“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
“We’re All Journalists Now”: No, Glenn Greenwald Cannot Be The One Who Decides What Stays Secret
This Sunday, The New York Times Book Review will finally print Michael Kinsley’s review of Glenn Greenwald’s No Place to Hide, two and a half weeks after the review was published online and provoked a polarizing debate involving Greenwald, the Times‘ Public Editor Margaret Sullivan, Kinsley again, and countless commentators who promptly took sides in the dispute about government secrecy and freedom of the press.
Some readers, including Sullivan, objected to Kinsley’s smart-alecky tone and psychological sketches of Greenwald, Edward Snowden, and Julian Assange, which these critics saw as bordering on ad hominem attacks. But there were also more substantive criticisms levied by Sullivan and many others, most of them boiling down to the claim that it was simply outrageous of Kinsley to deny journalists an absolute right to print classified material passed on to them by leakers.
Here is the most controversial passage from the review:
It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences. In a democracy (which, pace Greenwald, we still are), that decision must ultimately be made by the government. No doubt the government will usually be overprotective of its secrets, and so the process of decision-making — whatever it turns out to be — should openly tilt in favor of publication with minimal delay. But ultimately you can’t square this circle. Someone gets to decide, and that someone cannot be Glenn Greenwald. [The New York Times]
Some objected to this passage because they thought it contradicted another line of the review in which Kinsley called the Snowden leaks a “legitimate scoop.” But for most critics, the issue was far more fundamental: How dare anyone suggest, and in the pages of America’s newspaper of record no less, that the government, and not an intrepid journalist like Glenn Greenwald, should get to decide, while wielding threats of prosecution and imprisonment, what information is secret and what is not?
Clearly, the critics implied, Kinsley was expressing a deep-seated sympathy for authoritarianism that no self-respecting American citizen, let alone a journalist professionally and existentially devoted to the press freedoms enshrined in the First Amendment, could possibly endorse.
There’s just one problem with this objection: Kinsley was almost certainly correct.
In the ensuing debate about the review, The Atlantic‘s Conor Friedersdorf made the strongest and most concise case against Kinsley’s position. When we look at the competing track records of the government and journalists in deciding what should be kept secret and what should be made public, Friedersdorf argued, it is clear that journalists have done a far better job. For that reason, journalists, and not the government, should get to decide.
Friedersdorf also made a point of stipulating that this does not imply blanket permission for leakers to divulge to journalists any information they wish. In Friedersdorf’s words, “The least-bad system is one where leakers can be charged and punished for giving classified secrets to journalists (which isn’t to say that they always should be), but where journalism based on classified information is not criminalized.”
That sounds like a perfectly reasonable compromise — at least until you think it through.
Permitting journalists to publish anything and everything that gets leaked to them, under no possible threat of prosecution, would make it nearly impossible to prosecute a leaker, since the harmlessness of the leak would automatically be demonstrated the moment a journalist makes the decision to publish the classified information. After all, in Friedersdorf’s least-bad system, it’s journalists who decide what can and can’t be made public, based in part on their assessment of the likely public harm. This means that as soon as classified information gets published by a journalist, the leaker would instantly be exonerated.
To which many will no doubt respond: So what? That’s exactly how it should work!
Except for one additional consideration, which Kinsley raised in his original review. In the age of blogs, portable audio and video recording, instant messaging, and social media platforms, “it is impossible to distinguish between a professional journalist and anyone else who wants to publish his or her thoughts.”
We’re all journalists now.
In such a world, Friedersdorf’s rules produce a situation in which any leaker who leaks any information to anyone willing to publicize it is automatically absolved of any crime.
In such a world — a world completely lacking in disincentives to leak classified information — government secrecy would be rendered impossible.
“But no,” I imagine Friedersdorf objecting. “I mean real journalists, working for established, recognized media companies. Only they should be given the power to decide what to publish.”
