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DOJ threatened to seize iOS source code unless Apple complies with court order in FBI case

The United States Department of Justice (DoJ) has slid a disturbing footnote in its court filing against Apple that could be interpreted as a threat to seize the iOS source code unless Apple complies with a court order in the FBI case.

The DoJ is demanding that Apple create a special version of iOS with removed security features that would permit the FBI to run brute-force passcode attempts on the San Bernardino shooter’s iPhone 5c.

Meanwhile, President Barack Obama has made public where he stands on the Apple vs. FBI case, which has quickly become a heated national debate.

In the court papers, DoJ calls Apple’s rhetoric in the San Bernardino standoff as “false” and “corrosive” because the Cupertino firm dared suggest that the FBI’s court order could lead to a “police state.”

Footnote Nine of DoJ’s filing reads:

For the reasons discussed above, the FBI cannot itself modify the software on the San Bernardino shooter’s iPhone without access to the source code and Apple’s private electronic signature.

The government did not seek to compel Apple to turn those over because it believed such a request would be less palatable to Apple. If Apple would prefer that course, however, that may provide an alternative that requires less labor by Apple programmers.

As Fortune’s Philip-Elmer DeWitt rightfully pointed out, that’s a classic police threat.

“We can do this easy way or the hard way. Give us the little thing we’re asking for—a way to bypass your security software—or we’ll take whole thing: your crown jewels and the royal seal too,” DeWitt wrote.

“With Apple’s source code, the FBI could, in theory, create its own version of iOS with the security features stripped out. Stamped with Apple’s electronic signature, the Bureau’s versions of iOS could pass for the real thing,” he added.

Whether or not the DoJ is trying to intimidate Apple, I do not know. But I know this—that quoted excerpt from DoJ’s court filing has got to send chills down everyone’s spine.

DoJ’s brief is “a cheap shot”

For its part, Apple called DoJ’s brief “a cheap shot,” with Apple’s top lawyer Bruce Sewell saying that the tone of the brief “reads like an indictment.”

“In 30 years of practice, I don’t think I’ve ever seen a legal brief that was more intended to smear the other side with false accusations and innuendo, and less intended to focus on the real merits of the case,” Sewell wrote.

He went on to call DoJ’s move “desperate” and draw this analogy:

“Imagine Apple asking a court whether the FBI could be trusted because, there is this real question about whether J. Edgar Hoover ordered the assassination of Kennedy,” Sewell remarked.

“See ConspiracyTheory.com as our supporting evidence,” he half-jokingly added.

“For the first time ever, we see an allegation that Apple has deliberately made changes to block law enforcement requests for access. This should be deeply offensive to everyone that reads it. An unsupported, unsubstantiated effort to vilify Apple rather than confront the issues in the case.”

“Everyone should beware,” he continued, because “it seems like disagreeing with the Department of Justice means you must be evil and anti-American. Nothing could be further from the truth.”

“I can only conclude that the DoJ is so desperate at this point that it has thrown all decorum to the winds,” Sewell summed it up nicely.

Meanwhile, we now know where Obama stands on the Apple vs. FBI case.

Obama: “We can’t fetishize our phones above other values”

Speaking at the South By Southwest conference in Austin this past Friday, President Barack Obama has made known his stance on encryption and phone privacy.

“If it was technologically possible to make an impenetrable device where there’s no door at all, then how do we apprehend the child pornographer? How do we disrupt a terrorist plot? How do we even do a simple thing like tax enforcement?” Obama posed.

“If government can’t get in, then everyone’s walking around with a Swiss bank account in their pocket. There has to be some concession to get into that information somewhere.”

“Setting aside the specific case between the FBI and Apple, we’re gonna have to make some decisions about how we balance these respective risks,” he concluded.

“We can’t fetishize our phones above every other value. The dangers are real. This notion that sometimes our data is different and can be walled off from these other trade-offs is incorrect.”

Well, now we at least know that both the President and the Attorney General are undoubtedly aware of what DoJ’s lawyers are really up to here.

Arrest that “rascal” Tim Cook

Making the national debate about the FBI, encryption and phone security even more outrageous, Florida’s Polk County Sheriff Grady Judd has threatened to arrest “rascal” Apple CEO, if it comes up.

“You cannot create a business model to go, ‘We’re not paying attention to the federal judge or the state judge. You see, we’re above the law,’” he told Fox 13 News. “The CEO of Apple needs to know he’s not above the law, and neither is anybody else in the United States.”

So, would sheriff Judd hesitate to arrest Cook himself?

“I can tell you, the first time we do have trouble getting into a cell phone, we’re going to seek a court order from Apple,” he said. “And when they deny us, I’m going to go lock the CEO of Apple up.I’ll lock the rascal up.”

Why are we fighting Crypto Wars again?

In his thoughtful and provoking analysis of the national debate on security, privacy, phone encryption and the Apple vs. FBI fight, journalist Steven Levy offered a brilliant take on the situation.

“So think of this demand as a bespoke Clipper Chip, created by private-sector engineers who must produce it against their will,” he wrote. “By demanding that Apple change its operating system to get access to a single iPhone—and then another, and another and another—we are in the thick of Crypto Wars Redux.”

Levy commented the fact that the government spooks originally claimed the Apple motion was a one-off case until it was discovered that other prosecutors are anxiously awaiting to see how the case unfolds, eager to leverage a potential precedent as a basis to force Apple to help decrypt other iPhones with potential evidence in a variety of other cases.

