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February 22, 2016

The Apple Matter

I avoided talking about this because I didn't understand the issue. I didn't understand why Apple claimed that breaking one phone would "create a master key" to unlock all others. That seemed to me to not make any sense, but then, I'm so completely ignorant of these things I could also not just say "Oh they're lying."

By the way, here's a question that I'm sure I know the answer to, but I haven't seen it addressed directly: Couldn't you have just touched the dead guy's thumb to the fingerprint ID thing?

Works in action movies, right?

Now I think that that can only be done if it's less than 48 hours since the last time the phone was accessed, and I guess the FBI didn't get the phone in this window.

Either that, or the terrorist disabled that feature and made the password the only way to get into the phone.

Anyway, for the future, always touch the dead guy's thumb to the phone as soon as you can. Cut off his damn thumb and keep it in your desk drawer.

I wish I could find the article that pointed this out, but over the weekend I read a guy noting that this particular court order is unprecedented. Note that usually courts ask you produce documents in your possession.

That's not the case here. The "document" the FBI wants Apple to produce does not currently exist* -- a signed and certified bit of coding that can be installed into the phone. Apple says they have no such thing, and the court is therefore ordering Apple to write the document. (Here, the document is computer code.)

According to this article, the "document" sought is a custom version of Apple's OS with the various brute-force-password-hack defenses deactivated. I guess the idea is that the hard drive of the phone would be run from this new, easily-hacked-by-brute-force-guessing OS, rather than the one that actually exists, which will permanently blow up all data after ten consecutive failed guesses at the password.

That does seem unprecedented, because courts usually don't order people to become, essentially, unpaid deputies of the United States government's law enforcement squads. Essentially the court is commandeering Apple and its employees for the effort.

This guy went on to say that if there were a law passed granting courts this authority, or demanding that tech companies create and keep a skeleton key file for their records, then the court could issue this order. But absent such a new power granted by the legislature (which would itself be very controversial), a court simply cannot order people to basically join the FBI's counter-terrorism/cryptography division.

Now... there are actually sever ways around this. All are strange.

I do believe that there is a doctrine permitting police to commandeer vehicles in emergency situations. They may be even able to commandeer people if necessary.

But I don't know the limits of this, and I assume it can only be done in true emergencies, and only for a short period of time. There are no emergency circumstances with this phone -- it's been sitting around for months and months, and while the FBI might hope there is some information on the phone linking the San Bernadino killer to other terrorists, they can't claim they know that.

A court actually can commandeer people for certain purposes -- to be jurors. If a court can't find enough people through its regular juror selection process, a judge actually has the power to send out a bailiff to start randomly grabbing people off the street to fill a jury. That's what a judge told me when I was on a jury, in his "here's some fun facts about jury duty speech," and I believe him.

I do not know, however, if any judge anywhere has ever sent out a bailiff to commandeer people for the purposes serving as experts/investigators/codebreakers in a matter. I highly doubt it.

The third possibility is weird, and I guess it's the government's ultimate trump card: A government may draft into its armed services experts it has need of -- mostly doctors, but also technical experts. I'm not sure about this but I think there's probably a special draft board for doctors. Might also have them for other expert functions.

This would be unprecedented, but I guess the Army could decide that it needs codebreakers for its own war on terror, and that therefore, it's going to draft seven or eight key people in Apple's security department.

I don't know, but I assume that there are circumstances that must be met for any kind of draft to happen. A presidential order declaring the draft to now be in operation, and I assume that itself would require an actual declaration of war. I'm not sure if these vague authorizations for hostilities suffice.

Anyway, those are my weird thoughts on the matter. Barring any of those being applicable or possible, I think this guy is right that while the government can demand you turn over papers, it cannot impress you into its service to affirmatively create those papers on its behalf.

I also think the FBI is being very, very greedy here. Because they're not, as far as I can tell, saying: "We'll give you this phone. Create a Skeleton Key to get into it, then send us back the security-broken phone."

I think they're not asking for that for two reasons:

1. This would case a chain-of-custody problem as far as evidence. You couldn't prosecute someone based on the evidence on the phone -- a defendant would object that anyone at Apple could have put whatever they wanted on the phone.

2. I think they want this Skeleton Key for future use.

I say they're greedy because, look: I get why Apple doesn't want to just give this to the FBI. It would be one thing if the FBI was saying "Just give us back the broken phone," in which case the Skeleton Key would remain in Apple's possession.

But they seem to be demanding the key itself.

As far as not making a prosecution: Well, that's life. Sometimes you gather information that can't be used in a prosecution, but still can be used to gather additional evidence that itself can be used in a prosecution. That is, you collect it for intelligence purposes, not for case-building prosecutorial purposes.

I have a strong feeling that Apple would refuse to do even this much. Even if the key were permitted to remain in house, I think they'd refuse to build it anyway, and refuse to comply with law enforcement's demands to use it on this phone.

But I think the FBI would have a stronger case if they weren't demanding that Apple turn over this particular file.

All of the above thoughts are tentative. I do not believe in any of them strongly. I am just groping along, as many of you are, over unknown terrain which is completely dark to me.

More thoughts on this, and James Comey's argument in the FBI's favor, from John Sexton, who is now a staff writer at Hot Air.

Here's Tim Cook's argument.

* I should note that Apple claims this doesn't exist. A lot of people are skeptical of that -- including me. I have trouble believing that a company wouldn't create this themselves, because, look, you're going to need it a lot.

But, taking them at their word, they claim that no such security-crippled OS exists.

Update: JackStraw says that commandeering the services of people for law enforcement isn't as unprecedented as the article I reference (but still cannot find to link for you) claims. He says he knows that in telephone companies, when wiretap orders come down, private citizen employees of the telephone company are required to do the work themselves.

But I suppose that could just be a voluntary accommodation: Maybe the FBI would send people down to do it themselves, and the phone company would rather not have agents blundering around, not knowing where the bathrooms are, etc. So maybe they just say "Look, we'll just do it, okay?"

Jack also mentions uncompensated records searches, but it's common and routine, even if annoying, that the government and courts frequently demand you search your records for relevant documents about a third party.

Update: Publius has an good post explaining some the technical details here.



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posted by Ace at 03:56 PM

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