Apple Vs The FBI vs a Suggestion

Apple was instructed by the FBI to build a version of IOS that would let the FBI install that version on a terrorist’s phone enabling it to use a brute force method of pushing through every possible combination of passwords into the phone until it unlocked the phone.  The goal is to find out if there is anything of value to the FBI’s investigation into a horrific terrorist act.

If Apple were to comply with the order, it is important to note that there is no certainty that anything at all would be accomplished.

If the terrorists in possession of the phone used a variety of letters, numbers and symbols in their password, it could take minutes (if very lucky) or years to uncover the pin and unlock the phone.

Even if they were able to unlock the phone, there is no assurance that any 3rd party applications that the terrorists used were not still further encrypted and not defeat able.  The FBI would be able to get into anything hosted by Apple’s apps and systems, but not necessarily the 3rd party apps or systems. So while Apple has taken on the responsibility of the first step, theirs is potentially not the last step.

All of this is moot right now because Apple has refused to comply with the order. Here is Apple’s response .

Here is my response to Apple’s refusal:

Amen. A standing ovation.  They did the exact right thing by not complying with the order.  They are exactly right that this is a very, very slippery slope. And while the FBI is attempting to be very clear that this is a one off request, there is no chance that it is.  This will not be the last horrific event whose possible resolution could be on a smart phone.  There will be many government agencies that many times in the future,  point to Apples compliance as a precedent. Once this happens,  we all roll down that slippery slope of lost privacy together.

To those that say that Apple should comply, I say this:

Every tool that protects our privacy and liberties against oppression, tyranny, madmen and worse can often be used to take those very precious rights from us.  But like we protect our 2nd Amendment Right, we must not let some of the negatives stand in the way of all the positives. We must stand up for our rights to free speech and liberty.

Speech can only be free when it is protected. We are only free when we can say what we feel we must in any manner of private or public that we choose.  We have a right to protect our speech from those, domestic or otherwise,  who may watch or monitor us.  Which is why encryption is vitally important to all of us.

If you think its bad that we can’t crack the encryption of terrorists, it is far worse when those who would terrorize us can use advanced tools to monitor our unencrypted conversations to plan their acts of terror. 

I’m not being paranoid. Encryption is easy. It is like wearing a seatbelt in your car. For years we didn’t. Then we did and it was smart. Encryption is a simple step that Apple and others have helped us take to protect us. It’s not paranoia. It is smart.

Now back to Apple.  What I thought was particularly interesting about Apple’s letter to its customers was the opening it left when it wrote:

“The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.

Opposing this order is not something we take lightly. We feel we must speak up in the face of what we see as an overreach by the U.S. government.”

Apple is signaling to us that the real problem here is the use of the All Writs Act.  According to this article on the All Writs Act:

“The All Writs Act is only applicable if no statute, law or rule on the books to deal with the specific issue at hand.

This of course makes the Act a catch all for anything for which there is no law.  What is the solution to this problem ? Pass a law that deals with this issue.

The issue is not Apple’s. It is not even the FBI’s.  The issue is that as often happens, technology speeds past our ability to adapt or create new laws that match the onslaught of daily technological change.  Typically, I am for fewer laws rather than more, but I’m also pragmatic.  We should be asking our lawmakers to enact a law that fits the need of this situation and situations like this so rather than being on an eternally slippery slope of privacy violations hidden behind the All Writs Act, we have a law that will truly limit the circumstances where companies like Apple can be compelled to help a government agency crack a device.

What I would propose is this:

A company can only be compelled to remove any type of security or encryption from a smartphone or tablet,  and only a smartphone or tablet,  under the following circumstances:

  1. There has been an event, with casualties, that has been declared an Act of Terrorism
  2. There is reason to believe that the smartphone was possessed by a participant in the Act of Terrorism.
  3. The smartphone must have been on premise during the event.
  4. The  terrorist who was in possession of the smartphone or tablet must be deceased.

It would seem to me that if such a law could be proposed and passed, then the All Writs Act would no longer apply.  By eliminating the All Writs Act as a catch all then we significantly flatten out the slippery slope.  I’m not saying we will completely eliminate all privacy issues. We won’t. I’m not saying there isn’t risk of unintended consequences. There always are when we ask politicians to fix complex problems.

I’m also cognizant of the possible hypocrisy of saying that we need to protect our privacy and liberty even when its painful and at the same time suggesting that we create a law that could reduce those protections.

And for the sake of discussion, let me give you a hypothetical to think about.

What if Apple had started a business that charged $100 to unbrick stolen phones ? Would anyone have complained ?  No one but the most astute privacy advocates would even notice. No one in the general public would care. No one would be talking about it or debating it. It would be a non-event. 

Even so, this is not an easy topic  and there are no easy solutions.  But we certainly learn more when we talk about it than when we shout about it. I’m hoping this blog post gets us talking.

As always, I’m happy to discuss on Cyber Dust at BlogMaverick

 

170 thoughts on “Apple Vs The FBI vs a Suggestion

  1. Pingback: Mark Cuban: Apple did the exact right thing | Web02003

  2. This reminds me of those cases where a school enters someone’s locker, which is not protected because the locker belongs to the school. The phone has no analogy, the county can’t get into the phone because of the security mechanisms in place. If you create a lighter security phone, it’s now at risk vs. the environment and hackers… which would put the county at risk. A tricky situation.

    Comment by Jim Wang -

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  6. That’s a great post. A meaningful comparison to realize Apple’s worth. Being an iOS user, I downloaded an app from Apple store. Here, it is: https://itunes.apple.com/us/app/nearby/id1069337100

    Comment by nearbyiosapp -

  7. One statement that Mr. Cuban made that I find penetratingly accurate about our government “The issue is that as often happens, technology speeds past our ability to adapt or create new laws that match the onslaught of daily technological change.” end quote.
    One concept that I have found destructive regarding federal rules and regulations is the concept of “allowances”. The government creates “allowances” when determining their rules and regulations, but if they forget to include an obvious or logical “allowance”, or they create a scenario where literally 1 plus 1 equals 3, too bad.

