“Stance Not Grounded In Principle”: Apple Unlocked iPhones For The Feds 70 Times Before
Apple CEO Tim Cook declared on Wednesday that his company wouldn’t comply with a government search warrant to unlock an iPhone used by one of the San Bernardino killers, a significant escalation in a long-running debate between technology companies and the government over access to people’s electronically-stored private information.
But in a similar case in New York last year, Apple acknowledged that it could extract such data if it wanted to. And according to prosecutors in that case, Apple has unlocked phones for authorities at least 70 times since 2008. (Apple doesn’t dispute this figure.)
In other words, Apple’s stance in the San Bernardino case may not be quite the principled defense that Cook claims it is. In fact, it may have as much to do with public relations as it does with warding off what Cook called “an unprecedented step which threatens the security of our customers.”
For its part, the government’s public position isn’t clear cut, either. U.S. officials insist that they cannot get past a security feature on the shooter’s iPhone that locks out anyone who doesn’t know its unique password—which even Apple doesn’t have. But in that New York case, a government attorney acknowledged that one U.S. law enforcement agency has already developed the technology to crack at least some iPhones, without the assistance from Apple that officials are demanding now.
The facts in the New York case, which involve a self-confessed methamphetamine dealer and not a notorious terrorist, tend to undermine some of the core claims being made by both Apple and the government in a dispute with profound implications for privacy and criminal investigations beyond the San Bernardino case.
In New York, as in California, Apple is refusing to bypass the passcode feature now found on many iPhones.
But in a legal brief, Apple acknowledged that the phone in the meth case was running version 7 of the iPhone operating system, which means the company can access it. “For these devices, Apple has the technical ability to extract certain categories of unencrypted data from a passcode locked iOS device,” the company said in a court brief.
Whether the extraction would be successful depended on whether the phone was “in good working order,” Apple said, noting that the company hadn’t inspected the phone yet. But as a general matter, yes, Apple could crack the iPhone for the government. And, two technical experts told The Daily Beast, the company could do so with the phone used by deceased San Bernardino shooter, Syed Rizwan Farook, a model 5C. It was running version 9 of the operating system.
Still, Apple argued in the New York case, it shouldn’t have to, because “forcing Apple to extract data… absent clear legal authority to do so, could threaten the trust between Apple and its customers and substantially tarnish the Apple brand,” the company said, putting forth an argument that didn’t explain why it was willing to comply with court orders in other cases.
“This reputational harm could have a longer term economic impact beyond the mere cost of performing the single extraction at issue,” Apple said.
Apple’s argument in New York struck one former NSA lawyer as a telling admission: that its business reputation is now an essential factor in deciding whether to hand over customer information.
“I think Apple did itself a huge disservice,” Susan Hennessey, who was an attorney in the Office of the General Counsel at the NSA, told The Daily Beast. The company acknowledged that it had the technical capacity to unlock the phone, but “objected anyway on reputational grounds,” Hennessey said. Its arguments were at odds with each other, especially in light of Apple’s previous compliance with so many court orders.
It wasn’t until after the revelations of former NSA contractor Edward Snowden that Apple began to position itself so forcefully as a guardian of privacy protection in the face of a vast government surveillance apparatus. Perhaps Apple was taken aback by the scale of NSA spying that Snowden revealed. Or perhaps it was embarassed by its own role in it. The company, since 2012, had been providing its customers’ information to the FBI and the NSA via the PRISM program, which operated pursuant to court orders.
Apple has also argued, then and now, that the government is overstepping the authority of the All Writs Act, an 18th-century statute that it claims forces Apple to conduct court-ordered iPhone searches. That’s where the “clear legal authority” question comes into play.
But that, too, is a subjective question which will have to be decided by higher courts. For now, Apple is resisting the government on multiple grounds, and putting its reputation as a bastion of consumer protection front and center in the fight.
