Lawmakers Speak Out On Apple Being Forced To Create Backdoors; Some Wisely, Some Ignorantly

from the some-good,-some-bad dept

Everyone's talking about the big legal fight that magistrate judge Sheri Pym has kicked off by ordering Apple to build a backdoor into an iPhone to get around security tools that would block attempts to decrypt the contents of the phone. As some are noting, if the ruling is not overturned it could force Congress to change the law. Over the last year or so, it had become clear that Congress did not support laws that mandate backdoors. Yes, some in Congress -- including Senators Richard Burr, Dianne Feinstein and John McCain -- have been pushing for such legislation, but most have admitted that there aren't nearly enough votes in support of that, and there are many in Congress who recognize the ridiculousness of such a law. A year ago, a congressional hearing made it clear that there was a ton of skepticism in Congress about ordering backdoors.

And now we see Congress speaking out about the court order as well. Rep. Ted Lieu -- who, people always point out, has a computer science degree, and who a year ago noted that backoors were "technologically stupid" -- has told the DailyDot that this order creates a very dangerous slippery slope:

"Can courts compel Facebook to provide analytics of who might be a criminal?" Lieu said in an email to the Daily Dot. "Or Google to give a list of names of people who searched for the term ISIS? At what point does this stop?"

Rep. Zoe Lofgren put out a detailed statement saying that the order was "an astonishing overreach of authority by the Federal government," and warned that it appeared to go against the wishes of Congress and that even if the order is upheld, it will only result in stronger encryption that can't be backdoored:

Apple, as do other technology companies, complies with lawful orders and warrants. But they are unable to deliver to the government what they do not have – in this case, a key to break into their operating system in the manner the FBI desires. It is astonishing that a court would consider it lawful to order a private American company be commandeered for the creation of a new operating system in response.

The issue of mandating back doors in encryption has been a topic of vigorous discussion in the Congress. The emerging consensus has been that creating back doors for the use of law enforcement, important as law enforcement is, would endanger Americans by generally weakening security. These weaknesses will inevitably be exploited by criminal hackers or foreign opponents. That a single magistrate should substitute her judgment for that of the duly elected President and Congress – that was already thoroughly engaged in the subject – is wrong as a matter of policy and of law.

Finally, should this order not be overturned, technology companies will have no choice but to further deploy robust encryption that would prevent their engineers from creating any system that would effectively open up previously deployed security measures.

I urge the judicial branch to swiftly overturn this misguided ruling and further urge the Director of the FBI to refrain from seeking public policy decisions from the courts that are more properly decided by the Legislative branch of government.”

Senator Ron Wyden put out a statement as well, noting how this ruling will be interpreted around the globe:

I don't take a backseat to anyone when it comes to hunting down terrorists and protecting Americans from harm. However, this unprecedented reading of a nearly 230-year-old law would create a dangerous precedent that would put at risk the foundations of strong security for our people and privacy in the digital age. If upheld, this decision could force U.S. technology companies to actually build hacking tools for government against their will, while weakening cybersecurity for millions of Americans in the process.

Furthermore, this move by the FBI could snowball around the world. Why in the world would our government want to give repressive regimes in Russia and China a blueprint for forcing American companies to create a backdoor? Companies should comply with warrants to the extent they are able to do so, but no company should be forced to deliberately weaken its products. In the long run, the real loses will be Americans' online safety and security.

Of course, not all our lawmakers are so enlightened. Senator Feinstein, despite technically representing Apple, has shown for a long time now that she has no interest at all in representing the true interests of anyone in California if it goes against the desire of the surveillance state. She basically told Apple to shut up and do what the court says. After pretending it's about protecting Californians (because San Bernardino is in California) she warns that if Apple doesn't obey it will force her and Senator Burr to push for the legislation they've already been pushing for:

I would hope that bill would not be necessary. I would hope Apple understand the seriousness of this request. I have no doubt that to deny the request would likely bring on law to change law, so that this can be done. We're in jeopardy if you cannot -- through proper evidence submitted by a probable cause warrant -- be able to open these systems.

The PBS interviewer who asked Feinstein about this also asked (twice!) about Apple's statement that creating backdoors will create opportunities for those with malicious intent to break into the phones as well, and Feinstein displays her technological ignorance by stating:

Oh I don't believe that's necessarily true.

She's wrong about that. She's literally advocating for everyone to be made less safe just so we can get a little more information on some people who we already know committed a crime. That's crazy.

And, of course, Senator Burr made a similar statement -- first by lying and pretending that the order is not about creating a backdoor:

There are no decryption demands in this case, and Apple is in no way required to provide a so-called backdoor. The FBI needs access to the phone so the agency can better piece together information about the terrorists and whom they contacted.

This is technologically ignorant as well. This is exactly what a backdoor is. Apple is being told to create a bit of software that disables security measures in order to decrypt encrypted material. That's the very definition of a backdoor. Burr goes on, pretending that weakening the safety and security of basically everyone is somehow making them more secure:

The iPhone precedent in San Bernardino is important for our courts and our ability to protect innocent Americans and enforce the rule of law. While the national security implications of this situation are significant, the outcome of this dispute will also have a drastic effect on criminal cases across the country. The newest Apple operating systems allow device access only to users — even Apple itself can’t get in. Murderers, pedophiles, drug dealers and the others are already using this technology to cover their tracks.