    Comment by Alessandro Machi -

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  18. Supena the call data from the carrier. Problem solved,

    Comment by Kevin Landucci -

  19. Apple in principle will be blood guilty if they do not comply with the Law. It’s like refusing to throw a life line to a drowning person.Apple is actually siding with the terrorists. You can be sure Isis is happy for apple’s refusal. They probably were told to switch their phones to iphones !!! Let me see how Tim Cook or any apple supporter will respond if one of the victims in the massacre was their son or daughter, their father or mother. If you are doing good, what are you afraid of ?

    Comment by So Hov -

    • Fortunately, we already know how (at least one of) the parent(s) of (at least one of) the victim(s) will respond to Apple’s rebuttal: she is in support of Apple. She is more interested in the privacy of individuals than she is finding out whether the dead terrorist may (or may not) have information on the phone he was using. And she recognizes the larger truth: if Apple complies with this request, the government will use this instance as a precedent. There are already at least a dozen other law enforcement agencies across the U.S. who are waiting to see how this case plays out, and they’re ready to file their own court documents seeking to force Apple to violate everyone’s right to privacy.

      Apple has already complied with every lawful order to provide information to which they have access. This order is requiring Apple to create a product that doesn’t exist, which has the potential effect of violating the privacy every iPhone user has a right to expect. It forces Apple to violate the trust they’ve endeavored to create in their customer base. It forces Apple to violate the responsibility it has to its shareholders to provide a product its customers want to buy. It has the potential to negatively impact Apple’s future sales of iPhone.

      The county that owns the phone has access to but chose not to purchase a license to software that they could have used to unlock the phone. (My employer requires that if I have remote access into their system I have this software installed on my iPhone.) If that software had been installed when they issued the phone, the County could unlock the phone even now.

      The FBI and the county intentionally changed the password on the iCloud account, which prevented the phone from backing up to iCloud. If they had left it alone, Apple could have provided the info the FBI is seeking. There are tools available which, if used properly, could have provided the info the FBI is seeking. The county and the FBI failed to employ all the available technology at their disposal, and they’re now seeking to force Apple to “clean up their mistakes” by creating yet another tool that Apple has clearly stated, even before this issue arose, violates their customers’ trust. Apple has said — even before this issue arose — that they do not want to violate their customers’ right to privacy.

      The government messed things up, and they want to force Apple to fix it.

      Apple’s in the right on this one.

      Comment by process2succeed -

  20. Approving such law as mentioned by Mark can be a great start, but hell, what is terrorism? It’s frightening that we live in a society where using such phrase automatically gives those in power the authority to basically strip anyone naked. Developing a law that takes into account as to when an event should be label as a “terrorist attack” can be a great addition.

    Comment by Juan Castillo (@AudioNavi) -

  21. Apple should unlock the iPhone. It could provide valuable information to help prevent another shooting. However, building a backdoor into the iPhone or any Apple product or service to allow the government to login into someone’s personal information is something that shouldn’t be done.

    Comment by Find A Therapist -

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  24. If this is a one-time request involving national security then Apple must comply and cooperate but is the govt. agency ready to legally accept that they won’t create a slippery slope? I am proud of Mark Cuban for taking a stand based on his analysis.

    Comment by APPxDATA (@APPxDATA) -

    • I just wanted to add to my prior idea about any intrusion onto a cell phone’s user’s phone would mean immunity for the cell phone user.

      Additionally, there would need to be a “cap” as to how many alleged intrusions are needed by the FBI. Think of it as the football coach or baseball manager asking for instant replay. They basically are limited to a certain amount of requests in football, and in baseball even though a manager can keep asking as long as they are right, they don’t abuse the privilege specifically because the odds go against them if they ask too many times so the baseball managers don’t abuse the privilege. So, place a monthly limit on the amount of “intrusions”.

      Finally, after the FBI intrusion, the cell phone user whose phone was intruded upon has to be notified within a certain amount of time to be determined by Apple and the FBI.

      Comment by Alessandro Machi -

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  31. SO many are failing to understand what the government is asking for. Apple will gladly open this one phone and give the government full access to the phone. This isn’t what the government wants. The government is demanding a backdoor into the operating system itself. This means that government will have full access into YOUR iPhone and with Bluetooth technology it’s not hard to connect the dots that every interaction with police will eventually result in confiscation of your data without you even being aware of the breach. Apple is taking a stand for individual privacy.

    Comment by Nathan Collier -

  32. Pingback: Apple vs. FBI: See who's taking sides - English News

  33. Agree with article. What is needed in response to Trumps call for a boycott, is a counteracting call to buy Apple for standing up for freedom over fear mongering and ultimately government tyranny. I am thankful for Tim Cook who has good ethical vision! Thank you Tim for leading Apple to the next level post Jobs!

    Comment by Brian Cunningham (@b_cunning_am) -

  34. Pingback: Mark Cuban Commends Apple, Proposes New Law For Tech Security - English News

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  50. I tried posting this earlier, but it never appeared? QUESTION #1: You aren’t denying my comment are you? (Also, QUESTION #2: as Mr. Trump, who is your friend, opposes APPLE, are you still open to being his VP running mate?) Anyhow, here’s my original post, below, – and this time, I will log in without the links to the court’s websites, in the ‘proof’ section of my comment – maybe that’s what the problem was… (you can Google me if you need more proof of my tall tale here.)

    MAIN QUESTION (#3, if anybody’s counting) — Mark, why not simply ask APPLE to hack in THEMSELVES, and share the data (but NOT share the encryption key) – and THIS would still protect the privacy of the encryption, would it not? The Government (whom I don’t trust) would still NOT have the encryption key, and they WOULD have the data on these 2 murderer terrorists — Is it not true that MY solution would be a ‘compromise’ that still does NOT compromise either side’s core values?? PS: I’m a real person, signing with my real name, and I’m no dummy – on my honour, I almost won in court for Terri Schiavo ALL BY MYSELF – Google me, if you will.

