As a Security Nerd and someone who has worked in the intelligence community I have followed some cases over the years but this one takes the cake for sure. This is a big deal and below I will go over things in some pretty good detail of what the FBI wants from the Apple and how these things align with other legal precedents and some other related thoughts.
Privacy has always been a very interesting thing since the commercialization of the computer and the internetification of the TCP\IP network. Apple has done a lot for peoples privacy since the release of IOS with version 8 in late 2014 prevented the unlocking of data when a device was seized by law enforcement without the Passcode based on its AES 256 key system (iOS7 could self destruct with bad pass codes also, but IOS8 tied the encryption to it so you started to have to know it). Then when IOS 9 came out they stepped it up again with two-factor enablement with TouchID and a couple other things to make it more better. Also going from 4 digits (10k combinations) to now over a million combinations with 6 alphanumeric passcodes. That becomes a problem if someone seizes your phone but a great feature when your phone is lost.
Over the years there have been some things that required the courts to jump in at this digital age. Passcode wins and losses, computer passwords win and losses (They are two easy to circumvent when you have physical access CHNTPW, or just using EnCase to mount the data and party from there.) there have also been forced decryptions of computers and even your finger print (Their reasoning for this is because you can be forced to do a DNA test and in the courts eyes this is the same.
Passcodes and actual Passwords have been the stinkiest cases over the years because of the 5th amendment but with computers easier to circumvent here are are with a Passcode Problem. If we break these down to the two normal things that protect you as a US citizen. 4th Amendment and 5th Amendment are the two that run the world in this space. The 4th Amendment does protect you from unlawful searches but not all searches but the list of things that law enforcement is growing and Technology things are on the official US Court system yet but that doesn’t mean there won’t be. Some drug charges or other crimes haven’t had enough juice as this “terrorist attack” so this could be interesting for sure. The 5th Amendment is where all the Due Process and good stuff comes from on top of “Nor shall be compelled in any criminal case to be a witness against himself” which is where the Password, Encryption, Passcode comes into play and where “I plead the 5th” comes from.
In 2015 a good case came up called SEC v. Huang, a federal trial court in Pennsylvania held that the government can’t force a person to give up his passcode to his smartphone. Lets look at part of its conclusion.
“Additionally, the foregone conclusion doctrine does not apply as the SEC cannot show with “reasonable particularity” the existence or location of the documents it seeks. Accordingly, the SEC’s motion to compel the passcodes is denied.”
I would believe that even with this went to the appeals court this phrase would come up “reasonable particularity”. What is on this phone we need? Apparently they would need to be very particular based on the past legal precedent of this SEC case. What has already been gained from Apple within the last backup within iCloud? With the other phone were they using iMessage, Kik, Silent Text, Confide, Wickr, Threema, ChatSecure, Telegram, Signal (Snowden Favorite) and Snapchat that we have a good idea we will find data there, and they were not prompting for the next layer of authentication that many of these apps offer too? We have to have the phone records and SMS records and have been able to map out everyone they were talking to by normal methods but if they were using other methods then you will have to sue each of these entities which will be fun and force them to give you their records if they can because many of these services say they don’t log and when it is sent it is done.
With all that being said, I respect Apple for what they are doing but I also think they jumped I mean Tim Cook jumped the gun a little bit. They have helped out with a lot of polices requests over the years but for some reason this one has really go to them. I know because of the Edward Snowden leaks, CISA S. 2588 (Passed in the Omnibus Dec 18th 2015) and how the intelligence network works I don’t think this stand will last long and I also think if they comply we may never know about it. The Customer Letter that Tim Cook wrote so close to the 5 day request from the FBI on Feb 16th 2016 that I do not think everything was thought through based on their three requests (Don’t think he checked with his legal counsel, just wanted to get his thoughts and his vision out for Apple). Whoever made this request on the FBIs behalf knew what they were doing and how they wanted to make sure they didn’t make a backdoor for everyone and it is all about this single phone. Basically they need to jailbreak this device or do some software update or recovery mode to change one setting so that the FBI can just brute force the device to get the passcode.
Paragraph 1, Apple shall help them with the search of this iPhone 5C and provide reasonable technical assistance. From what I have read Apple has already done this by helping them know the limits of what they are against.
- Apple shall assist in enabling the search of a cellular telephone,
Apple make: iPhone 5C, Model: A1532, P/N:MGFG2LL/A, S/N:FFMNQ3MTG2DJ,
IMEI:358820052301412, on the Verizon Network, (the “SUBJECT DEVICE”)
pursuant to a warrant of this Court by providing
reasonable technical assistance to assist law enforcement agents in
obtaining access to the data on the SUBJECT DEVICE.
Paragraph 2, Apple will figure out how to disable the auto-erase feature for 10 bad passcode attempts. Brut force can take days to years depending on if he had a 4-6 digit code but the problem is that you would have to do 9 try’s and then reboot or let it hang out or do it as such a slow pace not to set it off. Then they want to make sure they don’t get slowed down as each attempts happens.
