Working Thread, Apple Response

Apple’s response to the phone back door order is here.

(1) Apple doesn’t say it, but some people at Apple — probably including people who’d have access to this key (because they’d be involved in using it, which would require clearance) — had to have been affected in the OPM hack.

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(2) Remember as you read it that Ted Olson lost his wife on 9/11.

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(3) Several members of Congress — including ranking HPSCI member Adam Schiff — asked questions in hearings about this today.

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(4) Apple hoists Comey on the same petard that James Orenstein did.

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(8) More hoisting on petarding, in this case over DOJ generally and Comey specifically choosing not to seek legislation to modify CALEA.

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(11) Apple beats up FBI for fucking up.

Unfortunately, the FBI, without consulting Apple or reviewing its public guidance regarding iOS, changed the iCloud password associated with one of the attacker’s accounts, foreclosing the possibility of the phone initiating an automatic iCloud back-up of its data to a known Wi-Fi network, see Hanna Decl. Ex. X [Apple Inc., iCloud: Back up your iOS device to iCloud], which could have obviated the need to unlock the phone and thus for the extraordinary order the government now seeks.21 Had the FBI consulted Apple first, this litigation may not have been necessary.

(11) This is awesome, especially coming as it does from Ted Olson, who Comey asked to serve as witness for a key White House meeting after the Stellar Wind hospital confrontation.

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(12) This is the kind of information NSA would treat as classified, for similar reasons.

Although it is difficult to estimate, because it has never been done before, the design, creation, validation, and deployment of the software likely would necessitate six to ten Apple engineers and employees dedicating a very substantial portion of their time for a minimum of two weeks, and likely as many as four weeks. Neuenschwander Decl. ¶ 22. Members of the team would include engineers from Apple’s core operating system group, a quality assurance engineer, a project manager, and either a document writer or a tool writer.

(16) I’ll have to double check, but I think some of this language quotes Orenstein directly.

Congress knows how to impose a duty on third parties to facilitate the government’s decryption of devices. Similarly, it knows exactly how to place limits on what the government can require of telecommunications carriers and also on manufacturers of telephone equipment and handsets. And in CALEA, Congress decided not to require electronic communication service providers, like Apple, to do what the government seeks here. Contrary to the government’s contention that CALEA is inapplicable to this dispute, Congress declared via CALEA that the government cannot dictate to providers of electronic communications services or manufacturers of telecommunications equipment any specific equipment design or software configuration.

(16) This discussion of what Apple is has ramifications for USA Freedom Act, which the House report said only applied to “phone companies” (though the bill says ECSPs).

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(18) Loving Apple wielding Youngstown against FBI.

Nor does Congress lose “its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution” in times of crisis (whether real or imagined). Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 588–89 (1952). Because a “decision to rearrange or rewrite [a] statute falls within the legislative, not the judicial prerogative[,]” the All Writs Act cannot possibly be deemed to grant to the courts the extraordinary power the government seeks. Xi v. INS, 298 F.3d 832, 839 (9th Cir. 2002).

(20) Reading this passage on how simple pen register rulings shouldn’t apply to far more intrusive surveillance, I’m reminded that Olson left DOJ in 2004 before (or about the same time as) Jim Comey et al applied PRTT to conduct metadata dragnet of Americans.

In New York Telephone Co., the district court compelled the company to install a simple pen register device (designed to record dialed numbers) on two telephones where there was “probable cause to believe that the [c]ompany’s facilities were being employed to facilitate a criminal enterprise on a continuing basis.” 434 U.S. at 174. The Supreme Court held that the order was a proper writ under the Act, because it was consistent with Congress’s intent to compel third parties to assist the government in the use of surveillance devices, and it satisfied a three-part test imposed by the Court.

(22) This is one thing that particularly pissed me off about the application of NYTelephone to this case:  there’s no ongoing use of Apple’s phone.

This case is nothing like Hall and Videotapes, where the government sought assistance effectuating an arrest warrant to halt ongoing criminal activity, since any criminal activity linked to the phone at issue here ended more than two months ago when the terrorists were killed.