Yup, always bring up the holy trinity of "murderers, pedophiles and drug dealers." I'm amazed he didn't say terrorists as well. Of course, as people keep pointing out, there have always been ways for people with ill-intent to hide their communications. There's nothing in the law that says we have to be able to track every communication ever made by everyone. That's a dystopian vision -- but one that apparently Senator Burr likes.

Even worse, Burr insists that because the law "protects" Apple in other cases, it should roll over for this. And also, ridiculously, he argues that this is more about Apple's business model than protecting the safety of Americans.

Apple’s position in the San Bernardino case affirms that it has wrongly chosen to prioritize its business model above compliance with a lawfully issued court order. While the company may have routinely complied with such court orders in the past, it now claims that it cannot comply as a result of security features it has built into its newest products. Apple exists as a corporate entity with the protections provided by U.S. laws, but it cannot be allowed to pick and choose when to abide by those laws as it sees fit. We are a country of laws, and this charade has gone on long enough. Apple needs to comply with the court’s order.

Hilariously, this is the very same Senator Burr who, just months ago, was going on and on in Congress about the importance of cybersecurity, and fearmongering about "cyberattacks." What he doesn't seem to recognize is that the only real way to protect against those attacks is encryption. The very encryption he now seeks to undermine.

Others in the Senate are making similarly ignorant statements, including Senator Tom Cotton, whose statement is so over-the-top ridiculous and wrong as to almost not be worth mentioning:

"Apple chose to protect a dead ISIS terrorist's p‎rivacy over the security of the American people. The Executive and Legislative Branches have been working with the private sector with the hope of resolving the 'Going Dark' problem. Regrettably, the position Tim Cook and Apple have taken shows that they are unwilling to compromise and that legislation is likely the only way to resolve this issue. The problem of end-to-end encryption isn't just a terrorism issue. It is also a drug-trafficking, kidnapping, and child pornography issue that impacts every state of the Union. It's unfortunate that the great company Apple is becoming the company of choice for terrorists, drug dealers, and sexual predators of all sorts."

I mean, come on. Apple is not "protecting a dead ISIS terrorists' privacy," it's talking about the very real issue of whether or not courts have the power to order companies to hack their customers on behalf of the government. That's a big deal that you would think would matter to politicians.

These statements are not unsurprising, but they continue to show a level of profound ignorance about basic technology issues. The fact that Feinstein and Burr, at least, are working on legislation around an issue they so clearly have no clue about is downright scary. One hopes that the others who actually understand the technical and legal issues -- such as those at the top of this article -- will prevail in Congress.

Filed Under: all writs act, dianne feinstein, encryption, going dark, precedent, richard burr, ron wyden, ted lieu, tom cotton, zoe lofgren
Companies: apple

Apple Responds To Order To Help Decrypt Phone, As More Details Come To Light

from the both-not-as-bad-and-just-as-bad dept

Update: Please see our more recent article detailing why it appears that this attack could apply to more modern iPhones as well.

Last night, we wrote about a judge's order commanding Apple to help the FBI effectively decrypt the contents of Syed Farook's iPhone 5C. Farook, of course, along with his wife, was responsible for the San Bernardino attacks a few months ago. Many of the initial reports about the order suggested that it simply ordered Apple to break the encryption -- which made many people scoff. However, as we noted, that was not accurate. Instead, it was ordering something much more specific: that Apple create a special firmware that would disable two distinct security features within iOS -- one that would effectively wipe the encrypted contents following 10 failed attempts at entering the unlocking PIN (by throwing away the stored decryption key) and a second one that would progressively slow down the amount of time between repeated attempts at entering the PIN.

Late last night, Apple's Tim Cook also posted a very direct Message to Our Customers that highlights the importance of strong encryption and why this order is such a problem (some of which we'll discuss below).

Compromising the security of our personal information can ultimately put our personal safety at risk. That is why encryption has become so important to all of us.

For many years, we have used encryption to protect our customers’ personal data because we believe it’s the only way to keep their information safe. We have even put that data out of our own reach, because we believe the contents of your iPhone are none of our business.

He notes -- as I did in my original post -- that the FBI is demanding (and the court has agreed) to force Apple to create a backdoor and that creates a number of concerns:

Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation. In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession.

The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a backdoor. And while the government may argue that its use would be limited to this case, there is no way to guarantee such control.

Some would argue that building a backdoor for just one iPhone is a simple, clean-cut solution. But it ignores both the basics of digital security and the significance of what the government is demanding in this case.

In today’s digital world, the “key” to an encrypted system is a piece of information that unlocks the data, and it is only as secure as the protections around it. Once the information is known, or a way to bypass the code is revealed, the encryption can be defeated by anyone with that knowledge.

The government suggests this tool could only be used once, on one phone. But that’s simply not true. Once created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks — from restaurants and banks to stores and homes. No reasonable person would find that acceptable.

Having spent a bunch of time overnight reading through the details of the DOJ's original application, as well as reading through a few public discussions by security experts and, especially, Robert Graham's useful thoughts about the order as well, I have some further thoughts -- including that I think Cook may be slightly overstating his case with his comments, because it's not actually clear that the backdoor the FBI is asking for would actually work on most modern iPhones, though it might work on older phones. However, the larger concerns about the order are still very much valid.

