In this country we have rights. Under the 6th Amendment we have very specific rights
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.“
In the current case facing Apple, the terrorists who had possession of the phone are deceased. However, in one of the next times Apple is called upon to open up a phone to enable access, chances are good that the person in possession of a phone during an illegal and possibly heinous act will be alive, be an American citizen and demand “to have the Assistance of Counsel for his defence”
In the event Apple loses the current case to the FBI, setting a precedent that they can be compelled to unlock phones for the FBI and other government agencies, each and every defendant in such cases will have the assistance of counsel for their defense. What do you expect every defense lawyer to do in order to protect their client who has had a phone opened ?
Once the phone is “cracked” by Apple or any device or Operating System developer, whatever is found by the FBI or whatever government agency is involved, is going to be labeled “planted” or false evidence. The defendants lawyer is going to scream as loud as they can that whatever was found was not originated by their client. That Apple, in cahoots with the government agency, modified their software to not only unlock the phone, but to also write to the device everything the government agency needs to gain a conviction. Pictures. Texts. Logs. Files. Videos. All originated and/or imported by the code in order to gain a conviction.
The best way to disprove this allegation by the defense attorney ?
Line by line publication of the code used to open it. Reviewed by who knows how qualified and how many “experts” who will pass judgement based upon who paid them. Possibly a line by line presentation of the code to a jury of the defendant’s peers.
Yes, the FBI and Apple would do everything possible to try to stop this presentation, but what if they can not ?
Which is exactly why Apple must win the current case against the FBI. There is a near ZERO chance that the code created by Apple to break into their phones can stay private under current laws.
I also want to address the notion that we let the police or government agents into our homes or that we allow some of our digital data to be acquired using warrants and subpoenas. The difference is in the ability for a defense attorney to be able to determine whether or not physical or digital evidence is false evidence.
With physical evidence, there are always risks of planted evidence, but the processes are in place to contest that evidence.
With digital evidence as direct data, the best, if not only way to prove that the code was not written to plant digital evidence is by showing the code. Which is exactly why I think this Apple vs the FBI case is nothing like any of the current search and seizure examples being given in the media.
In those examples, the software that creates, collects or aggregates that data can be presented to an open court without risk.
Want to see the devices, code and databases that collect, process and store your Easy Pass driving data ? No problem. Seeing the process doesn’t open a door for you to hack into it and change it. A defense attorney can question the credibility or accuracy of that data and no one else except Easy Pass users are impacted or care. The same concept can be applied to the phone meta data about us that is collected by the phone companies, our social media footprint, whatever. We may not like it. In fact we may hate it, but reviewing and questioning the process or the data doesn’t create risk if that specific code or process is presented in court.
If Apple, or any digital device or Operating System provider has to write code that breaks into their own phones and then present that code in open court to prove that the code is clean and has not planted digital evidence, then the door is wide open for bad actors to do as they please to our devices. No one can play whack a mole with code fast enough to keep them out.
All that said, there is a possibly better option if we only had lawmakers who cared more about solutions than grandstanding. We have 3 Senators running for President and not one has moved a fingernail to even begin to deal with this issue let alone find a solution. That is sad in and of itself.
What should they propose ? As I wrote in a previous blog post, lawmakers should be working very quickly to write and get passed a law that limits the scope of what Apple must respond to. Here is what I suggested:
“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:
- There has been an event, with casualties, that has been declared an Act of Terrorism
- There is reason to believe that the smartphone was possessed by a participant in the Act of Terrorism.
- The smartphone must have been on premise during the event.
- 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, currently at the heart of the Apple vs FBI dispute 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.
More importantly, passing this law or something similar gives both Apple and the FBI a means to resolve the dilemma they face. Apple could comply with at least the hope that the circumstances under which they will be forced to create software to open a device is strictly limited in scope.
