Here’s what Apple’s chief lawyer will tell Congress tomorrow regarding FBI’s controversial request

By , Feb 29, 2016

iPhone 5c Blue summer wall splash

As you know, the Federal Bureau of Investigation has obtained a court order demanding that Apple produce a special version of iOS with decreased security to help government spooks brute-force their way into an iPhone 5c which belonged to San Bernardino shooter Syed Farook.

Following the interview that Apple CEO Tim Cook gave to ABC News, in which he said that the government is asking for “the software equivalent of cancer,” Apple’s Senior Vice President and General Counsel, Bruce Sewell, will testify before the House Judiciary Committee tomorrow.

Here’s his opening statement in which he challenges the government’s request and argues that the FBI should have no say over the products American companies create.

The statement poses three big questions that have implications for civil liberties:

  • “Do we want to put a limit on the technology that protects our data, and therefore our privacy and our safety, in the face of increasingly sophisticated cyber attacks?”
  • “Should the FBI be allowed to stop Apple, or any company, from offering the
    American people the safest and most secure product it can make?”
  • “Should the FBI have the right to compel a company to produce a product it doesn’t already make, to the FBI’s exact specifications and for the FBI’s use?”

Here’s Sewell’s opening statement in its entirety:

Thank you, Mr. Chairman. It’s my pleasure to appear before you and the Committee today on behalf of Apple. We appreciate your invitation and the opportunity to be part of the discussion on this important issue which centers on the civil liberties at the foundation of our country.

I want to repeat something we have said since the beginning — that the victims and families of the San Bernardino attacks have our deepest sympathies and we strongly agree that justice should be served. Apple has no sympathy for terrorists.

We have the utmost respect for law enforcement and share their goal of creating a safer world. We have a team of dedicated professionals that are on call 24 hours a day, seven days a week, 365 days a year to assist law enforcement. When the FBI came to us in the immediate aftermath of the San Bernardino attacks, we gave all the information we had related to their investigation. And we went beyond that by making Apple engineers available to advise them on a number of additional investigative options.

But we now find ourselves at the center of an extraordinary circumstance. The FBI has asked a Court to order us to give them something we don’t have. To create an operating system that does not exist — because it would be too dangerous. They are asking for a backdoor into the iPhone — specifically to build a software tool that can break the encryption system which protects personal information on every iPhone.

As we have told them — and as we have told the American public — building that software tool would not affect just one iPhone. It would weaken the security for all of them. In fact, just last week Director Comey agreed that the FBI would likely use this precedent in other cases involving other phones. District Attorney Vance has also said he would absolutely plan to use this on over 175 phones. We can all agree this is not about access to just one iPhone.

The FBI is asking Apple to weaken the security of our products. Hackers and cyber criminals could use this to wreak havoc on our privacy and personal safety. It would set a dangerous precedent for government intrusion on the privacy and safety of its citizens.

Hundreds of millions of law-abiding people trust Apple’s products with the most intimate details of their daily lives – photos, private conversations, health data, financial accounts, and information about the user’s location as well as the location of their friends and families. Some of you might have an iPhone in your pocket right now, and if you think about it, there’s probably more information stored on that iPhone than a thief could steal by breaking into your house. The only way we know to protect that data is through strong encryption.

Every day, over a trillion transactions occur safely over the Internet as a result of encrypted communications. These range from online banking and credit card transactions to the exchange of healthcare records, ideas that will change the world for the better, and communications between loved ones. The US government has spent tens of millions of dollars through the Open Technology Fund and other US government programs to fund strong encryption. The Review Group on Intelligence and Communications Technology, convened by President Obama, urged the US government to fully support and not in any way subvert, undermine, weaken, or make vulnerable generally available commercial software.

Encryption is a good thing, a necessary thing. We have been using it in our products for over a decade. As attacks on our customers’ data become increasingly sophisticated, the tools we use to defend against them must get stronger too. Weakening encryption will only hurt consumers and other well-meaning users who rely on companies like Apple to protect their personal information.

Today’s hearing is titled Balancing Americans’ Security and Privacy. We believe we can, and we must, have both. Protecting our data with encryption and other methods preserves our privacy and it keeps people safe.

