I think the Apple plan is to prove that this proposal is both an unreasonable burden and an unlawful expansion of All-Writs.
Forcing highly valuable resources to this unprecedented task costs a lot of money each time, especially as they will not be compelled to keep a copy for future uses. The FBI might claim they are willing to pay the bill but they have no idea how big it would actually be and once they do find out they will typically resort to asking the courts to force Apple to pay the full price because "civic duty".
Worse, forcing Apple to be State Safe-cracker for more cases in an uncertain future will immediately devalue the entire corporation and all of it's products in the public view, and thus on Wall Street. The immediate loss will be billions even before the first phone is breached. If it continues on to other phones in other cases [using this as precedent] then those losses will become permanent and may even deepen to the point where thousands of American and Asian jobs will be lost forever. That is definitively an unreasonable burden which a court ignores at Apple's and it's own peril.
All-Writs was crafted for access to available documents only! Redefining it to force "landlords" of any kind to become safecrackers for the state is clearly beyond the text and it's intention, no matter how the FBI want to portray it as an attempt to "keep up with the times". The courts will have no other choice but to tell the FBI that they will have to ask for new legislation because the courts don't have the authority to expand law past constitutional protections or the actual text of the legislation.
Bending a law against the constitution to fit needs is not unusual but actually breaking it or changing a law to create new authorities or powers is legally impossible, inviting sanctions against an offending judge..
The original state of the evidence here is when the suspect last had it in hand, not before the factory shipped a new phone. A blank phone is evidence only that a phone exists! ;]
If all that's changed is the login screen, then after the access code is obtained with it and the original login screen is replaced, the logs of that process and the sworn testimony of all involved prove the OS and data have not been altered by the process at the time the data was finally accessed and copied to FBI assets. Even then, originals are preserved and locked away from subsequent investigators while backups are also locked away to preserve the chain of access.
Until the phone is unlocked it is impossible to alter the encrypted data and after the phone is unlocked it is impossible for anyone to have unsupervised and unlogged access to the data.
Because chain of custody procedures are followed only one person at a time has custody, usually supervising and/or assisted by one or more people as he/she works.
These procedures, familiar to all officers, agents and courts, are trusted for good reason; because it is practically impossible to tamper with evidence without leaving "fingerprints" and the logs show who had custody when such "fingerprints" showed up.
The legal system has had decades of practice with these procedures and it is very rare that someone finds new loopholes to exploit. You may theorize that one may exist, that someone has the means, motive and opportunity to exploit it, and that someone also coincidentally has custom- tailored false evidence to plant but the odds of [loophole] + [means] + [motive] + [opportunity] + [fake data that fools everybody] all coming together at the same time is so low that it tends to be impossible, especially in cases as complex as this with so many investigators and lawyers involved.
It is those decades of history and case law which creates trust in chain of custody. Defense attorneys in other cases, [not this one because the criminals are dead] will often poke and prod at the chain of custody because that is what they are expected to do. Most of the time they only prove that the evidence is solid.
The only functions involved in this All-Writs order is the login screen itself. That login screen has very little functionality because it is only designed for one task; so any elaborate spy code to meddle with data would cause an obvious case of bloat that any one of the people involved could detect. You can be sure that Apple techs would not let such shenanigans go unreported.
One tech unlocks the phone, signs off on what he did and removes the tool, then the investigators go get the data, every step of which is logged and signed for. The process is rigorous.
After that it's all unchanged IOS code being used by investigators directly because the phone and it's revealed unlock code is now in their sole custody. The custom login screen, no longer needed, would be replaced with the original so the iPhone could be unquestionably certified as absolutely in it's original state; thus placing it's contents securely in a properly managed chain of custody.
If the folks operate as usual, dot all of their i's and cross all of their t's, a court will have no reason to question the process unless something unexpected happens; like evidence showing up early or late in the process and conflicting with the logs already in hand. That is rare.
At the point where it was used, in the presence of FBI and Apple experts, to retrieve the data and put it directly into the chain of custody. Everyone present would be require to swear to every step of the procedure they carried out. It's standard practice which courts respect.
As all it did was unlock the phone there was no opportunity for the backdoor to directly access the data; because that was done by the iPhone's normal operating system using it's normal, built-in functions that nobody can suspect as being new or unique to that one phone.
