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> This article seems to confirm that Law Enforcement is going to do its best to set a legal precedent. What do you think the odds are that the gov. wins?

by update 11y ago

mikekchar 11y ago
I am not a lawyer (and not even an American), but from my perspective, I don't see how they can loose. They have a warrant. I used to work on telephone switches and we added code that would allow someone with a warrant to record conversations all the time. We even had a generic facility for it. The main difference, of course, is that adding an ability to allow someone to intrude on privacy for a service is different than adding functionality to a product that allows someone to intrude on privacy. The service provider can act as a gatekeeper to ensure that a warrant is provided. If you make a special build that anyone can load onto a device, then, of course, there is no gatekeeper for the warrant. The key is that I am aware of no law that requires a gatekeeper. Services ask for warrants out of respect for their customers. Often they don't respect their customers and provide access without a warrant. It's not like the software we added to the telephone switches requires some kind of special key or anything. There is no oversight and there has never been any oversight. The thing is that (as an American in US) you are under no obligation to hand over your cell phone, unless the police have a warrant. Once they have a warrant, then I don't think you have any recourse. As we have seen, you can be found in contempt of court if you do not reveal your password anyway. So from the perspective of the law, I think it is relatively straight forward. It's going to have to go all the way up to the supreme court. I imagine that the supreme court would choose to hear this case. Essentially you will have to argue that compelling a company to create an exploit to satisfy a warrant constitutes an unreasonable search if that exploit can also be used to perform illegal searches. I think the case would be heard, but I doubt very much that the argument will succeed. If the exploit is constructed on the condition that it is only used to satisfy the warrant in question, I'm pretty sure that it will be acceptable. We all know that such a condition need not be followed since the FBI et al don't care if the evidence they gather is admissible in court. However, I doubt it will matter legally.
- ubernostrum 11y ago
  The legal question here is really whether the All Writs Act can be used to compel development of new products with specific features law enforcement desires, because that's what it boils down to: they want a custom iOS build with custom security-bypass features that can be loaded onto any phone they want to snoop into. And when framed like that -- government ordering a private company, without negotiation or contract or even agreed-upon -in-advance compensation, to develop a product -- I don't think there's a chance in hell of it standing up. The question is whether the court that ends up hearing the final appeal will frame it like that.
  - vectorjohn 11y ago
    How is it different than getting a phone company to install a wire tap? What you describe is not what's being asked for. What the FBI wants is a tool to get into this phone. They will definitely want to get into more phones in the future, but that's not the same as a single tool that gets into any phone. It can be a new one every time. If it wasn't possible to make such a tool, I'd be a lot more outraged. But it is. Tell me why that can't be done.
    - ubernostrum 11y ago
      The difference is that tools and equipment for wiretaps already exist. Tools that bypass the security features of more recent versions of iOS don't. Hence the FBI's desired insecureOS would be a new product, developed under compulsion from the FBI and the courts.
    - zaroth 11y ago
      The difference is simply that telecommunications are heavily regulated (see CALEA) where if you want to be a service provider you have to provide wiretap functionality. Personal computers in general are not covered by any such regulation. It is legal to create and use encryption on your own device without building in a government backdoor. For now.
      - 11y ago
studentrob 11y ago
Orin Kerr, a computer crime law professor and writer, tried to guess over two posts [1] [2]. He did not give an answer but he has not finished writing his thoughts on the subject. One thing he hasn't talked about yet is how the FBI would reimburse Apple. The most recent relevant court case that used the AWA was US vs. New York Telephone. Part of the court decision states: "The order provided that the Company be fully reimbursed at prevailing rates, and compliance with it required minimal effort on the part of the Company and no disruption to its operations." In his analysis, Orin simplifies and assumes that the FBI could pay for Apple's services. I wonder if they could. Apple is being asked to weaken its product, and despite the government claiming otherwise, I think Apple knows best about whether their product is being weakened or not. [1] https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/18/preliminary-thoughts-on-the-apple-iphone-order-in-the-san-bernardino-case-part-1/ https://www.washingtonpost.com/news/volokh-conspiracy/wp/201... [2] https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/19/preliminary-thoughts-on-the-apple-iphone-order-in-the-san-bernardino-case-part-2-the-all-writs-act/ https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...

