receiving most of the focus. The big one in San Bernardino, which has been put on hold as the FBI claims it may have actually found a way into the phone -- and the one in NY where magistrate judge James Orenstein wrote a wonderful rejection letter for the DOJ's request. The Justice Department has appealed that decision, and the case has been handed over to Judge Margo Brodie.

However, Apple is now requesting that this case also be put on hold, until more is known about the FBI's hacking attempts in the California case:

As in the San Bernardino Matter, the DOJ argues in this case that an All Writs Act order is appropriate because Apple’s assistance is necessary to effectuate the search warrant issued by the Court.... (“[T]he government cannot access the contents of the phone and execute the warrant without Apple’s assistance.”); .... (“The government does not have any adequate alternatives to obtaining Apple’s assistance.”). This is a disputed issue. Judge Orenstein concluded in his opinion that that the government “failed to establish that the help it seeks from Apple is necessary” as required by New York Telephone.... Apple expects to similarly contest the necessity requirement in connection with the DOJ’s application to this Court.

The iPhone in this case runs an older operating system (iOS 7) than the iPhone in the San Bernardino Matter (iOS 9). Regardless of what the DOJ concludes regarding whether the method being evaluated in San Bernardino works on the iPhone here, it will affect how this case proceeds. For example, if that same method can be used to unlock the iPhone in this case, it would eliminate the need for Apple’s assistance. On the other hand, if the DOJ claims that the method will not work on the iPhone here, Apple will seek to test that claim, as well as any claims by the government that other methods cannot be used.

The outcome of the DOJ’s evaluation will not be known until April 5, when the DOJ submits its status report in the San Bernardino Matter. In the interim, both the Court and the parties lack sufficient information to determine the most appropriate way for this matter to proceed. Going forward without such information would be highly inefficient.

It's becoming increasingly clear that the DOJ and Apple's lawyers are not very happy with each other. Elsewhere in the letter:

The government indicated that it did not oppose a fourteen day extension of Apple’s deadline to respond to the government’s application for an All Writs Act order, but did not want to join in Apple’s rationale for such request. The government further indicated that after Apple filed its letter, the government would review and consider how to respond.

There is an important point here: hacking into an iPhone 4S running iOS 7 is a lot easier than an iPhone running iOS 9. While the DOJ has used this to argue that Apple should absolutely be willing to help in this case, it actually plays against the DOJ's argument, because it should be much easier for the FBI to figure out a way in without help from Apple, because the protections in iOS 7 were much weaker (iOS 8 is where things got much trickier).

Either way, these court battles have a long, long way to go.

Filed Under: all writs act, doj, encryption, fbi, going dark, james orenstein
Companies: apple

If You Want To Know How Supporting Techdirt Can Help Shift The Debate In Washington DC, Read This

from the important-stuff dept

Wondering if coverage like ours can really make a difference? In 2014, former Senate staffer Jennifer Hoelzer sent us this unsolicited piece about Techdirt's influence on lawmakers in the SOPA fight. With today's encryption debate now shifting back to Congress, she's given us her support in republishing the story (with a few minor edits) to drive that point home. If you want quantitative data to go with her anecdotal experience, you can see this Harvard study that highlighted Techdirt's influence in that debate. Please help us do the same for the fight over encryption as well.

Help Techdirt Make Sure Congress Doesn't Sell Out Our Privacy & Security

Hi. My name is Jen... and I was once a Congressional staffer who knew so little about Internet policy that I had no idea how little I knew about Internet policy. (I think this is where you're supposed to supportively say, "Hi, Jen," and reassure me that this is a safe space for me to continue my embarrassing confession. Because it gets worse.)

In late 2010, when my former boss -- U.S. Senator Ron Wyden -- announced that he was putting a hold on the Combating Online Infringement and Counterfeits Act (COICA) – the predecessor to PIPA and later, SOPA -- I not only didn't know how the DNS system worked, I'm not sure I knew what infringement meant. (I'm not proud of these things, but they're true.)

If my boss hadn't involved himself in this issue, odds are I would never have heard of it and, heck, if by some chance I had learned that the Judiciary Committee had unanimously passed legislation giving law enforcement (what their press release called) "important tools" to go after illegal activity, I probably wouldn't have given the issue any thought beyond thinking it was nice that Democrats and Republicans remembered how to work together.

Worse yet, when my chief of staff stopped by my office to let me know that the Senator would be placing a hold on the legislation, I didn't drop what I was doing to alert reporters or ask one of my deputies to pound out a press release. I'm not sure I even looked up from my computer.