None of this has stopped the government from trying to crack the iPhone, a fact that emerged unexpectedly in the New York case. In a brief exchange with attorneys during a hearing in October, Judge James Orenstein said he’d found testimony in another case that the Homeland Security Department “is in possession of technology that would allow its forensic technicians to override the pass codes security feature on the subject iPhone and obtain the data contained therein.”
That revelation, which went unreported in the press at the time, seemed to undercut the government’s central argument that it needed Apple to unlock a protected iPhone.
“Even if [Homeland Security] agents did not have the defendant’s pass code, they would nevertheless have been able to obtain the records stored in the subject iPhone using specialized software,” the judge said. “Once the device is unlocked, all records in it can be accessed and copied.”
A government attorney affirmed that he was aware of the tool. However, it applied only to one update of version 8 of the iPhone operating system—specifically, 8.1.2. The government couldn’t unlock all iPhones, but just phones with that software running.
Still, it made the judge question whether other government agencies weren’t also trying to break the iPhone’s supposedly unbreakable protections. And if so, why should he order the company to help?
There was, the judge told the government lawyer, “the possibility that on the intel side, the government has this capability. I would be surprised if you would say it in open court one way or the other.”
Orenstein was referring to the intelligence agencies, such as the NSA, which develop tools and techniques to hack popular operating systems, and have been particularly interested for years in trying to get into Apple products, according to documents leaked by Snowden.
There was no further explanation of how Homeland Security developed the tool, and whether it was widely used. A department spokesperson declined to comment “on specific law enforcement techniques.” But the case had nevertheless demonstrated that, at least in some cases, the government can, and has, managed to get around the very wall that it now claims impedes lawful criminal investigations.
The showdown between Apple and the FBI will almost certainly not be settled soon. The company is expected to file new legal briefs within days. And the question of whether the All Writs Act applies in such cases is destined for an appeals court decision, legal experts have said.
But for the moment, it appears that the only thing certainly standing in the way of Apple complying with the government is its decision not to. And for its part, the government must be presumed to be searching for new ways to get the information it wants.
Technically, Apple probably can find a way to extract the information that the government wants from the San Bernardino shooter’s phone, Christopher Soghoian, the principal technologist for the American Civil Liberties Union, told The Daily Beast.
“The question is, does the law give the government the ability to force Apple to create new code?” he said. “Engineers have to sit down and create something that doesn’t exist” in order to meet the government’s demands. Soghoian noted that this would only be possible in the San Bernardino case because the shooter was using an iPhone model 5C, and that newer hardware versions would be much harder for Apple to bypass.
But even that’s in dispute, according to another expert’s analysis. Dan Guido, a self-described hacker and CEO of the cybersecurity company Trail of Bits, said that Apple can, in fact, eliminate the protections that keep law enforcement authorities from trying to break into the iPhone with a so-called brute force attack, using a computer to make millions of password guesses in a short period of time. New iPhones have a feature that stops users from making repeated incorrect guesses and can trigger a kind of self-destruct mechanism, erasing all the phone’s contents, after too many failed attempts.
In a detailed blog post, Guido described how Apple could work around its own protections and effectively disarm the security protections. It wouldn’t be trivial. But it’s feasible, he said, even for the newest versions of the iPhone, which, unlike the ones in the New York and San Bernardino cases, Apple swears it cannot crack.
“The burden placed on Apple will be greater… but it will not be impossible,” Guido told The Daily Beast.
By: Shane Harris, The Daily Beast, February 17, 2016
“Conservatives Are Right To Be Frightened”: Don’t Believe The Hype: Here’s What A Liberal Supreme Court Would Actually Do
If you look at how the Democratic and Republican candidates for president have reacted to the Supreme Court vacancy created by the death of Antonin Scalia, you might notice a greater sense of urgency from the Republicans. The Democrats are certainly talking about it, and they’ve certainly expressed their contempt at the absurd arguments Republicans are making in support of their position that the president of the United States shouldn’t be allowed to appoint Supreme Court justices if a new president will take office in a year. But they aren’t spinning out nightmare scenarios about what will happen if they lose this conflict. The Republicans, on the other hand, seem much more worried.
