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The FBI’s Asinine Attempt to Retroactively Justify Cracking Farook’s Phone

April 15, 2016/7 Comments/in Cybersecurity, Terrorism /by emptywheel

“Hold on honey,” said Syed Rizwan Farook, who had just murdered 14 of his co-workers, “let me go get my work phone in case they call me during our getaway”

That’s the logic the FBI is now peddling to reporters who are copping onto what was clear from the start: that there was never going to be anything of interest on Farook’s phone. After all, they’re suggesting geolocation data on the phone (some of which would be available from Verizon) might explain the 18 minutes of the day of the attack the FBI has yet to piece together.

For instance, geolocation data found on the phone might yet yield clues into the movements of the shooters in the days and weeks before the attack, officials said. The bureau is also trying to figure out what the shooters did in an 18-minute period following the shooting.

Farook drove a SUV to the attack and was killed in the same SUV. To suggest his work phone, which was found in a Lexus at his house, might have useful geolocation data about the day of the attack would suggest he made a special trip to the car to leave his phone in it and turned it off afterwards (if we really believe it was off and not just drained when the FBI found it the day after the attack).

Hold on honey, let me go place my work phone in the Lexus.

Similarly, it is nonsensical to suggest the phone would yield evidence of ties with foreign terrorists.

The FBI has found no links to foreign terrorists on the iPhone of a San Bernardino, Calif., terrorist but is still hoping that an ongoing analysis could advance its investigation into the mass shooting in December, U.S. law enforcement officials said.

They’ve had the metadata from the phone since December 6, at the latest. That’s what would show ties with foreign terrorists, if Farook had been so stupid as to plot a terrorist attack against his colleagues on his work phone, to which his employer had significant access.

Finally, reporters should stop repeating the FBI’s claim that Farook turned off his backups.

In particular, the bureau wanted to know if there was data on the phone that was not backed up in Apple’s servers. Farook had stopped backing up the phone to those servers in October, six weeks before the attack.

The government has actually never said that in sworn declarations. Rather, their forensics guy, Christopher Pluhar, asserted only that Farook may have turned them off.

Importantly, the most recent backup is dated October 19, 2015, which indicates to me that Farook may have disabled the automatic iCloud backup feature associated with the SUBJECT DEVICE. I believe this because I have been told by SBCDPH that it was turned on when it was given to him, and the backups prior to October 19, 2015 were with almost weekly regularity. [my emphasis]

But if he did, he was a damned incompetent terrorist, because — as Jonathan Zdziarski, who is quoted in this article, pointed out — at the same screen he would have used to turn off the iCloud backup, he could have also deleted all his prior backups, which we know he didn’t do.

Find my iPhone is still active on the phone (search by serial number), so why would a terrorist use a phone he knew was tracking him? Obviously he wouldn’t. The Find-my-iPhone feature is on the same settings screen as the iCloud backup feature, so if he had disabled backups, he would have definitely known the phone was being tracked. But the argument that Farook intentionally disabled iCloud backup does not hold water, since he would have turned off Find-my-iPhone as well.

In addition to leaving Find-my-iPhone on, the option to delete all prior backups (which include iMessage history and other content) is also on the same settings screen as the option to disable iCloud backups. If Farook was trying to cover up evidence of leads, he would have also deleted the existing backups that were there. By leaving the iCloud backup data, we know that Farook likely did not use the device to talk to any leads prior to October 19.

We also know from a supplemental Pluhar declaration that Farook had not activated the remote-wipe function, which he also would have done if he were a smart terrorist trying to cover his tracks.

Finally, Apple’s Privacy Manager, as Erik Neuwenschander demonstrated, Pluhar didn’t know what the fuck he was talking about with regards to backups.

Agent Pluhar also makes incorrect claims in paragraph 10(b). Agent Pluhar claims that exemplar iPhones that were used as restore targets for the iCloud backups on the subject device “showed that … iCloud back-ups for ‘Mail,’ ‘Photos,’ and ‘Notes’ were all turned off on the subject device.” This is false because it is not possible. Agent Pluhar was likely looking at the wrong screen on the device. Specifically, he was not looking at the settings that govern the iCloud backups. It is the iCloud backup screen that governs what is backed up to iCloud. That screen has no “on” and “off” options for “Mail,” “Photos,” or “Notes.