1. One of the concerns I raised last night was probably inaccurate: that this could force Apple into creating a tool that would put many people's privacy at risk. The order does seem fairly specific to just this phone. Yes, as Cook notes, if Apple is forced to do this and Apple does it successfully, that would open up similar orders for other phones, but the impact of that may be somewhat limited in that it only applies to older phones, and quite possibly older iPhones that have not updated their operating systems.
2. It does seem clear that if this were a newer iPhone, which includes Apple's "Security Enclave" system, this request would likely be impossible to meet. It's quite interesting to read the details of how Apple's security now works, where the Security Enclave basically cuts off this possibility, because the firmware update itself would wipe out the encryption key, effectively making it impossible to decrypt the content. It's also possible that even in the older phone this order is still impossible, if the operating system was properly updated -- in part because they may not be able to update the firmware without putting in the passcode, which is the problem they want this new firmware to solve.
3. I keep seeing people say "why can't they just copy the contents of the memory and brute force it elsewhere" but that's not possible with the iPhone, since a part of the key comes from the hardware itself, and there doesn't appear to be any way to extract it (and Apple does not keep it).
4. The whole focus seems to be on allowing the FBI to bruteforce the passcode, which is in the realm of possibility should the two impediments above be removed, as opposed to bruteforce cracking AES encryption, which is not currently in the realm of possibility.

Graham disagrees with me over whether this is about decrypting or a backdoor -- but to some extent that's just semantics (and Cook agrees with me that it's a backdoor). They're not asking for a systemwide backdoor -- and, indeed, it appears this approach wouldn't work at all with more recent iPhones. However, the reason I focused on a backdoor, rather than direct decryption, is that the way most people were discussing "decryption" indicated that they seemed to think the court was ordering the impossible, which was "crack the keys you don't have access to." Instead, they are asking for a backdoor -- just a narrow one that can only be used for this phone and would be ineffective against most modern iPhones. And then that backdoor will be used to brute force the passcode, which would then decrypt the content of Farook's iPhone.

That said, there are still serious concerns. While the DOJ insists that its use of the 18th Century All Writs Act in this case is pretty ordinary and standard, they're exaggerating in the extreme. Some of the previous examples they discuss do include requirements to use certain machinery in order to execute a warrant, but that's quite different from ordering Apple to write entirely new software. The DOJ again insists that there are examples of All Writs Act requests in the past that have required software, but it's notable that when the DOJ says this, it does not immediately cite any cases, but rather says just that sometimes providers have to "write code in order to gather information in response to subpoenas or other process." There's a pretty big difference between writing some scraping or search code, which this implies, and creating a special firmware as the DOJ is asking for in this case.

Also, as Cook notes, the unprecedented nature of this is that it's not at all similar to previous cases, because this would involve actively undermining the security of devices, rather than just helping to gather information that is readily available.

In fact, even more ridiculous is the idea, as laid out in the DOJ's application for this order, that this will not be burdensome to Apple simply because Apple writes software:

While the order in this case requires Apple to provide modified software, modifying an operating system - writing software code - is not an unreasonable burden for a company that writes software code as part of its regular business.

Uh, yeah, it can be when what you're asking for is fairly complex and may not even be possible depending on the specifics of the way the security in the iPhone 5C is designed. And, seriously, just saying "Apple writes software, therefore any request for it to write software is not burdensome" is ridiculous on its face.

There's a separate question, raised by people such as Chris Soghoian, about whether or not this particular use of the All Writs Act to force Apple to use its code signing keys to "sign" this new firmware violates the First Amendment in compelling speech. It will be interesting to see if Apple raises this issue in its inevitable appeal of the order.

In the end, this is both a big deal and potentially not a big deal. It's a big deal in that after a few previous attempts to use the All Writs Act to force Apple to "decrypt" content on a phone, a court has not only done so, but done so with fairly specific instructions on what Apple has to do to create a very specific bit of software that removes a couple security features. That raises a bunch of legal questions, that I would imagine Apple will quickly raise in response as well. However, from a technological standpoint, it appears that many of these questions will soon be moot, so long as people have more modern and updated phones. But the bigger concern, as Cook notes, is the precedent here that a court can order, at the behest of the FBI, that a tech company undermine the security of a device. As he notes, once you start down that slippery slope it's not hard to see where that can lead:

The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.

This particular legal battle is going to get very, very interesting.

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

No, A Judge Did Not Just Order Apple To Break Encryption On San Bernardino Shooter's iPhone, But To Create A New Backdoor

from the slightly-different... dept

So... have you heard the story about how a magistrate judge in California has ordered Apple to help the FBI disable encryption on the iPhone of one of the San Bernardino shooters? You may have because it's showing up everywhere. Here's NBC News reporting on it:

A federal judge on Tuesday ordered Apple to give investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters, assistance the computer giant "declined to provide voluntarily," according to court papers.

In a 40-page filing, the U.S. Attorney's Office in Los Angeles argued that it needed Apple to help it find the password and access "relevant, critical … data" on the locked cellphone of Syed Farook, who with his wife Tashfeen Malik murdered 14 people in San Bernardino, California on December 2.

And you'd be forgiven for believing that the court has now ordered Apple to do the impossible. After all, for well over a year, the DOJ has been arguing that the All Writs Act of 1789 can be used to force Apple to help unlock encrypted phones. And that's an argument it has continued to make in multiple cases.

