“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
“From Unlikely To Long-Shot”: Rand Paul Just Sacrificed His Presidential Campaign For His Libertarian Principles
Sen. Rand Paul (R-Ky.) had what will probably be the defining moment of his presidential campaign on Sunday night. It could conceivably help him, but at a high political cost. It could also end his presidential hopes.
The junior senator from Kentucky infuriated his Republican colleagues by blocking a vote on the USA Freedom Act, a bill that would curtail a controversial National Security Agency bulk phone-data collection program and reauthorize three other surveillance programs that expired at midnight. The NSA had stopped collecting telephone metadata Sunday afternoon, when it became clear no deal would be finalized in time. It won’t be able to resume until the Senate acts, the House approves any changes, and President Obama signs the bill.
In Rand Paul’s telling, and that of the red-shirted “Stand With Rand” supporters who filled the Senate gallery on Sunday evening, Paul stuck a shiv in the government surveillance state, at least for a few days. “The Patriot Act will expire — it will expire tonight,” Paul said on his way out of the Senate chamber Sunday night. “The point I wanted to make is that we can still catch terrorists using the Constitution.”
Paul had some other help, if inadvertent. Senate Republicans, notably Majority Leader Mitch McConnell (Ky.), had wanted to extend the USA Patriot Act as is. They fell short. Then, after a week’s recess, when it became clear the votes just weren’t there for the Patriot Act renewal, McConnell reluctantly agreed to put the “flawed” USA Freedom Act up for a last-minute vote on Sunday, and the Senate agreed, 77 to 17. The bill had passed the House on May 13, 338-88, and Obama supports it.
Senate GOP hawks say the Freedom Act puts too many constraints on the NSA; Paul and some other civil libertarians say it still goes too far. But his usual civil-liberty allies in the Senate signaled their comfort with the House bill, leaving Rand Paul the lone holdout. In the Senate, that’s often enough to delay a bill, and Paul did so on Sunday.
Whether or not it was his prime motivation, as Sens. Dianne Feinstein (D-Calif.) and John McCain (R-Ariz.) suggest, Paul will earn a lot of money for his presidential campaign. But his chances of becoming the 2016 Republican nominee just went from unlikely to long-shot.
Shutting down American espionage and surveillance capabilities, even for a few days, is too off-brand for the GOP — especially at the moment.
Paul is “a niche candidate of a shrinking niche, because events are not playing out the way he anticipated two years ago when he began running for president,” George Will said on Fox News Sunday. “The world looks much more dangerous than it did,” and “literally cashing in” on his “conscientiousness as a libertarian” really “muddies the waters” of his intentions.
In a crowded Republican presidential field, Rand Paul is betting he can monopolize the libertarian caucus. It’s a gamble. Forcing expiration of the NSA provisions for a couple of days was a small victory on its own. But “his larger political victory was that he took ownership of Patriot Act opposition,” said David Weigel at Bloomberg Politics, “angering Republican colleagues whom he is happy to anger.”
Weigel names McCain and Sen. Lindsey Graham (R-S.C.), but Paul also angered McConnell, who has endorsed him for president, and Senate Intelligence Committee Chairman Richard Burr (R-N.C.), who vowed on Sunday that “there won’t be any negotiations with Rand Paul from this point forward.” Paul didn’t attend the GOP caucus meeting before Sunday’s session, and Republicans walked out on him en masse when he started speaking.
The big question for Paul is whether there are enough civil libertarians in the Republican Party, and if so, whether they will vote in the primary. Plenty voted for his father, former Rep. Ron Paul (R-Texas), but it wasn’t enough.
“People here in town think I’m making a huge mistake,” Rand Paul said Sunday evening. “Some of them I think secretly want there to be an attack on the United States so they can blame it on me.”
In other words, Rand Paul sounds like a lot of Democrats after the Sept. 11, 2001, terrorist attacks. That wasn’t a good place to be, politically.
Brit Hume at Fox News hammered the same point on Sunday. Paul “seems confused about which party he’s running in,” he said. “There’s a segment of the Republican electorate which shares his somewhat paranoid views of things, and he’ll have their support, but that’s not a nominating set.”
Rand Paul seems to know the risks, and he seems content to go down swinging. And if he does stake his political future on curtailing government spying and lose, unlike other GOP presidential contenders, he probably shouldn’t expect a soft landing at Fox News.
By: Peter Weber, The Week, June 1, 2015
“Who Threatens Our Privacy?”: The Onslaught On Our Privacy Rights — Surreally, In The Name Of Transparency
The whole Snowden affair has receded into the background by now. But recently Michael Cohen made an important point that seemed to get totally lost in the discussion about privacy.
This week, the group Wikileaks posted on its website the entire archive of data and information stolen from Sony Pictures last fall — and it seems every day there’s a new, earth-shattering scoop…
I needed only 20 minutes on the Wikileaks site to find a credit card number, medical information, private e-mail addresses, salary data, and plenty else that most people wouldn’t want available on a searchable database.
This kind of cyberattack is a greater threat to people’s privacy than anything revealed in the Snowden/NSA leaks, which became a cause celebre for some of the same people chortling over the Sony leaks…
Today, it is harder and harder to stay outside the omnipresent eye of social media, surveillance cameras, and smartphone videos. Wikileaks is only adding to the onslaught on our privacy rights — surreally, in the name of transparency.
I always found it interesting that many of those who were most closely involved with the Snowden leaks (including Wikileaks) have pretty deep ties to the hacker community – people whose raison d’etre is to invade privacy. From their reaction to this inquiry from Cohen, it appears that only certain people’s privacy is important to them.
