Why Isn’t DOJ Complaining about Apple’s Cooperation with Police States Like South Korea … or the US?

There was lots that was nasty in yesterday’s DOJ brief in the Apple vs FBI case. But I want to look at this claim, from DOJ’s effort to insinuate Apple is resisting doing something for the US government it has already done for China.

Apple suggests that, as a practical matter, it will cease to resist foreign governments’ efforts to obtain information on iPhone users if this Court rules against it. It offers no evidence for this proposition, and the evidence in the public record raises questions whether it is even resisting foreign governments now. For example, according to Apple’s own data, China demanded information from Apple regarding over 4,000 iPhones in the first half of 2015, and Apple produced data 74% of the time.

There are a bunch more claims in the paragraph, that I expect Apple will address in its reply. But in this passage, DOJ suggests that Apple is doing something nefarious by providing the government of a country of over 1.3 billion people access to information from 4,000 Apple devices.

Omigosh! 4,000 phones!! That’s an unbelievable amount of cooperation with a repressive state!!!

Here’s the section of Apple’s transparency report from which DOJ gets the numbers.
Screen Shot 2016-03-11 at 6.06.08 PM

As you can see, China has asked for data from roughly the same number of devices as Australia, a country with 2% of China’s population (and a much smaller market for iPhones; though China’s number is higher if you include Hong Kong). By far the biggest snoop into citizens’ devices is South Korea (with a population of just over 50 million), which has asked for data on 37,565 devices.

And if providing a government information on devices is a sign of tyranny, then the DOJ better start worrying about … the US, which asked for information from more than twice as many phones as China in the same period, and which got compliance more often.

In truth, this is a bullshit metric, attacking responses to legal process from China as a kind of red-bashing, while ignoring the much greater data grab that our ally South Korea makes. It says nothing about special cooperation Apple has given China.

That doesn’t mean Apple hasn’t made such cooperation, but DOJ’s use of such a stupid number ought to raise real questions about the rest of it.

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.

6 replies
  1. seedeevee says:

    That number for Singapore, a nation of 5 million, seems a little bit creepy.

    The South Korean one seems strange. The ratio (req/devices) is all off compared to the others.

  2. bloopie2 says:

    Lest we forget, the debate is not about only smartphones. It’s about computers, per se. Here’s why.
    .
    The applicable law that everyone is discussing, is desktop/laptop law. That law will control. The concept is the same; the fact that we carry the computer in our pockets is not relevant. So, what happens in Apple will affect what happens in future cases relating to all computers (really, digital data storage devices of any kind, including phones). We need to keep that in mind.

  3. by the lake shore says:

    Why Isn’t DOJ Complaining about Google’s Cooperation with Police States Like the US?

    Tip from Google led to child-porn bust, prosecutor says

    MUSKEGON, Michigan – A tip from Google.com to police led to the arrest of a Michigan man now charged with downloading child pornography, a prosecutor says.

    Michigan State Police Internet Crime Unit received a tip from Google.com about an image of child sexually abusive material being downloaded, according to Timothy M. Maat, chief assistant Muskegon County prosecutor.

    http://www.mlive.com/news/muskegon/index.ssf/2016/03/tip_from_google_leads_to_child.html

  4. orionATL says:

    re nntaleb and others:

    fascinating.

    there’s no damn mystery here though. and there’s no fundamental flaw with scientific method.

    the problem with some published studies in many fields, especially in the social sciences and medicine, and with the stats used to justify their publication, is called – guess what-

    gaming the system, aka gentleman’s cheating.

    that happens to be the identical problem with the american political system over the last 4 decades.

    only personal integrity, intellectual honesty, or lack thereof seperates useful science or politics from the problematical or harmful.