It's like getting a landlord to unlock a door for you. He never went inside after opening the door because that's the cops' job. Later on, all he can testify to is that he opened the door and let the cops in at that date and time; after that the scene is in police custody and only they can keep track of what they do and when; thus, a chain of custody.
Daubert and defence counsel access are both irrelevant here.
Daubert requires a new methodology [such as DNA analysis] to trigger a scientific review. That's why the four prongs cited are an obvious poor fit to this case.
1. This software is tested/verified by the sole defendant. 2. Peer review is not, and never will be, relevant here. 3. A backdoor works or it doesn't. There can be no error rate. 4. There is no "relevant scientific community" for Apple's proprietary trade secrets, particularly when the original court order specified the software be destroyed upon use.
The software proposed may be new but there is no new technological or scientific research needed to make the software or use it and development is limited to altering or disabling established code already in use.
Likewise, the prospect of defence counsel demanding access falls moot before the fact that Apple is the sole defendant for this and future All-Writs cases on iPhones.
Other defendants may wish to suppress evidence obtained by a backdoor but they won't be able to get their hands on the backdoor itself because the presence of the evidence proves that the backdoor worked. Nobody would be able to argue that a mere backdoor conjured up evidence that was not already there to be found and they couldn't use Daubert because it's just a backdoor and not a new scientific method.
It launched successfully, tested it's "throat clearing" charge, shut down and splashed down safely. Claims that it exploded fail to take the tech under test into account.
That DPRK clipped on related footage of an earlier test flight is a particularly stupid example of propagandising for local consumption but that doesn't take away from the unfortunate fact that they have accomplished one of the most difficult steps in developing a working SLBM.
"Talking Points" are intended for presentation to the press; therefore to the public. They are used for publicity.
You can't really call that stuff a bunch of secrets. ;]
Spitballing that is used to come up with talking points is reasonably private and confidential because that's where all the mistakes are made before the grownups find and fix them; but once that's done your talking points are not classifiable.
Some of these wannabe martyrs are resting on a couple of reasonable, if naive, expectations:
They assume they won't be caught in time to stop them; because they have seen plenty of examples of that in the news over the past decade.
They expect to die, so don't bother protecting themselves from detection or defenses they will meet on the way to martyrdom and imaginary heaven.
With both of these in mind it becomes easier to get on with their crimes because it is so much simpler to skip precautions, alternate targets and escape routes.
They don't have to be particularly stupid to operate like this but it says a lot about their lack of wisdom when they first decided to die as "righteous" killers.
Lets not forget that these are not military campaigns or missions at all, and are not being treated as such. They are suicides by people who want to be remembered.
Cleverness, to these types, is a sin; not a virtue.
The one thing they are not saying, and dare not say aloud…
…is that they want legal "personhood" for an animal so they can exploit all animals for profit and for their cult's power.
If they actually admitted it the lawsuit would end right there; so they try to trick a court with this sideways alternative approach. Hopefully the defendants or the court will call their bluff, expose their game and end it.
On the post: Apple Might Be Forced To Reveal & Share iPhone Unlocking Code Widely
themselves as long as they have served a warrant to it's
owner and seized the safe.
Then they could hire one to do the deed if they couldn't.
Of course, if nobody accepts the job, they're Short Of Luck. ;]
On the post: Apple Might Be Forced To Reveal & Share iPhone Unlocking Code Widely
both an unreasonable burden and an unlawful expansion of
All-Writs.
Forcing highly valuable resources to this unprecedented
task costs a lot of money each time, especially as they
will not be compelled to keep a copy for future uses. The
FBI might claim they are willing to pay the bill but they
have no idea how big it would actually be and once they do
find out they will typically resort to asking the courts to
force Apple to pay the full price because "civic duty".
Worse, forcing Apple to be State Safe-cracker for more cases
in an uncertain future will immediately devalue the entire
corporation and all of it's products in the public view, and
thus on Wall Street. The immediate loss will be billions
even before the first phone is breached. If it continues
on to other phones in other cases [using this as precedent]
then those losses will become permanent and may even deepen
to the point where thousands of American and Asian jobs will
be lost forever. That is definitively an unreasonable
burden which a court ignores at Apple's and it's own peril.
All-Writs was crafted for access to available documents only!