    Gordon Wayne Watts
    Lakeland, Fla., USA

    PS: A little tantalising proof:
    [1] In Re: GORDON WAYNE WATTS (as next friend of THERESA MARIE ‘TERRI’ SCHIAVO), No. SC03-2420 (Fla. Feb.23, 2005), denied 4-3 on rehearing. (Watts got 42.7% of his panel)
    [2] In Re: JEB BUSH, GOVERNOR OF FLORIDA, ET AL. v. MICHAEL SCHIAVO, GUARDIAN: THERESA SCHIAVO, No. SC04-925 (Fla. Oct.21, 2004), denied 7-0 on rehearing. (Bush got 0.0% of his panel before the same court)
    [3] Schiavo ex rel. Schindler v. Schiavo ex rel. Schiavo, 403 F.3d 1223, 2005 WL 648897 (11th Cir. Mar.23, 2005), denied 2-1 on appeal. (Terri Schiavo’s own blood family only got 33.3% of their panel on the Federal Appeals level)

    Comment by Gordon Wayne Watts -

    • You wrote: “THIS would still protect the privacy of the encryption, would it not?”

      The short answer is, no. If it exists, it will be compromised.

      But that isn’t the real issue: The real issue is this: can the government legally compel a private company to create a product that doesn’t yet exist, the effect of which would damage irreparably the reputation and trust that company has endeavored to build?

      Comment by process2succeed -

      • @Process2Succees: You quoted my question: [[““THIS would still protect the privacy of the encryption, would it not?,””]] and responded as follows:

        [[“”The short answer is, no. If it exists, it will be compromised.

        But that isn’t the real issue: The real issue is this: can the government legally compel a private company to create a product that doesn’t yet exist, the effect of which would damage irreparably the reputation and trust that company has endeavored to build?””]]

        My reply: The short answer is yes: It would be akin to asking the owner of a business to use their master key to get into a room and get some evidence to turn over to the police, who, previously, had obtained a search warrant.

        Since no real encryption is totally solid and impervious to cracking (i.e., no door is totally locked), a court’s order for them to open the door and get the evidence & turn it over to the police (FBI) would not reveal anything we already don’t know. INDEED, there are presently many offers to the FBI to hack into the phone for free, so we already know it’s probably possible, and asking APPLE to do this would NOT tell us anything new.

        As to your 2nd point: This would be akin to ordering a company to create a key for a door to a room (or safe, for example) where items (evidence) are stored. The government is not asking Apple to necessarily create a key to open the room or safe or whatever. (Apple could use a blow torch to open the safe — or a hammer and bulldozer to open the door to the room, etc.) As much as I don’t trust the government, they are legally on solid ground with a search warrant, since this search warrant is no different than any other (except that it is electronic and not physical in nature, but the law — and the principle — remains the same).

        Nice try, but I’m not buying it – and neither do most of the public who agree with Donald Trump that APPLE should turn over the evidence already. (However, I do not know whether Trump agrees with my compromise here. I Tweeted to him, but have not heard back, as one might expect.)

        Comment by Gordon Wayne Watts -

        • Then I as a law enforcement professional want a key to every house in the USA because I believe you might (or might not) have evidence in your house that will help me implicate others in a crime. I will get a court order and ask the lock manufacturer to create a key that will let me into everyone’s house that has a similar lockset.

          Okay with you?

          Comment by process2succeed -

    • You wrote “akin to ordering a company to create a key for a door to a room (or safe, for example) where items (evidence) are stored” but in fact it’s going beyond serving a search warrant on Apple for a device it no longer owns or controls (and the associated services whose password was hastily and improperly changed by the FBI); it’s requiring Apple to build a master key that can be used by whoever has possession of it to get into any Apple mobile device at any time.

      Apple is within its rights as a private company whose reputation and responsibility to its shareholders are at stake to refuse to create that key — which could be hacked, if it’s created.

      Comment by process2succeed -

      • Dude, you still don’t get it! I’m not saying that APPLE should give the FBI **any** key. I’m saying (and so is Bill Gates, who knows a thing or two about this), that APPLE should simply unlock the phone and give the FBI the data. Am I blowing smoke in your face? PROOF that the FBI is not asking for a master key: https://www.fbi.gov/news/pressrel/press-releases/fbi-director-comments-on-san-bernardino-matter The FBI, itself, is asking for access to THAT phone’s data – period. James Comey, Director of the FBI, is quoted as saying the following: “We simply want the chance, with a search warrant, to try to guess the terrorist’s passcode without the phone essentially self-destructing and without it taking a decade to guess correctly. That’s it. We don’t want to break anyone’s encryption or set a master key loose on the land.”

        According to your perverted interpretation of the FBI’s request, if they asked for access to someone’s house to excuse a search warrant, that would automatically give them some magical master key to enter into ANYONE’s house… not. Think before you type! With all due respect: READ what they are AND AREN’T asking before you offer an opinion, ok?

        Comment by Gordon Wayne Watts -

        • Actually, I do get it. I’m not saying they should give the FBI the key, either. And Apple isn’t under the impression they should give the FBI the key. In fact, the FBI’s request is that Apple unlock the phone and give them the data and the phone back.

          What I’m saying is that Apple has already given the FBI all the information they can provide with the tools they have. To give the FBI anything further, they have to build a tool that doesn’t yet exist. Once that tool exists, it’s subject to misappropriation — from within or from outside Apple. So first of all, there’s that risk that all Apple mobile devices could conceivably be unlocked by this tool that Apple is being required to build. And if the FBI hadn’t counseled the county IT department in changing the iCloud password, there would be a full backup of the phone that Apple could provide under the court order.

          Second, since when does the U.S. Government have any authority to require a private company to create a product? The All Writs Act must be necessary or appropriate to the particular case. And in this case, requiring Apple to build that tool would place at risk the trust Apple has built up with its customer base and its responsibility to its shareholders. I’d say that isn’t appropriate.

          Third, the issue of civil liberties: if the U.S. Government, who is charged with protecting our civil liberties, is fighting to potentially violate civil liberties (and you can bet that if they’re successful, other, less liberty-minded governments around the world will follow suit), I’m not okay with that. Even relatives of some of the victims have come out in defense of Apple because their civil liberties are more important to them than the FBI looking at this guy’s phone.