Honestly, it didn't occur to me that anyone would consider what my boss did that afternoon news, until I got a Google News Alert that a blog called, Techdirt, had written about it.

Now, in my defense, the above does not mean that I was lazy or willfully ignorant. From the outside, I realize Congress doesn't appear to do anything, but there are so many bills and issues swirling around Capitol Hill at any one time that it's a challenge just to stay on top of the sliver of them that pertains to your job. On an average day, Senator Wyden could go from a breakfast forum on health reform, to a committee hearing on tax reform, to introducing legislation on renewable energy, to questioning the forest service on resources for firefighting, before giving a floor speech on NSA surveillance, and that would just be before noon. So, the odds of my being on top of something that happened in a Committee my boss wasn't assigned to -- like the Judiciary Committee -- were slim.

Furthermore, my deputies and I -- as Wyden's communications director -- could barely keep up with all of the questions and requests we got from reporters. We didn't have the time or resources to tweet about everything he did, let alone proactively promote all of his work. I mean, just writing and distributing a press release can take a few hours, coming up with a messaging strategy, educating reporters, planning events and writing the various one-pagers, FAQs, op-eds and speeches needed to support a successful advocacy campaign can take days, weeks, even months and that's if nothing else is going on (which is rarely the case).

The day Senator Wyden put a hold on COICA, was the same day he introduced legislation to amend the Affordable Care Act with Senator Scott Brown. I was getting inundated with questions from reporters and bloggers wanting to understand "why in the hell he'd do such a thing," plus the Democratic caucus wanted us to put out and promote a statement pushing for the repeal of Don't Ask Don't Tell, which had my deputy tied up, in addition to the various other things that tended to make the end of session a sprint.

I didn't jump at the opportunity to publicize my boss's hold announcement, because I didn't know enough about the issue to judge its news value, let alone explain it to reporters or write a quick press release, and I didn't have the time to learn enough about it to do any of those things before the end of the day. So, I told my chief of staff "great" and went back to talking to reporters about health policy.

Again, I'm not proud of the above story, but I was moved to share it, when I read that Techdirt's coverage of the COICA/PIPA/SOPA debate ultimately cost them more than 50% of their advertising revenue and has since forced them to operate at a loss.

I don't want to imagine a tech debate without Techdirt in it.

I can't even begin to imagine how the COICA/PIPA/SOPA debate would have gone without Mike Masnick and Techdirt's coverage.

But I can imagine where I -- personally -- would have been without Techdirt's coverage. All I have to do is close my eyes and remember November 18, 2010. Now, as much as I'd like to tell you that Mike's November post on Ron Wyden's COICA hold changed everything for me, it didn't. One post couldn't make me an expert on Internet issues any more than a single story could have won the debate. But I can say the more I learned about the issues surrounding COICA and later PIPA and SOPA – and the more confident I grew in my knowledge and ability to explain those issues -- the more involved I got, the more press releases, speeches, FAQ's and blogs I wrote in support of Ron's work, the more reporters I talked to, coverage I influenced, and interviews I secured for the senator.

I can also say, I wouldn't have been able to do any of those things (at least not well) without Mike Masnick and the rest of the guys at Techdirt, because they're the guys who taught me tech policy.

That's not to say, I didn't work with really smart people who taught me a lot, I did and they did; but with Techdirt, I never had to ask a stupid question or admit what I didn't know. (I just kept reading.) Techdirt's posts were consistently straightforward, easy to understand and timely. Sure, another site might put together one or two good posts or a definitive explainer, but reading Techdirt every day was like taking a college course on the issues with every new post helping me understand a new aspect of what I'd learned previously. I often found some of the site's shorter posts and illustrative examples the most helpful, because they were the examples I ultimately used to explain the issues to others. For example, I've yet to find a better way to get someone to see the potential harm bills like SOPA and PIPA can do to free speech than pointing out that Universal once tried to blacklist 50 Cent's personal website, a fact I learned from a 6/21/11 Techdirt post, entitled "Did Universal Music Declare 50 Cent's Own Website A Pirate Site?" (Seriously, that story alone helped me convince at least a dozen – non-tech – reporters to write about the issue, not to mention all of the Hill staffers I shared it with.)

If you care about your privacy and security, you want Techdirt to be at full strength in the encryption debate. You want them to be educating more lawmakers and their staffers (like my former self) to understand these issues and be confident enough in their knowledge to take a stand against invasive government.

