back to article Apple tells iPhone court 'the Founders would be appalled' by Feds

Apple's latest response to US Department of Justice (DoJ) demands that it alter its operating system to allow access to a terrorist's iPhone using the 1789 All Writs Act is typically blunt. "According to the government, short of kidnapping or breaking an express law, the courts can order private parties to do virtually …

  1. Dave Harvey

    USA is not the only prying government in the world!

    Even if Apple stands up to the FBI and wins, what are the odds that they'll be forced to do the same for other governments, especially those who might use less subtle means of persuasion?

    1. Anonymous Coward
      Anonymous Coward

      Re: USA is not the only prying government in the world!

      what are the odds that they'll be forced to do the same

      Is that a rhetorical question? I do not think it even qualifies for that. It should be more of a statement.

  2. Anonymous Coward
    Anonymous Coward

    Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

    I suppose it was nice while it lasted. I'm waiting for those amendments to be ditched due to some terror threat.

    It's actually quite sad when you think about how America was conceived and the logic behind those creating it, they obviously never wanted government to be outside of the control of the people. (and that government of the people, by the people, for the people) and look what they have now. Though to be fair at least for a time they had freedom.

    I think a new revolution is due soon across the world, it'll be interesting to see how it pans out. I just hope it isn't started by fanbois, though I suppose their marketing would be shit hot.

    1. I. Aproveofitspendingonspecificprojects
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    2. Deltics
      Mushroom

      Nice while it lasted ? It would have been nice if it meant anything worth a damn even on the day it was written, beyond being a catchy sound-bite (had such a thing been conceived of in the day).

      "All men" on that occasion was limited to the white man, but not his negro possessions.

      1. Anonymous Coward
        Anonymous Coward

        You do realize, I trust, that there were Black slave owners, and they could vote ? Or does that not fit the narrative ?

        1. Deltics

          "Fit the narrative" ? What do you think the narrative is ?

          The "narrative" is that the men who put their name to the assertion that "all men are equal" patently did not mean this in the literal sense that is being inferred by some in this discussion.

          Some men were clearly not equal since they were the possessions of other men. The fact that some of the owners of those possessions had the same color skin as their possessions does not alter one iota the fact that the assertion that "all men are equal" in the minds of the authors of those words at that time clearly did not mean to convey what some people prefer to infer from those words today.

    3. DonL

      "Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal."

      So you're saying that they find a mass murderer equal to all others and that they would have wanted to see the mass murderer's digital rights defended no matter what?

      1. Michael Thibault

        @DonL

        All men (sic) are created equal, but some make a better scarecrow than others.

      2. theOtherJT

        @DonL

        Yes. That's exactly what they meant.

        No man, no matter how virtuous, blessed by god, blood of kings - whatever - NO man is above the law. By the same token, no man is beneath it either. The devil himself is owed a fair trial, conducted with the same rigour and defence of his rights as anyone.

        Either a right applies to all, or to no one. Otherwise it's not a right.

        1. Charles 9 Silver badge

          Re: @DonL

          "No man, no matter how virtuous, blessed by god, blood of kings - whatever - NO man is above the law."

          Impossible. Eventually, someone amasses the kind of power that allows him to go beyond the law, on pain of pain and destruction. Such is the game of humanity; it's basic "me vs. the other guy" instinct. After all, in the final analysis, law is just "ink on a page" and absolutely worthless without the power to make others submit to it, even when they disagree with it.

          1. theOtherJT

            Re: @DonL

            That's as may be, but the law must still hold that man accountable, even if those who are supposed to enforce it are unable to do so. There's a world of difference between breaking a law because you are powerful enough to get away with it, and claiming that you're actually not bound by the law in the first place.

            1. Charles 9 Silver badge

              Re: @DonL

              I don't think so. I think having one necessarily allows you to do the other. If you have the power to ignore the laws and get away with it, you can exploit that power to have the laws rewritten to make sure you don't run afoul of them again. And if you have the power to rewrite the laws already, then to turn a famous phrase, "I AM The Law!"

        2. Deltics

          Re: @DonL

          Point of order m'lud.