Many people are now mocking this ruling, pointing out that with end-to-end encryption it's actually impossible for Apple to do very much to help the FBI, which makes the order seem ridiculous. But that's because much of the reporting on this story appears to be wrong. Ellen Nakashima, at the Washington Post, has a more detailed report that notes that Apple is actually required to do something a little different:

The order does not ask Apple to break the phone’s encryption, but rather to disable the feature that wipes the data on the phone after 10 incorrect tries at entering a password. That way, the government can try to crack the password using “brute force” — attempting tens of millions of combinations without risking the deletion of the data.

The order, signed by a magistrate judge in Los Angeles, comes a week after FBI Director James B. Comey told Congress that the bureau has not been able to open one of the killers’ phones. “It has been two months now, and we are still working on it,” he said.

In other words, the order does not tell Apple to crack the encryption when Apple does not have the key. Rather, it is asking Apple to turn off a specific feature so that the FBI can try to brute force the key — and we can still argue over whether or not it's appropriate to force Apple to disable a key feature that is designed to protect someone's privacy. It also raises questions about whether or not Apple can just turn off that feature or if it will have to do development work to obey the court's order. In fact, the same report notes that there is no way for Apple to actually do this:

According to industry officials, Apple cannot unilaterally dismantle or override the 10-tries-and-wipe feature. Only the user or person who controls the phone’s settings can do so. The company could theoretically write new software to bypass the feature, but likely would see that as a “backdoor” or a weakening of device security and would resist it, said the officials, who spoke on the condition of anonymity to discuss a sensitive matter.

So you could argue that this is effectively the same thing as asking Apple to break the encryption, since it (apparently) has no direct access to turning off that feature. However, the specifics do matter -- and most of the kneejerk responses to the order (and the reporting on it) are suggesting something very different than what the court order seems to say.

I think it's still perfectly reasonable to argue that this order is highly problematic, and not legally sound. However, it is still quite different than what most are claiming. It also seems like something that could be quite dangerous. Apple is being pressured to write code that undermines an important security feature, and will probably have little time to debug or test it overall, meaning that this feature it is being ordered to build will almost certainly put more users at risk.

Update: Okay, we've got the full order and it is, indeed, troubling. Here's the key part:

Apple's reasonable technical assistance shall accomplish the following three important functions: (1) it will bypass or disable the auto-erase function whether or not it has been enabled; (2) it will enable the FBI to submit passcodes to the SUBJECT DEVICE for testing electronically via the physical device port, Bluetooth, Wi-Fi, or other protocol available on the SUBJECT DEVICE and (3) it will ensure that when the FBI submits passcodes to the SUBJECT DEVICE, software running on the device will not purposefully introduce any additional delay between passcode attempts beyond what is incurred by Apple hardware.

Apple's reasonable technical assistance may include, but is not limited to: providing the FBI with a signed iPhone Software file, recovery bundle, or other Software Image File ("SIF") that can be loaded onto the SUBJECT DEVICE. The SIF will load and run from Random Access Memory and will not modify the iOS on the actual phone, the user data partition or system partition on the device's flash memory. The SIF will be coded by Apple with a unique identifier of the phone so that the SIF would only load and execute on the SUBJECT DEVICE. The SIF will be loaded via Device Firmware Upgrade ("DFU") mode, recovery mode, or other applicable mode available to the FBI. Once active on the SUBJECT DEVICE, the SIF will accomplish the three functions specified in paragraph 2. The SIF will be loaded on the SUBJECT DEVICE at either a government facility, or alternatively, at an Apple facility; if the latter, Apple shall provide the government with remote access to the SUBJECT DEVICE through a computer allowing the government to conduct passcode recovery analysis.

If Apple determines that it can achieve the three functions stated above in paragraph 2, as well as the functionality set forth in paragraph 3, using an alternate technological means from that recommended by the government, and the government concurs, Apple may comply with this Order in that way.

The order also sets out that:

To the extent that Apple believes that compliance with this Order would be unreasonably burdensome, it may make an application to this Court for relief within five business days of receipt of the Order.

I would imagine that Apple will be taking the court up on that...

Filed Under: all writs act, backdoor, break encryption, encryption, fbi, going dark, privacy, san bernardino attacks, sheri pym
Companies: apple

DOJ Claims Apple Should Be Forced To Decrypt iPhones Because Apple, Not Customers, 'Own' iOS

from the chilling-implications dept

The DOJ has filed its response to Apple's claims that unlocking an iPhone 5 would be unduly burdensome. This ongoing dispute over an All Writs Act order (the act itself dates back to 1789) is also an ongoing dispute over the use of encryption-by-default on Apple phones running iOS 8 or higher.

The argument started with one of the founding members of the "Magistrates' Revolt" -- Judge James Orenstein -- who, back in 2005, challenged another All Writs order by the DOJ. A decade ago, Orenstein pointed out that the government's use of these particular orders circumvented both the judicial system (by granting it powers Congress hadn't) and the legislative system (which hadn't created statutes specifically authorizing the actions the order demanded). Nothing has changed a decade later -- not even the DOJ's continued attempts to teach an old law new tricks.

The DOJ's argument is this: we've used these orders before to force Apple to unlock phones. Why should this one be any different? The filing cites three other cases in which the FBI used an All Writs order to compel the unlocking of an iPhone. Pointing to these, the DOJ argues that past successes should be indicative of future results, despite Judge Orenstein's assertions that the use of these orders grants powers to the FBI that haven't been given to it by Congress.