I'm donating to Techdirt's campaign because I know where I would have been without their work and I don't want a tech debate to take place without them. I hope you will do the same. It's also a great way to say thanks.

Help Techdirt Make Sure Congress Doesn't Sell Out Our Privacy & Security

Filed Under: all writs act, congress, crypto wars, education, encryption, washington dc
Companies: apple

Did The DOJ Lie At The Beginning Of Its iPhone Fight, Or Did It Lie This Week?

from the gallantly-the-DOJ-chickened-out dept

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So now that there's been a little time to process the Justice Department's last minute decision to bail out on the hearing in the San Bernardino case, claiming it was because some mysterious third party had demonstrated a way to hack into Syed Farook's iPhone, it's becoming increasingly clear that (1) the DOJ almost certainly lied at some point in this case and (2) this move was almost entirely about running away from a public relations battle that it was almost certainly losing (while also recognizing that it had a half-decent chance of also losing the court case). Just replace "Sir Robin" with "the DOJ" in the following video. That said, there are still some things to clear up. First, did the DOJ lie? It seems pretty obvious that it must have. After all, it insisted earlier in the case, multiple times, that it had "exhausted" all other possibilities and "the only" way to get into the phone was with Apple's help. That's certainly raised some eyebrows:

Perjury never felt so good. #FBIvsApple pic.twitter.com/9z5xpgpFhZ

— Edward Snowden (@Snowden) March 22, 2016

The DOJ and its supporters, of course, will argue that "new shit has come to light, man," but that seems... doubtful. My first thought was that when the FBI said that it had been alerted to a way in over the weekend, it potentially was using the announcement from researchers at Johns Hopkins about a flaw in iMessage encryption. If so, that would be particularly bogus, since everyone admits that the vulnerability found would not apply to this case.

However, there's now a ton of speculation going around about the likely method (and the likely third party) that the FBI is probably using, involving copying the storage off the chip and then copying it back to brute force the passcode without setting off the security features or deleting the data. But, again, this possible solution isn't really new. Just a few weeks ago, during a Congressional hearing, Rep. Darrell Issa quizzed FBI Director James Comey about this very technique (which was so deep in the technical weeds, that many reporters and other policy folks were left scratching their heads): That video is worth watching, because Director Comey insists, pretty clearly, that there is no way to get into the phone:

Comey: We wouldn't be litigating it if we could [get in ourselves]. We've engaged all parts of the US government to see 'does anyone have a way -- short of asking Apple to do it -- with a 5c running iOS 9 to do this?' and we do not.

At that point Issa starts asking really technical questions about can't the FBI remove the data from the phone to make copies of the storage, putting it with the encryption chip, trying passcodes, and then reflashing the memory before the 10 chance are used up -- thus brute forcing the passcode without setting off the security features. As Issa notes:

If you haven't asked that question, how can you come before this committee and before a federal judge and demand that somebody else invent something if you can't answer the question that your people have tried this? ... I'm asking who did you go to? Have you asked these questions? Because you're expecting to get an order and have somebody obey something they don't want to do and you haven't even figured out if you can do it yourself.

Comey is clearly befuddled by the questions and basically says that he's sure that his people must have thought about this, but he assumes that they're watching and if they haven't thought of this then they'll test it out. But, really, a few people had suggested similar things early on, so if that is the solution then it only adds weight to the idea that the FBI didn't do everything it could possibly do before running to the judge.

Others have questioned the "two week" timeframe for the DOJ to issue a status report to the court, noting that a brand new solution would almost certainly take much longer to test thoroughly before using it on the iPhone in question.

And then there's the other question: if the FBI really has tracked down a new "vulnerability" in Apple's encryption... will it tell Apple about it so that Apple can patch it? Remember, the White House has told the various parts of the federal government that they should have a "bias" towards revealing the flaws so they can be patched... but leaving a "broad exception for 'a clear national security or law enforcement need.'" It's pretty clear from how the DOJ has acted that it believes this kind of hole is a "law enforcement need."

So, if the FBI really did figure out a vulnerability in Apple's encryption, it probably won't actually reveal it -- but I'd imagine that Apple's security engineers are scrambling just the same to see if they can patch whatever flaws there may be here, because that's their job. And, again, that gets back to the point here: there are always some vulnerabilities in encryption schemes, and part of the job of security folks is to keep patching them. And one of the worries with the demand for backdoors is that the introduce a whole bunch of vulnerabilities that they're then not allowed to patch.