          You are citing and quoting from a DECLARATION OF INDEPENDENCE. An act of rebellion and a DEFIANCE of the existing law and sovereign power.

          This is the document that Apple is using as their touchstone ?

          Interesting. It seems to imply that they think they are above the law and free to defy it with impunity simply by saying that it be so.

    4. ElectricRook
      FAIL

      it will all end in tears

      I think a new revolution is due soon across the world, it'll be interesting to see how it pans out."

      Yeah I'm pretty sure that a revolution would end up worse than the present junk. Look how many people follow some chick with a big ass, get their news from tv comedians, have never read a "good book", don't know about the canon of western literature , and don't think about what is important.

  3. Pseu Donyme

    If the best Apple('s lawyers) can do here is to invoke free speech, the odds of them prevailing don't look very good: this is quite a stretch at best, not made any better by a corporate entity claiming what at its core is an individual right.

    1. Someone Else Silver badge
      Coat

      @ Pseu Donyme

      [...] the odds of them prevailing don't look very good [...]

      How do you come to that conclusion? The SCOTUS has (in)famously (and repeatedly) stated that it is law that money is speech, and Apple has lots of money, so....

      1. Pseu Donyme

        Re: @ Pseu Donyme

        > How do you come to that conclusion? The SCOTUS ...

        While a pragmatic summary of the Citizens United decision might be "money = speech" it is still not "code = speech". Also, Citizens United was in the context of campaign (advertising) financing intimately tied to political speech, whereas Apple's 'speech' here is software i.e. algorithms for computers to carry out, not disseminating and/or discussing facts and opinions between people. (Also, the crux of Citizens United was elsewhere: whether campaign financing may give rise to corruption or the appearance thereof. The implausible finding was that it doesn't )

    2. a_yank_lurker Silver badge

      @Pseu Donyme - Others have raised civil rights are being trampled by the ferals and their shyster buddies.

    3. cortland
      FAIL

      It's not about free speech

      The judge in the case says that what the FBI wants the courts to order is illegal; the District Court's decision says in part (on page 30) :

      "I therefore reject the government's interpretation of the AWA's gap-filling function, and conclude that a judicial order that would confer authority that Congress has considered and decided not to enact is not "agreeable to the usages and principles of law."

      See https://www.eff.org/files/2016/02/29/applebrooklyn-2.29.16order.pdf

  4. Anonymous Coward
    Anonymous Coward

    '[the] greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding'

    Very nicely exressed. UK governments of both political wings have been facilitating that for at least 20 years. They rush the drafting of new laws - and then expect the appeal courts to define the detail when some innocent party can afford to make an appeal about "mission creep".

  5. Anonymous Coward
    Anonymous Coward

    Rubbish

    Rubbish argument. Jefferson wasn't living with Islamic terrorism and cell phones.

    1. Oengus Silver badge

      Re: Rubbish

      "Jefferson wasn't living with Islamic terrorism and cell phones."

      Maybe not but he was living with carrier pigeons and the British.

      Technology changes. The principles remain the same.

    2. Anonymous Coward
      Anonymous Coward

      Re: Rubbish

      Would the troll like a biscuit?

      Sorry I ran out...

    3. I. Aproveofitspendingonspecificprojects

      Re: Rubbish

      > Jefferson wasn't living with Islamic terrorism and cell phones.

      But he had evidently come across something similar to the FBI and MacCarthyism by the feel of it. Catholicism?

      Puritanicalism?

      Imperialism?

      Missed out on slavery and genocidalism though, evidently.

      How about Chimpanzeeism?

    4. cyrus

      Re: Rubbish

      "Rubbish argument. Jefferson wasn't living with Islamic terrorism and cell phones."

      Downvoted you for being an ignorant, anonymous coward. I guess the free and the brave have already left this country and scared weaklings are all that are left.

      1. Mark 85 Silver badge

        Re: Rubbish

        The brave but not necessarily free are still here. We just get shouted down too much. But, I do suspect the numbers are rising. Maybe someday, before it gets too late the others will get a clue on what they are losing.

