Syed Farook’s iPhone, last backed-up to iCloud six weeks before the San Bernardino shooting, will be a cornucopia of information regarding the shooter’s whereabouts, activities, and contacts, according to the FBI. Oddly enough, the FBI is using the Fourth Amendment to violate the Thirteenth Amendment.
I thought forcing people to work for you was abolished while the ruins of Savannah were still smoldering, but I guess I’m wrong.
At issue is the FBI’s inability to defeat Apple’s encryption program. A nifty little program that essentially self-destructs the data after a set number of failed attempts. Some versions of similar programs allow for remote data destruction remotely.
I’m not a technical guy by any stretch of the imagination. As a matter of fact, I’m quite the Luddite, but I was dealing with these sorts of data issues in 2010. Is the FBI saying their TTPs for media exploitation haven’t improved in seven years or that they haven’t kept up?
Every politician going back to FDR, and probably George Washington, likes to brag about having, or at least, having access to, the best and the brightest our great nation has to offer. It’s all a lie.
The only time the government has access to the best and brightest minds is when the owners of those minds agree with the government’s cause or the government dangles a sufficiently large paycheck that induces those mind possessors to put their talents to work.
Let’s face the truth that government doesn’t do anything well, except collect money and perpetuate itself. I’m not just talking about the American government and its sub-levels. Governments around the world are inefficient and clumsy, but I’ll stick to complaining about mine, since it’s the only one I know well or ever care about.
The FBI is probably a model of efficiency and at the forefront of protecting information, if the Veterans Administration, the Department of Motor Vehicles, the IRS, and State Department are any indication.
Governments aren’t very good at keeping secrets because they are made up of human beings. The list is long of people, who for a variety of reasons, failed to protect sensitive information with which they were entrusted. Some did it for the equivalent for “girls, money, fame.” Some did it out of malice or a misplaced sense of duty. Some leaks have been through sheer ineptness and stupidity. Those are the ones that worry me the most.
Have no doubt that the ability to bypass Apple’s cyber-security system will wind up on Pirate Bay, if they are forced to create it.
This isn’t a new fight. The Department of Justice has pushed Congress for years to enact laws forcing software companies to provide encryption keys. To Congress’ credit, they have not, which only reinforces my belief that the best law making bodies are the ones that make the fewest laws.
Failing in convincing the representatives of the citizens of the United States (and all the illegals, if you’re a Democrat) to willingly waive elements of the First, Fourth, Fifth, Sixth, probably the Ninth, and most definitely the Thirteenth and Fourteenth Amendments to the Constitution, the FBI reached way down into the sack of tricks to convince a federal judge the All Writs Act, enacted in 1789, had sufficient weight of law to compel Apple to provide a back door to the operating system of an iPhone.
Taking up the Left’s view of the Second Amendment for a moment, I’m pretty certain the Founding Fathers did not have an iPhone in mind when they originally enacted the law, and therefore, it only applies to muskets…I mean documents written on a tangible medium, like vellum or parchment.
If you’re not familiar with the All Writs Act (originally, part of the Judiciary Act of 1789, but first enacted under its current form in 1911), I’ll give you the short version.
Federal courts can compel you to do whatever the hell they decide, as long as it doesn’t conflict with what those same federal courts have already decided they can’t make you do.
The three-factor test established in 1977 by U.S. v. New York Telephone Co., will likely be where this issue is hashed out. The factors are:
Not too far removed from the case – Check. It’s Apple software running on an Apple device.
Cannot impose an undue burden on that party – My idea won’t fly in this case because the court would find it patently absurd, but exactly who gets to decide what constitutes an undue burden? And it’s not just money, which I’m going to guess Apple has lots of.
How much of a burden will it be when Apple has to repair the damage created by hackers who managed to get their hands on an unauthorized encryption key? I doubt that is measurable, much less possible to sue the government over, since you need the federal government’s permission to sue them in the first place.
And how about once China, North Korea, and Russia, just to name a few, figure out they can blackmail Apple into providing encryption keys to them in exchange for the ability to sell their products? The nefarious purposes to which these countries will put those encryption keys will literally result in people dying, quite possibly Americans.
The party’s assistance is necessary – Complete horse shit. Apple’s assistance is only necessary because the government refuses to seek other methods. I’ve already covered that they don’t necessarily have the best in the field working on this project, but that doesn’t mean there isn’t other talent available. The government simply refuses to look outside its organizations’ boundaries.
If this is truly a matter of hacking into this one iPhone, as the FBI maintains, there are gobs of other resources to tap from the private sector, who would jump at the opportunity to be the ones who cracked open the San Bernardino Shooting case. Hell, the guy who started the McAfee anti-virus company is offering to put his own people on it for free.
From an investigative point of view, there is nothing added to that phone of evidentiary value. It was backed up six weeks prior to the crime, and all the information from iCloud is readily available to investigators via the normal subpoena process. A process that is used every day by law enforcement and which telecom companies have entire departments dedicated to supporting.
The supposedly unavailable information, such as his physical movements during the missing six weeks, can be sussed out via cell tower pings. You won’t get a measurement as accurate as a satellite-generated GPS coordinate, but you’d be surprised how close you can get in a cell tower dense urban area like southern California.
It’s old fashioned, gum-shoe police work, you Techno-Nerds with Fed Creds. You’re gonna have to canvas a neighborhood and actually talk to people sooner or later.
Even then, you can only establish where the phone traveled. Yes, it’s a good bet the owner of the phone had it with him, but it’s easily refutable evidence, assuming you have a live defendant. Oh, yeah. That’s right. Syed Farook is dead, so any legal reasoning to the court order in support of a prosecution is out the window.
Associates and co-conspirators? Either dead or already in custody.
The FBI owing the victims “a thorough and professional investigation under law,” as FBI Director James Comey wrote on the Lawfare blog? Again, the perpetrators are dead. Your job is complete. Thank you. Now, file the report and move on to the next case.
Are you really so bereft of bad guys to chase down that you’re willing to further eviscerate the Constitution on the remote possibility of finding someone seven-degrees-of-separation-from-Kevin-Bacon on the i2 Connection Chart?
This fight between Apple and the FBI isn’t about catching bad guys. It’s about how much power the government can consolidate.
God bless Tim Cook, his lawyers, and their enormous set of balls.
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