To which the proper reply is to repeat Kinsley’s line that making such a call — deciding who is and who is not a “real” journalist — is impossible. Sure, we can agree that a journalist employed by The New York Times or The Atlantic is an authentic journalist entitled to make the hard calls on secrecy. But what about a reporter working for BuzzFeed? Or a reporter working for BuzzFeed six years ago, when it had little politics coverage and was known primarily for its cat-photo click-throughs?
And what about self-employed blogger Andrew Sullivan? Is he a journalist? If someone leaked classified information to him, should he have blanket authorization to decide whether to publish it?
What about someone who runs a blog with a tenth of Sullivan’s traffic and journalistic experience? A hundredth? A thousandth?
We seem to have a problem. Either anyone or everyone gets to make the call, rendering state secrets impossible, or we need some independent authority to decide who is and who is not empowered to make the call. Government licensing of journalists? That’s where Friedersdorf’s “least-bad system” leads us, I’m afraid.
Which means that Friedersdorf leads us right back to Kinsley: “Someone gets to decide, and that someone cannot be Glenn Greenwald.”
Pace Friedersdorf, the least-bad system is the one we have right now: Government (elected officials, appointees, and judges) deciding what gets and stays classified. In that system, both leaking and publishing classified information are treated as crimes, albeit crimes for which leakers and journalists are rarely punished, with the benefit of the doubt usually swinging in their favor.
This system isn’t perfect. Free speech absolutists don’t like it, and understandably so, because it makes government secrecy the legal principle and press freedom an exception dependent on the prudential judgment of prosecutors and judges.
But in a world where secrets are necessary, this may be the best that a democracy can do.
By: Damon Linker, The Week, June 6, 2014
“This Is Not A Binary Argument”: The Debate Has To Be Deeper When National Security And American Lives Are Involved
Elias Isquith is correct that the fundamental distinction between Glenn Greenwald and his critics is based on how each, respectively, views the current state of the American government. Those that consider our government to be as rotten and illegitimate as France’s Ancien Regime or the Tsar’s Russia are not particularly troubled about defining the correct journalistic line between informing the public and compromising national security.
Defenders of the government are not done any favors by allies like Michael Kinsley, who manages to do little more than arouse sympathy for Greenwald’s side of the argument. Kinsley’s thesis is so sloppy that it allows Greenwald to define himself as engaging in an honest journalistic enterprise that his detractors would make illegal. That kind of dichotomous argument is one that Greenwald could never lose.
The debate ought to be deeper than this. If our national security state is engaged in activities that are not authorized by law, and if they are conducting themselves in ways that do grave damage to our international relations when they are disclosed, do they then forfeit the deference they are otherwise given on what does and does not harm national security?
One of the difficulties here is that when our leaders do things that when disclosed will harm our national security, they aren’t the only ones who are negatively impacted. All Americans are put at risk when our national security is harmed. A journalist has to weigh the benefits of public disclosure versus the potential risks to the general public, and this is a very subjective exercise. That is why people on Greenwald’s side are so intent on countering the idea that the disclosures of Chelsea Manning and Edward Snowden have done any actual, demonstrable harm.
Too often, it seems to me, Greenwald and his strong supporters behave as if the government deserves to be damaged and that our national security ought to suffer, even though all Americans are put at risk as a result. The risk to Americans is not something that can just be shrugged off as if it were indisputable that the country has gained a net-benefit from every single disclosure of classified information.
The reason that Greenwald is getting the better of the argument isn’t because his principles are clearly superior, but because the government lacks credibility. The overall effect of the disclosures has been beneficial, at least so far, because nothing catastrophic has resulted and we now have greater knowledge about what our government has been doing, which is already leading to reforms.
But none of this relieves journalistic enterprises of the responsibility to weigh the risks and benefits of disclosing classified information, nor does it completely vindicate either Chelsea Manning or Edward Snowden, who both leaked far more information than was necessary to make their points.