          Finally, the FBI doesn’t even know for sure what they’d find, if anything. They just want to look and see if anything is there. They aren’t trying to find evidence to prosecute the shooter, he’s dead. They’re looking to see what he did during the time between the shooting spree and his death. And he had other phones, which he destroyed, from which I’m inferring he had something on them to hide. The fact that he didn’t destroy this phone suggests to me that he had nothing to hide on it, or that he wanted to make sure San Bernardino County’s property got back to them unharmed. Which do you think it is?

          Comment by process2succeed -

          • RE: [[“”Actually, I do get it. I’m not saying they should give the FBI the key, either. And Apple isn’t under the impression they should give the FBI the key. In fact, the FBI’s request is that Apple unlock the phone and give them the data and the phone back.””]]

            Thank you for agreeing with me on this point.

            [[“”What I’m saying is that Apple has already given the FBI all the information they can provide with the tools they have. To give the FBI anything further, they have to build a tool that doesn’t yet exist. Once that tool exists, it’s subject to misappropriation — from within or from outside Apple.””]]

            Well, that would be like a safe company making a key for a safe – a ‘brand new’ key that doesn’t exist – and opening said safe. (Or an apartment owner making a bigger hammer to whack open a closed and locked door to one of their units – to get in for the police.)

            Nothing odd here. So, I don’t understand your concern.

            [[“”he fact that he didn’t destroy this phone suggests to me that he had nothing to hide on it, or that he wanted to make sure San Bernardino County’s property got back to them unharmed. Which do you think it is?””]]

            Ever heard of stupid criminals? The fact that the phone wasn’t destroyed HINTS that it contained no special data, but that does not prove it. Any criminal (or couple) unbalanced enough to go on a killing spree might also be unbalanced enough to overlook one thing like this.

            Besides, if Apple gets its way here, than ANY search warrant could be easily denied. Look, I don’t trust the FBI either, but I trust them FAR more than 2 dead terrorists and the remaining live ones.

            Comment by Gordon Wayne Watts -

  51. Pingback: Apple vs the FBI: a recap of this week’s events | my iGadget

  52. Mark Cuban as well as Apple executives have themselves a lot to hide on their digital devices, is reason for their refusal to help the FBI. (do not think for one minute they have you and me in mind)
    Mark Cuban is an insecure low self-esteem individual, who always has to bully the other investors on Shark Tank just to show the viewers he is better than the others and is more capable of winning the deal.
    These individuals live in a different world than you and I, of High Society, always protected, impervious by any outside threats.
    To help the FBI in fighting crime and terrorist, will not improve their well-being, for they are as highly protected as one can be.
    What incentives do these billionaires and insecure money-grubbers have to wish to defend this country and its citizens?

    Comment by Jay Bax -

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  58. I agree with Mark. As someone who works with Americans who are targeted by law enforcement for little or no reason, I see on a regular basis the evil that even our trusted institutions are capable of. Humans are fallible. Not even those in law enforcement are full of saintly ideas, reasons, and methodologies. Humans act like the biped apes they are and often they act for reasons of paranoia, greed, lust, power-mongering, vengeance, and hatred. I’ve seen humanity at it’s worse. We need laws to protect ourselves from ourselves, and overseers from outside the organization or community.

    Comment by Cathy Meadows (@katinthemeadows) -

  59. What if the Chinese government seized the iPhone of the freedom protester at Tiananmen Square and demanded Apple break into the contacts to identify of freedom protesters? What about the NSA agents that used data collected with the original Patriot Act to spy on their wives and girlfriends? What about the IRS targeting groups based on political affiliation? What about the EPA targeting private citizens when managers held a personal grudge? There are thousands of these examples. I’m on board with Apple on this one.

    Comment by David Crofford -

  60. 1) Apple built a product that they can crack
    2) why do people assume this tool doesn’t already exist, I would assume just the opposite. Apple has smart engineers and could certainly have built a product without this backdoor. If they built the backdoor into the product then it is logical to assume they did that so they could exploit it!
    3) there is no law that prevents Apple from building and un-crackable phone. Apple has just chosen not to do that.
    4) they have a valid court order that they can execute so they must.. I fully accept that they have every right to use the court system up to the supreme court to fight this and they should. I see no chance that they can ever win this case.
    5) let’s hope however that this phone does not contain a lead to other terrorist that might strike while Apple is appealing to the Supreme Court. That would be a real PR nightmare for Apple.

    Comment by Kende Helgeson -

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  63. The best way to win the war on Terror is to decrease taxes, increase jobs, transition low income into middle income families. You won’t do it by creating larger government out of fear, which in turn requires larger taxes, which in turn increases poverty and anger.

    NAFTA and WTO agreements should be revoked. All social income taxes should be removed. Instead, there should be a social sales tax that regardless of where that product was made, its sale benefits American retirees, disabled, and disadvantaged income brackets. This would make it 10% cheaper to hire American workers while removing the incentive to offshore american jobs.

    Comment by Dan Tr -

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  67. Money talks. If Apple were on the hook for a $100M per day fine for not complying with a Federal mandate, they would find a way to get it done. If Apple decided to comply without the fine, then they should seek just compensation (think: condemnation, police powers, etc.) for what such a tool would be worth on the open market ($100M or more?), create the tool specific to this phone, retrieve the necessary information, transmit it to the Feds, then destroy the tool AND the specific phone. As far as Cook’s statement about the possibility of a Master Key, realize that our government already has a master key to most everything else we own…anyone’s personal property or real estate can be commandeered by the Feds with the right court order.

    By the way, you know someone has been sitting at home since this story hit the mainstream media, trying to hack and decrypt their own iPhone, so they can get the (soon coming) Federal contract. Apple should want to beat them to it.

    Comment by EMoe (@ewm122KC) -

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  69. You are wrong Mark. This topic is about a basic understanding of how to implement freedom. A modern implementation of freedom is not our version of absolutism, but as a theory of relativity serving the diverse sovereign needs of the world. Too each his own.