Who’s afraid of a police state?

Apple’s insistence that the FBI’s request to create a version of iOS without the auto-wipe and passcode delay features might lead to a police state if further concessions are sought may not be as far-fetched as it seems, but that’s just my personal opinion.

And it has nothing to do with the fact that mountains of metadata the NSA bulk-collected from carriers, using programs with code names like Prism and XKeyscore, will soon be routinely used for domestic policing that has nothing to do with terrorism.

That’s yet another disturbing topic dealing with security and privacy which isn’t discussed enough, methinks. As The New York Times so succinctly put it, people are beginning to realize that their smartphones are just the beginning.

“Smart televisions, Google cars, Nest thermostats and web-enabled Barbie dolls are next. The resolution of the legal fight between Apple and the government may help decide whether the information in those devices is really private, or whether the FBI and the NSA are entering a golden age of surveillance in which they have far more data available than they could have imagined 20 years ago.”

I couldn’t agree more with the article.

And which side do you stand on in the Apple vs. FBI case?

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Source: Members Of Congress Dismayed By FBI Director’s Lack Of Tech Knowledge

Members of the House Judiciary Committee were disappointed with the low level of technical knowledge displayed by FBI Director James Comey during a March 1 hearing about the FBI’s encryption dispute with Apple.

The feeling was shared by committee members from both political parties, according to a source close to the matter who spoke on condition of anonymity.

The FBI won a court order February 16 demanding that Apple create a custom OS that would disable security features in San Bernardino shooter Syed Farook's iPhone 5c. The FBI could then log into the phone, where it hopes to find evidence of Farook’s connections with organized terror groups.

Comey declined to answer questions from several committee members, explaining that he lacked the technical understanding to do so.

Comey, the source said, is generally well liked by members of Congress. While committee members appreciated his candor on broader issues, some were frustrated that he couldn’t go deep on technical questions regarding encryption technology.

It was during questions from Congressman Darrell Issa (R-Calif.) that Comey’s lack of technical knowledge came into sharpest relief.

Issa has a security background, and knew that there are two ways of attacking a locked iPhone: via a firmware upload to disable security features in iOS, and by removing the flash memory chip from the phone and copying (or mirroring) its contents.

Issa wanted to know if Comey knew for certain that the government lacks the resources to write the code necessary to break into the phone.

"We have engaged all parts of government to see if anybody has a way of doing this on an iPhone 5c running iOS 9, and we don’t," Comey replied.

Issa then wanted to know if the FBI had tried the second approach of removing and copying the flash memory of the iPhone. He explained the process of copying the flash memory and copying it many times so that the same encryption key could be preserved on the phone through thousands and thousands of attempts to enter the correct passcode.

Issa seemed to know that Comey didn’t even understand the question, much less the answer.

"If you haven’t asked that question, how can you come before this committee and before a federal judge and demand that somebody else invent something, if you can’t answer the questions that your people have tried this?" he asked Comey.

Comey replied: "First, I’m the director of the FBI. If I could answer that question there’d be something dysfunctional with my leadership."

Issa: "I only asked you if your people have tried that, not whether or not it would work," he said. "Who did you go to to find out if you could do it yourself?"

Comey: "I did not ask the questions you're asking here today and I’m not sure I even understand the questions," the director said. "I have reasonable confidence, in fact I have high confidence, that the federal government has reviewed all the options."

He continued: "I’ve heard about mirroring, maybe that’s what you’re talking about. Hopefully my folks are watching this, and if they hear any good ideas in what you’re talking about we’ll let you know."

By then, Issa’s five-minute question time was up. It’s important to point out Issa is a Republican, so it’s understandable that he might be a little more aggressive in his questioning of Comey, who is a member of the Obama Administration.

"It’s clear he's not up to speed on some of the technical issues, which he conceded during the hearing," said Congresswoman Zoe Lofgren (D-Calif.) of Comey’s testimony. "And that might be part of the problem as to why they are pursuing the course of action they are pursuing," she said during a phone interview with Fast Company.

Our source commented that in hearings concerning technical matters, witnesses often bring staffers with them who can provide documentation and support during the proceedings, allowing the witness to provide better answers. Comey didn’t do this.

Congresswoman Lofgren said she’s often seen agency leaders bring some help along. "The director can't be expected to be an expert on every subject but I didn't see him doing that, which I thought was interesting," she said.

Lofgren was very gracious to Comey during the hearing, thanking him for his service and for appearing before the committee.

I contacted several other committee members, Democrats and Republicans, for this story, but most chose not to comment on Comey’s technical chops.

Still, the hearing—which also featured Apple lead attorney Bruce Sewell and New York County district attorney Cyrus Vance Jr.—was considered substantive, our source said, and has helped restart the conversation about encryption in the Congress.

"The House Judiciary Committee will soon announce its next steps on the encryption debate," said committee chairman Bob Goodlatte (R-Va.) in an email statement to Fast Company.

"As we move forward, the goal is to find a solution that allows law enforcement to effectively enforce the law without harming the competitiveness of U.S. encryption providers or the privacy and security protections of U.S. citizens," Goodlatte said.

Since the March 1 hearing, one other major hearing has taken place on the subject in front of the Senate Judiciary Committee, and next week Department of Homeland Security secretary Jeh Johnson will testify in front of the Senate Homeland Security Committee.