The filing also challenges Apple's assertions about the burdensomeness of the request. The government says Apple makes $100 million per day in profit. How can the unlocking of one phone -- no matter how many man hours might go towards testimony and cross-examination -- even begin to make a dent in this pile of money?

It then goes on to compare the present case to 1977's New York Telephone Co. Supreme Court decision, despite Judge Orenstein pointedly unbundling the two in his original order. In the 1977 case, the Supreme Court found that the All Writs Act could be used to compel a telephone company to provide the FBI with leased lines in order to facilitate its pen register order. As Orenstein pointed out in his order requesting input from Apple, that case is unlike this one because while Apple manufactures the phone, it does not own it.

The DOJ, however, argues that while Apple may not own the phone, it owns the software -- specifically, the lockscreen part of the operating system. And that's where the government makes it most unique -- and most dangerous -- assertion:

Apple wrote and owns the software that runs the phone, and this software is thwarting the execution of the warrant. Apple’s software licensing agreement specifies that iOS 7 software is “licensed, not sold” and that users are merely granted “a limited non-exclusive license to use the iOS Software.” See “Notices from Apple,” Apple iOS Software License Agreement ¶¶ B(1)-(2), attached hereto as Exhibit C. Apple also restricts users’ rights to sell or lease the iOS Software: although users may make a “one-time permanent transfer of all” license rights, they may not otherwise “rent, lease, lend, sell, redistribute, or sublicense the iOS Software.” Ex. C, ¶ B(3). Apple cannot reap the legal benefits of licensing its software in this manner and then later disclaim any ownership or obligation to assist law enforcement when that same software plays a critical role in thwarting execution of a search warrant.

If the judge buys this argument, the government will be free to issue All Writs orders to access nearly any electronic device -- bypassing the purchasers and heading straight for manufacturers. As Cory Doctorow points out, this is not the future we want.

Virtually every commercial software vendor licenses its products, rather than selling them. If the DoJ establishes the precedent that a product's continued ownership interest in a product after it is sold obliges the company to act as agents of the state, this could ripple out to cars and pacemakers, voting machines and tea-kettles, thermostats and CCTVs and door locks and every other device with embedded software.

The Internet of Things is now the Web of Government Informants.

Finally, the government argues that approaching the owner of the phone is an "unworkable option." The government wants Apple to do what it can't require the phone's owner to do: unlock it.

This Court’s October 9 order suggests that the government might attempt to compel Feng to unlock the Target Phone, see Order at 7, but that approach is also unworkable. Through counsel, Feng asserts that he has forgotten the passcode, which, if true, renders him unable to offer assistance.

Even if Feng knew the passcode, attempting to compel him to unlock the Target Phone would not provide an adequate alternative to an order directed to Apple. Compelled decryption raises significant Fifth Amendment issues and creates risk that the fruits of the compelled decryption could be suppressed. See, e.g., In re Grand Jury Subp. Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1349 (11th Cir. 2012) (holding that the Fifth Amendment protects a defendant’s refusal to decrypt electronic storage media). The government should not be required to pursue a path for obtaining evidence that might lead to suppression.

Soon the government may have no choice. As phone encryption heads towards ubiquity, the FBI will have to roll the dice on evidence suppression. The move towards encryption will render these All Writs orders useless. If the DOJ still wants the broad power those orders convey, it will need new legislation written and passed.

The government also disagrees with Apple's claim that the damage to its reputation -- should it appear to be law enforcement's best friend -- is itself a cognizable burden. The court may agree with the government's reasoning, but Apple's assertion sends a strong message to the DOJ: tech companies are tired of facilitating the government's overreach.

Apple has told its customers only they hold the keys to their phones' contents going forward. If the government wants in, it will have to approach them directly. The government doesn't want to deal with the Fifth Amendment implications of prying passcodes out of reluctant defendants, but it probably should have thought of that while steadily abusing the Fourth. By skirting one repeatedly, it has put itself in the position of perpetually falling afoul of another.

Filed Under: all writs act, doj, encryption, going dark, licensing, ownership
Companies: apple

Judge Calls Bluffs On Encryption Debate; Asks Apple To Explain Why Unlocking A Phone Is 'Unduly Burdensome'

from the no-more-FBI-shitposting? dept

Things on the Crypto War 2.0 battlefront just got a little more interesting. The administration won't seek backdoors and neither will Congress. The intelligence community has largely backed away from pressing for compliance from tech companies. This basically leaves FBI director James Comey (along with various law enforcement officials) twisting in his own "but people will die" wind.

Comey continues to insist encryption can be safely backdoored. He claims the real issue is companies like Apple and Google, who hire tons of "smart people" but won't put them to work solving his "going dark" problem for him. As pretty much the entirety of the tech community has pointed out, holes in encryption are holes in encryption and cannot ever be law enforcement-only.

We may get a chance to see who's telling the truth. As the Washington Post's Ellen Nakashima reports, a NY federal judge is calling everyone's bluff.

Magistrate Judge James Orenstein of the U.S. District Court for the Eastern District of New York released an order Friday that suggests he would not issue a ­government-sought order to compel the tech giant Apple to unlock a customer’s smartphone.

But before he can rule, the judge said, he wants Apple to explain whether the government’s request would be “unduly burdensome.”

The order details what the government is trying to accomplish, but has yet to succeed in doing.