Zdziarski offers another possible explanation for the lack of backups on Farook’s phone, so there are other possible explanations.

iCloud backups could have ceased for a number of reasons, including a software update that was released on October 21, just two days after the last backup, or due to iCloud storage filling up.

The point is, we don’t know, and it’s not even clear Pluhar would know how to check. So given all that other evidence suggesting Farook may not have turned off his backups, journalists probably should not claim, as fact, he did.

Of course, that claim is really just a subset of the larger set of the bullshit FBI has fed us about the phone. It’d really be nice if people stopped taking their bullshit claims seriously, as so few of the past ones have held up.

Did FBI Ask Cellebrite to Open Farook’s Phone before Getting an AWA Order?

March 23, 2016/3 Comments/in Cybersecurity /by emptywheel

In this post, I note that DOJ obtained a warrant to search (among other things) an iPhone 6 using Cellebrite’s assistance on the same day as it obtained an All Writs Act order to Apple to help crack Syed Rizwan Farook’s iPhone 5C. That other warrant demonstrates not only that DOJ was at least willing to try opening a late model iPhone with Cellebrite’s help during the same period it was claiming it could only do so with Apple’s help, but it also shows us what it would look like if DOJ tried to enlist Cellebrite’s help.

I’d like to look at the underlying “warrant” such as it exists for this phone. There are two dockets in this case. 5:15-mj-00451, the docket under which DOJ got a search warrant for Farook’s (actually, his mother’s) Lexus. And 5:16-cm-00010, where the fight with Apple lives. The order for an All Writs Act actually lives in the earlier docket, with the first numerical docket item in the newer one is the government’s motion to compel.

Technically, we have never seen any free-standing warrant for Farook’s phone. Rather, what got attached to the AWA order application was actually the warrant for the Lexus. That warrant includes a bunch of boilerplate language about any devices found in the car, which basically permit authorities to search a device to find out if it contains any items covered by the search warrant, but requiring further legal order to keep that information.

Obviously, FBI hasn’t gotten to the point where they’ve found the phone includes evidence relating to the crime, because they haven’t yet been able to search the phone, so they haven’t gotten the point where they’d need this “further court order.” Moreover, the phone doesn’t belong to Farook, it belongs to San Bernardino County, and they’ve consented to any search (but you can’t get an AWA unless you have a search warrant).

But it appears DOJ covered their asses, given the following entries in the original docket.

As I understand it, this warrant docket was terminated on December 21. But then on January 26, it got active again, with the government sealing a document, then unsealing the parts of the search warrant. Then, on January 29, the government applied for and got and then sealed an extension of time on the original warrant, but noting they just needed an extension for devices related to it (that is, for Farook’s phone). Then on February 2, they submitted and got sealed another document. Finally, they got parts of the original warrant that had been unsealed in part days earlier unsealed (again?) so they could get the AWA, which they did.

I’m interested in all this for several reasons. First, if they closed this docket in December, after they had already obtained the content of Farook’s iMessage account, does that indicate they had determined the phone had no evidence relating to the crime? That’s consistent with what everyone believes. But it would also seriously undermine their claims that they do need the information (especially since the claims they made in their AWA application are inconsistent with that they’ve claimed in later documents).

I also suspect that FBI asked Cellebrite to open this phone. If I’m reading the docket correctly, the parts of the search warrant pertaining to the phone have been unsealed twice, the latter time for the AWA. I suspect the earlier activity in the docket pertained to a Cellebrite request, in which case the February 2 docket document might resemble the method of search language, naming Cellebrite, found in the February 16 warrant for the iPhone 6 in the other case.

The thing is, Judge Pym may know that, if that’s the case, because she’s the one who signed off on the January 26 and 29 activity. Which is interesting given that, in the phone hearing on whether to vacate the hearing yesterday, she suggested FBI might need to brief on what this effort was.

I’m not — to some extent I’m not sure how much difference it makes whether the order is vacated at this point or not, because if it turns out, after exploring this possibility, that the FBI believes it won’t work, you know, I would be inclined to go forward without really — and there might need to be some additional briefing, supplemental submissions, with respect to this effort, but I think the matter’s been fully briefed.