  5. Denis says:

    Don’t know if you have viewed the docket of this case in the last few days but it has exploded like an IED in a Mosul round-about. The docket jumped from 20 document entries on Mar02 to 155 entries on Mar11. I mean every man and his dog, and his dog’s lawyer, has signed onto this case. You have to wade through about 15 docket pages (@ .10 a pop) just to get past the list of lawyers who are appearing for different amici. Pay day for the country’s tech lawyers – ka-ching!!
    .
    Examples: eBay; Kickstarter; Federal Law Enforcement Officers Assn; AT&T; AVG; Airbnb; LinkedIn; ACLU; Nat’l Sheriffs’ Assn; Cisco; Google; [wait . . . Airbnb??]; MicroSoft; Mozilla; SnapChat; WhatsApp; Twitter; Amazon; Bobbi, Doreen, & Tommy in behalf of the Mickey Mouse Club.
    .
    Just kidding about the MMC. But this is a serious list of tech companies wanting in on this case. And, of course, the taxpayer and the consumer ultimately pays all these lawyers and judges to sort this out, so you might was well enjoy the show — you’re paying for it.
    .
    Just the administrative burden alone on Magistrate Judge Pym would be immense. I count 35 orders she has already entered mostly re: minutia. There must be a mountain of amicus briefs to wade through, 99% of which will be filled with redundant hoo-haw.
    .
    I wonder if Pym has the resources to deal with all of this in addition to her other cases. Maybe she can borrow clerks from other judges and a bulldozer from public works. Maybe she will turn this over to a “real” judge and continue as an ass’t to him/her. Not sure if that’s even an option.
    .
    I’ll bet she rues the day DoJ knocked on her door with that application for an AWA order.

    • Denis says:

      Just a couple of thoughts on the DoJ brief while my coffee cools.
      .
      US Aty Eileen Decker’s brief just has a really nasty tenor – accusatory, snide, cheap-shots: all qualities of a brief written by someone who knows they are short on facts and law. At one point I got the feeling that Decker was signaling that she would charge Apple with felony obstruction of justice if they don’t back down.
      .
      Buried in FN 9 is one specific example of her threats. The technical issue here is Apple’s private electronic signature (PES), which is distinct from the ECID that is unique to each iPhone. Apparently, the PES is better than Dorothy’s glass-slippers in that it that will take you anywhere you want to go, not just back to Kansas. Decker points out that they have not demanded Apple’s source code and PES, but, hey, we can play rough if we have to, citing a case from the 4th Circuit Court of Appeals upholding contempt charges against a company for not providing its private SSL encryption key. That’s like your mom saying you don’t have to eat your peas and carrots if you don’t want to, but you’re not leaving the table until you do.
      .
      That bit Marcy notes about China was bizarre. Also, Decker faulted Apple b/c Apple moved customer data to the Chinese government’s servers. That’s b/c China requires all comm companies to do that – China’s government servers hold everybody’s data.
      .
      Sounds draconian until you realize that is precisely what the USG is trying to do without revealing that that’s their goal. Various agency heads of the USG have said repeatedly that the USG wants all of the data – it wants to know everything, read “Utah Data Center.” Apple’s short-term technological push-back to that long-term policy of digital omniscience is the real issue here.
      .
      Decker called BS on Apple over the widely publicized assertion that the FBI goofed the iCloud backup by changing the password. According to her, Farook’s iPhone was found powered off [makes sense as it was left in his car]. Subsequent testing revealed that once powered off, an iPhone will not back itself up to an iCloud account unless and until it has been unlocked at least once by use of the passcode. [Hold on while I make a note to m’self on that.]
      .
      Moreover, the evidence on Farook’s iCloud account suggests that he had already changed his iCloud password himself on October 22, 2015—shortly after the last backup—and that the auto-backup feature was disabled.
      .
      IOW, DoJ and Apple are in a techie pissin’ match over who knows more about how iPhones work. Bring yer own popcorn.
      .
      Loretta – I love Loretta – is obviously calling the shots on a case of this magnitude. She and Decker have bet the farm with this brief and this case. I don’t think it’s extreme to speculate that this issue will be resolved by whomever appoints Scalia’s replacement, assuming no other USSCt deaths/retirements in the mean time. Almost any president will want this resolved against Apple [don’t know about Bernie], so there will be a lot of pressure on USSCt nominees to talk tough and look tough on the government’s right to bust encryption.

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