In a sealed application filed on October 8, 2015, the government asks the court to issue an order pursuant to the All Writs Act, 28 U.S.C. § 1651, directing Apple, Inc. ("Apple") to assist in the execution of a federal search warrant by disabling the security of an Apple device that the government has lawfully seized pursuant to a warrant issued by this court. Law enforcement agents have discovered the device to be locked, and have tried and failed to bypass that lock. As a result, they cannot gain access to any data stored on the device notwithstanding the authority to do so conferred by this court's warrant.

The order demands Apple submit a response by October 15th. First, it seeks an answer as to whether the government's request is even "technically feasible." If it is, Apple will need to explain why complying with the order would be "unduly burdensome." If further discussion is needed, oral arguments from both parties will be heard a week from that date (at this point oral arguments are purely optional).

The order also closely examines the government's request in light of the All Writs Act. This would be the 1789 law the DOJ is trying to use to "cover" a gap between what Congress has specifically authorized and what the FBI is hoping to have granted. The presiding judge in this case -- Judge Gabriel Gorenstein -- has had previous experience with the FBI, phone manufacturers, and the All Writs Act, having dealt with a similar case back in 2005. In that case, he noted the government's request seemed to be a "Hail Mary play" designed to elude statutory restraints, the checks and balances built into the system, and put the magistrate judge in the position of granting something possibly beyond his power to grant.

The government thus asks me to read into the All Writs Act an empowerment of the judiciary to grant the executive branch authority to use investigative techniques either explicitly denied it by the legislative branch, or at a minimum omitted from a far-reaching and detailed statutory scheme that has received the legislature's intensive and repeated consideration. Such a broad reading of the statute invites an exercise of judicial activism that is breathtaking in its scope and fundamentally inconsistent with my understanding of the extent of my authority.

The All Writs Act is challenged here by Gorenstein again, nearly a decade later. After quoting a lengthy bit of report on "going dark" written by everyone's favorite terrorist-sympathizer Peter King, Gorenstein goes on to challenge Comey's public statements in light of his agency's desire to deploy a 1789 law to punch holes in 2015's phone encryption.

More specifically -- in a lengthy footnote -- Gorenstein basically calls Comey a hypocrite.

In a similarly-titled article published shortly before his Senate testimony, Director Corney discussed the extent to which companies like Apple should be compelled to ensure law enforcement access to the user content stored on its devices. Pertinent to the instant analysis of the All Writs Act, he wrote:

Democracies resolve such tensions through robust debate… It may be that, as a people, we decide the benefits here outweigh the costs and that there is no sensible, technically feasible way to optimize privacy and safety in this particular context, or that public safety folks will be able to do their job well enough in a world of universal strong encryption. Those are decisions Americans should make, but I think part of my job is [to] make sure the debate is informed by a reasonable understanding of the costs...

Director Corney's view about how such policy matters should be resolved is in tension, if not entirely at odds, with the robust application of the All Writs Act the government now advocates. Even if CALEA and the Congressional determination not to mandate "back door" access for law enforcement to encrypted devices does not foreclose reliance on the All Writs Act to grant the instant motion, using an aggressive interpretation of that statute's scope to short-circuit public debate on this controversy seems fundamentally inconsistent with the proposition that such important policy issues should be determined in the first instance by the legislative branch after public debate - as opposed to having them decided by the judiciary in sealed, ex parte proceedings.

The order also points out that the previous use of the All Writs Act to secure phone records is a completely different legal animal than the current demand that Apple open up a customer's phone and expose all it contains to federal investigators.

[U]nlike the Telephone Company, Apple is not "a highly regulated public utility with a duty to serve the public[.]" It is a private-sector company that is free to choose to promote its customers' interest in privacy over the competing interest of law enforcement. Indeed, whereas in New York Tel Co. "it [could] hardly be contended that the Company ... had a substantial interest in not providing [the requested] assistance," it is entirely possible, if not likely, that Apple has thus far made a deliberate decision to balance those competing interests in favor of its customers' privacy preferences, as discussed further below.

Similarly, unlike the Telephone Company, which as the Supreme Court noted, regularly used pen registers for its own business purposes, there is nothing in the record to suggest that Apple has or wants the ability to defeat customer-installed security codes to access the encrypted data that its customers store on Apple devices after purchasing them.

Gorenstein also notes that the government has other ways of obtaining the contents of the phone, including the use of coercive measures to force the owner to unlock it. This has its own constitutional implications, but they are not under the purview of the magistrate judge. (There are also any number of third-party services utilized by the phone's owner that may be more amenable to turning over information in response to court orders.)

Gorenstein says the government's interpretation of the All Writs Act seems to exceed the intent of that law and completely bypasses the checks and balances built into the system -- namely, the legislative branch, which has notably not pushed for mandated backdoors no matter how much Comey and others have complained about the threat it poses to the safety of Americans.

In the end, though, Gorenstein says it comes down to Apple pointing out why decrypting this phone would be "unduly burdensome," if it is actually possible at all. Judging from the content of the order, it appears the Gorenstein is far more skeptical of the government's claims than Apple's, but we won't know for sure until he responds to Apple's response. If Apple responds with answers the government doesn't like, it may move to have any further discussion on the matter sealed, which means we may not find out where this stands until years from now.

Then again, it may mean nothing at all. As Nakashima points out, this particular battle may not provide the best chance to defeat Comey's backdoor fantasies.

Law enforcement officials said Saturday that the device at issue is a phone that runs on an older version of Apple’s operating system that Apple can unlock.

