Antitrust Law Daily Wrap Up, PRIVACY NEWS: Apple CEO rebuffs FBI request for iPhone encryption ‘back door’, (Feb 18, 2016)

By John Curran,TR Daily

Tim Cook, chief executive officer at Apple Inc., said in a February 16 letter to the company’s customers that Apple is rebuffing a request from the Federal Bureau of Investigation for the company to create a new operating system for its iPhone handsets that would allow the FBI to more easily unlock the handsets and collect data residing on the devices, including data protected by encryption technologies.

Cook’s statement follows a ruling by a federal magistrate judge in Los Angeles that the company must provide “reasonable technical assistance” to law enforcement authorities investigating the December 2015 mass shootings in San Bernardino, California, perpetrated by Syed Rizwan Farook and Tashfeen Malik, and specifically that the company provide assistance in unlocking data on an iPhone device that was used by Farook.

It also follows many months of reported wrangling between federal law enforcement authorities, including the FBI and other Obama administration officials who said they have been talking with tech-sector companies about reaching some middle ground on law enforcement access to encrypted communications. FBI and other law enforcement officials have complained that their inability to access decrypted communications is hindering their efforts to pursue criminals and terrorists. Despite those complaints, the administration has said it has no plans at the present time to pursue any legislative remedy to the issue.

According to Cook, Apple has “worked hard” to support the federal government’s investigation of the San Bernardino shootings and has complied with valid subpoenas and search warrants in the case, but the company is drawing the line at a request from the FBI to “build a backdoor to the iPhone.”

“Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation,” Cook said. “In the wrong hands, this software—which does not exist today—would have the potential to unlock any iPhone in someone’s physical possession.”

“The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a backdoor. And while the government may argue that its use would be limited to this case, there is no way to guarantee such control.”

The FBI had no official statement yesterday on Cook’s letter.

But a law enforcement source said on background that the FBI is not looking for an encryption back-door, but rather is seeking a solution from Apple that will disable a feature of Farook’s phone that will delete data from the device if an incorrect password for the device is entered ten times in a row. If that feature were disabled, the source said, the FBI could then try to crack the password without risking losing the data on the phone.

The source emphasized that the FBI is only seeking access to Farook’s phone, and is not interested in having access to the iPhone operating system. The source also noted that the owner of the phone–the San Bernardino Department of Public Health–has consented to the government’s request to access information on the device.

But Cook was adamant that agreement to the FBI’s request would increase the potential for far greater problems down the road. “The government suggests this tool could only be used once, on one phone. But that’s simply not true,” the CEO said.

“Once created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks—from restaurants and banks to stores and homes. No reasonable person would find that acceptable.”

“The government is asking Apple to hack our own users and undermine decades of security advancements that protect our customers—including tens of millions of American citizens—from sophisticated hackers and cybercriminals,” he said. “The same engineers who built strong encryption into the iPhone to protect our users would, ironically, be ordered to weaken those protections and make our users less safe.”

“We can find no precedent for an American company being forced to expose its customers to a greater risk of attack. For years, cryptologists and national security experts have been warning against weakening encryption. Doing so would hurt only the well-meaning and law-abiding citizens who rely on companies like Apple to protect their data. Criminals and bad actors will still encrypt, using tools that are readily available to them.”

Cook said that the FBI, in seeking access to Mr. Farook’s phone, “is proposing an unprecedented use of the All Writs Act of 1789 to justify an expansion of its authority.”

He continued, “The government would have us remove security features and add new capabilities to the operating system, allowing a passcode to be input electronically. This would make it easier to unlock an iPhone by ‘brute force,’ trying thousands or millions of combinations with the speed of a modern computer.”

“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.”

Rep. Zoe Lofgren (D-Calif), slammed the court ruling underlying the FBI’s request, and said the subject of encryption was better left to Congress. “The order that Apple create a new operating system with a back door, using the 18th Century ‘All Writs Act,’ is an astonishing overreach of authority by the Federal government,” she said yesterday in a statement.

“The issue of mandating back doors in encryption has been a topic of vigorous discussion in the Congress,” Rep. Lofgren said. “The emerging consensus has been that creating back doors for the use of law enforcement, important as law enforcement is, would endanger Americans by generally weakening security. These weaknesses will inevitably be exploited by criminal hackers or foreign opponents. That a single magistrate should substitute her judgment for that of the duly elected President and Congress – that was already thoroughly engaged in the subject–is wrong as a matter of policy and of law.”

“Finally, should this order not be overturned, technology companies will have no choice but to further deploy robust encryption that would prevent their engineers from creating any system that would effectively open up previously deployed security measures. I urge the judicial branch to swiftly overturn this misguided ruling and further urge the Director of the FBI to refrain from seeking public policy decisions from the courts that are more properly decided by the Legislative branch of government.”

Cook’s letter received applause from several tech-sector interest groups.

“The FBI is trying to hit the ultimate reset button on privacy, turning the clock back to a time even before the Fourth Amendment’s warrant protections,” commented Berin Szoka, president at TechFreedom, in a statement.

Greg Nojeim, director of the Freedom, Security and Technology Project at the Center for Democracy and Technology said the federal court’s order “would require Apple to produce malware for the FBI.”

Tom Giovanetti, president at the Institute for Policy Innovation, said in a press release, “It’s a sad state of affairs when Americans have to rely on private companies to protect our constitutional rights against the government, but apparently that’s where we are. That’s why I commend Tim Cook of Apple for his strong statement opposing the FBI’s overly broad demand for a tool that would allow them to break encryption on any iPhone in the world.”

Ed Black, president of the Computer & Communications Industry Association, said, “The issues at stake are important to the Internet and the safety of users worldwide. It is a mischaracterization to frame the ongoing discussion on weakening digital security as a tradeoff between privacy and security. This is a question of security versus security. If governments compel tech companies to weaken the security that users demand, they are also creating the vulnerabilities that hackers, terrorists, or other nefarious actors need.”

Companies: Apple Inc.

News: Privacy