Redefining it to force "landlords" of any kind to become
safecrackers for the state is clearly beyond the text and it's
intention, no matter how the FBI want to portray it as an
attempt to "keep up with the times". The courts will have
no other choice but to tell the FBI that they will have to
ask for new legislation because the courts don't have the
authority to expand law past constitutional protections
or the actual text of the legislation.
Bending a law against the constitution to fit needs is not
unusual but actually breaking it or changing a law to create
new authorities or powers is legally impossible, inviting
sanctions against an offending judge..
On the post: Apple Might Be Forced To Reveal & Share iPhone Unlocking Code Widely
last had it in hand, not before the factory shipped a new phone.
A blank phone is evidence only that a phone exists! ;]
If all that's changed is the login screen, then after the
access code is obtained with it and the original login
screen is replaced, the logs of that process and the sworn
testimony of all involved prove the OS and data have not
been altered by the process at the time the data was
finally accessed and copied to FBI assets. Even then,
originals are preserved and locked away from subsequent
investigators while backups are also locked away to
preserve the chain of access.
Until the phone is unlocked it is impossible to alter the
encrypted data and after the phone is unlocked it is
impossible for anyone to have unsupervised and unlogged
access to the data.
Because chain of custody procedures are followed only one
person at a time has custody, usually supervising
and/or assisted by one or more people as he/she works.
These procedures, familiar to all officers, agents and
courts, are trusted for good reason; because it is
practically impossible to tamper with evidence without
leaving "fingerprints" and the logs show who had custody
when such "fingerprints" showed up.
The legal system has had decades of practice with these
procedures and it is very rare that someone finds new
loopholes to exploit. You may theorize that one may exist,
that someone has the means, motive and opportunity to
exploit it, and that someone also coincidentally has custom-
tailored false evidence to plant but the odds of [loophole]
+ [means] + [motive] + [opportunity] + [fake data that
fools everybody] all coming together at the same time is so
low that it tends to be impossible, especially in cases as
complex as this with so many investigators and lawyers involved.
It is those decades of history and case law which creates
trust in chain of custody. Defense attorneys in other cases,
[not this one because the criminals are dead] will often poke
and prod at the chain of custody because that is what they
are expected to do. Most of the time they only prove that
the evidence is solid.
On the post: Apple Might Be Forced To Reveal & Share iPhone Unlocking Code Widely
login screen itself. That login screen has very little
functionality because it is only designed for one task; so
any elaborate spy code to meddle with data would cause an
obvious case of bloat that any one of the people involved
could detect. You can be sure that Apple techs would not
let such shenanigans go unreported.
One tech unlocks the phone, signs off on what he did and
removes the tool, then the investigators go get the data,
every step of which is logged and signed for. The process
is rigorous.
After that it's all unchanged IOS code being used by
investigators directly because the phone and it's revealed
unlock code is now in their sole custody. The custom login
screen, no longer needed, would be replaced with the
original so the iPhone could be unquestionably certified as
absolutely in it's original state; thus placing it's
contents securely in a properly managed chain of custody.
If the folks operate as usual, dot all of their i's and
cross all of their t's, a court will have no reason to
question the process unless something unexpected happens;
like evidence showing up early or late in the process and
conflicting with the logs already in hand. That is rare.
On the post: Apple Might Be Forced To Reveal & Share iPhone Unlocking Code Widely
Apple experts, to retrieve the data and put it directly
into the chain of custody. Everyone present would be
require to swear to every step of the procedure they
carried out. It's standard practice which courts respect.
As all it did was unlock the phone there was no opportunity
for the backdoor to directly access the data; because that
was done by the iPhone's normal operating system using it's
normal, built-in functions that nobody can suspect as being
new or unique to that one phone.
It's like getting a landlord to unlock a door for you. He
never went inside after opening the door because that's the
cops' job. Later on, all he can testify to is that he opened
the door and let the cops in at that date and time; after
that the scene is in police custody and only they can keep
track of what they do and when; thus, a chain of custody.
On the post: Apple Might Be Forced To Reveal & Share iPhone Unlocking Code Widely
As both arguments are more likely to annoy a judge than create a delay…
On the post: Apple Might Be Forced To Reveal & Share iPhone Unlocking Code Widely
Daubert and defence counsel access are both irrelevant here.
to trigger a scientific review. That's why the four prongs
cited are an obvious poor fit to this case.
