Wednesday, February 24, 2016

Apple and FBI

Update.-- It's been reported the the FBI and DOJ are not using a new or unique argument for the case of the iPhone with the San Bernadino terrorists. Apple has reported that in the last 3 months the DOJ has filed 9 cases against Apple using the All Writ Act they're using in the SB case.

This means they've been testing the argument to see how judges and court decide. In some of those cases, the case concluded but the DOJ is still pursuing the court order against Apple. In one of the cases, it's likely the judge will rule against the DOJ saying the argument doesn't apply.

Apple has said they plan to use the decision from that case to ask the judges in the other cases and the SB cases to apply the same idea, the All Writs Act doesn't apply, which would invalidate the court orders. In addition Apple is reporting they also plan to add a new argument proposed by their new lawyers.

The argument is that the FBI isn't asking for Apple to unlock any iPhones, which could be within the ability, and wouldn't mandate creating any new software, but the FBI is mandating Apple develop a whole new IOS product, something Apple would have to create for free for the government only.

That Apple argues isn't legal under the Constitution. The government can't force a company to make a product for the specific use for the sole use of the government. They argue the courts don't have that authority, only Congress has the authority to pass the appropriate laws.

So that's where the story is at, but public opinion is changing as of the truth about the FBI and DOJ actions are made public, and now the public favors Apple more than the FBI, even in cases of terrorism.

Original Post.--After reading more news stories about the court fight between Apple and the FBI, it's clear a lot of law enforcement people are misstating the facts of the court order, and some on Apple's side are overstating the case.

In short, the court order by the federal judge does not order Apple to unlock the iPhone (operating IOS 8) of the San Bernadino mass shooter. The court order specifically instructs Apple to develop a new version of IOS for the FBI which bypasses the security features erasing the memory after 10 failed attempts at the passcode.

Apple argues, and rightly so by many experts' view, that's it's impossible to write the new IOS software to work on just one iPhone with IOS. It will work on any iPhone with IOS 8 and  conceivably IOS 9, or at least until Apple develops and releases a version which protects against attempts to update or upgrade IOS in an iPhone without the passcode.

Apple has not stated they can unlock the iPhone, but some think they could, but the FBI does not want that, to give the iPhone to Apple, they unlock it, and give it back unlocked with a new passcode they tell the FBI. That would be the simpliest and easiest solution to the court order.

The truth is that the FBI wants the tool, the iPhone is secondary. They have said, they want to try the brute force technique to unlock the iPhone, meaning to try consecutive attempts with passcodes until they find the right one and unlock the iPhone.

Currently the iPhone will erase its memory after the 10th failed try. This was stated by the Federal District Attorney of Manhattan who said the office there had about a 170 iPhones they would like to unlock with this tool. That's what Apple warned about and it's true.

And this is where the FBI is misleading the public and the media. They want the tool. The court order specifies the tool. And Apple has said no. Apple isn't misleading anyone on their point, the tool would work on any iPhone with IOS 8, and that's not in compliance with the request by the FBI and the court order.

And it's why Apple is making their stand. The FBI can't twist the facts for public support using national security and terrorism and saying that trumps Apple's products. And Apple is right about the damage it would do if they had to comply with the court order.

No one argues that Apple could simply update IOS 9 and all future IOS versions to prevent the tool, or any similar tool from working, but that's not what this case is about, and what the court order says. This case is about the FBI forcing Apple to weaken their IOS security, something the FBI criticized them about before.

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