As always, this is my opinion. I’m not an attorney, so I welcome all constructive criticism and feedback so i can become smarter about the subject at hand. You can reach me to discuss 1 on 1 on the Cyber Dust app under user name Blogmaverick
Mr. Cuban,I have a product that may revolutionize social media and smartphone technology. The problem is, I don’t know how to present it to potential developers without the idea being pirated. Do you have any suggestions on how to move forward with the process?Don Douglas
Comment by dondouglas@teacherstimeout.com -
OK…. I’m a big fan of encryption…. I found this webpage because email can be broken… i thought you all would like a solution …while on your pc… yup cyberdust app on pc—-> http://www.tinyurl.com/CyberDustOnPC
Thank You Mark Great article…. Hey did you buy the show…? Shark Tank? thanx…
Comment by Jill Williams -
Pingback: Links 20160303 | Eric Webb
I have a genuine question: shouldn’t the content of our phones be considered part of our memory and thus part of our own mind? when was the last time you remembered a friend’s phone number.. the city you vacationed at or the smile of your children when they were kids? as technology advances and amount of information our biological brains has to keep track of increases, couldn’t we use technology to offload some of it to a device? isn’t it happening already?
Comment by mike MTOL (@mikeMTOL) -
When it comes to technical challenges, the public tends to latch onto the idea and not the execution. The idea of the police being able to access the data is not the problem, of course the police should have access. The problem is in the how… you can’t do it in a way that doesn’t jeopardize everyone else and it’s the execution that’s the problem here. This is a great explanation of it.
Comment by Jim Wang -
Great Post Mark. It bothers me I agree that current candidates haven’t done anything but worried about tax returns. As well it appears that the FBI is still looking for the smoking gun and if they win will put all of us at risk.
Comment by Vince Black Sports STL -
Great post, good discussion. However, I think people aren’t thinking this through. The worst case scenario, in which the FBI is successful in getting Apple to provide a new iOS so they can break into the phone, means that if I’m a terrorist, I will just go the extra step of using a 3rd party encryption tool from a vendor who is not subjected to the laws of the USA to encrypt my phone. Then what? What problem has the Government solved? Those that need security will continue to have it via 3rd party encryption and those who aren’t savvy enough to know it exists, will be the every day user. Once again, citizens lose.
Comment by Adam Quiggle -
Mark, all that you say makes perfect sense. Along the same lines with a similar rhythm , is this new movie Poverty , Inc. Below is a link to a Q&A after a showing of the movie at NYU. I hope you show it in your theaters.
https://www.youtube.com/watch?v=OBJToHDbifQ&feature=youtu.be
Best regards,
David Marshall Naples, FL
On Tue, Mar 1, 2016 at 10:16 AM, blog maverick wrote:
> CyberDust ID – Blogmaverick posted: “In this country we have rights. > Under the 6th Amendment we have very specific rights “In all criminal > prosecutions, the accused shall enjoy the right to a speedy and public > trial, by an impartial jury of the State and district wherein the crime > shall ” >
Comment by david marshall -
Body Detailer shower products is looking for a business partner in Los Angeles. Love to discuss the distribution plan with you Mark !
Comment by Allen Crosby -
Mark – You bring up an interesting gap since our laws have not evolved as quickly as our technology. But while the FBI is focusing on Apple I think your proposal needs a bigger picture focus – why limit to smartphones and tablets? What about Apple/Fitbit watches and the next wave of technology? Now students are being forced to take off their watches before taking an official exam so this is now becoming a reality. What about software such as Facebook, Twitter, etc. that are means to communicate but can be used on other technology? Why limit to a deceased terrorist? What about one that survives yet does not cooperate with authorities?
Looks like the All Writs Act will not resolve this issue – opportunity to get your proposal moving along. Check out today’s court ruling: http://www.usatoday.com/story/money/2016/02/29/judge-denies-fed-request-force-apple-bypass-iphone-passcode/81125500/
You should moderate a debate and pose questions such as this one and see how the candidates respond to this reality. But as you mentioned in a previous blog this would not be as entertaining as looking at Trumps tax return 🙂
Comment by Carole Wittemann -
Yes, this is a good line of reasoning.
What’s NOT a good line of reasoning, is the DoJ’s “trust us; it’s just this one time and the phone can stay in Cupertino.” Not only would it mean that any evidence obtained can’t be used in court because the defense couldn’t review it, it flies in the face of the FBI having at least a dozen pending unlock cases at the time that Apple refused. That is, “trust us” is the most foolish thing they could say.