It’s true that the concerns raised by the leaks about NSA are worrisome in regards to the possibility that the government might have access to private information. But the prospects of everyone else having access is equally (if not more) concerning.
By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, April 26, 2015
“Came Off Like A Confused Former Governor”: Jeb Bungles Facts, Pronunciation In His Big National Security Speech
Likely presidential candidate Jeb Bush delivered a nervous, uncertain speech on national security Wednesday, full of errors and confusion.
Seeking to differentiate himself from his father and brother, both former presidents, the former governor of Florida asserted, “I am my own man.”
But the man who emerged on stage at the Chicago Council on Global Affairs did not sound well-versed in foreign policy.
Bush’s clunky, rushed delivery paled in comparison to the hazy facts in the speech and vague answers he gave during a Q&A session following his remarks.
Speaking of the extremist group based in Nigeria that has killed thousands of civilians, Bush referred to Boko Haram as “Beau-coup Haram.” Bush also referred to Iraq when he meant to refer to Iran.
Further, Bush misrepresented the strength of ISIS, saying it has some 200,000 men, which is far greater than the U.S. intelligence community’s estimates. Last week National Counterterrorism Center Director Nicholas Rasmussen pegged the fighting strength of ISIS at between 20,000 and 31,500.
“Governor Bush misspoke,” Bush aide Kristy Campbell told The Daily Beast after the speech. “He meant 20,000.”
Referring to the leader of the so-called Islamic State, Bush referred to Abu Bakr al-Baghdadi as “the guy that’s the supreme leader or whatever his new title is—head of the caliphate.”
Bush was also short on describing how he might combat the threat of ISIS. “Taking them out” in partnership with regional allies was about as specific as he got.
“We have to develop a strategy, that’s global, that takes them out,” Bush said. “First, the strategy, you know, needs to be restrain them, tighten the noose, and then taking them out is the strategy.”
Unlike senators who have more opportunities to delve into international affairs, governors tend to have a steeper learning curve on foreign policy ahead of a presidential run.
And for all his bluster about being different from his brother and father, Bush didn’t really espouse a particularly unique worldview.
The similarities in doctrine shouldn’t come as a surprise. A list of his advisers in The Washington Post reads like a who’s who of hawks from the George W. Bush and Reagan administrations.
Bush did coin a new term—“liberty diplomacy”—and spoke of the need for the United States to be engaged around the world. He also endorsed the National Security Agency’s mass surveillance of Americans, which began under his brother following 9/11, as “hugely important.”
At times Bush veered into talk about trade and the economy—two topics he was obviously more comfortable speaking about than issues of national security. As Bloomberg noted Wednesday, Bush has exposure to foreign markets as an adviser to Barclays PLC, he lived in Venezuela, and led trade missions to dozens of countries as governor.
The best-received lines from Bush were the gauziest.
“We shouldn’t be as pessimistic as we are. We’re on the verge of the greatest time to be alive,” Bush said. “We’re in our ascendancy as a nation, we just have to start acting like it again.”
By: Tim Mak and Jackie Kucinich, The Daily Beast, February 18, 2015
“It’s Getting A Little Silly”: Perry Finds A Way To Blame Obama For Indictments
After Texas Gov. Rick Perry (R) was unexpectedly indicted late Friday, the Republican governor discovered some unexpected allies: observers who generally don’t care for Perry blasted the charges against him.
MSNBC’s Ari Melber, for example, characterized the case against the Texas governor as “weak.” Jon Chait called the charges “ridiculous.” Rick Hasen and David Axelrod reached similar conclusions. Scott Lemieux, summarizing the thoughts of many, added, “I’m as contemptuous of Perry as anyone, but this seems really thin.”
Benjy Sarlin joked, “It’s hard to believe an issue would get liberal commentators rallying on Rick Perry’s side, but this indictment seems to be doing it.”
And while the Republican governor and likely presidential candidate is clearly pleased by his reluctant backers, he doesn’t exactly look above the fray when he blames President Obama for an indictment handed down by a Texas grand jury.
The governor, who appeared on “Fox News Sunday,” also used the occasion to criticize President Obama, saying he was responsible for a national erosion of the “rule of law.” […]
Mr. Perry repeatedly invoked the “rule of law,” suggesting that it had suffered under Mr. Obama, whether in the scandal over the Internal Revenue Service, enforcement of border security or surveillance by the National Security Agency.
Look, if the governor wants to mount a proper defense against the pending felony counts, fine. Apparently, he’ll even enjoy a fair amount of support from the left.
But if Perry wants to position himself as a responsible chief executive, who’s been targeted for petty and partisan reasons, his baseless complaining about the president won’t help his broader public-relations cause.
For one thing, there is no IRS scandal; border security has never been stronger; and it’s Perry’s party that supports expansive NSA surveillance. If this is the best the governor can do to offer proof of Obama eroding the “rule of law,” he’s going to need a new talking point.
For another, let’s not forget that the Obama administration has literally nothing to do with Perry’s indictment. The Texas grand jury was empaneled by Texas prosecutors scrutinizing Texas law.
But taking a step back, it’s hard not to notice the pattern: when Republicans find themselves in a difficult position, they reflexively try to blame the president whether it makes sense or not. Eric Cantor lost a primary? Blame President Obama. John Boehner failed to pass immigration bills? Blame President Obama. Bob McDonnell was indicted on corruption charges? Blame President Obama. Sam Brownback fared much worse than expected in a GOP primary? Blame President Obama. Chris Christie’s plan screwed up New Jersey’s finances? Blame President Obama.
It’s getting a little silly.
By: Steve Benen, The Madow Blog, August 18, 2014
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