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House Homeland Security Committee Apparently Knows Little about Homeland Security

Here are the first 36 words of an otherwise useful House Homeland Security Committee report on encryption:

Public engagement on encryption issues surged following the 2015 terrorist attacks in Paris and San Bernardino, particularly when it became clear that the attackers used encrypted communications to evade detection—a phenomenon known as “going dark.”

The statement has grains of truth to it. It is true that engagement on encryption surged following the Paris attacks, largely because intelligence committee sources ran around assuming (and probably briefing the White House) that encryption must explain why those same intelligence committee sources had missed the attack. It surged further months later when FBI chose to pick a fight with Apple over Syed Rizwan Farook’s work phone which — it was clear from the start — had no evidence relating to the attack on it.

It is also true that ISIS had been using Telegram leading up to the Paris attack; in its wake, the social media company shut down a bunch of channels tied to the group. But there has never been a public claim the plotters used Telegram to plan their attack.

It is also true that an ISIS recruit, arrested and interrogated months before the Paris attack, had told French authorities he had been trained to use a Truecrypt key and an elaborate dead drop method to communicate back to Syria.

But it is not true that the Paris attackers used encryption to hide their plot. They used a great many burner phones, a close-knit network (and with it face-to-face planning), an unusual dialect. But even the one phone that had an encrypted product loaded on it was not using that service.

It is also not true that the San Bernardino attackers used encryption to evade detection. They used physical tools to destroy the phones presumably used to plan the attack. They hid a hard drive via some other, unidentified means. But the only known use of encryption — the encryption that came standard on Farook’s work phone — was shown, after the FBI paid to bypass it, not to be hiding anything at all.

Now it’s possible there was encryption involved in these attacks we don’t know about, that HLSC has gotten classified briefings on. But even if there was, it could not very well have led to a public surge of engagement last year, because it would not be public.

There are reasons to discuss encryption. But factually false claims about terrorists’ use of encryption are not among those reasons.

h/t to Access Now’s Nathaniel White, who pointed out this bogosity on Twitter.

Update: See this Grugq post laying out what little encryption ISIS has been known to use in any attack.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

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

“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.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

FBI’s Latest Story about the Hack of Farook’s Phone

There’s a lot that doesn’t quite make sense in Ellen Nakashima’s explanation for how FBI broke into Syed Rizwan Farook’s iPhone.

The FBI cracked a San Bernardino terrorist’s phone with the help of professional hackers who discovered and brought to the bureau at least one previously unknown software flaw, according to people familiar with the matter.

The new information was then used to create a piece of hardware that helped the FBI to crack the iPhone’s four-digit personal identification number without triggering a security feature that would have erased all the data, the individuals said.

The researchers, who typically keep a low profile, specialize in hunting for vulnerabilities in software and then in some cases selling them to the U.S. government. They were paid a one-time flat fee for the solution.

[snip]

At least one of the people who helped the FBI in the San Bernardino case falls into a third category, often considered ethically murky: researchers who sell flaws — for instance, to governments or to companies that make surveillance tools.

This last group, dubbed “gray hats,” can be controversial. Critics say they might be helping governments spy on their own citizens. Their tools, however, might also be used to track terrorists or hack an adversary spying on the United States. These researchers do not disclose the flaws to the companies responsible for the software, as the exploits’ value depends on the software remaining vulnerable.

Don’t get me wrong. I don’t doubt Nakashima is reporting what she learned; I know other reporters were working on a similar direction.

It’s just that the FBI’s currently operative story still makes no sense. For starters, why would the FBI pay someone selling zero days but not be willing to consider the solutions offered by (just as an example of one forensics person I know who offered to help) Jonathan Zdziarski?

And I still wonder why the government apparently unsealed the warrant in Farook’s case once before it unsealed it to compel Apple. Indeed, while Nakashima (and other reporters) says FBI “did not need the services of the Israeli firm Cellebrite,” I still think using them (or someone similar) as a middle-man might offer the best of all worlds: no official possession of this exploit, easy contracting, the ability to give (as FBI has been) conflicting stories without any of them being fully false. Just as an example, if Cellebrite told FBI it currently couldn’t crack the phone before FBI got an All Writs Act order obligating Apple, then FBI could fairly claim, as they did, that only Apple or FBI could open the phone (even if they hadn’t actually asked many other people who might be able to hack the phone). But if someone went to Cellebrite or even FBI with the exploit after that, then FBI would have a way of using the exploit without having it and therefore having to submit it to the Vulnerabilities Equities Process (though technically they should still have to). FBI would have a way of promising to keep the exploit hidden, which the vendor would require, because it would technically never be in possession of it.