(24) I think this is meant to be a polite way of calling DOJ’s claims fucking stupid (Jonathan Zdziarski has written about how any criminal use of this back door would require testimony about the forensics of this).

Use of the software in criminal prosecutions only exacerbates the risk of disclosure, given that criminal defendants will likely challenge its reliability. See Fed. R. Evid. 702 (listing requirements of expert testimony, including that “testimony [be] the product of reliable principles and methods” and “the expert has reliably applied the principles and methods to the facts of the case,” all of which a defendant is entitled to challenge); see also United States v. Budziak, 697 F.3d 1105, 1111–13 (9th Cir. 2012) (vacating order denying discovery of FBI software); State v. Underdahl, 767 N.W.2d 677, 684–86 (Minn. 2009) (upholding order compelling discovery of breathalyzer source code). The government’s suggestion that Apple can destroy the software has clearly not been thought through, given that it would jeopardize criminal cases. See United States v. Cooper, 983 F.2d 928, 931–32 (9th Cir. 1993) (government’s bad-faith failure to preserve laboratory equipment seized from defendants violated due process, and appropriate remedy was dismissal of indictment, rather than suppression of evidence). [my emphasis]

(25) “If you outlaw encryption the only people with encryption will be outlaws.”

And in the meantime, nimble and technologically savvy criminals will continue to use other encryption technologies, while the law-abiding public endures these threats to their security and personal liberties—an especially perverse form of unilateral disarmament in the war on terror and crime.

(26) The parade of horribles that a government might be able to coerce is unsurprisingly well-chosen.

For example, under the same legal theories advocated by the government here, the government could argue that it should be permitted to force citizens to do all manner of things “necessary” to assist it in enforcing the laws, like compelling a pharmaceutical company against its will to produce drugs needed to carry out a lethal injection in furtherance of a lawfully issued death warrant,25 or requiring a journalist to plant a false story in order to help lure out a fugitive, or forcing a software company to insert malicious code in its autoupdate process that makes it easier for the government to conduct court-ordered surveillance. Indeed, under the government’s formulation, any party whose assistance is deemed “necessary” by the government falls within the ambit of the All Writs Act and can be compelled to do anything the government needs to effectuate a lawful court order. While these sweeping powers might be nice to have from the government’s perspective, they simply are not authorized by law and would violate the Constitution.

(30) “Say, why can’t NSA do this for you?”

Moreover, the government has not made any showing that it sought or received technical assistance from other federal agencies with expertise in digital forensics, which assistance might obviate the need to conscript Apple to create the back door it now seeks.

(33) Love the way Apple points out what I and others have: this phone doesn’t contain valuable information, and if it does, Apple probably couldn’t get at it.

Apple does not question the government’s legitimate and worthy interest in investigating and prosecuting terrorists, but here the government has produced nothing more than speculation that this iPhone might contain potentially relevant information.26 Hanna Decl. Ex. H [Comey, Follow This Lead] (“Maybe the phone holds the clue to finding more terrorists. Maybe it doesn’t.”). It is well known that terrorists and other criminals use highly sophisticated encryption techniques and readily available software applications, making it likely that any information on the phone lies behind several other layers of non-Apple encryption. See Hanna Decl. Ex. E [Coker, Tech Savvy] (noting that the Islamic State has issued to its members a ranking of the 33 most secure communications applications, and “has urged its followers to make use of [one app’s] capability to host encrypted group chats”).

26 If the government did have any leads on additional suspects, it is inconceivable that it would have filed pleadings on the public record, blogged, and issued press releases discussing the details of the situation, thereby thwarting its own efforts to apprehend the criminals. See Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 218-19 (1979) (“We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. . . . [I]f preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. . . . There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment.”).

(35) After 35 pages of thoroughgoing beating, Apple makes nice.

Apple has great respect for the professionals at the Department of Justice and FBI, and it believes their intentions are good.

(PDF 56) Really looking forward to DOJ’s response to the repeated examples of this point, which is likely to be, “no need to create logs because there will never be a trial because the guy is dead.” Which, of course, will make it clear this phone won’t be really useful.