Mark, I’m pretty sure you’re standing up for the principle of Americans’ freedom from an (unwittingly?) oppressive government, rather than Apple itself, so you should be able to comment fairly on the role the government is taking here…slamming Apple, which is apparently following all legal avenues and has been fully cooperative by both their and FBI accounts. What “nation of laws” has elected officials impugning citizens’ and businesses’ motivations in leading their lives, all over what has all the appearances of being government overreach in the first place?
Comment by WaltFrench -
Tough place for Apple to be in. My conscience says they need to stay strong, and prevail. Thanks for the post.
Comment by neonwalrus -
I wrote the following essay because of the lack of context (i.e., the FBI’s sordid history) in the present controversy.
I Found the Passcode!
by Dan Scanlan
I did it! I figured out the six digit passcode the Federal Bureau of Investigation has been seeking! The need to hassle Apple, Inc. and cause so much dismay and fear of the loss of privacy among the citizenry is gone.
Here’s how I did it: First I added J. Edgar Hoover’s age when he took over the “Radical Division” of the Justice Department — 24 — to the year he took over, 1917, the year the FBI was created, 1927, the number of years he ruled, 48, and the number of wiretaps he placed on the NAACP, 3000. Then I multiplied the numbers together and added the product.
Next, I added in the 3,165 FBI file pages on Martin Luther King, Jr., and his birth year, 1929. I multiplied them and added the product. Then I added the 17,000 pages the FBI has on American Indian activist and poet John Trudell, and 1979 for the year he burned a flag on the steps of FBI headquarters in Washington DC which was followed immediately by an arson fire at his home on a Nevada reservation that killed his three children, his wife and mother-in-law. The FBI refused to investigate, and I added 5 to the sum, multiplied those numbers together and added them to the total.
The FBI executed 21-year-old activist Fred Hampton in his bed in the middle of the night in Chicago, after providing FBI informant and provocateur William O’Neal with seco-barbitol to surreptitiously drug Hampton so he wouldn’t awaken during the raid, so I added the year, 1969, his age, and 5000 for the number who attended his funeral and 1,850,000 for the dollars the government had to pay in settlement for Hampton’s execution. Again I multiplied and added the product to the mix.
I added the 4,400 pages the FBI had on John Kennedy, his death date; the 1000 pages they had on Jackie Kennedy and her death date; and the 50 pages they had accumulated on Lee Harvey Oswald before others killed Kennedy. I added their product to the sum.
I added the year 1996 when Geronimo Pratt was released from prison after 27 years, eight of them in solitary confinement, and 4,500,000, the number of dollars the FBI and LAPD paid Pratt in a settlement for framing him for a crime he didn’t do.
To the mix I added 1975, the year the FBI framed Leonard Peltier for a crime it instigated when it sent 150 FBI agents onto Pine Ridge reservation with an anti-Indian terrorist group who called itself GOONS, and added the 140,000 pages of FBI files they withheld from Peltier’s defense attorneys. I added the 40 years he has spent in prison, multiplied the numbers and added the product.
The total grew to a 10-digit number, but I wasn’t done.
In 1990 the Forest Forever Initiative was on the California ballot and was winning. Then somebody, perhaps an FBI provocateur, placed a bomb under her car seat that exploded when a ball bearing rolled onto a switch as she rounded a corner in Oakland CA. The word “eco-terrorist” came into use by the FBI and she was accused of accidentally bombing herself. So I added the numbers 130 for the Proposition, 1990 for the year, and 4,400,000 for the number of dollars the FBI and the Oakland Police had to pay Judi and her fellow musician Darryl Cherney for falsely accusing them. Again the numbers were multiplied and their product added to the total. The FBI has never investigated the bombing. Too much exposure, I reckon.
I added in the number 1967 for the year the FBI created its COINTELPRO—BLACK HATE program, 113,000 for the number of non-profit social welfare groups whose confidential tax returns they seized from the IRS illegally, the 10,000 cases being reviewed because of false testimony from FBI agents and faked lab results by FBI evidence processors, 3,000,000,000, a number that approximates its budget, and 4,600,000, the number of dollars it paid to a scientist it falsely accused of executing the anthrax letters that went along with the fear-building 9/11 operation.