There’s one more thing that is getting lost in this debate. Comey and others keep talking about the use of this for an intelligence function, as if to justify keeping this exploit secret. I know that’s the convenient part of using a terrorism case to raise the stakes of back dooring phones. But this is ultimately a law enforcement issue, not an intelligence one, no matter how much FBI wants to pretend we’re going to find out something going forward. And as such it should be subject to greater standards of disclosure than a pure use of an exploit for intelligence purposes would.

In other words, FBI is still playing word games.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

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

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.  Screen Shot 2016-03-23 at 11.59.44 AM

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.

Screen Shot 2016-03-23 at 12.34.44 PM

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.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

On February 16, DOJ Got a Warrant to Open an iPhone 6 Using Cellebrite

As a number of outlets are reporting, the Israeli security firm Cellebrite is the source the FBI is using to attempt to break into Syed Rizwan Farook’s phone.

Israel’s Cellebrite, a provider of mobile forensic software, is helping the U.S. Federal Bureau of Investigation’s attempt to unlock an iPhone used by one of the San Bernardino, California shooters, theYedioth Ahronoth newspaper reported on Wednesday.

If Cellebrite succeeds, then the FBI will no longer need the help of Apple Inc, the Israeli daily said, citing unnamed industry sources.

Cellebrite officials declined to comment on the matter.

According to the narrative the government is currently telling, it means 33 days after DOJ obtained an All Writs Act on February 16 ordering Apple to help unlock Farook’s phone, and 108 days after FBI first seized the phone on December 3 — during which entire period the FBI now claims they were diligently researching how to crack the phone — on March 20, Cellebrite contacted the FBI out of the blue and told them they can help.

That’s interesting, especially given this search warrant, approved (as coinkydink would have it) on February 16, the very same day DOJ got its AWA in California.

Among the phones DEA obtained a warrant to search was an iPhone 6, a later model than Farook’s phone with default encryption (though running unknown iOS). Here’s what DEA Task Force Officer Shane Lettau had to say about how he (might) access the contents of this iPhone 6.

Screen Shot 2016-03-23 at 10.40.36 AM

To be sure, these phones aren’t the same, nor is the agency. Farook’s is a 5C running iOS 9, this is a 6, and we don’t know what iOS it is running. But if Cellebrite can break into a 6 they presumably can break into a 5C. FBI is seeking access in CA, whereas this MD phone is in DEA’s possession.

The point is, however, that it is inconceivable to claim, as DOJ did 19 times, that the only way they could get into Farook’s phone was with Apple’s help when DOJ was at the same time participating in DEA’s discussions with Cellebrite about whether they could crack a later model phone. It may be that Cellebrite only perfected their technique with iOS 8 and later model phones in recent weeks, or that they could not crack an iOS 9 in December or February but have since perfected that, but DOJ still shouldn’t have been submitting sworn declarations pretending that Cellebrite was not a possible option.

Update: I originally said Farook’s phone was a 5S. I’ve corrected the post to say it is a 5C, h/t JC.

Update: FBI signed a contract with Cellebrite on the same day it announced it had found a solution, though I think it’s for license renewals for 7 machines in Cook County.

 

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

DOJ’s Pre-Ass-Handing Capitulation

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.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

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

Screen Shot 2016-03-18 at 1.31.47 PMApple 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.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

Amid an Inconclusive Answer on Encryption, Hillary Reveals She Doesn’t Understand How Metadata Works

Less than a mile from my house (at a small local tech firm called Atomic Object), Hillary Clinton got asked a question about encryption. After talking about the role of encryption in Atomic Object’s own work, one of the women asked (after 14:00; recording cuts out during her question),

What steps do you think government needs to take to make sure that the companies who build these,  create these products, keep our data secure. And also looking at the controversy between Apple and the FBI about encr–

After describing Healthcare.gov as the biggest tech failure in government because “it just didn’t really gel and there wasn’t enough testing,” Hillary admitted (in an apparent non sequitur) the government doesn’t do a good enough job protecting its own data.