She may be less willing to decide for FBI if she knows that Cellebrite is actively working on a solution that would solve FBI’s needs, which she may already know.

In any case, given the import of this case, citizens really deserve to know what the government was asking for at the end of January, particularly if their first effort to get into the phone involved a request to Cellebrite that has now been answered.

DOJ’s Pre-Ass-Handing Capitulation

March 22, 2016/6 Comments/in Cybersecurity, Terrorism /by emptywheel

In its February 16 application for an All Writs Act to force Apple to help crack Syed Rizwan Farook’s phone, DOJ asserted,

Apple has the exclusive technical means which would assist the government in completing its search, but has declined to provide that assistance voluntarily.

[snip]

2. The government requires Apple’s assistance to access the SUBJECT DEVICE to determine, among other things, who Farook and Malik may have communicated with to plan and carry out the IRC shootings, where Farook and Malik may have traveled to and from before and after the incident, and other pertinent information that would provide more information about their and others’ involvement in the deadly shooting.

[snip]

3. As an initial matter, the assistance sought can only be provided by Apple.

[snip]

4. Because iOS software must be cryptographically signed by Apple, only Apple is able to modify the iOS software to change the setting or prevent execution of the function.

[snip]

5. Apple’s assistance is necessary to effectuate the warrant.

[snip]

6. This indicates to the FBI that Farook may have disabled the automatic iCloud backup function to hide evidence, and demonstrates that there may be relevant, critical communications and data around the time of the shooting that has thus far not been accessed, may reside solely on the SUBJECT DEVICE, and cannot be accessed by any other means known to either the government or Apple.

FBI’s forensics guy Christopher Pluhar claimed,

7. I have explored other means of obtaining this information with employees of Apple and with technical experts at the FBI, and we have been unable to identify any other methods feasible for gaining access to the currently inaccessible data stored within the SUBJECT DEVICE.

On February 19, DOJ claimed,

8. The phone may contain critical communications and data prior to and around the time of the shooting that, thus far: (1) has not been accessed; (2) may reside solely on the phone; and (3) cannot be accessed by any other means known to either the government or Apple.

[snip]

9. Apple left the government with no option other than to apply to this Court for the Order issued on February 16, 2016.

[snip]

10. Accordingly, there may be critical communications and data prior to and around the time of the shooting that thus far has not been accessed, may reside solely on the SUBJECT DEVICE; and cannot be accessed by any other means known to either the government or Apple.

[snip]

11. Especially but not only because iPhones will only run software cryptographically signed by Apple, and because Apple restricts access to the source code of the software that creates these obstacles, no other party has the ability to assist the government in preventing these features from obstructing the search ordered by the Court pursuant to the warrant.

[snip]

12. Apple’s close relationship to the iPhone and its software, both legally and technically – which are the produce of Apple’s own design – makes compelling assistance from Apple a permissible and indispensable means of executing the warrant.

[snip]

13. Apple’s assistance is also necessary to effectuate the warrant.

[snip]

14. Moreover, as discussed above, Apple’s assistance is necessary because without the access to Apple’s software code and ability to cryptographically sign code for the SUBJECT DEVICE that only Apple has, the FBI cannot attempt to determine the passcode without fear of permanent loss of access to the data or excessive time delay. Indeed, after reviewing a number of other suggestions to obtain the data from the SUBJECT DEVICE with Apple, technicians from both Apple and the FBI agreed that they were unable to identify any other methods – besides that which is now ordered by this Court – that are feasible for gaining access to the currently inaccessible data on the SUBJECT DEVICE. There can thus be no question that Apple’s assistance is necessary, and that the Order was therefore properly issued.

Almost immediately after the government made these claims, a number of security researchers I follow not only described ways FBI might be able to get into the phone, but revealed that FBI had not returned calls with suggestions.

On February 25, Apple pointed out the government hadn’t exhausted possible of means of getting into the phone.

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. See Hanna Decl. Ex. DD at 34–36 [October 26, 2015 Transcript] (Judge Orenstein asking the government “to make a representation for purposes of the All Writs Act” as to whether the “entire Government,” including the “intelligence community,” did or did not have the capability to decrypt an iPhone, and the government responding that “federal prosecutors don’t have an obligation to consult the intelligence community in order to investigate crime”). As such, the government has not demonstrated that “there is no conceivable way” to extract data from the phone.