    5. Red Bren

      Re: Rubbish

      Jefferson was a terrorist aiming to overthrow the rightful rule of His Majesty King George III

    6. theOtherJT

      Re: Rubbish

      Jefferson wasn't living with Islamic terrorism and cell phones.

      That's right. He was fighting an actual revolutionary war against a vastly superior military force. He had more to fear than we have ever had, and still believed that the rights of the individual were worth enshrining in the constitution.

    7. Old Handle

      Re: Rubbish

      No, Jefferson was a terrorist. (They'd call him so today, at least.) If the American Revolution happened now, I think it's quite probably that they would be been just as keen on encryption as they were on the hot technology of their day (guns).

  6. John Lilburne

    So the US constitution is ...

    ... some sort of suicide pact? Cool!

  7. btrower

    misinformed arrogance

    Regardless of the legal theories being bandied about, what the FBI is asking is wrong and dangerous. Men of conscience eventually have to take a stand.

    The level of misinformed arrogance in all three branches of the U.S. federal government is downright scary. Safeguards preventing these people from acting should be increased, not decreased.

    Yes, it is a hard world out there. No doubt there are scenarios where the contents of that phone are crucial to the point of saving lives. It will never justify the damage that would be done by forcing Apple to do something unreasonable. There is a cost associated with riding roughshod over the rights of a billion mobile device users. That cost is well beyond any value to be had with that phone.

    We could save a lot more lives by outlawing the use of automobiles. That does not mean it is the right thing to do.

    Obviously, the FBI is looking for a damaging precedent and we should not let them get it.

    Long term, there have to be penalties associated with attacks on the commons like this. As long as there is no cost associated with the attacks, they attacks will continue.

    1. Anonymous Coward
      Anonymous Coward

      Re: misinformed arrogance

      What I have a problem with, or at least the first, is what happens to the engineers if they step back and refuse to provide what the FBI is demanding? Crickets so far on that issue which no one is raising.

      1. Charles 9 Silver badge

        Re: misinformed arrogance

        "What I have a problem with, or at least the first, is what happens to the engineers if they step back and refuse to provide what the FBI is demanding?"

        If supported by a court order, that can become contempt of court, similar to the one local officer who refused to issue marriage licenses of any kind (to avoid discrimination charges) on account of religious objections to signing marriage licenses for gay couples (and they couldn't force him out of office because the post was elected and the only body that can impeach an elected official, the state legislature, was out of session).

    2. Anonymous Coward
      Anonymous Coward

      Re: misinformed arrogance

      Don't forget the propoganda value gained by forcing a megacorp like Apple to kneel before the altar of Neocon security theater and its twisted self-serving values. Although there are frequent mass shootings in the US, if it is done by Muslims, the cause celebre becomes just too good to pass up.

      Beating up on Apple will help awe and terrify average Joes about the legal "risks" associated with protecting their personal privacy. "Nothing to hide, nothing to fear" will become enshrined in the public's perception and the legal system. It can then be stretched ever further as a modus operandi for the government. Exactly the type of scenario feared by the founding fathers and protected against by the constitution.

      Encryption technology and the companies that wish to provide it will be left in a legal minefield, obliged to set up shop elsewhere most likely, before other companies rush in to fill the gap. And it won't stop terrorists and criminals from using encryption. It will stop ordinary people from using encryption and make them less safe.

      Is that really what we want?

      If Google and multidinous Android phone manufacturers were asked to do the same, this could be a very different story, much harder to enforce, much easier to evade and much easier to ridicule.

      But Apple is a rich, soft squishy target, it cannot easily run or hide from the DoJ. So this drama will be played out and writ large. How it ends will have some pretty interesting (but not very pretty) consequences.

      1. Old Handle
        Gimp

        Re: misinformed arrogance

        I agree with everything you said, except Apple being a squishy target. They have billions and billions for dollars just lying around with which they can hire lawyers and/or mount a PR offensive if they so chose.

        In fact a quick back-of-the-envelope calculation suggests that they could hire every lawyer (in this country) for a month. I'm not sure that would be an effective use of resources, but you get the idea.