We are woefully behind in the government in even protecting our own stuff. And so we’ve got to do a better job if we’re going to be a good partner with businesses to try to maintain privacy of data, whether it’s just customer data or whether it has real public consequences.

She then pivoted from what (I thought) was a project management issue, not a security one, to a long answer on the Apple v FBI that basically admitting not knowing (or being willing to say) what the right answer was.

With respect to the current legal controversy, between Apple and the FBI, I am someone who is just feeling like I am in the middle of the worst dilemma ever. I mean, think about it. Because there’s got to be some way to protect the privacy of data information. There’s got to be some way to avoid breaking encryption, however you describe it, and opening the door to a lot of bad actors. But there also has to be some way to follow up on criminal activity and prevent both crimes and terrorism. You guys are the experts on this. I don’t know enough about it to tell you how to do it. But I think that the real mistrust between the tech companies and the government right now is a serious problem that has to be, somehow, worked through.

I keep saying, you know, we have a lot of smart people in this country. You know, we invented the Internet, we invented, you know, the Internet of Things, we’ve invented all of this. Isn’t there some way without opening the door and causing even, you know, more and worse consequences to figure out how you get information?

Because I’m also very understanding of the position that law enforcement finds itself and and if any one of you were working at Quantico in the FBI lab, and you know, you had this phone that one of the terrorists in San Bernardino did and you wanted to find out who they communicated with and you know that could trace us back to somebody in this country, it could trace us back more clearly to somebody directing it overseas. You’d want to know that too.

So that’s what we need help on, so that we don’t make a grave error that affects our ability to maintain privacy and to protect encryption, but we also don’t open the door — because we know what happens, is these guys that are on the other side of us now, with ISIS and the like, they are really smart. A lot of them are well-educated. They’re not the image of just some poor guy coming to be a Jihadist. They are educated, they are increasingly computer literate, they are wanting to wage as much war and violence on Europe, the United States, as they can. They have learned, so they’re now using encrypted devices, why wouldn’t they? You know why would they be so stupid to continue to allow us to monitor where they are and what they’re doing? This is a problem. And it’s a problem we’ve got to come up with some way to solve. But I certainly am not expert in any way to tell you how to do it.

Right in the middle, however, Hillary reveals not understanding a key part of this controversy. To the extent Syed Rizwan Farook used the Apple software on his work phone to communicate with accomplices, we know who he communicated with, because we have that metadata (as Admiral Mike Rogers recently confirmed). We just don’t know what he said.

We wouldn’t necessarily know who he talked to if he used an App for which metadata was more transient, like Signal. But if so, that’s not an Apple problem.

Moreover, if ISIS recruits are — as Hillary said — smart, then they definitely wouldn’t (and in fact generally don’t) use Apple products, because they’d know that would make their communications easily accessible under the PRISM or USA Freedom programs.

This response is not really any different from what we’re getting from other to Obama officials. But it does come with some indication of the misunderstandings about the problem before us.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

The 18-Minute Gap

The FBI had a press conference today to ask for help filling in the last 18 minutes of the 4-hour gap between the time  San Bernardino killer Syed Rizwan Farook and his wife, Tashfeen Malik, shot up his holiday party and the time cops killed them in a shootout.

In the absence of any other evidence the couple worked with a more organized group, the FBI wants to make sure the couple didn’t do anything in that 18-minute window that would indicate some kind of cooperation.

[A]mid signs that the investigation is slowing down, they issued a public appeal for help from anyone who might have information on what the couple, Syed Rizwan Farook and Tashfeen Malik, did from 12:59 p.m. to 1:17 p.m. on Dec. 2, perhaps in the form of a witness sighting or an image by a stray surveillance camera.

[snip]

Officials said Mr. Farook left his home at 8:37 a.m. and arrived at the Inland Regional Center, where co-workers were attending a morning training session and a holiday party, at 8:47 a.m. They said he left at 10:37 a.m., leaving behind a knapsack filled with pipe bombs that were never detonated. He returned at 10:56 with Ms. Malik and opened fire, leaving 14 people dead and 22 injured.