On March 1, members of Congress and House Judiciary Committee witness Susan Landau suggested there were other ways to get into the phone (indeed, Darrell Issa, who was one who made that point, is doing a bit of a victory lap). During the hearing, as Jim Comey insisted that if people had ways to get into the phone, they should call FBI, researchers noted they had done so and gotten no response.

Issa: Is the burden so high on you that you could not defeat this product, either through getting the source code and changing it or some other means? Are you testifying to that?

Comey: I see. We wouldn’t be litigating if we could. We have engaged all parts of the U.S. Government to see does anybody that has a way, short of asking Apple to do it, with a 5C running iOS 9 to do this, and we don not.

[snip]

a) Comey: I have reasonable confidence, in fact, I have high confidence that all elements of the US government have focused on this problem and have had great conversations with Apple. Apple has never suggested to us that there’s another way to do it other than what they’ve been asked to do in the All Writs Act.

[snip]

b) Comey [in response to Chu]: We’ve talked to anybody who will talk to us about it, and I welcome additional suggestions. Again, you have to be very specific: 5C running iOS 9, what are the capabilities against that phone. There are versions of different phone manufacturers and combinations of models and operating system that it is possible to break a phone without having to ask the manufacturer to do it. We have not found a way to break the 5C running iOS 9.

[snip]

c) Comey [in response to Bass]: There are actually 16 other members of the US intelligence community. It pains me to say this, because I — in a way, we benefit from the myth that is the product of maybe too much television. The only thing that’s true on television is we remain very attractive people, but we don’t have the capabilities that people sometimes on TV imagine us to have. If we could have done this quietly and privately we would have done it.

[snip]

Cicilline: I think this is a very important question for me. If, in fact — is it in fact the case that the government doesn’t have the ability, including the Department of Homeland Security Investigations, and all of the other intelligence agencies to do what it is that you claim is necessary to access this information?

d) Comey: Yes.

While Comey’s statements were not so absolutist as to suggest that only Apple could break into this phone, Comey repeatedly said the government could not do it.

On March 10, DOJ claimed,

15. The government and the community need to know what is on the terrorist’s phone, and the government needs Apple’s assistance to find out.

[snip]

16. Apple alone can remove those barriers so that the FBI can search the phone, and it can do so without undue burden.

[snip]

17. Without Apple’s assistance, the government cannot carry out the search of Farook’s iPhone authorized by the search warrant. Apple has ensured that its assistance is necessary by requiring its electronic signature to run any program on the iPhone. Even if the Court ordered Apple to provide the government with Apple’s cryptographic keys and source code, Apple itself has implied that the government could not disable the requisite features because it “would have insufficient knowledge of Apple’s software and design protocols to be effective.”

[snip]

18. Regardless, even if absolute necessity were required, the undisputed evidence is that the FBI cannot unlock Farook’s phone without Apple’s assistance.

[snip]

19. Apple deliberately established a security paradigm that keeps Apple intimately connected to its iPhones. This same paradigm makes Apple’s assistance necessary for executing the lawful warrant to search Farook’s iPhone.

On March 15, SSCI Member Ron Wyden thrice suggested someone should ask NSA if they could hack into this phone.

On March 21, DOJ wrote this:

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

On Sunday, March 20, 2016, an outside party demonstrated to the FBI a possible method for unlocking Farook’s iPhone

You might think that FBI really did suddenly find a way to hack the phone, after insisting over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over and over they could only get into it with Apple’s help. Indeed, the described timing coincides remarkably well with the announcement that some Johns Hopkins researchers had found a flaw in iMessage’s encryption (which shouldn’t relate at all to breaking into such phones, though it is possible FBI is really after iMessages they think will be on the phone). Indeed, in describing the iMessage vulnerability, Johns Hopkins prof Matthew Green ties the discovery to the Apple fight.

Now before I go further, it’s worth noting that the security of a text messaging protocol may not seem like the most important problem in computer security. And under normal circumstances I might agree with you. But today the circumstances are anything but normal: encryption systems like iMessage are at the center of a critical national debate over the role of technology companies in assisting law enforcement.