The American people deserve an honest conversation around the important questions stemming from the FBI’s current demand:

Do we want to put a limit on the technology that protects our data, and therefore our privacy and our safety, in the face of increasingly sophisticated cyber attacks? Should the FBI be allowed to stop Apple, or any company, from offering the American people the safest and most secure product it can make?

Should the FBI have the right to compel a company to produce a product it doesn’t already make, to the FBI’s exact specifications and for the FBI’s use?

We believe that each of these questions deserves a healthy discussion, and any decision should be made after a thoughtful and honest consideration of the facts.

Most importantly, the decisions should be made by you and your colleagues as representatives of the people, rather than through a warrant request based on a 220 year- old-statute.

At Apple, we are ready to have this conversation. The feedback and support we’re hearing indicate to us that the American people are ready, too.

We feel strongly that our customers, their families, their friends and their neighbors will be better protected from thieves and terrorists if we can offer the very best protections for their data. And at the same time, the freedoms and liberties we all cherish will be more secure.

Thank you for your time. I look forward to answering your questions.

It’s been suggested that Tim Cook could go to jail over defying the United States government’s court order. In an interview with ABC “World News Tonight” anchor David Muir, Cook said he’d pursue the legal challenge all the way to the Supreme Court.

The request, he said, sets a legal precedent that would offend many Americans and Apple would be “prepared to take this issue all the way.”

According to Stephen Vladeck, an expert on national security law at American University, Apple, the company, not Tim Cook, could face hefty fines for contesting the court order to assist the FBI.

“It’s Apple as a corporation, and not Cook himself, that is potentially liable to a contempt charge,” he said.

Just to illustrate how high the fines leveled against Apple might be, the government back in 2014 threatened to slap Yahoo with $250,000-a-day fines in a surveillance case.

“The issue of whether this matter is regulated by statute is ambiguous, as the DOJ has argued the matter under the All Writs Act, an arcane body of law which broadly allows courts to issue writs, subpoenas and orders,” Cooper Levenson attorney Peter Fu told FastCompany. “Whether the DOJ’s use of the All Writs Act [is upheld] will largely determine whether monetary penalties could be imposed.”

“Whether Cook is at risk of jail or not, some observers argue that it would be a colossal PR coup for him and Apple if he does end up behind bars for a few days on behalf of privacy,” reads an analysis on Quartz. “Something short of that—unless the government improbably folds its hand—might seem anti-climactic at best.”

Indeed, as the Economist wrote, “putting Mr Cook or another Apple executive behind bars for a few days would be no bad thing for the firm’s image.”

“We found out about the filing from the press, and I don’t think that’s the way the railroad should be run, and I don’t think that something so important to this country should be handled in this way,” Cook told ABC’s Muir.

What are your thoughts on Sewell’s opening statement? And who’s going to ultimately prevail in this case, Apple or the United States government?

Source: Business Insider


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  • Skoven

    Apple MUST win the case… or all iPhone user is basically screwed (eventually)!
    Here’s why:

    I have absolutely no doubt that if Apple creates this bruteforce enabled iOS, then THE ONLY WAY Apple will implement it is like this:
    Apple HAS to sign iOS software, in order for it to be installed/updated on an iPhone.
    If Apple where to keep a local signing-server for this purpose alone, then the authorities would have to show up at Apple in order to get the hackable iOS version on the phone. That also means that hackers won’t be able to use the hackable iOS version, just like iPhone users aren’t able to downgrade to a previous iOS version, even it they have the firmware.

    That would be the first step…. until someone creates a “Alphanumeric passcode” on their iPhone – a long one! What then? Then the FBI’s bruteforce attack won’t work… and they will therefore “ask” (aka. force trough the law) Apple to create an ACTUAL backdoor in iOS exposing us all!

    If this happens, i’m sure going to look elsewhere for my smartphone needs (if anyone remains that aren’t exposed to FBI methods that is).

    Go Apple!!!

  • Alberto Espinal

    if Apple builds a back door then all cellphone companies must build a back door too, because if this happens then other terrorists will move to another platforms too!

  • nonchalont

    Hope Apple wins for civil liberties of less government. Government is asking for an inch now, but in the future it will be a mile and then standard procedure into the American people’s lives.
    I’m all about less government. We only need some government. We the people run this country. The government is suppose to work for the people, not the other way around.
    Hope Apple prevails. They have the right business model with the American people in mind.
    Because of this, I support Apple.

    Less government and more Apples!