By: Martin Longman, Washington Monthly Political Animal, May 24, 2014
“In The Name Of Freedom”: How To Spot A Paranoid Libertarian
In a recent essay in the New Republic, Princeton University historian Sean Wilentz contends that Edward Snowden, Glenn Greenwald and Julian Assange reflect a political impulse he calls “paranoid libertarianism.” Wilentz claims that far from being “truth-telling comrades intent on protecting the state and the Constitution from authoritarian malefactors,” they “despise the modern liberal state, and they want to wound it.”
Wilentz gives credit to Richard Hofstadter for the term “paranoid libertarianism,” but he is being generous. Although Hofstadter wrote an influential essay called “The Paranoid Style in American Politics,” he didn’t call special attention to its libertarian manifestation. Wilentz has performed an important public service in doing exactly that.
Most of Wilentz’s essay focuses on Snowden, Greenwald and Assange, and he offers a lot of details in an effort to support his conclusions about each of them. But let’s put the particular individuals to one side. Although Wilentz doesn’t say much about paranoid libertarianism as such, the general category is worth some investigation.
It can be found on the political right, in familiar objections to gun control, progressive taxation, environmental protection and health care reform. It can also be found on the left, in familiar objections to religious displays at public institutions and to efforts to reduce the risk of terrorism. Whether on the right or the left, paranoid libertarianism (which should of course be distinguished from libertarianism as such) is marked by five defining characteristics.
The first is a wildly exaggerated sense of risks — a belief that if government is engaging in certain action (such as surveillance or gun control), it will inevitably use its authority so as to jeopardize civil liberties and perhaps democracy itself. In practice, of course, the risk might be real. But paranoid libertarians are convinced of its reality whether or not they have good reason for their conviction.
The second characteristic is a presumption of bad faith on the part of government officials — a belief that their motivations must be distrusted. If, for example, officials at a state university sponsor a Christian prayer at a graduation ceremony, the problem is that they don’t believe in religious liberty at all (and thus seek to eliminate it). If officials are seeking to impose new restrictions on those who seek to purchase guns, the “real” reason is that they seek to ban gun ownership (and thus to disarm the citizenry).
The third characteristic is a sense of past, present or future victimization. Paranoid libertarians tend to believe that as individuals or as members of specified groups, they are being targeted by the government, or will be targeted imminently, or will be targeted as soon as officials have the opportunity to target them. Any evidence of victimization, however speculative or remote, is taken as vindication, and is sometimes even welcome. (Of course, some people, such as Snowden, are being targeted, because they appear to have committed crimes.)
The fourth characteristic is an indifference to tradeoffs — a belief that liberty, as paranoid libertarians understand it, is the overriding if not the only value, and that it is unreasonable and weak to see relevant considerations on both sides. Wilentz emphasizes what he regards as the national- security benefits of some forms of surveillance; paranoid libertarians tend to see such arguments as a sham. Similarly, paranoid libertarians tend to dismiss the benefits of other measures that they despise, including gun control and environmental regulation.
The fifth and final characteristic is passionate enthusiasm for slippery-slope arguments. The fear is that if government is allowed to take an apparently modest step today, it will take far less modest steps tomorrow, and on the next day, freedom itself will be in terrible trouble. Modest and apparently reasonable steps must be resisted as if they were the incarnation of tyranny itself.
In some times and places, the threats are real, and paranoid libertarians turn out to be right. As Joseph Heller wrote in Catch-22, “Just because you’re paranoid doesn’t mean they aren’t after you.”
Societies can benefit a lot from paranoid libertarians. Even if their apocalyptic warnings are wildly overstated, they might draw attention to genuine risks, or at least improve public discussion. But as a general rule, paranoia isn’t a good foundation for public policy, even if it operates in freedom’s name.
By: Cass Sunstein, The National Memo, January 30, 2014
“It’s All About Who’s In The White House”: Republicans Only Oppose NSA When ‘Big Brother’ Isn’t Them
Let’s cut to the chase: If Big Brother wants you, he’s got you, Act 215 telephone “metadata” notwithstanding. This disconcerting fact of modern life has been true more or less since the invention of the camera, the microphone and the tape recorder.
