FBI Director Offers Disingenuous and Hypocritical Open Letter to Counter Apple

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FBI Director James ComeyFBI Director James Comey
Source: Wikimedia

The public relations battle over whether Apple should be forced to create a back door into iOS for law enforcement was amped up on Sunday. FBI Director James Comey penned his own open letter to counter public comments from Apple and CEO Tim Cook arguing against those efforts. Mr. Comey's letter can best be summarized as follows:

1.) If you hate terrorism, you should support my efforts to force Apple to create a backdoor into iOS.

2.) Privacy advocates need to take a chill pill.

3.) We're just trying to do our job here, and only people who hate America don't want us to do our job.

4.) Despite all evidence to the contrary, this is a one-off thing that won't affect anyone else, ever.

So far, mainstream coverage has been very uncritical, presenting Mr. Comey's arguments with little or no attempt to add context. That's shameful, in my opinion; I personally find his open letter offensive in its tone, arguments, and the effort he goes to obfuscate the issues and paint privacy advocates as irrational.

Accordingly, let's dig into it with a little line-by-line.

The following letter from FBI Director James Comey was posted on Lawfare on February 21, 2016.

The San Bernardino litigation isn't about trying to set a precedent or send any kind of message.

Except that it will set a precedent. We all know it, and FBI Director James Comey knows it, too.

It is about the victims and justice. Fourteen people were slaughtered and many more had their lives and bodies ruined. We owe them a thorough and professional investigation under law. That's what this is. The American people should expect nothing less from the FBI.

This is a disgusting play in my opinion. It's nothing more than a maudlin push against our sympathy to convince us civil liberties should take aback seat to the pain and suffering of survivors of a brutal terrorist attack.

The particular legal issue is actually quite narrow.

Except that it's not. Once established, it will be used again and again, and every instance is an opportunity for the backdoor Apple creates to escape.

The relief we seek is limited and its value increasingly obsolete because the technology continues to evolve.

Except that it's not. Still. You can say it over and over again, but that won't make it true.

We simply want the chance, with a search warrant, to try to guess the terrorist's passcode without the phone essentially self-destructing and without it taking a decade to guess correctly.

Yes, we get that you want to do this. Only you can't have that opportunity without criminal organizations and foreign agents eventually getting that same chance. This is well understood by encryption experts. Check with former NSA Director General Michael Hayden. He'll explain it to you.

That's it. We don't want to break anyone's encryption or set a master key loose on the land.

Except that it will. It will make encryption moot because it can be bypassed, and it's inevitable that it be let loose on the land. Again, these are foundational concepts that are well understood by the encryption world.

Next: James Comey Wants Us to Be Thoughtful

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Comments

Tiger

There are at least two cases that I know of, and probably dozens more, in which officials are just WAITING for a backdoor into the iPhone OS….as are the Russian, North Korean, and Chinese governments.

The FBI has bigger problems and they just seem to be ignoring the fact that they themselves AREN’T secure. A 12 year old hacked into their computers Friday. How many laptops have been “lost” with sensitive data on them?

A one-off instance? No such thing.

If you build it, they will come.

John C. Welch

There are only three possibilities here:

1) The Director of the FBI literally does not know what a legal precedent is, or how they work. In other words, he is ignorant on a level that demands his immediate termination.

2) The Director of the FBI thinks the American people are so stupid that none of us know what a legal precedent is, or how they work.

3) He is gambling on 2) so that we overlook the fact that unless 1) is also true, the Director of the FBI just publicly lied to the country about how legal precedents work.

Lee Dronick

Number 2 is the most likely possibility. Too many folks are civics challenged.

vpndev

I bet that Apple has already worked on iPhone 7 so that this bypass technique could not work.

Simplest way, it would seem to me, is to fix “recovery mode” which is what you use to load a new copy of iOS when you can’t unlock the phone. All that is needed is to wipe the phone as the first step. This would need a firmware change if it’s to apply to existing phones and I’ bet that Apple is looking at that too.

geoduck

Option 1: Not likely. If Comey does not know, he has his advisors that have told him.
Option 2: Very Likely. The last decade of FBI/CIA/NSA revelations have shown nothing if not that those in power have utter contempt for the average American, their intelligence, and their rights.
Option 3: DING DING DING DING. Lying to the American people, to Congress, to everyone in order to build their power base. Remember this is the organization run by J. Edgar Hoover, who exceeded his mandate, the law and kept his job by having dirt on everyone in power. Truman was afraid of Hoover establishing “An American Gestapo”. Even Nixon was too afraid of his reprisals to fire him. We are seeing the descendant of that organization. Very little has changed.

skipaq

So much cynicism, I would think the second option is closer to the truth. I also believe that on the whole the FBI has motives that are good though misguided. It is also interesting to see Apple’s duplicity. The marketing slogan on security was that Apple couldn’t do this kind of thing even if it wanted to do it. Turns out they can do this even with newer iPhones than the 5c. If they couldn’t do it there would be no fuss. Marketing lies on both sides.

geoduck

Learned Cynicism. I didn’t start out that way.