    Real freedom comes from paradoxical rules of collective freedom paired with the need to support individual freedom, each defined as a unique combination of relativity every sovereign nation aspires to. Tim’s stance is naive because he thinks he can act as the keeper of such totalitarian interpretation and absolutism of freedom. An absolutism that by definition fails to encircle the needs of the world. More importantly, no technology company should be given the keys to the definition of any sovereignty. Technology must serve the needs of mankind, not dictate it.

    And given that no security is unbreakable, the enforcement in the U.S. through a court order, just like analog telephony, would be just fine. So, Apple’s current stance is actually an attack on the relativity of freedom the world deserves, not in support of it.

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  71. Astonishing. Some of the comments on here – just breathtaking.

    Apple is not saying the FBI doesn’t have a right to see the info; Apple is saying that when they establish a precedent of building a tool (or new OS or a patch) to bypass the built-in security, then no Apple product is safe from any government entity: all any gov’t entity has to do is go to court using the All Writs Act from the 18th century, say that precedent has been set, and no one’s info is safe.

    Whether the terrorist has a right to privacy or not is moot. He’s dead. Whether San Bernardino county has a right to privacy or has waived any right to privacy is moot. None of that matters. What matters is that if Apple is compelled by the government into service to bypass their built-in security, it sets a dangerous precedent.

    Building the OS (or patch or tool) in an isolated environment isn’t the issue. The issue is whether Apple is going to be complicit in the creation of a tool that doesn’t exist that could potentially violate civil liberties of everyone, in the interest of obtaining nebulous data that no one can say with any certainty even exists.

    I’m with Apple on this one, and have written Tim Cook to say so, and have written to my state legislators to solicit their support.

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  81. How about if Apple was a biotech company and was ordered by the FBI to build a custom virus to kill one terriost? That’s closer to what the FBI is looking for Apple to build a custom weapon for their use and the downside if it gets released outside of Apple and the FBI is extremely dangerous. We know our government is not good at keeping computer info secret. They let China steal the plans for the F35. I don’t trust them to keep this custom software secret.

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  83. spot on.

    Comment by Stephanie Hendricks (@HendricksLawFir) -

  84. I don’t think the Government can order Apple to create new software. That’s not the execution of a search warrant, that’s drafting Apple and its programers into the police force. I don’t think there’s any constitutional authority to do that, whether or not there’s cause for a search. Expectations of privacy have nothing to do with this. The issue is not the 4th amendment rights of the phone owner/user, it’s Apple’s right not to be impressed into government service.

    Comment by Douglas Levene (@DouglasLevene) -

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  91. We don’t need new laws; we need to understand and apply current ones. Habeus corpus, legal applications of a warrant (and thus legal searches), and the proper interpretation of the 1st amendment is all we need. Laws don’t need to keep up with technology when the principles of a free society remain. If the FBI properly handled their warrants, Apple should comply, because sedition has never been legal free speech.

    Comment by David Strunk -

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  93. Mark, I’m with Tim Cook on this. If you create the tool at all, putting that power out in the world WILL, inevitably, result in “bad guys” exploiting these back doors. That’s no good. You might as well not encrypt the data in the first place. Moreover, all it will do is push criminals to use third party encryption tools that can’t be defeated (in any practical manner, at least). We don’t require dead bolt manufacturers to provide a master key to the FBI. They have to break the door down. The reasons for this are the same. To my fellow commenters, there is no dispute over whether the FBI has a right to open the phone. They absolutely do. For two reasons – 1) As pointed out above, the phone is property of the county and they can authorize whomever they’d like to view the data. 2) A judge has properly reviewed the case and given a court order to provide the data because it is relevant to a criminal investigation. What is at issue here is the mechanism through which they want it done and the dangers that mechanism presents to all users, both in practical terms and in terms of legal precedent.

    Comment by Jay Slabotsky (@jslabotsky) -

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  101. Oofah, this is a tough one….if a judge issues a warrant for a search, in this case a search inside this SPECIFIC IPhone, isn’t this on solid constitutional ground? For forensic analysis? I’m asking…

    Comment by skippyramona -

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  103. I am so confused by this whole dialogue. If it is true that Apple received instruction from the FBI “to build a version of IOS that would let the FBI install that version on a terrorist’s phone enabling it to use a brute force method of pushing through every possible combination of passwords into the phone until it unlocked the phone” . . .then when has there been a subpoena request by a democratic nation (not under Marshall Law) to compel a company to build something (for nothing) to do anything? If we peel away all the emotional issues, that is what this subpoena is, correct? Does Apple have reasonable “possession, custody and control” of the information? It doesn’t sound like it, if the Company is required to build a special program to hack into one phone to get the info. If the technology actually exits already (not just the ability to create the technology) then I might have a different opinion. Why not just ask Apple for the info the government requests, and however they get it to them, to the extent they have possession, custody and control of the information (like any other subpoena), then why dictate the process?? Here is the problem with the way this dialogue around has been positioned. Q#2: Who actually owns the data the government seeks? Does Apple own and control it? Then they should produce it, if the can do so in a reasonable manner. If they do have access, they certainly do not own it exclusively, and certainly don’t readily control it if they have to build something special to obtain it. Have all parties who have access to this information been served the same subpoena? Why not just ask them for the information AND ask the others who control it for the same? There are other parties who have access to this information. How Apple (and any other party) gets the info to the government is their obligation. All the government should request is the information. Q#3: Why didn’t the government and Apple do this under the veil of privacy? Information requests like this happen all the time and are complied with under very strict secrecy. I think this dialogue has gone in two very confusing directions. My Opinion: Government officials are entitled to all information that: 1) helps proves a crime has been committed; and/or 2) Protects its citizens from the reasonable expectation of potential harm. Both thresholds have been met here. Apple is entitled to reject a request that requires them to “build” something that does not exist and/or turn over information that is not reasonably in their “possession, custody and control.” One thing is clear: The Terrorist had NO exception of privacy. Once you expose that information to others there is no expectation of privacy. The phone was not the property of an individual. It was the property of the County. This is the not the question here. The question seems to be is to what extent a company must go to comply with a subpoena to provide information to which they may have access to if they apply a certain skill set. We all want the information on that phone to be made available to the proper authorities to protect us from future attacks. We just need to do this in a way that takes into consideration all of the many issues and rights that exists for all parties and weight them against the present and potential consequences.