From there, the couple went to Seccombe Lake, which is a short drive from the Inland Regional Center. F.B.I. divers searched the lake last month and found no items related to the investigation.

[snip]
Mr. Bowdich said the couple spent most of the four hours after the attack driving.

“A lot of zigzagging around, going back and forth on the highway, going up and down,” he said. “There is no rhyme or reason to it that we can find yet. Maybe that 18-minute gap closes that gap, maybe it doesn’t.”

Frankly, I’m more interested in why the FBI doesn’t have cell phone tracking data from this period, especially given that they clearly have it from after the 18 minute gap. I asked on Twitter today but none of the journalists who covered this presser seem to have asked that obvious question (though there seems to be a map indicating some kind of cell tracking).

If they shut off their phones or otherwise hid their tracks, it would suggest some importance to whatever they were doing in that 18 minute gap.

One thing the FBI didn’t say, nor any of the crack reports I saw covering the press conference, is that the 18 minute gap — from 12:59 p.m. to 1:17 — happens to coincide with a period when Farook’s now arrested buddy, Enrique Marquez, was not captured on his employers’ closed circuit video.

Screen Shot 2016-01-05 at 9.35.28 PM

Frankly, that’s not the most interesting possibility for the couple’s actions in that window (and I don’t know whether Marquez’ employer was in the geographical window where the couple may have been).

But as I noted, Marquez’ claims to have dissociated from Farook after they planned a terrorist attack in 2012 don’t accord with the fact that he fake-married Farook’s brother’s sister-in-law.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

“Encryption” Is Just Intel Code for “Failure to Achieve Omniscience”

After receiving a briefing on the San Bernardino attack, Richard Burr went out and made two contradictory claims. First, Burr — and or other sources for The Hill — said that there was no evidence the Tashfeen Malik and Syed Rizwan Farook used encryption.

Lawmakers on Thursday said there was no evidence yet that the two suspected shooters used encryption to hide from authorities in the lead-up to last week’s San Bernardino, Calif., terror attack that killed 14 people.

“We don’t know whether it played a part in this attack,” Senate Intelligence Committee Chairman Richard Burr (R-N.C.) told reporters following a closed-door briefing with federal officials on the shootings.

That’s consistent with what we know so far. After all, a husband and wife wouldn’t need to — or have a way of — encrypting their communications with each other, as it would be mostly face-to-face. The fact that they tried to destroy their devices (and apparently got rid of a still undiscovered hard drive) suggests they weren’t protecting that via encryption, but rather via physical destruction. That doesn’t rule out using both, but the FBI would presumably know if the devices they’re reconstructed were encrypted.

So it makes sense that the San Bernardino attacks did not use encryption.

But then later in the same discussion with reporters, Burr suggested Malik and Farook must have used encryption because the IC didn’t know about their attack.

Burr suggested it might have even played a role in the accused San Bernardino shooters — Tashfeen Malik and Syed Rizwan Farook — going unnoticed for years, despite the FBI saying they had been radicalized for some time.

“Any time you glean less information at the beginning, clearly encryption probably played a role in it,” he said. “And there were a lot of conversations that went on between these two individuals before [Malik] came to the United States that you would love to have some insight to other than after an attack took place.”

This is a remarkable comment!

After all, the FBI and NSA don’t even read all the conversations of foreigners, as Malik would still have legally been, that they can. Indeed, if these conversations were in Arabic or Urdu, the IC would only have had them translated if there were some reason to find them interesting. And even in spite of the pair’s early shooting training, it’s not apparent they had extensive conversations, particularly not online, to guide that training.

Those details would make it likely that the IC would have had no reason to be interested. To say nothing of the fact that ultimately “radicalization” is a state of mind, and thus far, NSA doesn’t have a way to decrypt thoughts.

But this is the second attack in a row, with Paris, where Burr and others have suggested that their lack of foreknowledge of the attack makes it probable the planners used encryption. Burr doesn’t even seem to be considering a number of other things, such as good operational security, languages, and metadata failures might lead the IC to miss warning signs, even assuming they’re collecting everything (there should have been no legal limits to their ability to collect on Malik).

We’re not having a debate about encryption anymore. We’re debating making the Internet less secure to excuse the IC’s less-than-perfect-omniscience.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.