And they’re right to be, because at the moment, they have more to lose. But what would actually happen if the balance on the Court shifts from 5-4 in favor of conservatives (what it was before Scalia’s death) to 5-4 in favor of liberals?
To hear Republicans tell it, the results would be positively apocalyptic. Here’s how Ted Cruz described it in a CNN town hall last night:
“We are one liberal justice away from the Supreme Court striking down every restriction on abortion that’s been put in place the last 40 years. We are one liberal justice away from the Supreme Court writing the Second Amendment out of the Constitution. We are one liberal justice away from the Supreme Court ordering Ten Commandments monuments to be torn down, ordering veterans memorials to be torn down, and undermining our fundamental religious liberty.”
This is almost verbatim what Cruz has been saying since Scalia died; on Meet the Press last Sunday, he added colorfully that a liberal majority would mean “the crosses and Stars of David sandblasted off of the tombstones of our fallen veterans.”
There’s no doubt that if and when a new liberal justice takes his or her seat on the Court — either because Obama’s nominee somehow gets confirmed or because Hillary Clinton or Bernie Sanders wins the election and appoints one — it will be the most significant shift in the Court’s balance in decades. And that’s in large part because the right has gotten so much of what it wanted out of this Supreme Court. While conservatives shake their fists at the Court and call John Roberts a traitor, the truth is that with just a few exceptions, most notably the legalizing of same-sex marriage and the upholding of (most of) the Affordable Care Act, the Roberts Court has delivered the right a spectacular string of victories over the last few years. Among other things, they found an individual right to own guns for the first time in history, knocked down limits on spending by corporations (and unions) on political campaigns, whittled away at affirmative action, gutted the Voting Rights Act, made it harder for employees to sue for sex discrimination, and declared that corporations have religious rights.
Nevertheless, according to the Pew Research Center, in 2008, 80 percent of Republicans had a favorable view of the Supreme Court. By 2015 that figure had fallen to 33 percent. And 68 percent of conservative Republicans described the Court as “liberal,” which is laughable by any standard one could devise.
So what happens now? Margo Schlanger compiled this list of major rulings where Scalia was in a 5-4 majority, all of which could in theory be overturned, from Citizens United to D.C. v. Heller (which established the individual right to own guns) to Shelby County v. Holder (which invalidated key parts of the Voting Rights Act). But that doesn’t mean a liberal majority would go on a rampage, overturning all those settled cases.
“The Supreme Court is a conservative institution as a whole; justices aren’t looking to overturn the apple cart,” Jill Dash of the liberal American Constitution Society told me this morning. She argued that it’s unlikely that a liberal majority would set about to repeal those high-profile decisions, particularly within the first few years of that majority.
Samuel Bagenstos, a professor at the University of Michigan law school who served in the Justice Department under President Obama, also doubts that there would be too many major decisions overturned. “The four more liberal justices currently on the Court take precedent and stare decisis seriously, and I don’t think that will change,” he said.
But there would be change in complex areas of law where the courts are still working through how previous decisions apply to varied situations. Affirmative action is one “where the Court would be much more likely to uphold programs designed to promote diversity in schools and the workplace,” Bagenstos says. He also points to employment law as an area where a liberal majority could chart a new path, in cases concerning arbitration clauses in contracts and what constitutes systemic discrimination. Dash notes that a liberal majority would probably produce a spate of voting rights cases, as challenges to restrictions imposed by Republican state legislatures would find a friendlier hearing, even if Shelby County isn’t entirely overturned.
And then there’s abortion, always at the top of everyone’s mind when the Supreme Court comes up. In recent years, conservative states have pushed the envelope farther and farther in restricting the availability of abortion, with onerous rules on abortion clinics and invasive mandates on the women seeking the procedure. The question is which of these measures violate the Court’s 1992 ruling in Planned Parenthood v. Casey, which stated that the government can’t impose an “undue burden” on a woman’s right to choose.