Moreover, even if Apple were able to truly destroy the actual operating system and the underlying code (which I believe to be an unrealistic proposition), it would presumably need to maintain the records and logs of the processes it used to create, validate, and deploy GovtOS in case Apple’s methods ever need to be defended, for example in court. The government, or anyone else, could use such records and logs as a roadmap to recreate Apple’s methodology, even if the operating system and underlying code no longer exist.

(PDF 62) This is really damning. FBI had contacted Apple before they changed the iCloud password.
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(PDF 62) Wow. They did not ask for the iCloud data on the phone until January 22, 50 days after seizing the phone and 7 days before warrant expired.

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Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

20 replies
  1. orionATL says:

    “Apple has great respect for the professionals at the Department of Justice and FBI, and it believes their intentions are good…”

    this has got to be lawyer-speak to a judge that the doj was trying to pull a fast one – which i suspect they were.

    it sounds a bit like cicero publicly praising mark anthony.

  2. bloopie2 says:

    Nicely written brief by Apple. Part PR and policy, part law, which I guess is par for the course when tough new issues come up. And it’s great to see what a couple million dollars worth of the best legal talent can pull together in a few days’ time (that’s what I’m guessing the legal team cost them). Next person who disses lawyers … .

  3. Evangelista says:

    Yep, No Real Investigative Objective… FBI is just asking Apple to pull the hem of her mini-skirt down in back, to make sure her …ehm, to make sure she’s covered there…

    And there are professionals at the Department of Justice and the FBI. I have met, I think, three of them. And each time it was a thrill, like finding a real gold nugget in the Knotts Berry Farm Sluice.

  4. earlofhuntingdon says:

    This looks an awful lot like the USG is being opportunistic in using a conveniently chosen, recent notorious case to further a preconceived agenda, not to better prosecute a specific case. If successful, it would have a useful precedent both to persuade other courts, and to use as a get-out-of-jail card, in the event its future questionable conduct is outed and a trial court doesn’t kowtow to a state secrets claim and dismiss a case. It would also expand its powers without having to persuade even a supine Congress that its conduct is reasonable, proportional, necessary and balanced. Collect It All (TM).

  5. bloopie2 says:

    Isn’t it true that encryption techniques are staying ahead of all but the most advanced and long-winded NSA cracking efforts, and will continue to do so? If so, then if I were the FBI and realized that, I would go for this, also. Why not? They don’t have the legal authority now to do what they ask, and if they lose, they still won’t have it. What’s to lose? And when will there be a better time?

  6. bloopie2 says:

    Here’s a description of this particular phone’s encryption system, quoted from one of the Exhibits. Not sure I understand the multiple levels of keys, or the UID part.
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    When a user sets up an iPhone, the user designates a device passcode, consisting of four, six, or more alphanumeric characters. This passcode is part of the encryption for files with certain classes of protection. The stronger the user passcode is, the stronger the encryption becomes. On iPhones running iOS 8 or newer operating systems, the major types of user data, including messages, photos, contacts, email, notes, and calendar data all are encrypted with keys protected by a key derived from the user-chosen passcode. The end result is a person must know that passcode to read this data.
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    To prevent “brute-force” attempts to determine the passcode by submitting multiple guesses in rapid succession, iOS includes a variety of safeguards. One of these safeguards is referred to as a “large iteration count. This safeguard functions to slow attempts to unlock an iPhone by increasing the computational burden of each attempt. The iteration count is calibrated so that one attempt to unlock an iPhone takes approximately 80 milliseconds.
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    As another safeguard, Apple imposes time delays, including one which escalates after the entry of invalid passcodes to deter anyone attempting to improperly access a phone by guessing the passcode. After enough consecutive incorrect attempts to enter the passcode, the time delay is set to an infinite value, such that the device will refuse to accept any further passcode entries. There is also a user-configurable setting (“Erase Data”) which automatically deletes keys needed to read encrypted data after ten consecutive incorrect attempts. Even when this setting is disabled, however, the infinite delay limits the number of passcode attempts.
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    A further safeguard for iOS devices is the creation of a Unique ID (“UID”) for every device during fabrication, which is not accessible to the operating system or stored by Apple. When the decryption key for a device is being generated, the user-chosen passcode is entangled with that device’s UID. This means that data is protected with a key cryptographically tied to a given device, and consequently iOS is designed to require passcode validation (and therefore any attempted brute-force attack) be performed on the physical device itself.