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

MPAA Knows It Doesn't Understand SOPA-Style Site Blocking, But Has Decided It's The Answer

from the really,-guys? dept

While I still think the biggest story to come out of the Sony hacks is the fact that the MPAA had a plan to fund investigations of Google by public officials to get negotiating leverage over the company, a lot of other interesting tidbits have been revealed as well, including the fact that the MPAA still really, really believes in the idea of site blocking. It has listed it as a "high priority" item that was discussed in a recent anti-piracy strategy meeting bringing together the top lawyers from most of the major Hollywood studios: As the TorrentFreak article above notes, the MPAA laid out a four prong approach to force site-blocking on the US. The Verge recently posted an MPAA email that described at least some of the strategy as well:

We have traditionally thought of site blocking in the US as a DMCA 512(j) issue. In some ways, that is too narrow and we plan to expand our scope of inquiry on two levels. First, DMCA 512(j), by its terms, necessarily creates an adversarial relationship with the target ISP (and more generally with the ISP community). We have been exploring theories under the All Writs Acts, which, unlike DMCA 512(j), would allow us to obtain court orders requiring site blocking without first having to sue and prove the target ISPs are liable for copyright infringement. This may open up avenues for cooperative arrangements with ISPs. Second, we start from the premise that site blocking is a means to an end (the end being effective measures by ISPs to prevent infringement through notorious pirate sites). There may be other equally effective measures ISPs can take, and that they might be more willing to take voluntarily. Our intention is to work with our own retained experts and Comcast (and MPAA’s Technology group) to identify and study these other possibilities, as well as US site blocking technical issues.

The MPAA is right that 512(j) is likely a dead end. In fact, a legal analysis done by the MPAA's lawyers at Jenner & Block (the MPAA's preferred legal hatchet men) details why. The "All Writs Act" approach is nutty, and would lead to significant push back from a variety of parties (we just recently noted that the DOJ has been trying to use the All Writs Act to get companies to help decrypt encrypted phones). There would undoubtedly be a big legal fight over any such attempt. Other plans, like using the ITC or the Communications Act would also run into problems.

In fact, The Verge also just published some internal legal analysis from Jenner & Block explaining why the ITC route is really risky and unlikely to work, whether targeting transit ISPs (Level3, Cogent, etc...) or access ISPs (Verizon, Comcast, AT&T, etc...). Amusingly, the "alternative" to SOPA that was pushed out by some anti-SOPA folks in Congress actually would have made the ITC route more feasible, but the MPAA was among its loudest critics. And yet now suddenly it's exploring the ITC path? Ha!

Either way, the most insane part of all of this is the fact that, nearly three years after SOPA, the MPAA more or less admits in an email that it hasn't really analyzed the technological impact of site blocking (which was a key component of SOPA) and feels like maybe it should get on it. From the email sent by MPAA General Counsel Steven Fabrizio:

Technical Analyses. Very little systematic work has been completed to understand the technical issues related to site blocking in the US and/or alternative measures IPSs might adopt. We will identify and retain a consulting technical expert to work with us to study these issues. In this context, we will explore which options might lead ISPs to cooperate with us.

Talk about putting the anti-piracy cart before the internet horse...

Meanwhile, the MPAA -- recognizing the shit storm created by SOPA -- has made sure that all of its site blocking efforts are to remain as quiet as possible (oops):

Be cautious about communications on site-blocking—continue building a record of success where possible, but avoid over-communicating and drawing negative attention.... Where site-blocking is actively under consideration, make available research (1) that site-blocking works and (2) that it does not break the Internet (lack of "side effects"). [Do this] in closed-door meetings with policymakers and stakeholders, [but] not necessarily publicized to a wider audience.

Yes, make sure people think site blocking "works" even though the MPAA doesn't have the requisite technical knowledge to understand it. So, in the interest of open source research, I'm going to help the MPAA out a bit and explain to them why site blocking is stupid and massively counterproductive. I mean, they could just look at what's happened in the past few weeks since The Pirate Bay went down, leading tons of other sites to pop up and (as reported in Variety -- normally a keen source of spinning in favor of the studios) the actual impact on infringement online was basically nil.

But, let's take this a step further. Let's say... for example, that the MPAA succeeded in having certain "evil" sites blocked. Thankfully, at about the same time as these meetings were going on, the MPAA also gave Congress a list of the sites it considered "notorious." Let's take one -- how about torrentz.eu -- and do a basic Google Search showing what results would come up if Goliath Google were forced not to link to the site (which is slightly different from site blocking, but the MPAA is also talking about similar efforts to get full domains "removed" from Google as an alternative to site blocking -- and the end results would be pretty much the same thing). Take a look: If you can't see it, it's basically a bunch of links to pages listing out where you can go instead of that particular site. In short, site blocking is stupid. It won't actually cut down on any infringing activity, and it's easily gotten around, whether by VPNs or just by doing a rather basic search. Now, of course, the MPAA and its friends would likely still blame Google for this state of affairs, but I'm curious how the MPAA contends that Google should return results on such a site if it's been blocked or removed from search? How could it possibly also block out links to sites that list alternatives? Or is part of the plan to expand the censorship all the way down the pile so that any site that even mentions sites that the MPAA declares "notorious" also need to be blocked? Because if that's the case, they're going to run into a pretty massive First Amendment question before long.