A particularly unfortunate aspect of this controversy has been the repeated call for U.S. technology companies to add “backdoors” to end-to-end encryption systems such as iMessage. I’ve always felt that one of the most compelling arguments against this approach — an argument I’ve made along with other colleagues — is that we just don’t know how to construct such backdoors securely. But lately I’ve come to believe that this position doesn’t go far enough — in the sense that it is woefully optimistic. The fact of the matter is that forget backdoors: webarely know how to make encryption workat all. If anything, this work makes me much gloomier about the subject.

Plus, as Rayne noted to me earlier, Ellen Nakashima’s first report on this went up just after midnight on what would be the morning of March 21, suggesting she had an embargo (though that may be tied to Apple’s fix for the vulnerability). [Update: Correction — her story accidentally got posted then unposted earlier than that.]

But that would require ignoring the 19 plus times (ignoring Jim Comey’s March 1 testimony) that DOJ insisted the only way they could get into the phone was by having Apple’s help hacking it (though note most of those claims only considered the ways that Apple might crack the phone, not ways that, say, NSA might). You’d have to ignore the problems even within these statements. You’d have to ignore the conflicting sworn testimony from FBI’s witnesses (including Jim Comey).

It turns out FBI’s public argument went to shit fast. Considering the likelihood they screwed up with the forensics on this phone and that there’s absolutely nothing of interest on the phone, I take this as an easy retreat for them.

But that doesn’t mean this is over. Remember, FBI has already moved to unlock this iPhone, of similar vintage to Farook’s, which seems more central to an actual investigation (even if FBI won’t be able to scream terrorterrorterror). There are two more encrypted phones FBI has asked Apple to break open.

But for now, I take this as FBI’s attempt to take its claims back into the shadows, where it’s not so easy to expose the giant holes in their claims.

Updated with Comey testimony.

Coming Soon to Apple vs FBI: Live Witnesses and Dead Terrorists

March 18, 2016/13 Comments/in Cybersecurity /by emptywheel

Apple today revealed that the FBI intends to call two witnesses in the March 22 hearing regarding the All Writs Act order to help crack Syed Rizwan Farook’s phone: what I understand to be Privacy Manager Erik Neuenschwander and its Law Enforcement Compliance lawyer Lisa Olle. The tech company declined to say whether it will call the FBI personnel who made sworn statements in the case.

Things could get interesting fast, especially if Apple calls FBI’s forensics guy, Christopher Pluhar — or even better, FBI Director Jim Comey — as there’s an apparent discrepancy between their sworn testimony.

Here’s what Jim Comey had to say in response to a Jerry Nadler question in the March 1 House Judiciary Committee hearing.

As I understand from the experts, there was a mistake made in the, that 24 hours after the attack where the County at the FBI’s request took steps that made it hard later — impossible later to cause the phone to back up again to the iCloud. The experts have told me I’d still be sitting here, I was going to say unfortunately[?], I’m glad I’m here, but we would still be in litigation because — the experts tell me — there’s no way we would have gotten everything off the phone from a backup, I have to take them at their word.

Comey’s comments appear to conflict with this sworn declaration of FBI Christopher Pluhar.

To add further detail, on December 3, 2015, the same day the Subject Device was seized from the Lexus IS300, I supervised my Orange County Regional Computer Forensics Laboratory (“OCRCFL”) team who performed the initial triage of the Subject Device, and observed that the device was powered off, and had to be powered up, or booted, to conduct the triage.

[snip]

I learned from SBCDPH IT personnel that SBCDPH also owned the iCloud account associated with the Subject Device, that SBCDPH did not have the current user password associated with the iCloud account, but that SBCDPH did have the ability to reset the iCloud account password.

Without the Subject Device’s passcode to gain access to the data on the Subject Device, accessing the information stored in the iCloud account associated with the Subject Device was the best and most expedient option to obtain at least some data associated with the Subject Device. With control of the iCloud account, the iCloud back-ups of the Subject Device could be restored onto different, exemplar iPhones, which could then be processed and analyzed.