See the excellent German film The Lives of Others for details. The Stasi managed to collect vast libraries of gossip and slander against East German citizens entirely without computerized databases. It wasn’t people’s smartphones that betrayed them to the secret police, because they didn’t have any. Mostly it was colleagues, neighbors, friends and family.
Similarly, when J. Edgar Hoover’s FBI wanted to dig the dirt on Martin Luther King, they bugged his hotel rooms and infiltrated his inner circle with hired betrayers. Once the target was chosen, technological wizardry was secondary.
I am moved to these observations by the fact that the Republican National Committee has now joined the Snowdenista left in pretending to be outraged by something they manifestly do not fear.
The same GOP that rationalized torture and cheered the Bush administration’s use of warrantless wiretaps as recently as 2006 now denounces the National Security Agency’s “Section 215” bulk collection of telephone data as “an invasion into the personal lives of American citizens that violates the right of free speech and association afforded by the First Amendment of the United States Constitution.”
Oh, and the Fourth Amendment too. See, keeping a no-names database of phone numbers called, date, time and duration threatens fundamental privacy rights, although actual wiretapping evidently did not. Never mind that Republicans in Congress approved it.
It’s easy to suspect that for the RNC, it’s all about who’s in the White House. The End.
However, there’s an equivalent amount of exaggeration at the opposite end of the political spectrum. Partly for dramatic effect, people talk about data collection as if it were equivalent to surveillance.
Here’s the estimable blogger Digby Parton on the “chilling effect” of NSA data hoarding:
“It’s the self-censorship, the hesitation, the fear that what you say or write or otherwise express today could be lurking somewhere on what Snowden referred to as your ‘permanent record’ and come back to haunt you in the future. The collection of all this mass data amounts to a government dossier on every individual who has a cell phone or a computer. It’s forcing journalists, teachers and political dissidents to be afraid of doing their jobs and exercising their democratic rights. It’s making average citizens think twice about even doing silly things like search Amazon for pressure cookers or take a look at a controversial web-site.”
I don’t think Digby herself is afraid for one minute. I know I’m not. Are you?
She adds that “no matter how much you may trust Barack Obama not to abuse that information, it was only a few years ago that a man named Dick Cheney had access to it.”
Point taken.
Oddly enough, that’s pretty much what President Obama had to say in his speech proposing NSA reforms: “Given the unique power of the state, it is not enough for leaders to say: Trust us. We won’t abuse the data we collect. For history has too many examples when that trust has been breached.”
Accordingly, Obama proposed several reforms calculated to make misuse of NSA data more unlikely. He accepted the suggestion of his own commission to take telephone records out of NSA’s control. Instead, the data would be stored either by the phone companies where it originates or by some third party as yet undefined.
To access that database, NSA would need an order from the Foreign Intelligence Surveillance Court. No intelligence bureaucrat would be able to spy on his ex-wife or your mother-in-law strictly on his own say-so.
The president also proposed adding citizen advocates to the FISA court specifically to defend civil liberties—making that body function less like a grand jury and more like a court of law. He added a presidential directive explicitly forbidding NSA from spying upon domestic political critics.
Obama would also sharply limit the number of people whose records can be searched even with a valid FISA warrant.
Taken together, these are fairly substantial reforms. As a pro-cop liberal, I worry that forcing NSA to gather data from hither and yon might prove too cumbersome in an emergency. Sometimes, though, perfect efficiency ill accords with democratic values.
Meanwhile, however, the 18th century ain’t coming back. Anybody who imagines that NSA data gathering and cyber-espionage are going away may as well yearn for a world where there are no hostile, anti-democratic powers or mad religious extremists eager to bring down the Great Satan through whatever combination of sabotage and mayhem they can inflict. Indeed, we must pray that our adversaries are as fearful and intimidated by U.S. intelligence agencies as are some of our more imaginative countrymen.
By: Gene Lyons, The National Memo, January 29, 2014
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