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“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

February 20, 2016 Posted by | Apple, Tim Cook, U. S. Government | , , , , , , , , , | Leave a comment

“Rolling Out The Welcome Wagon For The Bad Guys”: It May Be Speaker John Boehner And The GOP Who Do Not Love America

Rudy, oh dear Mr. Former Mayor, it seems that that you got it all wrong when you accused the president of not loving America. It’s so hard to watch you spout such stuff because you were such a respected man. In fact, you were one of the icons that had helped lead America through the tragedy of 9/11. Hope that the PR was worth it. Obama not only loves this country and its people dearly, but is doing his best to keep us safe.

If someone is guilty of not loving America, sadly it’s probably Speaker John Boehner together with the right wing of the House GOP. You know that actions speak volumes, and they appear to want to do this country great harm and jeopardize national security. This was the wrong message to send to our allies, and moreover, to our enemies. They have literally rolled out the welcome wagon for the bad guys worldwide. It’s like saying come on down, folks, because we don’t have our act together.

What an embarrassment he and his merry band of new legislators have wrought — before signing an eleventh hour reprieve of one week to cut off funding for the Department of Homeland Security. This makes you want to weep because it is politically motivated. It is no wonder that nationwide polling for Congress is in the toilet, and voter turnout was at an all-time low this past November. Former leader, Eric Cantor, must be breathing a deep sigh of relief or dancing a happy dance. It is despicable that the funding for the Department of Homeland Security is being held hostage, particularly during these times.

And sadly, it will only get worse next week with the Speaker’s scheduled visit to Congress of the Israeli Prime Minister Benjamin Netanyahu. It has broken protocol with the White House and created a great big rift in the American Jewish community and between the members of the Congress — which was so unnecessary. The United States continues to be Israel’s strongest ally, and its support has never wavered. There is an old Yiddish saying which amounts to “don’t go looking for trouble because unfortunately it will find you.” So Speaker Boehner, maybe it’s okay that you and your cohorts don’t love America, but we beg – do no further harm.

 

By: Michelle Kraus, The Blog, The Huffington Post, March 1, 2015

March 3, 2015 Posted by | GOP, John Boehner, National Security | , , , , , , , | Leave a comment

“Ignoring Basic Principles Of Government”: Texas Judge’s Immigration Ruling Is Full Of Legal Holes

U.S. District Judge Andrew S. Hanen’s decision to block the Obama plan to defer deportation for about 5 million immigrants here illegally ignores a basic principle of government: For better or worse, the executive branch of government always has discretion as to whether and how to enforce the law.

The judge’s lengthy opinion is wrong as a matter of law and, worse, is based on xenophobia and stereotypes about immigrants. It is very likely to be overturned by the U.S. 5th Circuit Court of Appeals, and, if necessary, the Supreme Court.

Every president must set enforcement priorities on immigration, choosing whom to prosecute or whom to deport. No administration brings prosecutions against all who violate the law. Resources make that impossible, and there are laws on the books that should not be enforced.

Nor has any administration, Democratic or Republican, sought to deport every person who is illegally in the United States. For humanitarian reasons or because of foreign policy considerations or for lack of resources, the government often chooses not to bring deportation actions. In fact, as recently as three years ago, the Supreme Court in United States vs. Arizona recognized that an inherent part of executive control over foreign policy is the ability of the president to choose whether to bring deportation proceedings.

That is exactly what President Obama’s executive orders on immigration have done. He has announced that the federal government will not seek to deport 600,000 young people who were illegally brought to the U.S. as children, or the undocumented parents of U.S. citizens and permanent residents who have resided in the country for at least five years. Millions of parents would be able to remain with their children because of this order and not need to live every day in fear of deportation.

The judge’s order makes several basic legal mistakes. For example, the law is clear that a federal court has jurisdiction to hear a matter only if the federal court’s decision would solve the problem. If the court’s decision would have no effect, it would be nothing but an advisory opinion, which is prohibited by the Constitution. Thus, the Supreme Court long has held that a party has standing to sue in federal court only if a favorable decision would “redress” its injury.

The lawsuit in Hanen’s court was brought by state governments that object to the Obama orders, claiming injury by the presence of immigrants here illegally. But the federal government deports only about 400,000 such immigrants a year. It is entirely speculative that stopping the executive orders would have any effect on the states that brought the suit. In fact, it is unclear what the judge’s order will mean. He cannot force the Department of Homeland Security to deport anyone.

The central argument in Hanen’s ruling is that the executive branch must promulgate a formal rule to defer deportation of these individuals. But the federal government constantly sets enforcement priorities without a formal rule. The Justice Department’s policies to not prosecute possession of small amounts of marijuana or credit card fraud below a designated dollar level, for example, were not adopted by formal rules.

In fact, recent presidents, including Republican ones, have deferred deportations without formal rules. In 1987, in response to political turmoil in El Salvador and Nicaragua, the Reagan administration took executive action to stop deportations for 200,000 Nicaraguan exiles. In 1990, President George H.W. Bush, post-Tiananmen, stopped deportations of Chinese students. He kept hundreds of Kuwaiti citizens who were illegally in the United States from being deported after Saddam Hussein invaded their nation. In 2001, President George W. Bush limited deportation of Salvadoran citizens at the request of El Salvador’s president, and ordered that deportation decisions include consideration of factors such as whether a mother was nursing or whether the person in question was a U.S. military veteran.

Judge Hanen, appointed to the federal bench by George W. Bush, has the reputation of being especially conservative on immigration issues. That tone underlies his opinion, especially as he spoke of immigrants being “terrorists” and “criminals.” What he misses, though, is that the point of Obama’s executive orders was to set enforcement priorities to focus deportations on terrorists and criminals and not on breaking up families.