[snip]

After that conversation with Ms. Olle, and after discussions with my colleagues, on December 6, 2015, SBCDPH IT personnel, under my direction, changed the password to the iCloud account that had been linked to the Subject Device. Once that was complete, SBCDPH provided exemplar iPhones that were used as restore targets for two iCloud back-ups in the Subject Device’s iCloud account. Changing the iCloud password allowed the FBI and SBCDPH IT to restore the contents of the oldest and most recent back-ups of the Subject Device to the exemplar iPhones on December 6, 2015. Once back-ups were restored, OCRCFL examiners processed the exemplar iPhones and provided the extracted data to the investigative team. Because not all of the data on an iPhone is captured in an iCloud back-up (as discussed further below), the exemplar iPhones contained only that subset of data as previously backed-up from the Subject Device to the iCloud account, not all data that would be available by extracting data directly from the Subject Device (a “physical device extraction”).

That’s true for several reasons. First, as I understand it, once the phone was turned off, such a backup would no longer be possible, so it would have not been a mistake to change the password. And while Pluhar’s assertion that you can’t get everything from an iCloud backup is consistent with Comey’s claim (presumably Pluhar is one of the experts Comey relied on), Neuenschwander explained that that was false in his own supplemental declaration.

Note, this passage is also the first confirmation that the FBI had already told Apple this phone was part of the investigation by December 6, meaning it must have been one of the ones Apple provided metadata for on December 5.

There is just one way that Pluhar’s declaration and Comey’s statement (again, both were sworn) can be true: if the FBI turned off the phone themselves [update: or let it drain, h/t Some Guy]. That would also mean Comey’s claim that “a mistake was made in that 24 hours after the attack” would make more sense, as it would refer to the decision to turn off the phone, rather than FBI’s direction to San Bernardino County to change the password.

That said, I wonder whether FBI isn’t trying something else by calling Olle and Neuenschwander to testify.

As part of its reply, Apple had Senior Vice President for Software Engineering Craig Federighi submit a declaration to rebut government claims Apple has made special concessions to China. After making some absolute statements — such as that “Apple has also not provided any government with its proprietary iOS source code,” Federighi stated, “It is my understanding that Apple has never worked with any government agency from any country to create a “backdoor” in any of our products or services.”

I was struck at the time that the statement was not as absolute as the others. Federighi relies on what he knows, without, as elsewhere, making absolute assurances.

Which got me wondering. If any country had demanded a back door (or, for that matter, Apple’s source code) would Federighi really need to know? From Neuenschwander’s declaration, it sounded like a smallish team could make the back door the FBI is currently demanding, meaning he might be as high as such knowledge would rise.

So I wonder whether, in an attempt to be dickish, the government intends to ask Neuenschwander and Olle, who would be involved in such compliance issues, if they also back Federighi’s statement.

We shall see. For now, I just bet myself a quarter that Apple will call Comey.

US Secretly Acting Like China Does in Public

March 17, 2016/4 Comments/in Cybersecurity /by emptywheel

As this ZDNet article notes, some of the Snowden disclosures revealed that NSA had asked for the source code of various tech companies (though it links to a Jake Appelbaum article that I believe to be sourced to someone else). What is new in its report of US government demands for source code, however, is how the government is getting it: through secret civil or FISA orders.

The government has demanded source code in civil cases filed under seal but also by seeking clandestine rulings authorized under the secretive Foreign Intelligence Surveillance Act (FISA), a person with direct knowledge of these demands told ZDNet. We’re not naming the person as they relayed information that is likely classified.

With these hearings held in secret and away from the public gaze, the person said that the tech companies hit by these demands are losing “most of the time.”

When asked, a spokesperson for the Justice Dept. acknowledged that the department has demanded source code and private encryption keys before.

That is, at a time when we condemn public Chinese demands to be able to review source code of companies doing business in China, the US has been doing the same thing, albeit without the reputational hit of doing so publicly.

All of which makes the point I made here — that the government is fairly explicitly threatening to demand source code from Apple — all the more significant, in part for an issue I’ve been meaning to return to.

Contrary to popular belief, the FISA Court does not operate in complete isolation from traditional courts. On several known issues — notably, the access to location data and the collection of Post Cut Through Direct Dial numbers — FISC has taken notice of public magistrate’s opinions and used that to inform, though not necessary dictate, FISC practice. As I have noted, at least until 2014, the FISC used the highest common denominator from criminal case law with respect to location data, meaning it requires the equivalent of a probable cause warrant for prospective (though not historic) data. And FISC first seemed to start tracking such orders during the magistrate’s revolt of 2005-6. That’s an area where FISC seems to have followed criminal case law. By contrast, FISC permits the government to collect, then minimize, PCTDD, though it appears to have revisited whether the government’s current minimization procedures meet the law, the most recent known moment of which was 2009.