Either way, the DOJ's actions here are highly questionable, and it seems pretty clearly an attempt to save face in this round. But the overall fight is far from over.

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Filed Under: all writs act, doj, encryption, fbi, forensics, iphone
Companies: apple

Mike Masnick Explains: Apple Versus The FBI

from the in-case-you-were-wondering dept

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While the DOJ may be thinking about ways to weasel out of the San Bernardino fight with Apple, the underlying fight about backdooring encryption remains. The DOJ may focus on other cases, such as the one in NY, where the facts line up a bit more in its favor, or elsewhere. Or we may soon see legislation to backdoor encryption.

We've seen so much confusion and misinformation going around, that I thought it might be useful to create a short "explainer video" that shows why this is such a big deal, and why everyone should be supporting Apple, in this case, against the Justice Department (and against any legislation that requires backdoors). Please check it out and share it.

This is the kind of thing we'd like to do a lot more of, but it takes a fair bit of time to get ready. If you like this and would like to see us do more videos like this, please support our crowdfunding campaign that ends this week...

Support our crowdfunding campaign to help us keep making content like this!

Filed Under: all writs act, doj, encryption, fbi, going dark, mike masnick explains, techdirt
Companies: apple

DOJ To Court: Hey, Can We Postpone Tomorrow's Hearing? We Want To See If We Can Use This New Hole To Hack In

from the oh-really-now? dept

So, this morning we wrote about a new flaw found in the encryption in Apple's iMessage system -- though it was noted that this wouldn't really have impacted what the FBI was trying to do to get into Syed Farook's work iPhone. However, just a little while ago, the Justice Department asked the court to delay the big hearing planned for tomorrow afternoon, because of this newly disclosed vulnerability:

Since the attacks in San Bernardino on December 2, 2015, the Federal Bureau of Investigation (“FBI”) has continued to pursue all avenues available to discover all relevant evidence related to the attacks.

Specifically, since recovering Farook’s iPhone on December 3, 2015, the FBI has continued to research methods to gain access to the data stored on it. The FBI did not cease its efforts after this litigation began. As the FBI continued to conduct its own research, and as a result of the worldwide publicity and attention on this case, others outside the U.S. government have continued to contact the U.S. government offering avenues of possible research.

On Sunday, March 20, 2016, an outside party demonstrated to the FBI a possible method for unlocking Farook’s iPhone. Testing is required to determine whether it is a viable method that will not compromise data on Farook’s iPhone. If the method is viable, it should eliminate the need for the assistance from Apple Inc. (“Apple”) set forth in the All Writs Act Order in this case.

Accordingly, to provide time for testing the method, the government hereby requests that the hearing set for March 22, 2016 be vacated. The government proposes filing a status report with the Court by April 5, 2016.

This could mean a variety of different things... including that the DOJ is looking for a way "out" of this case without setting the precedent it doesn't want, after discovering that the case and public opinion didn't seem to be going the way the DOJ had hoped it was going to go when it first brought it last month. Either way, there's never a dull moment in this case...

Update: And the judge has accepted the request, meaning the hearing is off. The DOJ put out a statement trying to spin this as being about how they're just really interested in getting into this one phone and not about setting a precedent:

Our top priority has always been gaining access into the phone used by the terrorist in San Bernardino. With this goal in mind, the FBI has continued in its efforts to gain access to the phone without Apple's assistance, even during a month-long period of litigation with the company. As a result of these efforts, an outside party demonstrated to the FBI this past weekend a possible method for unlocking the phone. We must first test this method to ensure that it doesn't destroy the data on the phone, but we remain cautiously optimistic. That is why we asked the court to give us some time to explore this option. If this solution works, it will allow us to search the phone and continue our investigation into the terrorist attack that killed 14 people and wounded 22 people.

Of course, that statement is more misleading bullshit from the DOJ. It's pretty clear that the DOJ is just trying to get out of this case as it's realized that the original plan completely backfired, and they were likely to lose.

Update 2: Okay, the court has officially posted its decision to grant the DOJ's request. You can see it below as well.