The conservative position to this point has been that virtually no burden is “undue.” If the state makes you drive hundreds of miles, wait for days, make multiple visits to a clinic, hear an oration of lies penned by some GOP state legislator about how getting an abortion might give you cancer and drive you mad, so far the Supreme Court has said it’s just what women should have to tolerate.
But that might no longer be true. “A liberal who replaced Justice Scalia would likely read the Casey ‘undue burden’ standard as imposing a much more significant limitation on the regulation of abortion than the Court has in recent years,” says Bagenstos, “so you could see a major practical shift in reproductive rights jurisprudence. I don’t think the Court would overrule any precedent, though. It would just find a wider range of burdens to be ‘undue.’”
In short, a liberal replacing Scalia would be an important change with profound consequences for all Americans’ lives. But it wouldn’t happen all at once, and it wouldn’t be so earth-shattering as to cause riots in the streets. Nobody’s going to sandblast the crosses off the gravestones at Arlington. Nevertheless, conservatives are right to be frightened. They’ve had a long run with conservative dominance of the Supreme Court, and it may be coming to an end. Now they’ll understand how liberals have felt for the last few decades.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, February 18, 2016
“Hillary’s Double-Standard Dance”: Same Dance Women, Especially Female Candidates, Have Been Expected To Do For Years
Things I heard Hillary Clinton talk about Saturday night in Denver at the Colorado Democrats’ Jefferson-Jackson dinner: Supreme Court appointments. Health care. Gun violence, with a catch in her voice when she mentioned Aurora, Columbine and Sandy Hook families turning their grief into action. Electing Morgan Carroll to Congress to represent Colorado’s sixth district, returning Michael Bennet to the Senate and regaining Democrats’ state senate majority. Anti-abortion personhood measures. The reopening of the Planned Parenthood clinic in Colorado Springs on Monday.
Things Bernie Sanders talked about: The Supreme Court and Citizens United. Income equality. Single-payer health care. Zero mention of helping other Democrats in swing-state Colorado, or much specific to Colorado at all.
As my hero Ann Richards famously said, “Ginger Rogers did everything that Fred Astaire did. She just did it backwards and in high heels.”
So how much does Hillary Clinton have to do backwards and in high heels before she gets the credit she deserves? I agree with Bernie Sanders’ positions on the issues (guns aside), as do most Democrats, even though he wasn’t one until a year ago. But Sanders’ positions wouldn’t exist without the groundwork Hillary Clinton has done on health care, women’s rights, LGBT rights, civil rights, as secretary of state and in 40 years as a child advocate, including creating the State Children’s Health Insurance Program and starting with her first job as a staff attorney for the Children’s Defense Fund.
So yes, there is some frustration among those of us in the Thelma and Louise generation, that while Bernie gets accolades for what he says, Hillary still has to earn them for what she’s done.
The same goes for the entirety of Bernie’s foreign policy, resting on his vote against the Iraq War. That’s nice. Meanwhile, as secretary of state Hillary successfully navigated the complexities of international diplomacy, restored our stature in the world, contributed to our taking out Osama bin Laden, normalized relations with Cuba, negotiated a cease-fire in Gaza, laid the foundation for the agreement to denuclearize Iran and traveled to more countries than any other secretary of state. As Sen. Harry Reid put it, “Nearly every foreign policy victory of President Obama’s second term has Secretary Clinton’s fingerprints on it.”
Bernie Sander wants credit for a day. Hillary Clinton doesn’t get credit for four years.
And a personal note to Bernie-backers: I was Sen. Barbara Boxer’s press secretary when she was one of 23 senators to vote ‘no’ on the Iraq Resolution in 2002. She was up for re-election at the time, and even though her seat, like Bernie’s, was considered safe, our campaign manager nearly had a stroke.
