On March 22nd, Apple and the FBI will head to federal court to determine whether or not the government can force Apple to open up an otherwise deeply-encrypted iPhone used by terrorist Syed Rizwan Farook leading up to the San Bernardino shootings.
The lead up to the hearing has been an unending game of back-and-forth between Apple and the government, and Apple has just lobbed the ball back to the other side of the court one last time prior to the hearing.
Last week, the FBI had filed with the court, describing Apple’s court-borne resistance to complying with its unlock order as ‘corrosive rhetoric’. Apple responded immediately, characterizing the FBI’s filing as “an indictment”. Basically, both sides had gotten to the openly hostile portion of these proceedings. During a call last week about the filing, Apple executives, including general counsel Bruce Sewell, spoke in a way that can be best characterized as surprised and outraged. The FBI’s tone shift from legal argument to character assassination in its filings had clearly taken Apple off guard.
The tone of today’s filing and subsequent call was much more cold and precise. Apple got some time to consider the best way to respond and went with dissecting the FBI’s technical arguments in a series of precise testimonies by its experts.
Where the FBI filing last week relied on invective, Apple’s this week relies on poking holes in critical sections of the FBI’s technical narrative.
In the reply and a brief press conference hosted just after its publishing, Apple focused on five main assertions:
- That the government is misinterpreting the All Writs act as a “virtually unlimited authority empowering courts to issue any and all orders the government requests in the pursuit of justice.” (pg. 3 of the below doc) and that “the founders would be appalled” by this interpretation.
- That there are no prior cases that support the government’s argument or interpretation of the All Writs act
- That making these demands “shows the government misunderstands the technology and the nature of the cyber-threat landscape” (pg. 19 of the below document)
- That, despite what the government has suggested in previous replies, Apple has never marketed their devices as being able to “thwart law enforcement”
- That, despite what the government has suggested in previous replies, Apple does not grant foreign governments any additional access to Apple user’s protected data.
Unsurprisingly, in its filing, Apple mentions that the FBI shot itself in the foot when it had San Bernardino county officials change the iCloud password of the device. In doing so, the FBI removed a critical pathway to getting the information it says it wants to see if Apple unlocks the phone.
But, along the way, Apple also pokes holes in two technical arguments that the FBI has been trying to make. First, that the iCloud backups are encrypted with the device passcode. They are not, as pretty much any security expert or even reporter on this case knows.
Embarrassingly, the FBI also appears to think that because Mail, Photos and Notes were turned off on the device, that this also toggles what gets backed up via iCloud Backup. It does not.
Many experts – like former U.S. counterterrorism official and presidential security advisor Richard A. Clarke — note that the FBI could very likely simply reach out to the NSA for assistance in unlocking the phone. But it has not, which makes this more about setting a precedent than it does getting into an iPhone which the FBI even admits may not hold anything relevant.
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