    3. John Lilburne

      Re: misinformed arrogance

      Typical digiterati bullshit.

      If the data was contained on paper in manilla folders inside locked in a safe, the cops would have had it opened weeks ago and no one would have batted an eyelid. No one would be whining that it was a slippery slope to Armageddon where everyone's safe was open to the world and its dog.

      Court+Search warrant for specific object == Legal Oversight.

      If it works for your bedroom closet it works for your phone.

      1. Charles 9 Silver badge

        Re: misinformed arrogance

        Not if it meant it ALSO opened the way to open every other safe made by that manufacturer...including ones potentially held by the government itself.

        The thing with a safe is that even physical cracking takes time, which is why they're rated that way (in terms of how long it would take a professional safecracker, with no limits on his tools of the trade, to get it open). That's basically like brute forcing the phone's memory, which by modern standards has a safecracker rating of "practically infinite". Thing is, what if the safe company is forced to develop something that exploits a design flaw in their line of safes to cut the safecracker rate all the way down to "5 minutes"? That's more like what the feds are asking, and I don't think any safe company would want to play ball with that, given the negative reputation it would bring (much like how car manufacturers are a little leery about their brands being in racing games, particularly those noted for reasonably accurate physics; it might bring out a crash characteristic that might affect sales in the showroom).

      2. Alister Silver badge

        Re: misinformed arrogance

        Court+Search warrant for specific object == Legal Oversight.

        If it works for your bedroom closet it works for your phone.

        There speaks someone with no comprehension of the ramifications of this case.

        If Apple are forced to provide a way to bypass the security on this one phone, there will then be hundreds - if not thousands - of requests / court orders for the same to be done for other phones.

        At that point, it is 100% certain that the code to carry out the bypass of security will no longer remain in Apple's hands, and will find it's way, firstly into the FBI's hands, where they will use it indiscriminately without oversight, and secondly into the hands of the criminal fraternity, at which point it's game over.

  8. I. Aproveofitspendingonspecificprojects

    http://forums.theregister.co.uk/forum/1/2016/03/16/apple_doj_response/?post_received=2811154#c_2811154

    http://www.theregister.co.uk/

    What reason does the Register have for the HTTP missing a letter?

    Don't you have anyone you can call to help you out?

    Or is this something between you and the US secret police?

  9. allthecoolshortnamesweretaken

    Of all the founding fathers, I'd love to hear Ben Franklin's opinion on this.

  10. Grikath

    Meh...

    If you look at the intention of the ideas set out in the US Constitution, and what the US has become, you more or less can use the spinning corpses of the Founding Fathers to solve the world's energy crisis anyway.

    1. We Haven't Met But You're A Great Fan Of Mine

      Re: Meh...

      They'd use the Energy to Power the Super Computer which will crack the encryption.

      The leftover will be used to create enough hot air to send government on a year long holiday.

  11. energystar

    So appalled,

    that They would send at full gallop the Brave Paul Revere with a Cease and desist letter.

    1. energystar

      Founders where at war!

      Last thing they would ask to Ben is to sit and write a New Law for every New action into the unknown!

      They were outlaws to the Crown!

      Once the first documents where sketched, exact meaning or intention of a misplaced comma was the last thing they could worry about. They knew what they wanted!

      1. energystar

        Re: Founders where at war!

        Do we want an omni sentient environment? Just for our 'perfect' commodity? And leave private corporations and public and military agencies fight for command chairs at the control and 'situation' rooms?

        1. energystar

          Snowden in the end,

          updated Corporations about their 'situation rooms' not being the only ones. Now Governments' suspicions are the same.

          His personal and lost war was about the individual. He yelled Attention! at Us, not at Gobernment or Corporations.

          As consumers, our help at advancing the conversation has been until now, mostly mourning.

    2. energystar

      Forgot the British way,

      Rules acknowledged.

  12. Mitoo Bobsworth

    Yeah, right!

    "Director Comey also admitted that the FBI could have opened the iPhone easily but locked it mistakenly..."

    Mistakenly? Oh, reeeeaaallllly?

  13. energystar

    Since when a recipe is speech?