It is not surprising that a conservative Republican judge would try to stop the Obama immigration policy. But it is just the first word and one unlikely to be sustained on appeal.

 

By: Erwin Chemerinsky, Dean of the UC Irvine School of Law; Samuel Kleiner, a Fellow at the Yale Law Information Society Project; The Los Angeles Times; The National Memo, february 20, 2015

February 23, 2015 Posted by | Deportation, Executive Orders, Immigration | , , , , , , , | Leave a comment

“The Fate Of The GOP Majority Is On The Line”: Even The Wall Street Journal Says Republican Congress Is Failing

This WSJ editorial is definitely NOT good news for Majority Leader Mitch McConnell or Speaker John Boehner:

Republicans in Congress are off to a less than flying start after a month in power, dividing their own conference more than Democrats. Take the response to President Obama ’s immigration order, which seems headed for failure if not a more spectacular crack-up…

If Homeland Security funding lapses on Feb. 27, the agency will be pushed into a partial shutdown even as the terrorist threat is at the forefront of public attention with the Charlie Hebdo and Islamic State murders. Imagine if the Transportation Security Administration, a unit of DHS, fails to intercept an Islamic State agent en route to Detroit.

So Republicans are facing what is likely to be another embarrassing political retreat and more intra-party recriminations. The GOP’s restrictionist wing will blame the leadership for a failure they share responsibility for, and the rest of America will wonder anew about the gang that couldn’t shoot straight…

It’s not too soon to say that the fate of the GOP majority is on the line…This is no way to run a Congressional majority, and the only winners of GOP dysfunction will be Mr. Obama, Nancy Pelosi and Hillary Clinton.

Ouch! That one left a mark. When Republican leadership loses the Wall Street Journal editorial page, you can rest assured that they’re in big trouble.

And yet today Speaker Boehner told Chris Wallace that the House has already done it’s business and that he is prepared to let DHS funding expire at the end of the month.

Notice that Sen. McConnell didn’t appear on any of the Sunday news shows. But here’s how he explained his position earlier this week.

“I think it’d be pretty safe to say we’re stuck, because of Democratic obstruction on the Senate side,” Senate Majority Leader Mitch McConnell (R-KY) told reporters Tuesday. “I think it’s clear we can’t go forward in the Senate. And so the next move, obviously, is up to the House.”

If the WSJ is right and the fate of the GOP majority is on the line, it’s past time for these two Congressional leaders to face up to yet another embarrassing political defeat and get something done.

 

By: Nancy LeTourneau, Political Animal, The Washington Monthly, February 15, 2015

February 18, 2015 Posted by | Congress, John Boehner, Mitch Mc Connell | , , , , , , , | Leave a comment

“A Long History Of Pleasing Conservatives”: Meet Conservatives’ New Favorite Judge

Few outside of a tiny Texas border town knew who Federal District Court Judge Andrew Hanen was until Monday night when he became a right-wing hero.

But this isn’t the first rodeo the judge who delayed implementation of the Obama Administration’s executive order on immigration.

Hanen, a federal district court judge in Brownville, Texas, has a long history of taking a conservative approach to immigration issues in his courtroom, which is located just over a mile from the Mexican border.

The once obscure justice, whose only other previous claim to fame was serving as the President of the Houston Bar Association 15 years, has now made himself a right wing celebrity.

But his ruling on Monday is by far the most consequential that the George W. Bush appointee has ever issued.

He first gained notice for his willingness to entertain the arguments of landowners on the Mexican border who opposed the construction of a fence on their land by the federal government.

The Texas Observer described him in 2010 as “the only federal judge in the nation who forced Homeland Security to acknowledge landowners’ constitutional protections. In case after case, Hanen refused to rubber-stamp the condemnations and ruled that the government would have to provide ‘fair compensation’ for the land it was taking.”

But Hanen became a darling of immigration hawks in a 2013 order in which he vented against a decision made by the DHS not to deport a woman in the country illegally who had paid for her daughter to be smuggled into the United States.

While the smuggler was sentenced to jail, the government allowed the woman and her daughter to remain in the country under a 1997 settlement agreement.

Hanen was not pleased.

In an order he attacked the DHS’s “apparent policy … of completing the criminal mission of individuals who are violating the border security of the United States” and compared the action to “taking illegal drugs or weapons seized from smugglers and delivering them to the criminals who initially solicited their illegal importation/exportation.”

Hanan’s order may not have been binding but it certainly electrified many conservatives as one of the most powerful statements from a federal judge on the issue.

On Monday he made good for conservatives again.

Hanan ruled in favor of 25 states that sued the federal government to stop the implementation of a 2014 executive order to allow millions of undocumented immigrants to apply for “deferred action” from the Department of Homeland Security (DHS). This executive order enabled the undocumented immigrants to work legally and avoid deportation for several years—a move many Republicans have decried as “executive amnesty.”

Hanen didn’t reach a final decision but instead issued a preliminary injunction, which keeps DHS from enforcing the executive order until a final decision is issued.

His injunction though is not expected to last.

The federal government is expected to appeal to the 5th Circuit Court of Appeals in New Orleans and is considered likely to get Hanen’s ruling overturned in that venue.

However, in the mean time, the decision to delay the executive order has major political ramifications in Washington DC where a potential partial government shutdown is looming over this issue.

But no matter what happens in this standoff, there is one clear winner: Judge Hanen.

Immigration reform is likely to remain a quagmire and Congress will continue to be dysfunctional. But, at least, Hanen will increase his Q-rating and become the most consequential federal judge ever to sit in the Brownsville Division of the Southern District of Texas.

 

By: Ben Jacobs, The Daily Beast, February 17, 2015

February 18, 2015 Posted by | Conservatives, Deportation, Immigration | , , , , , , , | 1 Comment

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