- Apple’s reasonable technical assistance shall accomplish
the following three important functions: (1) it will bypass or
disable the auto-erase function whether or not it has been enabled;
(2) it will enable the FBI to submit passcodes to the SUBJECT DEVICE
for testing electronically via the physical device port, Bluetooth,
Wi-Fi, or other protocol available on the SUBJECT and (3) it
will ensure that when the FBI submits passcodes to the SUBJECT
DEVICE, software running on the device will not purposefully
introduce any additional delay between passcode attempts beyond what
is incurred by Apple hardware.
Paragraph 3, This is when it gets specific with some suggestions to Apple to help them. The way Apple creates its applications with signed files so they would have to help in some form. Unless the FBI could hire some of the recurring jail breakers and figure out how to do it in recovery mode or some other cool way to get a boot loader on there. The FBI even wants it if possible to only work on this phone which to me means they know something and by they way this is written a former Apple employee or someone very, very familiar with IOS did it because they their software is signed and they know how most jailbreaks have worked in the past. They are also saying it could stay with Apple at their facility, to me if Apple trusts their OS and their employees this should be ok or maybe just the act of doing it even for this one phone is too much which I also understand. I do understand both sides of this story but I also think them talking about back dooring every IOS device isn’t true based on the request, the FBI just wants this phone but I know how nerdy things work and if you can do this for one, you can “Rinse and Repeat” for others and that isn’t a good thing. Maybe if there is a good way for this to happen in a very controlled manner for domestic acts of terrorism only then maybe that could be ok but who knows if a line like that could be drawn.
- Apple’s reasonable technical assistance may include, but is.
not limited to: providing the FBI with a signed iPhone Software
file, recovery bundle, or other Software Image File (“SIF”) that can
be loaded onto the SUBJECT DEVICE. The SIF will load and run from
Random Access Memory (“RAM”) and will not modify the iOS on the
actual phone, the user data partition or system partition on the
device’s flash memory. The SIF will be coded by Apple with a unique
identifier of the phone so that the SIF would only load and execute
on the SUBJECT DEVICE. The SIF will be loaded via Device Firmware
Upgrade (“DFU”) mode, recovery mode, or other applicable mode
available to the FBI. Once active on the SUBJECT DEVICE, the SIF
will accomplish the three functions specified in paragraph 2. The
SIF will be loaded on the SUBJECT DEVICE at either a government
facility, or alternatively, at an Apple facility; if the latter,
Apple shall provide the government with remote access to the SUBJECT
DEVICE through a computer allowing the government to conduct passcode
Paragraph 4, If Apple can do the things from Paragraph 2-3 it will mean that Apply complied with this order.
- If Apple determines that it can achieve the three functions
stated above in paragraph 2, as well as the functionality set forth
in paragraph 3, using an alternate technological means from that
recommended by the government, and the government concurs, Apple may
comply with this Order in that way.
Paragraph 5, If Apple can do the things from Paragraph 2-3 it will mean that Apply complied with this order.
- Apple shall advise the government of the reasonable cost of
providing this service.
Paragraph 6, Apple will make reasonable efforts to maintain the data on the device during this process but they are not required to copy the data which is nice of them J.
- Although Apple shall make reasonable efforts to maintain
the integrity of data on the SUBJECT DEVICE, Apple shall not be
required to maintain copies of any user data as a result of the
assistance ordered herein. All evidence preservation shall remain
the responsibility of law enforcement agents.
Paragraph7, Apple can say unreasonably burdensome in 5 business days it can let the court know. That is the 23rd so we will have to wait and see what Apple does.
- To the extent that Apple believes that compliance with this
Order would be unreasonably burdensome, it may make an application to
this Court for relief within five business days of receipt of the
All in all, the FBI isn’t asking Apple to hack the planet but they are asking to help them on this one phone with things I think are possible. This is a HUGE DEAL, a very pivotal case will change a lot depending on how things happen from here. Apple has to Appeal and they will they could spend a couple hundred million on this case and not hurt the bank and I’m glad they are standing up for privacy but I also think that if the National Security system weighs in for the US and other countries that are within our 5 eye system, I think the pressure will be too much. The weight of this case doesn’t matter what political party you subscribe to or believe in, this decision with so many others will change how device and personal security will be handled in the future.
I just wonder is where will it stop if Apple looses this fight and gives in. The security nerd says Apple don’t back down but the intelligence nerd says it will happen even if they we don’t hear about it because of Homeland Security gag and non-disclosure orders (hence why we never heard about PRISIM until Snowden) and finally the American just wonders where this will land because decisions like this are not made by informed IT security experts that know that “words matter” and how they can and when there are billions of dollars on the line and national security is in the mix it is a formula for confusion, propaganda and a ultimately a bad decision. If Apple looses this battle and there is a legal precedent set then our digital lives will be forever changed with all means of privacy will continue to be attacked and removed product by product. We will have to wait and see, I hope all the information has helped you get more confused like myself, as we wait to see what happens.
A couple of things that would have helped.
- If the Phone was an iPhone 6 or higher with a fingerprint reader they could have replicated the fingerprint and opened it with no problem and we wouldn’t be here.
- If the local investigators wouldn’t have reset their iCloud account password, because they could have got access to the backup. The phone hasn’t backed up in long time too (based on a couple reports) so from there they would have figured out something depending on what application was used for communication.
Apples Response to the World about the situation.
Copy of the FBI Court Order
SEC v. Huang Case Details
4th Amendment Deep Dive