I selected a few more significant numbers, added, multiplied and added again and came up with a final total of 444,770,281,921. To keep this project on an unbiased, scientific plateau, I calculated the square root of the final total ‘cause that’s what scientists do, and, voila! — It generated the passcode the FBI needs so badly.
I give to you now: 666911
Dan Scanlan
Feb 24, 2015
Nevada City CA
Comment by coolhanduke -
Mark, your reasoning legally is not sound.
First, digital information is the same wherever you find it. The information on your phone is no different from that on a flash drive, your desktop PC, or any other media. Yet you seem to be saying that the cell phone is somehow different from any other digital device, and needs special treatment and protections. It’s not, and doesn’t need to be handled any differently than any other digital media. That’s it’s encrypted or not is irrelevant.
Law enforcement has been collecting digital information as part of trial discovery since the 1980s with no increase in defense claims of fraud, conspiracy or collusion. Why would that be different with a cell phone? It’s not, practically or in the eyes of the law. You are making a false distinction here.
Also, cell phones are not new. Law enforcement and the courts have been using retrieved cell phone data in trials since at least the mid-90s. And they’ve been using it all legally and above-board. You don’t give any reason why this would suddenly change if Apple actually complies with that court order.
Second, there are very few limits on what can be withheld during the legal process of discovery, and for very good reason. It is in neither the state’s nor the public’s interest to keep secrets from a court of law. That’s why a court order has the authority of the full force of our government behind it. In this case, Apple has a problem if it does not comply with the order. They can be seen to be aiding and abetting the perpetrators, and obstructing the court’s process of discovery. There are many long-standing legal precedents supporting this view, and you don’t give a compelling reason to change them.
Third, the SCOTUS and lawmakers will not see it your way. You will find neither sympathy or help there. They already agree with our system of trial and prosecution. You do not present any compelling reason here why they should change a long-standing and proven method. Also, they do not see the cell phone as needing any more protections than your laptop.
Fourth, constitutional issues don’t really come into play here at the moment. This isn’t an issue of free speech, not even for Apple. The conditions of the 4th amendment were satisfied when the court issued the order to Apple legally and above-board. Apple has a legal and ethical obligation to assist in the court’s discovery no matter what the technological issues are. Even though they have the right to appeal, they can’t legally refuse to help without showing very compelling legal justification for it, and I don’t see that they have a leg to stand on so far. You mentioned the 6th amendment before, but it is not a concern here.
I’ll be interested to hear you thoughts.
Comment by Laguna Greg -
Good points Mark. I formerly worked in the SEC’s enforcement division for almost 20 years, the last 11 of which as Chief of the SEC’s Office of Internet Enforcement; taught for 15 years a course at Georgetown Law School on securities regulation and technology; and find the government’s position against Apple disturbing to say the least. You can read my take at: http://www.cybersecuritydocket.com/2016/03/01/apple-versus-the-fbi-some-common-sense-reflections-from-cool-hand-luke/ . Apple is going to win their motion; the government, despite perhaps having the best of intentions, is dangerously over-reaching.
Comment by John Reed Stark (@JohnReedStark) -
Ok, need more? – FBI personal files 750,000 to date and growing. The VERY LAST thing one would do in these times is “trust us, we’re the government.”
Comment by stumplifter -
Hillary’s servers and Benghazi – what more need be said.
Comment by stumplifter -
“The smartphone must have been on premise during the event.” That is just bizarre, after all access the smartphone (or other device) is all about whether it was used for planning of an ‘event’ – not just execution. Usually agree with you, but not on that aspect of this situation.
In the wider scope I do not see the distinction between an OS or an App. Trying to claim that an app such as Easy Pass can be exposed because it “only affects Easy Pass users” is equally bizarre – is it the number of users of any given piece of software which draws the line? Is it the content of the database associated with the app (surely Easy Pass has PCI data in it – how can we possibly have an app with PCI data be exposed to all and sundry).