Filed Under: all writs act, court, doj, encryption, fbi, going dark, hacking, syed farook, vulnerability
Companies: apple

Apple Engineers Contemplate Refusing To Write Code Demanded By Justice Department

from the well-this-could-get-interesting dept

In all the discussions about Apple v. the FBI, a few people occasionally ask what would happen if Apple's engineers just refused to write the code demanded (some also ask about writing the code, but purposely messing it up). And now it appears that at least some Apple engineers are thinking about just this scenario. According to the NY Times:

Apple employees are already discussing what they will do if ordered to help law enforcement authorities. Some say they may balk at the work, while others may even quit their high-paying jobs rather than undermine the security of the software they have already created, according to more than a half-dozen current and former Apple employees.

As the NY Times notes, these details certainly add some pretty hefty weight to the First Amendment arguments about "compelled speech" that Apple has made (and that the EFF doubled down on in its amicus brief). As for what then would happen... that's up to the court, but it's likely that the court would find Apple in contempt and/or start fining it. But that still leaves open the question of how does it comply if not a single engineer is willing to help out.

This particular legal dispute gets more interesting day by day...

Filed Under: all writs act, code, doj, engineers, ios, privacy, refuse, security
Companies: apple

Former Presidential Cybersecurity 'Czar' Slams DOJ/FBI For Its Position On Apple Encryption

from the speak-louder dept

For many years, if you mentioned the term "cybersecurity czar" in the federal government, it only meant Richard Clarke. He was one of the earliest people to focus on computer security as an issue, and as such, became an advisor to multiple presidents on the issue. I haven't always agreed with him -- there have been points in the past where he's appeared as a leading voice in support of greater surveillance and exaggerated claims about a coming "cyberwar". However, in the past few years, Clarke has become much better on these issues, warning (just prior to Snowden's revelations) that the US's focus on surveillance has actually made the public less safe by leaving vulnerabilities open, rather than closing them.

And now he's weighed in, quite vocally, on the whole Apple v. the FBI thing, strongly in support of Apple. To some extent, this isn't a huge surprise as he was among a large group of smart folks who signed onto a letter a year ago opposing encryption backdoors, but his NPR interview gave him a chance to be quite explicit in just how dumb the FBI/DOJ's requests are. It's worth listening to the whole thing, or at least reading the transcript, but here are a few key highlights. Specifically, he argues that the FBI is lying in saying that it can't get access to the content on the phone, and just wants to set a precedent:

If I were in the job now, I would have simply told the FBI to call Fort Meade, the headquarters of the National Security Agency, and NSA would have solved this problem for them. They're not as interested in solving the problem as they are in getting a legal precedent.... Every expert I know believes that NSA could crack this phone. They want the precedent that the government can compel a computer device manufacturer to allow the government in.

Earlier in the interview, he totally dismisses the idea that there's a big dispute in the administration about this, saying that it's just the FBI and DOJ exaggerating:

Well, I don't think it's a fierce debate. I think the Justice Department and the FBI are on their own here. You know, the secretary of defense has said how important encryption is when asked about this case. The National Security Agency director and three past National Security Agency directors, a former CIA director, a former Homeland Security secretary have all said that they're much more sympathetic with Apple in this case. You really have to understand that the FBI director is exaggerating the need for this and is trying to build it up as an emotional case, organizing the families of the victims and all of that. And it's Jim Comey and the attorney general is letting him get away with it.

It's good to see more officials speaking out and calling bullshit on the FBI/DOJ claims on all of this.

Filed Under: all writs act, cybersecurity, doj, encryption, fbi, iphone, nsa, precedent, richard clarke
Companies: apple

How Apple Could Lose By Winning: The DOJ's Next Move Could Be Worse

from the we-can-do-this-the-easy-way-or-the-hard-way dept

Since the conflict over smartphone security, long simmering between Apple and the FBI, burst into the headlines last month, many of us who advocate for strong encryption have watched the competing legal arguments advanced by the parties with a certain queasiness. Many of the arguments on Apple's side—whether offered by the company itself or the myriad groups who have weighed in with friend-of-the-court briefs—have turned critically on the government's unprecedented invocation of the hoary All Writs Act to compel the company to write and authenticate a novel piece of software effectively dragooning Apple engineers into government service.

But there has always been an obvious alternative—a way to achieve the FBI's aim of circumventing iPhone security features without requiring any Apple employees to write a line of new code: the Lavabit Option.

That is, instead of asking Apple to create a hacking tool that would permit the FBI to attempt to brute-force a phone's passcode without triggering escalating delays between guesses or deletion of encrypted data, they could simply demand that Apple turn over the source code and documentation the FBI would need to develop its own custom version of the iOS boot ROM, sans security features. Then, they require Apple to either cryptographically sign that code or provide the government with access to its developer credentials, so that the FBiOS can run on an iPhone.