1. This software is tested/verified by the sole defendant.
2. Peer review is not, and never will be, relevant here.
3. A backdoor works or it doesn't. There can be no error rate.
4. There is no "relevant scientific community" for Apple's
proprietary trade secrets, particularly when the original
court order specified the software be destroyed upon use.
The software proposed may be new but there is no new
technological or scientific research needed to make the
software or use it and development is limited to altering
or disabling established code already in use.
Likewise, the prospect of defence counsel demanding access
falls moot before the fact that Apple is the sole defendant
for this and future All-Writs cases on iPhones.
Other defendants may wish to suppress evidence obtained by a
backdoor but they won't be able to get their hands on the
backdoor itself because the presence of the evidence proves
that the backdoor worked. Nobody would be able to argue
that a mere backdoor conjured up evidence that was not
already there to be found and they couldn't use Daubert
because it's just a backdoor and not a new scientific method.
On the post: Daily Deal: DashCam Hi-Res Car Video Recorder And Camera
On the post: New North Korean Weapon Unleashed: Bad Video Editing
It launched successfully, tested it's "throat clearing"
charge, shut down and splashed down safely. Claims that
it exploded fail to take the tech under test into account.
That DPRK clipped on related footage of an earlier test
flight is a particularly stupid example of propagandising
for local consumption but that doesn't take away from the
unfortunate fact that they have accomplished one of the
most difficult steps in developing a working SLBM.
On the post: Latest Email Dump Shows Hillary Clinton Telling Aide To Send Classified Documents Over Unsecure Fax Line
therefore to the public. They are used for publicity.
You can't really call that stuff a bunch of secrets. ;]
Spitballing that is used to come up with talking points is
reasonably private and confidential because that's where all
the mistakes are made before the grownups find and fix them;
but once that's done your talking points are not classifiable.
On the post: Latest Email Dump Shows Hillary Clinton Telling Aide To Send Classified Documents Over Unsecure Fax Line
system shouldn't have been abused to hide them from view.
On the post: AT&T Whines That FCC Report Highlights Broadband Coverage Gaps Company Helped Create
Can you show us some [preferably all] of these changes? ;]
On the post: US Department Of Agriculture TAFTA/TTIP Study: Small Gains For US, Losses For EU
On the post: Dutch Government Supports Encryption, Opposes Backdoors
I wonder if they have any advice for governments today… ;]
On the post: DailyDirt: Imagine There's No Cancer...
to go out of business within their lifetimes. ;]
On the post: These Ain't Masterminds: Would Be Terrorist Crowdsourced Targets On Twitter Using 'Silent Bomber' Handle
reasonable, if naive, expectations:
They assume they won't be caught in time to stop them;
because they have seen plenty of examples of that in the
news over the past decade.
They expect to die, so don't bother protecting themselves
from detection or defenses they will meet on the way to
martyrdom and imaginary heaven.
With both of these in mind it becomes easier to get on with
their crimes because it is so much simpler to skip precautions,
alternate targets and escape routes.
They don't have to be particularly stupid to operate like this
but it says a lot about their lack of wisdom when they first
decided to die as "righteous" killers.
Lets not forget that these are not military campaigns or missions
at all, and are not being treated as such. They are suicides
by people who want to be remembered.
Cleverness, to these types, is a sin; not a virtue.
On the post: Las Vegas Review-Journal Now Owned By... ¯\_(ツ)_/¯
They're "broke", remember? ;]
On the post: The Selfie Monkey Strikes Back: Lawyers Claim Of Course Monkeys Can Sue For Copyright
The one thing they are not saying, and dare not say aloud…
can exploit all animals for profit and for their cult's power.
If they actually admitted it the lawsuit would end right
there; so they try to trick a court with this sideways
alternative approach. Hopefully the defendants or the
court will call their bluff, expose their game and end it.
On the post: Appeals Court Sees Nothing Wrong With The ATF Busting People For Thinking About Robbing Fake Stash Houses
This reminds me…
https://en.wikipedia.org/wiki/Unintended_Consequences_%28novel%29
In the book the ATF was behaving exactly like that.
Now I'll read it again. It was a very good read.
On the post: Our Response To The Latest Ridiculous Legal Threat Against Us: Milorad Trkulja Can Go Pound Sand
You're out on a day pass?
Next >>