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Why the FBI's request to Apple will affect civil rights for a generation

Rich Mogull | Feb. 18, 2016
No legal case applies in a vacuum, and in this case the FBI needs the precedence more than the evidence.

On Tuesday, the United States District Court of California issued an order requiring Apple to assist the FBI in accessing a locked iPhone (PDF)—and not just any iPhone, but the iPhone 5c used by one of the San Bernardino shooters. The order is very clear: Build new firmware to enable the FBI to perform an unlimited, high speed brute force attack, and place that firmware on the device.

Apple is not only fighting the request, but posted a public letter signed by Tim Cook and linked on Apple’s front page.

Make no mistake: This is unprecedented, and the situation was deliberately engineered by the FBI and Department of Justice to force a showdown that could define limits our civil rights for generations to come. This is an issue with far-reaching implications well beyond a single phone, a single case, or even Apple itself.

As a career security professional, this case has chilling implications.

Why now?

I’ve been writing about Apple’s role in our digital civil rights since 2014, and specifically addressed why Apple is at the center of the battle over encryption last month on TidBITS. The short version is that Apple is one of the only companies with the technologies, high profile, and business model to both find themselves in the cross hairs, and take a strong position.

Make no mistake, Apple has a long history of complying with court orders and assisting law enforcement. Previous to iOS 8, they could extract data off devices. Even today, data in most of their online services (iCloud, excluding iMessage and FaceTime) can be provided upon legal request.

This case is different for multiple reasons:

  • Apple is being asked to specifically create new software to circumvent their security controls. They aren’t being asked to use existing capabilities, since those no longer work. The FBI wants a new version of the operating system designed to allow the FBI to brute force attack the phone.

  • The FBI is using a highly emotional, nationally infamous terrorism case as justification for the request.

  • The request refers to the All Writs Act, which is itself under scrutiny in a case in New York involving Apple. Federal Magistrate Judge James Orenstein of the Eastern District of New York is currently evaluating if the Act applies in these cases.

That’s why this is about far more than a single phone. Apple does not have the existing capability to assist the FBI. The FBI engineered a case where the perpetrators are already dead, but emotions are charged. And the law cited is under active legal debate within the federal courts.

The crux of the issue is should companies be required to build security circumvention technologies to expose their own customers? Not “assist law enforcement with existing tools,” but “build new tools.”

 

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