That hypothetical possibility is raised explicitly by the Justice Department in a footnote to its most recent motion in its ongoing litigation with Apple, which explains that the FBI had not gone that route because it "believed such a request would be less palatable to Apple." Having tried it the easy way, the FBI suggests it's happy to do things the hard way: "If Apple would prefer that course, however, that may provide an alternative that requires less labor by Apple programmers." The government follows up with a citation to the Fourth Circuit's ruling in the now-infamous Lavabit case. Because the secure e-mail service Lavabit maintained minimal logs of user metadata, the government had obtained an order to install a "pen register"—a mechanism for recording metadata in realtime—on the company's systems in order to monitor a particular user, widely believed to be Edward Snowden. In order to make that data intelligible, however, it also demanded the use of the SSL keys used to encrypt all users' traffic. When the Fourth Circuit upheld that demand, CEO Ladar Levinson chose to shutter the site entirely.

Apple's latest reply brief clearly registered the company's dismayed response to this legal shot across the bow:

The catastrophic security implications of that threat only highlight the government's misunderstanding or reckless disregard of the technology at issue and the security risks implicated by its suggestion.

Such a move would signal a race to the bottom of the slippery slope that has haunted privacy advocates: A world where companies can be forced to sign code developed by the government to facilitate surveillance. In this case, that means software to brute force a passcode, but could as easily apply to remote exploits targeting any networked device that relies on developer credentials to authenticate trusted updates. Which is to say, nearly any modern networked device. It entails, quite literally, handing the government the keys to the kingdom.

What's particularly worrying is that, while this approach is massively more troubling from a security perspective than funneling such requests through the company itself on a case-by-case basis, it would likely stand on a less shaky legal foundation.

Apple's arguments throughout this case have stressed the unprecedented nature of the FBI's attempt to conscript the firm's engineers, noting that the All-Writs Act invoked by the government was meant to enable only the particular types of orders familiar from common law, not grant an all-purpose power to "order private parties to do virtually anything the Justice Department and FBI can dream up." The trouble is, an order to turn over information in the "possession custody or control" of a private party is just such a traditional order. Such demands are routinely made, for instance, via a subpoena duces tecum requiring a person or company to produce documents.

It's likely that Apple's developer keys are stored in a Hardware Security Module that would make it difficult or impossible to produce a copy of their firmware signing key directly to the government. But that might not be much legal help. In a separate iPhone unlocking case in New York, magistrate judge James Ornstein recently rejected the government's argument that a previous All-Writs Act case, New York Telephone Co., required Apple's compliance. In that case, Ornstein noted, the government's

agents would normally have been able to install the authorized pen register without the company's assistance but for the fact that the subject telephone's wires were so placed as to prevent the agents from gaining surreptitious access. The agents thus needed the telephone company not to provide technical expertise they lacked, but only to step out of the way and let them perform their authorized surveillance on company property.

But that sounds much closer to what would be involved in a case where Apple is required to authenticate government-written code: Just "step out of the way" and let the FBI access the HSM containing the keys used to sign updates.

Similarly, many of the First Amendment arguments raised by Apple and the Electronic Frontier Foundation—to the effect that "code is speech" and the requirement that Apple create new software amounts to "compelled speech"—would also fall by the wayside. They might still advance such arguments with respect to the "endorsement" implicit in using company credentials to sign software, but a court may not find that as intuitive as the idea that "compelled speech" is involved in requiring engineers to devise wholly novel and potentially complicated software.

Many of Apple's other arguments, of course, would remain untouched: There's the idea that Congress has established a comprehensive statutory framework specifying the means of law enforcement access to digital content via laws like the Communications Assistance for Law Enforcement Act and the Electronic Communications Privacy Act, making the All-Writs Act an inappropriate mechanism to seek authority withheld by Congress. Nor would a "sign our code" approach affect any of Apple's claims about the broader security harms inherent in the creation of developer-authenticated tools to break security. But the long list of legal barriers to the FBI getting its way would surely be significantly reduced.

That means it's not just important that Apple win in this case—it matters how it wins. If the company emerges victorious on grounds fundamentally tied to the mandate to create software rather than the demand to authenticate it, it could prove a pyrrhic victory indeed, opening the door for the government to insist on doing things the "hard way," and inaugurating an era of government scripted malware signed to look like genuine updates.

Filed Under: all writs act, doj, encryption, fbi, going dark, key
Companies: apple, lavabit