> This article seems to confirm that Law Enforcement is going to do its best to set a legal precedent. What do you think the odds are that the gov. wins?

by update 11y ago

> This article seems to confirm that Law Enforcement is going to do its best to set a legal precedent. What do you think the odds are that the gov. wins?

mikekchar 11y ago

I am not a lawyer (and not even an American), but from my perspective, I don't see how they can loose. They have a warrant. I used to work on telephone switches and we added code that would allow someone with a warrant to record conversations all the time. We even had a generic facility for it. The main difference, of course, is that adding an ability to allow someone to intrude on privacy for a service is different than adding functionality to a product that allows someone to intrude on privacy. The service provider can act as a gatekeeper to ensure that a warrant is provided. If you make a special build that anyone can load onto a device, then, of course, there is no gatekeeper for the warrant. The key is that I am aware of no law that requires a gatekeeper. Services ask for warrants out of respect for their customers. Often they don't respect their customers and provide access without a warrant. It's not like the software we added to the telephone switches requires some kind of special key or anything. There is no oversight and there has never been any oversight. The thing is that (as an American in US) you are under no obligation to hand over your cell phone, unless the police have a warrant. Once they have a warrant, then I don't think you have any recourse. As we have seen, you can be found in contempt of court if you do not reveal your password anyway. So from the perspective of the law, I think it is relatively straight forward. It's going to have to go all the way up to the supreme court. I imagine that the supreme court would choose to hear this case. Essentially you will have to argue that compelling a company to create an exploit to satisfy a warrant constitutes an unreasonable search if that exploit can also be used to perform illegal searches. I think the case would be heard, but I doubt very much that the argument will succeed. If the exploit is constructed on the condition that it is only used to satisfy the warrant in question, I'm pretty sure that it will be acceptable. We all know that such a condition need not be followed since the FBI et al don't care if the evidence they gather is admissible in court. However, I doubt it will matter legally.

ubernostrum 11y ago
The legal question here is really whether the All Writs Act can be used to compel development of new products with specific features law enforcement desires, because that's what it boils down to: they want a custom iOS build with custom security-bypass features that can be loaded onto any phone they want to snoop into. And when framed like that -- government ordering a private company, without negotiation or contract or even agreed-upon -in-advance compensation, to develop a product -- I don't think there's a chance in hell of it standing up. The question is whether the court that ends up hearing the final appeal will frame it like that.
- vectorjohn 11y ago
  How is it different than getting a phone company to install a wire tap? What you describe is not what's being asked for. What the FBI wants is a tool to get into this phone. They will definitely want to get into more phones in the future, but that's not the same as a single tool that gets into any phone. It can be a new one every time. If it wasn't possible to make such a tool, I'd be a lot more outraged. But it is. Tell me why that can't be done.
  - ubernostrum 11y ago
    The difference is that tools and equipment for wiretaps already exist. Tools that bypass the security features of more recent versions of iOS don't. Hence the FBI's desired insecureOS would be a new product, developed under compulsion from the FBI and the courts.
  - zaroth 11y ago
    The difference is simply that telecommunications are heavily regulated (see CALEA) where if you want to be a service provider you have to provide wiretap functionality. Personal computers in general are not covered by any such regulation. It is legal to create and use encryption on your own device without building in a government backdoor. For now.
    - 11y ago

studentrob 11y ago

Orin Kerr, a computer crime law professor and writer, tried to guess over two posts [1] [2]. He did not give an answer but he has not finished writing his thoughts on the subject. One thing he hasn't talked about yet is how the FBI would reimburse Apple. The most recent relevant court case that used the AWA was US vs. New York Telephone. Part of the court decision states: "The order provided that the Company be fully reimbursed at prevailing rates, and compliance with it required minimal effort on the part of the Company and no disruption to its operations." In his analysis, Orin simplifies and assumes that the FBI could pay for Apple's services. I wonder if they could. Apple is being asked to weaken its product, and despite the government claiming otherwise, I think Apple knows best about whether their product is being weakened or not. [1] https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/18/preliminary-thoughts-on-the-apple-iphone-order-in-the-san-bernardino-case-part-1/ https://www.washingtonpost.com/news/volokh-conspiracy/wp/201... [2] https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/19/preliminary-thoughts-on-the-apple-iphone-order-in-the-san-bernardino-case-part-2-the-all-writs-act/ https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...