In other words, this Apple fight (as well as magistrate James Orenstein’s order) may affect what FISC will approve — or has already approved in secret — for other tech companies (or even for Apple), something the tech companies that submitted amicus briefs likely know. That makes FBI’s decision to hold this fight in public, which Apple preferred not to do, all the more significant. Because if Apple prevails, it will make it a lot harder to secretly jurisdiction shop anywhere in the US, whether in a secret magistrate’s proceeding or an even more secret FISC one.

“Noteworthy” Ron Wyden Interview on Apple vs FBI: Ask NSA, Ask NSA, Ask NSA

March 16, 2016/9 Comments/in Cybersecurity /by emptywheel

This interview Ron Wyden did with Oregon Public Radio includes a lot of what you might expect from him, including an argument that weakening encryption makes us less safe, including possibly exposing kids (because their location gets identified) to pedophiles.

But the most interesting part of this interview are the three times Ron Wyden made it clear, in his inimitable fashion, that someone better ask NSA whether they can decrypt this phone. To me, the interview sounds like this:

Let me tell you what I think is noteworthy here. This is a fight between FBI and Apple. I think it’s noteworthy that nobody has heard from the NSA on this. [around 2:00]

And I want to come back to the fact that the NSA has not been heard from on this and I think that that is noteworthy. [before 7:25]

[After finally being asked what he had heard from NSA] I’m on the intelligence committee, so I’m bound, I take an oath, to not get into classified matters so I’m just going to, uh, leave that there with respect to the NSA. [at 8:30]

We’ve had experts like Susan Landau and Richard Clarke insist that NSA can get into this phone. Jim Comey, in testimony before HJC, sort of dodged by claiming that NSA doesn’t have the ability to get into a phone with this particular configuration.

But Ron Wyden sure seems to think the NSA might have more to say about that.

Golly, I can’t imagine what he thinks the NSA might have to offer about this phone.

The OPM Hack Is One Big Reason Apple Couldn’t Guarantee Its Ability to Keep FBiOS Safe

March 16, 2016/9 Comments/in Cybersecurity /by emptywheel

Underlying the legal debate about whether the government can demand that Apple write an operating system that will make it easier to brute force Syed Rizwan Farook’s phone is another debate, about whether the famously secretive tech company could keep such code safe from people trying to compromise iPhones generally.

The government asserted, in its response to Apple’s motion to overturn the All Writs Act order, that Apple’s concerns about retaining such code are overblown.

[C]ontrary to Apple’s stated fears, there is no reason to think that the code Apple writes in compliance with the Order will ever leave Apple’s possession. Nothing in the Order requires Apple to provide that code to the government or to explain to the government how it works. And Apple has shown it is amply capable of protecting code that could compromise its security. For example, Apple currently protects (1) the source code to iOS and other core Apple software and (2) Apple’s electronic signature, which as described above allows software to be run on Apple hardware. (Hanna Decl. Ex. DD at 62-64 (code and signature are “the most confidential trade secrets [Apple] has”).) Those —which the government has not requested—are the keys to the kingdom. If Apple can guard them, it can guard this.

Even if “criminals, terrorists, and hackers” somehow infiltrated Apple and stole the software necessary to unlock Farook’s iPhone (Opp. 25), the only thing that software could be used to do is unlock Farook’s iPhone.

That’s explicitly a citation to this passage from Apple’s original motion.

The alternative—keeping and maintaining the compromised operating system and everything related to it—imposes a different but no less significant burden, i.e., forcing Apple to take on the task of unfailingly securing against disclosure or misappropriation the development and testing environments, equipment, codebase, documentation, and any other materials relating to the compromised operating system. Id. ¶ 47. Given the millions of iPhones in use and the value of the data on them, criminals, terrorists, and hackers will no doubt view the code as a major prize and can be expected to go to considerable lengths to steal it, risking the security, safety, and privacy of customers whose lives are chronicled on their phones.

In pointing to that passage, DOJ ignored the first passage in the Apple motion that addresses the danger of hackers: one that notes the government itself can’t keep its secrets safe as best exemplified by the Office of Personnel Management hack.