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  113. Cuban asserts that because “technology is so fast” we have to let them have secrets that could potentially destroy us. Baloney. That has to be the most ignorant argument put forth yet. No dead person has a right to privacy on a phone left after murder. That’s the most absurd thing I’ve ever heard of. All of Apple’s rights are protected by We The People otherwise known as the USA. If apple refuses to comply with a court order to protect the USA- that’s a criminal act and Apples products should then no longer receive the patent and copyright protections that allowed it to get so big. So big that bigheaded and proud Mark Cuban and pals now think they are a higher power than the government, or We The People. WRONG!:-)

    Comment by JohnPhillipDoddridge (@JohnDoddridge) -

  114. If terrorists could use the same vulnerability to figure out my comments about Mohammad, then it could get dangerous.

    Comment by Satyam Bruyat -

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  116. If the Federal Government can “save” every telephone conversation in the United States then why can’t they save every cell phone conversation and save all “data” saved on a cell phone or on a computer? Who will be the next Snowden?

    Comment by Stan Olson -

  117. I respect Apple/Mark/Google’s etc. integrity here but this is war, and the rules are different in war. The Interests of the US and the American people are bigger than Apple. Since this phone did not even belong to the terrorist, it is not even likely to be a constitutional issue.

    Apple will be building many more phones they and they can reintroduce new generations of encryption. They can also build this tool in a clean room where the “key” could be isolated from the world – Imperfect perhaps, but enough to keep out of the FBI’s hands.

    The tech industry is a force for American leadership but it is not our conscience, it does not own our future and it is not in business to work against its own people.

    As for Apples “principled” stand, when you peel back the appleskin you will find that Apple has no trouble finagling US laws to keep billions out of the US. It runs its worldwide sales revenue through a Dutch entity which is managed by a shell company in Ireland (which also “owns” it IP) that is nevertheless run by a shadow group in Nevada – all to avoid paying taxed to the country whose principles they are alleging to uphold.

    Comment by Alan Brody -

  118. In this particular case, the Phone in question meets all of the requirements suggested by Mr. Cuban and a good bit more.

    Additionally, the phone was the property of the killer’s employer , who has given FULL permission to crack the phone. Additionally the courts have ruled consistently employer owned devices do not have the “Privacy Protections” of personally owned technology. Your employer can can demand you hand over a phone, tablet, laptop etc.. with passwords as it is THEIR property. You have no right to say no and can be charged criminally for it.

    Apple has no case law on which to argue denial of service under a Court Order, unless they can demonstrate an inability to do so. They have already admitted they can do it.

    The warrant is clearly within the requirement set forth by the 4th Amendment. Free Speech has legal limits, including acts surrounding terrorism. 2nd Amendment rights typically become moot, once the person is dead, as is the case here.

    What may or may not happen in the future with potential abuses of this technology being made available has no legal bearing on the current case.

    Apple will lose on this unless they can find a compelling legal argument with precidant. “Worry”, isn’t much of an argument.

    Comment by Peter Combs -

  119. First of all, the FBI is not asking for Apple to provide secret keys that enable them to bypass encryption (though a lot of foreign governments are demanding just that). The FBI wants Apple to assist it in disabling processes it has in place to defeat brute force attacks against passwords. This is not a “backdoor” attack. This is a smash in the front door attack on a phone that might very well have data stored about other killers.

    And patching an OS to disable a particular feature is not requiring you to create a new OS. Windows OSs are patched all the time.

    The FBI request is more than reasonable, and Apple will comply. The courts will have little patience with their arguments.

    BTW, what’s makes Apple’s position even more untenable is that the phone in question is the property of San Bernardino, not the murderers. The reason the FBI needs access to that phone is they suspect the two killers were supported by others in the accumulation of the munitions and explosives they gathered before they slaughtered 14 people in cold blood.

    What Apple is saying that a phone not even owned by murderers should be a sacrosanct vault of privacy. That every iPhone is a little island of safety for terrorists if they’re smart enough to use a strong password. Information in that phone that might lead to apprehending more murderers? Pshaw! If a few members of the proletariat have to be gunned down to protect the secrets of the Silicon elite, well, sacrifices have to be made.

    Seventy percent of the public believes Apple should cooperate with the FBI and I bet that number is 90%+ in San Bernardino. And if another attack similar to San Bernardino occurs and it is suspected important data resides in a killer’s phone, that number will jump to 90%+ nationwide. Killers and terrorists have no “right to privacy.” And it’s simply ludicrous to argue that attempting to gather information from a phone used by a known dead terrorist is any sort of “slippery slope.” If the murderers had stored guns and explosives in a storage facility, locks snipped by now. And if the murderers attempted to misdirect the authorities on which storage unit contained the weapons? The owners of the facility would be compelled to assist the authorities in locating the unit. Buried in their back yard? Dig up. Contact info on other killers in their phone? Crack it open. Completely legal, necessary, not any substantive argument against it.

    What’s Apple’s new advertising campaign for the iPhone 7 going to be? Nine out 10 Jihadists buy iPhones before blowing themselves up? Maybe ISIS will agree to endorse the iPhone as the choice of terrorist networks everywhere. Hey, maybe al-Baghdadi and Tim Cook can shoot an ad together extolling Apple’s commitment to keeping terrorist secrets safe and secure.

    Then Baghdadi can throw Tim off a building for being gay.

    Apple’s behavior is PR stupidity at its finest. This, combined with Error 53, shows the company is losing touch with reality.

    And I don’t think arguing “privacy rights” for terrorists, rapists, slavers, torturers and murderers makes any sense at all.