Don’t get me wrong, there are big issues here which need solving – I just think that your arguments are not near as strong and well reasoned as they usually are.
Comment by Wag Jaw -
Jonathan Zdziarski, a reformed hacker who jailbroke the original iPhone and eventually segued into “white hat” work, developing forensic tools for various law-enforcement agencies, had this to say about “GovtOS” (the insecure version of iOS that the FBI wants Apple to make):
“This software cannot effectively be made unique”
“In my opinion, that protection is among the easiest to break”
“Once it’s in the hands of law enforcement, experience tells us its use will broaden exponentially.”
“If [people] are afraid of terrorism, then the last thing they want is for a half a billion phones* to be compromised across the world”
* There are actually more than a billion iOS devices currently in use. All of them would be affected by “GovtOS” if it was made. The iPhone is a test case, and if the FBI gets its way, it will logically force ALL phones (Android, Windows Phone, Blackberry, etc.) to be just as easily hackable.
Comment by Harvey Lubin (@NorthSaanichBC) -
Reply to ebd26:
Those are exactly my sentiments. I do not want my government knowing who I had sex with last night. And I would not invite the government to witness my heart surgery, or to know I was being treated for HIV.I would not like to have criminals easily take money out of my banking or saving or investment accounts. I would not want the government to know whom I gave political contributions to or why. I would not want the government to know I just had a big fight with my wife last night and am contemplating a divorce. I would not like every company in the world to know my buying tastes and plans. Or even my address and phone number. I can keep most of those things private on my newer iPhone now. If Apple is forced to create a back door, I will lose the ability to keep any of those things private.
Comment by Roger Mercer -
A San Bernardino survivor’s husband backs Apple in battle with FBI.
Salihin Kondoker, whose wife Anies Kondoker was shot three times in the attack but avoided the main hall after taking a trip to the bathroom, filed a friend of the court brief siding with Apple in its dispute with the FBI.
In it, he wrote:
“When I first learned Apple was opposing the order I was frustrated that it would be yet another roadblock. But as I read more about their case, I have come to understand that this software the government wants them to use will be used against millions of other innocent people. I share their fear,”
Comment by Harvey Lubin (@NorthSaanichBC) -
Anyone who thinks this hasn’t been done in the past or will be done in the future (without our knowledge of it) is at best misinformed (trying to not be too disrespectful with my language). I actually praise the FBI in this instance for being a little transparent with the ask even if it were to garner support from the public-at-large. I am all-for protecting our rights especially in our blooming digital age, but we must leverage every piece of information available to us by any means necessary to aid in the protection of all of our rights and freedom. Mark, I greatly appreciate your thoughts and insight, but from a “risk and reward” perspective, this is a no-brainer and Apple should remain compelled to perform the work requested.
Comment by Scott Oldham -
Mark Cuban: “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:…”
I would agree with you… If this was a case of being able to unlock one single phone without affecting all others… But it is NOT!
What most people don’t seem to understand is that not only is the FBI locked out of the phone. Apple is equally locked out.
There is no “secret” key to a backdoor for that particular phone that Apple has, which the FBI doesn’t have!
What the FBI is asking for is a new version of the operating system that removes the security, and allows ANYONE (including the FBI, criminals, terrorists, foreign governments, etc.) a backdoor into ANY phone. Such an insecure operating system can’t be installed retroactively (updates can only be installed AFTER the phone is unlocked by the owner). It needs to be installed in advance for anyone to take advantage of the backdoor.
Once such an operating system is created, it can be installed on all phones. Even if criminals or terrorist don’t actually steal the code for this insecure operating system, it won’t take very much for hackers to find the backdoor and use it.
Ironically, even the FBI agents who are asking for the removal of the security that protects everyone’s vital financial, health, and personal information, would not wish to ever use a phone that was made this insecure (for obvious reasons).
The other thing that people are not thinking about is that if our phones are made this insecure and easily hackable, the terrorists won’t use those phones either (again for obvious reasons). Instead they will use other secure methods of communications with one another, leaving everyone else who owns a phone open to having their identities and financial information stolen by anyone who wanted to get it.