    Lost ever more: KFC 'secret recipe' is free speech?

    1. Uncle Slacky Silver badge
      Stop

      Re: Since when a recipe is speech?

      Weren't they able to export the PGP encryption algorithm "munition", printed on paper, under a free speech justification?

      1. Charles 9 Silver badge

        Re: Since when a recipe is speech?

        No, free press if printed. All they would have to do is publish the source code in a magazine or newspaper and the First Amendment would apply. Unless, of course, they cite national security "clear and present danger" concerns to trump the First Amendment.

  14. Anonymous Coward
    Anonymous Coward

    have they not just tried 2580? That is what everyone's PIN is set to...isn't it?.....

    1. JohnMurray

      No. Don't be silly.

      I set mine to be different, I set it to 1-2-3-4.

    2. gnasher729 Silver badge

      "have they not just tried 2580? That is what everyone's PIN is set to...isn't it?....."

      They quite possibly have. It has been reported that they tried eight PINs. After ten incorrect attempts, the phone erases all its data :-)

  15. cortland

    The core

    of Judge Orenstein's decision (which the FBI is appealing) is found on page 30:

    "... a judicial order that would confer authority that Congress has considered and decided not to enact is not "agreeable to the usages and principles of law."

    Applying that interpretation in this case compels the conclusion that the AWA does not authorize the relief the government seeks. "

    https://www.yumpu.com/en/document/view/55256796/kfkw6c/30

  16. Anonymous Coward
    Anonymous Coward

    This show would be even better if it was OJ Simpson's lawyers - vs - Manitowoc County...

  17. Anonymous Coward
    Anonymous Coward

    God bless America

    "the government's motivations are understandable, but its methods for achieving its objectives are contrary to the rule of law, the democratic process, and the rights of the American people"

    Oh say can you see...

  18. Gigabob

    It a new world order

    The phone used to be for talking. Now it is a communications hub for text, email, payments, banking and withdrawals. Cracking this hub gives a government - foreign or domestic, access to your files, accounts and services. I worry less about someone seeing what I do than inserting records of things I did NOT do into my phone.

    For the rapid expansion of global commerce and a "One-World" society to develop, identity and security must significantly improve. Apple, Google and others see the need and are on that path. The FBI is using crude tools from past wars to fight a new battle it does not understand. Using old tools in a such a crude manner has consequences the FBI has yet to grasp. Like a vaccine - cyber security can only be effective if it is uniformly applied with no cracks or seems for "bad guys" to filter through. The first shots in the next big war will be bits not bullets.

    1. Mark 85 Silver badge

      Re: It a new world order

      Indeed it is, even POTOUS has bought into it. Did you catch Obama's take on this ? To whit: •Actual quote: "Everybody’s walking around with a Swiss bank account in their pocket. So there has to be some concession for the need to get into that information."

      Now if that doesn't scare the hell of everyone in this country (and/or worldwide), nothing will. That "concession" allows any agency and any miscreant access to your "Swiss bank account".

  19. energystar

    Election year, everybody knows.

    Each day more convinced that timing was dominated by Apple [both knew this was coming]. "This legislation does not ask [companies] to decrypt..." No, they were not asking for the full Mc-Koy. Bussiness as usual, if not for the new 'booby mines' under the encrypted data. So much for it. Please, nobody turn on that fan!

  20. Anonymous Coward
    Anonymous Coward

    In some ways this case is quite simple, and very much in Apple's favour. Congress has passed a law that deals with this entire area, but doesn't have language that covers this exact situation. However the generalrule is that if there is a specific law covering an area then a more general law cannot be used to circumvent what the more specific law says.

    In this case, the FBI is attempting to use the 1789 All Writs Act, an enabling act intended to cover areas that weren't otherwise covered. This *should* be entirely pre-empted by the more recent legislation. Allowing the FBI to use the AWA will overturn a LOT of legal precedent, so I reckon it unlikely that the FBI will win, for purely legal reasons.

    1. energystar

      In some others' not.

      Apple has to probe that the more specific legislations fit and cover to Court satisfaction ALL of the case's relevancies, as to demand dismissal of the General Frame.

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