    Rick Chapman
    Managing Editor and Publisher, Softletter
    Author: Selling Steve Jobs’ Liver. A Story of Startups, Innovation, and Connectivity in the Clouds”
    “In Search of Stupidity: Over 20 Years of High-Tech Marketing Disasters”
    “SaaS Entrepreneur: The Definitive Guide to Succeeding in Your Cloud Application Business”

    Comment by rickchapman -

  120. “Well perhaps if your children die at the hands of a terroist attack you’ll be comforted in knowing that you fought for truth justice and the American way Superman…”

    Two dozen kids were killed by a single guy with a gun, and yet we feel that’s the price we need to pay for “safety” and “freedom”.

    Comment by whmlco -

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  122. I see this as a much bigger issue than freedom of speech or who owned the phone, or protecting national security. Nothing in the constitution gives the government the authority to demand a private company build anything. Communist governments and socialist governments control the means of production – even a single version of a single operating system to crack a single phone.

    Comment by Mark Crawford -

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  125. Very strong points.

    Comment by Paul Farley -

  126.  All I can say is,if there is a lot of communication between terrorists on apple devices,and Apple does nothing about it,then they could be on the hook for it.Being safe is paramount to our North American society. It doesn’t have to be tight as a drum but if you have nothing to hide,why would you worry about prying eyes of the feds?I’d rather see it. That way they can root out the problem.Mind you if Apple does comply they would want to be involved every step of the way in regards to the feds looking at certain applications and people using these devices.I call it: Looking over the Government’s shoulder while they peek into nefarious going’s on.Have a lovely day. 

    Comment by mark grove -

  127. Thanks for this, Mark.

    I oppose unleashing a new iOS version, which will yet further enable terrorists, and lead to iterations of new iOS versions. Then … what’s next?! Cyber Security is not well understood by the general population, nor is the intent of our constitution and government processes. I am not sure if Corporate America is following trends in our government or visa versa. It seems all facets of our great country are focused on solutions to react to events, not prevent them. Wasteful, costly and completely ineffective.

    You are correct … define the law and deliberating apply it where necessary.

    Comment by Tricia Cawthon (@tcawthon1) -

  128. Well perhaps if your children die at the hands of a terroist attack you’ll be comforted in knowing that you fought for truth justice and the American way Superman…

    Comment by Jim Fuller -

  129. fuck off

    Comment by Chuck -

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  132. A very tricky subject indeed. It seems as though with the advent of the Patriot Act, the government has been given carte blanche-like power to infiltrate our data to the point where, privacy as we knew it, no longer exists, and is but an oasis in an ever-evolving, paranoid, Orwellian-fantasy come-to-Life.

    On a lighter note, I just moved to Arlington from Northwest Arkansas, and the most joy I have experienced is attending a couple of Mavs Games with my better half. Mark, if you ever want to raise the decibel level at any home games, toss a couple of tickets this way, to your poorest, but moved devoted fan…

    Comment by Brett F. White -

  133. Great article. This is a good way of dealing with it, but still leaves us vulnerable. We give them this, what is next? I’m fine settling at this solution and obviously this would need to be made public when the gov is using this law and approved by the courts.

    On Thu, Feb 18, 2016 at 12:17 AM, blog maverick wrote:

    > CyberDust ID – Blogmaverick posted: “Apple was instructed by the FBI to > build a version of IOS that would let the FBI install that version on a > terrorist’s phone enabling it to use a brute force method of pushing > through every possible combination of passwords into the phone until it > unlocke” >

    Comment by Michael McCutcheon -

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  135. Bravo. Thank you for this courageous, full-throated, unequivocal statement of principal.

    Comment by John C Abell (@johncabell) -

  136. Mark – as much as I agree with your thesis, I have concerns about your proposal (and yes I recognize it more than likely represents a thought process rather than a word for word recommendation). I appreciate that you have attempted to narrowly tailor its application (declaring act of terrorism, casualties, possession, been on the premises, deceased terrorist (instead of “owner”), but adopting a law that gives the federal government authority to force a private citizen to work for the executive branch seems an over reach. Congress will take up the issue of encryption – and we should be worried when it does, but a federal judge ordering a private person/entity to actively participate is a problem. Your essay is a good starting point, we can do better though.

    Comment by Andy Roskind -

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  143. Why can’t they subpoena One phone and ask APPLE to do it for them without compromising all iPhones? 1 Apple Tech and 1 FBI agent in the secured room.

    >

    Comment by Paul Graham -

  144. All of you people who are against Apple on this… You should go spend some time at DEFCON in Las Vegas this year… You should also bring your personal laptop and your phone, you should feel free to use any of the free open public wifi hotspots you see as well.

    Then in 60 days when you realize your identity was stolen you know why Apple needs to stand pat on this. The scary thing is that a lot of these government hacker resources, these are not good people, they only work for the government because they get paid to, they are not trying to make the world a better safer place… You drop a million dollar lottery ticket like this in their hands and they are collecting a million dollar bounty, quitting their jobs and disappearing.

    Comment by Joe Capone -

  145. It is a slippery slope and we should always keep a healthy skeptism towards our government. Tools like this will be abused, is the way i look at it so be careful what you give. Maybe they cant use it in court to get you, but they can use to find something they can use in court against you. Same thing. Just so happens snowden chirped up in media on unrelated subject. A hero and a villian at the same time. If cuban is right about the government s ability to easily try to skirt laws protecting our privacy with this writ, dump the writ, period. Amen.

    Comment by showyoursexy -

  146. I didn’t know the phone belonged to the county.

    Comment by chiara62 -

  147. And will this stop the Aurora Colorados or the Sandy Hooks? Because DOMESTIC TERRORISM like that is a bigger problem. And yes, that is DOMESTIC TERRORISM. Why don’t it get classified as that? Because it’s a child? Because they were born in this country? Because they were mentally imbalanced? Isn’t anyone who willing takes another person’s life mentally imbalanced? What sane person would ever want to kill another person?

    If Apple does this it’s only a matter of time before the NSA and CIA bang on the FBI’s door for a copy of that hack. It’s only a matter of time before some $50k a year government schlub leaks that hack for the $1 million bounty.

