February 20,
2016
Clash of the Titans: Apple vs. The U.S. Government
I’ve had many spirited discussions and read many
thought-provoking articles since the Federal Magistrate ordered Apple to
cooperate (even more than they already have) with the FBI in the investigation
of alleged
San Bernardino terrorist Sayed Farook and his locked iPhone 5c. Most of the arguments on both sides of the
issue are compelling. I’m not here to
make a case as to whether or not Apple should comply with the order or fight
the legal battle, rather to bring out some points I haven’t read to date about
the case.
The Legal Precedent
Research of the legality of the Government’s order yields
invocation of the All Writs Act for
justification of the order. The All Writs
Act was enacted in 1789, long before technology was even a glimmer of what it
is today. In a nutshell, the Act allows
the Government to compel a private business to utilize measures already in place for benefit of
the Government’s use with a valid court order.
The emphasis on the previous sentence is purposeful because, if we take
Apple CEO Tim Cook at his word, they do not already have the means to do what
the order dictates they do. This is no
doubt (at least part of) the legal grounds upon which the attorneys at Apple
will stand in their challenge of this order.
If they judge Cook and Apple’s current abilities as truthful, the
judgement may be clear.
The Value of the Data
Let’s be clear about the circumstances of this case: The suspects are dead. There are no civil or criminal charges to be
brought upon them in order to bring them to justice. That fact alone makes the information the FBI
is seeking much more in the realm of intelligence vs. evidence. While it’s true that evidence of other
conspirators or plans may exists on the phone, it is likely that the value of
the data which the FBI seeks falls much more in the intelligence category than
it does evidence. This is an important
distinction. If the FBI were seeking to
gather evidence to prosecute two imprisoned would-be terrorists for their
heinous crimes, the value of the data would be unquestionable and Apple would
arguably have a moral responsibility to comply.
However, the intelligence on the phone is largely speculative. In fact, all reports suggest the data would amount
to a month and a half worth of intelligence because the FBI has already
lawfully obtained the iCloud backup of Farook’s phone. So to be clear, the FBI is speculating that roughly 45 days worth
of additional data may unlock the keys to further plots, actors, etc. Is that a reasonable investigatory conclusion
or a fishing expedition?
The Mobile Forensic Implications
Consider that if Apple does what the order states, they are
altering the data on the phone, which is in direct conflict of accepted
forensic methods & practices. Yes, I
know that in mobile forensics the data is often altered a very minimal amount
to allow us to access it, but let’s say that the order is successful and Apple
performs this data-altering procedure and the data leads to a criminal charge
or charges. Now, the agents who
performed this extraction to get this evidence need to defend their actions in
court. How do you defend something that’s
never been attempted before? Further,
the procedure needs to be replicable by other practitioners in the field and
validated. Is that possible in this
case? At the heart of it, what is the
difference between what the Court Order is dictating and a simple jail-break of
the iPhone?
These points touch on just a portion of any number of legal
scientific arguments that call the procedures dictated within the order at
least somewhat into question. As my
article Read
This Before You Use the IP Box states, getting the data at all costs
isn’t necessarily in the best interest of digital forensic science or practice.
The Responsibility of the Data
At the heart of many arguments I’ve read is Apple’s “moral responsibility
to society” to do what some dictate is the “right thing”. But what is mostly overlooked is the fact
that Farook was a government employee and his phone was a government-owned
phone. Perhaps the true responsibility
lies upon the government employer to have put measures into place to allow
access to the device at an enterprise level so this large legal-tech battle
wouldn’t have to be taking place, further costing tax-payers and Apple millions
of dollars. Just some food for thought.
Sadly, whomever was in charge of the issuance of those
devices at Farook’s workplace didn’t have the foresight to put those measures
in place. It would be interesting to see
if the same organization has since put appropriate measures and policies into
place for their issued smart phones or if they have moved on, not learning from
their mistakes. There is no ‘chicken and
egg’ argument here. The ultimate
responsibility for access to that device and data lies with Farook’s employer
and they failed at that responsibility.
The Perfect Storm
It is fairly likely that the legality of the Court Order will
ultimately be argued and decided by the Supreme Court of the U.S.
(SCOTUS). Unfortunately, this case has
come about in a period of political and institutional upheaval. Not only are we in the midst of a very contentious
Presidential race, but to add to the fervor, Justice Antonin Scalia has died
and the filling of his seat on the SCOTUS is very much in question. I will not speculate how Scalia would have
ruled in this case, but I will put forth that his voice would most certainly
have been heard. Will the next SCOTUS
Justice’s voice be heard just as much? Will
they have just as much of an impact?
Interestingly, in my observance of this debate, I’ve seen
where people from both sides of the political spectrum have weighed in with
unexpected opinions. It seems that the
issue boils down to personal privacy vs. Government overreach. Who knows, perhaps this is one case where the
“D” or “R” next to your representative’s name won’t have as much meaning as their
personal philosophy & beliefs about privacy and the role of government.
Clash of the Titans
There’s an old adage when it comes to challenging the
Government: “You can’t fight City Hall”. In case you don’t already know, this is
because the Government has unlimited resources to fight any case they choose. Most people I know, even in popular/celebrity
culture, do not have unlimited resources.
But Apple isn’t a person, it’s a company, and one of the largest (if not
THE largest) in the world. They have resources. Billions and billions of dollars in cash to
fight this fight. I predict this will be
the seminal legal-tech case of our time.
There will be others, but no other case presents the challenges of
modern technology, the power it harnesses and the privacy concerns it brings
about vs. the purported “common good” that the government strives to provide.
Just like many other bloggers and pundits have speculated
that Apple can do what the order calls for “in 30 seconds”, I’ve heard from
insiders that the FBI already has the ability to bypass the passcodes on
i-Devices. Is it true? Perhaps not.
But if it is, that means the U.S. Government is using this case to make
a statement. It means this is a
calculated strategy on the part of the U.S. Government to challenge and, as I’m
sure they hope, make an example of Apple.
It would also mean that they are taking up a large legal battle under
false pretenses.
There’s another old adage that may be appropriate: “If you’re
going to strike at a King, strike to kill!”
Even if Apple loses their fight in the order, they will have made a
stand for what they believe in as a business and a service provider. Even if they lose, they win because they will
have conducted a very public, very powerful battle against the biggest titan of
them all. The Government can’t strike to
kill Apple because they are kings in their industry.
Either way, this will be an interesting battle to say the
least. This Digital Forensic practioner
will be watching with great interest as the arguments unfold!
Author:
Patrick J.
Siewert, SCERS, BCERT, LCE
Principal
Consultant
Professional
Digital Forensic Consulting, LLC
Virginia
DCJS #11-14869
Based in
Richmond, Virginia
Available
Globally
We Find the Truth for a
Living!
About the Author:
Patrick Siewert is the Principal
Consultant of Pro Digital Forensic Consulting, based in Richmond, Virginia. In 15 years of law enforcement, he
investigated hundreds of high-tech crimes, incorporating digital forensics into
the investigations, and was responsible for investigating some of the highest
jury and plea bargain child exploitation cases in Virginia court history. A graduate of both SCERS, BCERT, the Reid
School of Interview & Interrogation and various online investigation
schools (among others), Siewert continues to hone his digital forensic
expertise in the private sector while growing his consulting &
investigation business marketed toward litigators, professional investigators
and corporations.