Since the dawn of the computer age, there have been malicious people dedicated to breaching security and stealing stored personal information. Indeed, the government itself falls victim to hackers, cyber-criminals, and foreign agents on a regular basis, most famously when foreign hackers breached Office of Personnel Management databases and gained access to personnel records, affecting over 22 million current and former federal workers and family members.

By arguing that Apple can keep its secrets safe while ignoring the evidence that the government itself can’t, the government implicitly conceded that Apple is better at keeping secrets than the government.

Of course, it’s not that simple. That’s because the millions of private sector employees who play a role in the secretive functions have clearances too. They were also compromised in the OPM hack. Thus, by failing to keep its own secrets, the government has provided China a ready made dossier of information it can use to compromise all the private sector clearance holders, in addition to the government personnel.

Which is why — in addition to his comment that it was “not reasonable to draw such a conclusion [that hackers could not hack iPhones from the lock screen] based solely on publicly released exploits” — I find this passage from Apple Manager of User Privacy Erik Neuenschwander’s supplemental declaration, submitted to accompany Apple’s reply, to be rather pointed.

Thus, as noted in my initial declaration (ECF No. 16-33), the initial creation of GovtOS itself creates serious ongoing burdens and risks. This includes the risk that if the ability to install GovtOS got into the wrong hands, it would open a significant new avenue of attack, undermining the security protections that Apple has spent years developing to protect its customers.

There would also be a burden on the Apple employees responsible for designing and implementing GovtOS. Those employees, if identified, could themselves become targets of retaliation, coercion, or similar threats by bad actors seeking to obtain and use GovtOS for nefarious purposes. I understand that such risks are why intelligence agencies often classify the names and employment of individuals with access to highly sensitive data and information, like GovtOS. The government’s dismissive view of the burdens on Apple and its employees seems to ignore these and other practical implications of creating GovtOS.

From the briefing in this case, we know that Neuenschwander was part of the then-secret discussions about how to access Farook’s phone before DOJ started leaking to the press about an impending AWA order. That means he almost certainly has to have clearance (and may well deal with more sensitive discussions related to FISA orders). We also know that he would be involved in writing what he calls GovtOS. You would have to go no further than Neuenschwander to identify a person on whom China has sensitive information that would also have knowledge of FBiOS (though there are probably a handful of others).

So he’s not just talking about nameless employees when he talks about the burden of implementing this order. He’s talking about himself. Because of government negligence, his own private life has been exposed to China. And, in part because DOJ chose to conduct this fight publicly, his own role (which admittedly was surely known to China and other key US adversaries before this fight) has been made public in a way NSA’s own engineers never would be.

FBI’s request of Apple — particularly coupled with OPM’s negligence — makes people like Neuenschwander a target. Which is why, no matter how good Apple is at keeping their own secrets, that may not be sufficient to keeping this code safe.

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

March 11, 2016/6 Comments/in Cybersecurity /by emptywheel

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.

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.

DOJ to Apple: Start Cooperating or You’ll Get the Lavabit Treatment

March 10, 2016/10 Comments/in Cybersecurity /by emptywheel

DOJ has submitted its response to Apple in the Syed Farook case. Amid invocations of a bunch of ominous precedents — including Dick Cheney’s successful effort to hide his energy task force, Alberto Gonzales effort to use kiddie porn as an excuse to get a subset of all of Google’s web searches, and Aaron Burr’s use of encryption — it included this footnote explaining why it hadn’t just asked for Apple’s source code.

That’s a reference to the Lavabit appeal, in which Ladar Levison was forced to turn over its encryption keys.

As it happens, Lavabit submitted an amicus in this case (largely arguing against involuntary servitude). But as part of it, they revealed that the reason the government demanded Lavabit’s key is because “in deference to [Edward Snowden’s] background and skillset, the Government presumed the password would be impossible to break using brute force.”

But that says that for phones that — unlike Farook’s which had a simple 4-digit passcode — the government maintains the right to demand more, up to and including their source code.

The government spends a lot of time in this brief arguing it is just about this one phone. But that footnote, along with the detail explaining why they felt the need to obtain Lavabit’s key, suggests it’s about far more than even Apple has claimed thus far.