    • P J Evans says:

      It sounds like the UID is like an internal serial number that’s part of the chipset in some way, and not accessible, or possible a write-once part of the phone’s boot ROM.

  7. chris l says:

    orionATL: Apple did raise both the first amendment and fifth amendment as issues.

    Re the first amendment: programming has been recognized as expression, and compelled speech is a violation of the first amendment. The Apple software security team member who filed an affidavit described coding as a creative process.

    Re the Fifth: it violates due process because Apple is being compelled not only to expression, but to expression of something (a deliberately insecure OS) that is contrary to its principles, is burdensome, and is not authorized by statute.

  8. Denis says:

    Thank you Marcy for dissecting Apple’s motion for us. Here are a couple of random thots:
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    1. Sheri Pym is a newbie magistrate judge, appointed in 2011. That is not a “real” USDC judge. Magistrates are to USDC judges as Tonto was to the Lone Ranger – as Lyle Lovett famously put it “Tonto does the dirty work for free.” MJs do the dirty work, but not for free. MJ’s do administrative/warrants/preliminary pre-trial stuff. Their orders are reviewable de novo by the USDC judges.
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    The reason I say it is that if Pym doesn’t vacate her Order to Compel, it will then be reviewed de novo by a USDC judge to become a final order, and then that judgment can be appealed to the 9th Circuit. If this case gets that far, lawd knows what will happen, particularly if it falls into the maw of “The Big Kozinski.”
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    Before becoming a MJ, Pym was a federal prosecutor, apparently working in the same USDA office that is now trying to coerce Apple to hack itself.

    2. This is a very, very expensive stable of lawyers Apple has assembled. But sloppy. Did you see the Table of Contents of that motion? The motion is 35 pages long, but, according to the ToC, section II.C. begins on page 100, section III begins on page 144, section III.B begins on page 322, & etc. IOW, lawyers don’t actually read the final product they draft. Embarrassing. Somewhere in S. California there is a former paralegal searching the Craigslist job adverts.
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    3. I found it shocking the way the Apple lawyers attacked Pym’s order, calling it a “wild overreach.” OK, you can say that sort of thing about the prosecutors, but this is not an appeal, yet. Apple is asking the lady in the robe to please vacate her own order. I mean, the lady is in charge, don’t be pissin’ her off. (I learned to put the toilet seat down decades ago.) But then I’m not Ted Olsen, either. Maybe they’re trying to annoy Pym so she’ll dig in and they can start up the appeal ladder and broaden the effect of this case.
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    4. At pg. 33 Apple asserts that computer code is protected 1st Amend speech, and they list a bunch of cases. Interesting that none of those cases are from the 9th circuit, which is the appellate court for Silicon Valley. Nor has the USSCt ruled on this point, apparently. Computer code being protected speech seems a bit of a stretch to me, but I haven’t read the cases. In fact, I find Apple’s 1st Amend and its 5th Amend “deprivation of liberty” arguments a bit wild.
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    5. In a couple of places Apple asserts that the FBI “inadvertently” messed the whole thing up by changing the passcode, thereby precluding back-up to iCloud, which would have provided easy access to the data. Somehow I doubt the FBI was that stupid. The great so-called Constitutional lawyer, Obama, and his people likely saw that instead of going through a fight with Congress to change its restrictions on the Communications Assistance for Law Enforcement Act, if the FBI techies foreclosed all of the non-backdoor options to hacking the data, the government lawyers could persuade this magistrate judge to do the dirty work for free and force Apple to hack itself with a back-door.
    .
    We should not forget who the neofascists are here: Obama, Comey, Lynch, and the local mules drafting and filing the ex parte case — Eileen Decker, Patricia Donahue, Tracy Wilkison, and Allen Chiu. “Hope! Change! My ass.” ™

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