The problem -- as always -- is that the MPAA still thinks that the public is stupid, and that if they can successfully "block" sites that people will stop looking for alternatives. The reality is that the way to get people to stop looking for unauthorized alternatives is to make better authorized alternatives -- but that's clearly still not a priority for the MPAA. And that's a real shame.

And none of this even touches on the problems with false positives (something that's already happened a bunch) or how site blocking might seriously screw up certain security setups, like DNSSEC (something the MPAA was clearly warned about during the SOPA fight, but which it still seems to deny is a real problem). In fact, during a recent secret "Site Blocking" meeting by the MPAA, it still appears to mock the idea that site blocking would break the internet by messing up DNSSEC. That's because the MPAA still doesn't seem to fundamentally understand the issues at play. If they actually talked to some real engineers at ISPs, maybe they'd learn that this whole infatuation is misguided and won't work.

In short, the MPAA sees site blocking as a priority because it doesn't understand the first thing about site blocking and why it would fail -- and that's speaking legally, technically and using just basic common sense. So why is the MPAA so focused on that, rather than actually innovating and adapting? This is what happens when you put a bunch of litigators, rather than innovators, in charge.

Filed Under: all writs act, circumvention, dns, dnssec, itc, site blocking, sopa, steven fabrizio, whole domain removal
Companies: mpaa

DOJ Using Antiquated 1789 'All Writs Act' To Try To Force Phone Manufacturers To Help Unlock Encrypted Phones

from the any-and-all-methods dept

With the ongoing fight over mobile encryption in the last few months, it's no secret that law enforcement has been pushing for new laws that require backdoors into encrypted offerings. However, the Wall Street Journal also noted another little trick that the Justice Department appears to be testing out: dumping the problem back on the phone manufacturer, by using a centuries old law to require the [nameless] phone manufacturer to help law enforcement decrypt a phone. And, Ars Technica then found another example of it being used on the very same day in a different case to try to pressure Apple into helping to decrypt a phone.

Specifically, the DOJ used the All Writs Act -- a 1789 law, that is now codified as 28 USC 1651. It's pretty straightforward (and broad):

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.

The case the WSJ found is not at all clear in the details. An order was issued to a phone manufacturer -- whose name is redacted to [XXX] Inc. -- saying that it needed to help the DOJ unlock the phone. Federal Court Magistrate Judge Gabriel Gorenstein (in the Southern District of NY) agreed, but issued the public ruling on it, perhaps recognizing that this is diving into slightly questionable territory. While noting that the All Writs Act was also the basis for so called "pen register" orders (recording phone numbers dialed by certain phones based on court orders), Gorenstein points out that this is a similar situation:

the Supreme Court held that a district court had authority under the All Writs Act to issue an order requiring a telephone company to provide technical assistance to the Government in its effort to install a "pen register" — a device for recording the numbers dialed on a telephone.... Thus, we conclude that it is appropriate to order the manufacturer here to attempt to unlock the cellphone so that the warrant may be executed as originally contemplated.

However, Gorenstein points out that the All Writs Act isn't without its limits, and thus he provides the phone manufacturer a chance to protest, arguing that the request is too burdensome:

The Government has provided a proposed Order that directs the manufacturer to provide "reasonable technical assistance" in unlocking the device. The proposed Order omits, however, any mention of a process by which the manufacturer may seek to the challenge the Order. Courts have held that due process requires that a third party subject to an order under the All Writs Act be afforded a hearing on the issue of burdensomeness prior to compelling it to provide assistance to the Government.... To the extent the manufacturer believes the order to be unduly burdensome or that it should be reimbursed for expenses, the manufacturer should be given clear notice that it has the opportunity to object to the Order.

It's unclear if the manufacturer did object to the order or not. In the other case, in the Northern District of California, Magistrate Judge Kandis Westmore doesn't hide Apple's name, noting that the FBI has the phone and wants Apple's help to decrypt it under the All Writs Act. The request, filed on the same day as the ruling in NY, notes that "in other cases, courts have ordered the unlocking of an iPhone under this authority." In other words, it looks like the DOJ wasted no time using the ruling in NY to suggest this was a common way of forcing the phone manufacturer to help decrypt phones. Though, as others have pointed out, other courts have actually pushed back on attempts by the feds to use the All Writs Act to spy on people like this.

Either way, Westmore doesn't go as far as Gorenstein, and rather notes that Apple only need provide "reasonable technical assistance" but "is not required to attempt to decrypt, or otherwise enable law enforcement's attempts to access any encrypted data." Instead:

Apple's reasonable technical assistance may include, but is not limited to, bypassing the iOS Device's user's passcode so that the agents may search the device, extracting data from the Device and copying the data onto an external hard drive or other storage medium that law enforcement agents may search, or otherwise circumventing the Device's security systems to allow law enforcement access to Data and to provide law enforcement with a copy of encrypted data stored on the iOS Device.

Westmore's response seems somewhat limited. It basically says that Apple can help getting the (encrypted) data off the device if the FBI can't figure out how, but it shouldn't have to help to decrypt it. The NY case ruling seems much more open ended. It's unclear if the nameless manufacturer in the NY case did push back on the ruling by protesting it. If it did, the efforts are probably sealed up. However, it does suggest that the DOJ is already figuring out a variety of ways to try to pressure even those who lock down information on devices to help the DOJ break those locks.

Filed Under: all writs act, doj, fbi, gabriel gorenstein, kandis westmore, mobile encryption, phone manufacturers