If you are happy with this situation and would like to give up the security and protection you enjoy now, then please go ahead and stop using a passcode to secure your phone right now. While you are at it, don’t use any admin password on you computer either, and leave the front door to your house unlocked and wide open.
Everyone else (myself included) will continue to use and enjoy the security of the protection we have.
Comment by Harvey Lubin (@NorthSaanichBC) -
One niggle that I always have in these discussions is the discrepancy that the Constitution doesn’t GRANT rights. It RESTRICTS government from infringing on our INHERENT rights. If our view is that our Constitution confers rights, then the government can revise the laws to take those rights away, as they continually try to do. If we consider the Bill of Rights inviolate, our language in discussing these Amendments has to change
Comment by EighthTimesTheCharm (@TooShortForAnyt) -
This is very good Mark. like always. What worries me though, is that we have the luxury to even discuss this. That we do not feel threaten enough as a country to perhaps understand what happened in San Berdino in a bigger scale. To a few people for other countries where war and terrorism have been very close to them, when I discuss the situation it seems to them just common sense what the FEDs are trying to do. I wonder if we are a bit disconnected to things. And looking at things only from the intellectual side.
*JMR* *754 273-5689*
On Tue, Mar 1, 2016 at 10:16 AM, blog maverick wrote:
> CyberDust ID – Blogmaverick posted: “In this country we have rights. > Under the 6th Amendment we have very specific rights “In all criminal > prosecutions, the accused shall enjoy the right to a speedy and public > trial, by an impartial jury of the State and district wherein the crime > shall ” >
Comment by quijote36 -
This case isn’t about the San Bernadino shooting or an act of terrorism, it’s about the government leveraging a specific event to promote their agenda. Apple has complied on over 80 other cases where they have handed over texts, pictures, videos, etc. to the government when the government had a warrant. Additionally, if the government was looking for any data or metadata that was contained in any app, given how much time has passed, it’s likely that the app has logged the user out meaning that they would then need a warrant for that app’s data as well.
Also, something to take into consideration is how highly visible this case is in the US and internationally. I would imagine that any correspondence that the shooters had with other terrorists would be virtually useless since they would have likely deleted their accounts, dropped their phone numbers, etc. This is a classic display by the government to take an event that promoted fear in the general public and use it as a vehicle to further strip down consumer privacy.
Lastly, if Apple did comply and build a ‘backdoor’ international hackers who are extremely more intelligent and sophisticated than the US government will find and exploit it within days. You’re telling me that the same hackers who hacked into the Pentagon, State Department, IRS, etc. won’t be able to find the ‘backdoor’ that Apple has purposely built?
Comment by ebd26 -
Senator Cuban has a nice ring to it. 🙂 Thank you for the insightful and thought-provoking post.
Comment by Mark Fern -
Agree completely Mark – thanks for the ideas and well thought out argument.
Comment by Scott Alan Yetter -
We should comply with National Security, in the interest of Nation, no second thoughts.
Comment by Sasi Kumar -
What about McAfee’s offer? Is his solution valid or not? Perhaps the FBI is ignoring him because they realize his means to open the phone will not allow them the kind of power they seek over We the People. What do you think?
Comment by Lee Bouton -
Pingback: Mark Cuban: Why Apple Must Win vs the FBI
Interesting angle that I hadn’t thought of. Well said!
Comment by Jim Berry -
Cubes, your blog is a must read, the most compelling cases, thoughts and solutions are an everyday thing with you. This is another prime example, thanks for all you do to foster thought, ideas and further conversations, great post here.
Comment by Steven Holbrook -
Great post Mark.
I agree Apple shouldn’t create a back door for all phones, that is clear as day, but where I do have a subtle disagreement is with the complete block out of data to authorities. Apple should be allowed to access phone data in a one off basis (terms TBD). Using Child Pornography as an example, Police and Federal authorities are permitted to search electronic devices which can be incriminating. This same approach should be permitted at the mobile device level but we need new laws to control the hows and whos… In either case, blanket access should not the approach for the FEDs.
Comment by Tim Kamer (@TimothyKamer) -
good post Mark!
Comment by ar1gold -