    When that happens, no one is safe… Guns, bullets, killing people, that’s not the only way to fight a war…

    Target, all these large department stores, were fined millions of dollars when they exposed your data… What are the consequences for the FBI going to be when they expose all of your data? NONE.

    If you really think, that Apple can create this for the FBI and it will only stay in the hands of the FBI, you’re a fool… a damned fool… It will be out on the net within 30days of the FBI getting their hands on it.

    How do I know this? Because I’m black hat and I’ll be looking for it…

    Comment by Joe Capone -

  148. Mark Cuban- could you please run for President?

    Comment by Jeff Deutsch (@FreightDr) -

  149. The cat’s out the bag already. Your pilots have their body fluids drawn on a random and regular basis. What’s different about that? It benefits the public? Yes, it does. And it makes me feel better that pilots are drug free. But the line in the sand is behind you.

    Comment by DOGGONEIT (@primarytrendup) -

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  152. What is the difference between this kind of investigation, and getting a search warrant, then turning a home upside down, looking for evidence of wrong doing? We’re dealing with todays way of communication, and planning a crime. No longer found in the bottom of someone’s sock drawer. The bigger problem, is that we don’t have law enforcement agents, trustworthy enough to only use this technology within the perimeters they are invented for. In addition, when such an investigation comes up with material that is publicly sensitive, but not of the same value as originally searched, what then?

    Can’t put the socks back in the drawer, ( oops, sorry, we’ll have your house pulled together in no time, sorry for the mistake) or at least that has never been the norm. The disrespect from law enforcers (and even lawmakers) because they stand in such self important roles, prevents any kind of unwinding of their often, ruthless acts toward suspects.

    As our world evolves, there is one answer across the board. It is education. Barney Fife can no longer be our law enforcements profile. Intelligence, and respect for those governed has to a major part of the program. Can this happen?

    If 9/11 could have been prevented from getting information from a cell phone, the world would be very grateful. However, what to do and how to behave when the cat is out of the bag is crucial. Just as is how to limit who is investigated.

    Comment by Marc Blackwell -

  153. The last time there was this type of terrorism, we got the Patriot Act and TSA in the name of national security. You guys want a repeat of that? Once you give the government the slightest crack to do something in the name of national security, then be prepared to have your freedoms eroded. And no, none of these laws or agencies do anything to actually benefit us (unless you enjoy a nice massage by TSA agents).

    Comment by Allen (@WhereWinnersWin) -

  154. “What is the solution to this problem ? Pass a law that deals with this issue.”

    Would it be better to have a Supreme Court ruling on the issue of privacy and encryption vs a law is up to interpretation ?

    – Omar

    Omar | Mark Cuban Companies

    >

    Comment by mccomar -

  155. You hit the nail on the head and that is exactly what needs to be purposed.

    Comment by Teresa Taylor -

  156. I feel the article slightly shifted from what the first paragraph was about.

    If I understand correctly the FBI wants an IOS mole technology they can transmit into a phone so they can then gain access to the contents of the phone. I would suggest if such technology were possible, and used, the person who’s phone was being “moled” could not be not be charged with a crime since the goal was to prevent a bigger tragedy from occurring.

    Doesn’t that solve all privacy issues? These types of negotiations go on all the time.

    There are four suspects to a crime, the first one to confess is offered immunity.

    So, if the FBI is willing to risk having their intended phone mole target be granted immunity for a greater good, I don’t see that as that big of a issue. “We cheated and caught you, so we can’t charge you with a crime, but the info we got from your phone prevented a much bigger tragedy from occurring”. I’m ok with that scenario.

    Comment by Alessandro Machi -

  157. IMO ones you open the door to the government you can never close it, and that’s exactly what happens when the government does not bereave in the constitution. and i like what you proposed too.

    For now and in the future be well.

    Mike G

    Comment by Koutrougiannios (@greekinventor) -

  158. Mark…Losing Generals have 1 fatal flaw…they fight today’s battle with yesterday’s strategy… the issue you present is serious and the concerns compelling…
    i think your highlighting the All Writs Act is the essence of Apple’s argument…

    AND we must think forward, not only after a terrible event, but the interception and deterrence of a future act…
    this is the conundrum…in whom do you trust…

    i think making it a specific law about post event is sound…i would agree with your first 2 provisions but make a few modifications a) the device does not need to be found on the premises and b) the terrorist doesn’t need to be dead …
    if the USA agent is in pursuit of someone they identify i want them to track that individual or group down and not be handcuffed when we can save lives…and heartache…perhaps this is already a law…
    i appreciate your speaking up and out about this privacy protection vs. threat protection issue..

    – Steven Feinberg

    Comment by stevenfeinberg (@stevenfeinberg) -

  159. Hey Mark,

    Long time fan ever since you’ve been on the Tank – first time following your blog (I’m up late applying for jobs and your blog came across my LinkedIn). I like your proposition to amend The All Writs Act. I think there’s a time and place for bending the rules, or in this case the government interceding encryption, and I think you’ve pointed out a compelling solution to something that is becoming more evident today, terrorist attacks.

    I think it’s key to keep in mind that we need to be proactive to situations like these because we, as Americans, are falling victim to these types of terrorist attacks more often it seems. I really hope we can get the best of both worlds in the end.

    Best,

    Nick

    Comment by Nick Kennedy -

  160. Mark, good post, but is there ever any circumstance in which information could prevent an imminent threat of a terrorist act in which a tech company should be compelled to deencrypt? Also, in a view is there a way in which a tech company could “lend a peek” at necessary information without breaking down a door or b) to perform the electronic equivalent of a wiretap, subject to a court-ordered warrant.

    Comment by Michael S. Smith -

  161. I disagree. The distinguishing fact here, in my view, is that the iPhone belonged to the COUNTY. It was not the terrorist’s personal phone. He, therefore, should have had no reasonable expectation of privacy. Moreover, when the phone was issued, he should have been advised specifically to the contrary.

    Comment by Sharon Lawrence -

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