The political atmosphere courtesy of the Bush administration was toxic and just this side of McCarthyism – they were questioning the patriotism of Sen. Max Cleland, an Army captain who left both legs and an arm on a helicopter pad in Vietnam, for disagreeing with President Bush. Minnesota Sen. Paul Wellstone voted ‘no,’ and had he not been killed in a plane crash he likely would have lost his seat.
So the idea that the senator from New York could have voted ‘no’ a year after 9/11 is simply ridiculous. As Hillary has said, if she knew then what we all know now – that the Bush administration was lying about the connection between Saddam and 9/11 to foment a rush to war – she would have voted differently. Hindsight is 20/20 and apparently politically beneficial.
It’s also worth noting that Sens. Boxer and Franken, the latter the Democratic successor to Paul Wellstone’s seat, have both endorsed Hillary.
Hillary may be in a pantsuit. But she’s doing the same double-standard dance women, and especially female candidates, have been expected to do for years.
By: Laura K. Chapin, U. S. News and World Report, February 17, 2016
“Build Bridges, Not Walls”: It Has Come To This; Donald Trump Vs. The Pope
Donald Trump is aiming ever higher on his list of political enemies. The latest: Pope Francis, who has suggested that Trump is “not Christian” — to which The Donald has responded that Francis will only wish he had been president “if and when the Vatican is attacked by ISIS.”
During a phone appearance last week on the Fox Business Network, Trump first responded to the various calls by the leader of Catholic Church for compassion on behalf of Latin American immigrants.
“So I think the pope is a very political person and I think that he doesn’t understand the problems our country has,” Trump said, alleging that the successor to St. Peter was being manipulated. “And I think Mexico got him to do it because Mexico wants to keep the border just the way it is because they’re making a fortune and we’re losing.”
But this Thursday morning, ABC News, a reporter asked the Holy Father if “a good Catholic vote for this man?” as the Holy Father was on a plane back to Rome after his tour of the U.S.-Mexican border.
“Thank God he said I was a politician, because Aristotle defined the human person as ‘animal politicus.’ So at least I am a human person,” responded the esteemed Bishop of Rome. “As to whether I am a pawn — well, maybe, I don’t know. I’ll leave that up to your judgment and that of the people.”
He continued: “And then, a person who thinks only about building walls, wherever they may be, and not building bridges, is not Christian. This is not in the gospel. As far as what you said about whether I would advise to vote or not to vote, I am not going to get involved in that. I say only that this man is not Christian if he said things like that. We must see if he said things in that way and in this I give the benefit of the doubt.”
This got Trump pretty fired up, judging from his statement Thursday afternoon:
DONALD J. TRUMP RESPONSE TO THE POPE
If and when the Vatican is attacked by ISIS, which as everyone knows is ISIS’s ultimate trophy, I can promise you that the Pope would have only wished and prayed that Donald Trump would have been President because this would not have happened. ISIS would have been eradicated unlike what is happening now with our all talk, no action politicians.
The Mexican government and its leadership has made many disparaging remarks about me to the Pope, because they want to continue to rip off the United States, both on trade and at the border, and they understand I am totally wise to them. The Pope only heard one side of the story – he didn’t see the crime, the drug trafficking and the negative economic impact the current policies have on the United States. He doesn’t see how Mexican leadership is outsmarting President Obama and our leadership in every aspect of negotiation.
For a religious leader to question a person’s faith is disgraceful. I am proud to be a Christian and as President I will not allow Christianity to be consistently attacked and weakened, unlike what is happening now, with our current President. No leader, especially a religious leader, should have the right to question another man’s religion or faith. They are using the Pope as a pawn and they should be ashamed of themselves for doing so, especially when so many lives are involved and when illegal immigration is so rampant.
Donald J. Trump
Next up: Donald Trump will allege that Pope Francis has a birth certificate in Argentina — and it’s got a different name written on it!
Update:: Trump has now read the statement aloud, at a rally in South Carolina
By: Eric Kleefeld, The National Memo, February 18, 2016
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