Goose

  Consider this scenario: The day comes (hope not), when there is a (big, as 911 or worse), ticking-bomb scenario. Apple refuses to unlock suspect’s iPhone. Bomb goes off. American public finds out afterwards that Apple, “could have prevented another 911” if they had agreed to the FBI’s legal request (warrant, etc) . What do you think will happen then? Forget your opposition to back-doors and such. Those would most certainly be rammed down Apple’s (and FB and Goggle) throat’s by a livid Congress with the full support of the American public. Not only that, I truly think that would be the end of Apple as a company (Apple would become the new Bin Laden in the eyes of many)- how many iPhones will that sell?)
    I am a life-long Apple user, started with OS 7, I have never owned a PC, ever), but I think most of us overestimate the level of “good will” towards Apple by the public. That can evaporate in a second.
  The FBI can, under current law, open and read my snail mail (with a warrant). The average Joe, in the aftermath of another 911 will not see or care about the difference between that and unlocking my iPhone email, regardless of our arguments here. I think apple is playing with fire. They will get away with it, but only as long as nothing Bad happens….
    An accommodation needs to be found while there are some cool heads left.

Paul Goodwin

If the CIA and NSA think we’re more secure as a nation with maximum security on our phones, let’s listen to them.

Scott B in DC

@John: You have to remember that Comey is a political hack. He was never a cop. He was a lawyer with a background in conservative politics, appointed by George Dubya Bush, with ties to Jerry Falwell before becoming a Department of Justice lawyer. You don’t climb that ladder without being a politician.

Also, there’s a calculation they missed… the death of Associate justice Antonin Scalia. Knowing they had a 5-4 conservative tilt on the court there was a potential fighting chance. Considering it is now a divided court and the likelihood of a nominee being confirmed any time soon, do not expect this case go on a fast track.

US Magistrate Judge Sheri Pym is an Obama appointee but she is in the Central District of California. This means that the order can be appealed to the 9th Circuit, a court that is known to be friendly to the tech sector (which is why few, if any, patent cases are heard in California). They can hear an appeal as a three-judge arbitration panel. Once the appeal is heard then the loser can petition SCOTUS for a hearing.

The 9th Circuit can bypass the arbitration panel and let the full panel hear it. This way, they can expedite the process before petitioning SCOTUS. That would be a political move if the GOP continues to block Obama’s appointee. SCOTUS can refer it back to the 9th Circuit with questions before hearing the petition, but after this exercise I don’t think there will be many questions.

The fun will really begin if SCOTUS still only has eight justices. Depending on the intake justice, the justice who gets the first shot at the petition and any initial motions (for stays, etc.) can block the petition and the ruling of the 9th circuit stands. But that’s not going to happen. The intake justice can refer it to be accepted by the other justices and slow walk the process. Or the intake justice can use their power to accept the petition, issue stays against executing the order and then let the process play out.

I predict that the Justice Department will try to fast track this as much as possible to “teach Apple a lesson” and to emphasize to the Republicans that they need to approve a nominee so that this issue that is vital to national security can be heard.

And you thought this was just the FBI looking for a backdoor into the iPhone! grin

sed

Goose:

Consider this scenario, instead:  iPhone with sensitive information on it about troop levels and movements gets stolen and terrorists use this technique to hack it, setting up ambushes and attacks that kill hundreds of soldiers.  “Could have been prevented if they hadn’t messed with the encryption.”

Smart phones have sufficient information on them to make identity theft trivial.  Anyone who loses a poorly encrypted phone is at great risk.  Those stolen identities are typically sold off to whomever has the money, including terrorists, murderers, and other criminals.

If Comey has actually talked to his own information security people, he would know that this is a very bad idea.  I have talked to FBI info-sec people, and they do know this.  They probably would not say anything now, but I’m sure they’re pretty dismayed about his speech.  The FBI has a strong effort dealing with foreign industrial espionage, and strong encryption is a powerful tool in that effort.

aardman

@Goose.  Aah, the standard ticking bomb scenario.  When that day comes then we’ll deal with it then.  Apple will have to consider the consequences of whatever it decides to do in the dreaded ticking bomb scenario.  But the situation in question is not a ticking bomb scenario.  And I certainly do not appreciate the government trying to scare me into easily giving up privacy and security by trotting out the ticking bomb scenario where there is no ticking bomb.

ibuck

I appreciate the posts above by JWelch, Geoduck, LDronick and ScottB.  John Gruber at daringfireball.net has interesting comments on this issue…

incompetence or dishonesty on the part of the FBI.

It seems the FBI director is incompetent or a liar, and that he does not regard the 4th and 5th Amendments as something he should uphold, despite his oath of office to do so. My feeling is that public servants who refuse to do their jobs or follow the Constitution should be immediately relieved of their jobs (and pensions). And perhaps deported to a country where such end-justifies-the-means evil-doing is the standard MO.

Laraine Barker

Despite all evidence to the contrary, this is a one-off thing that won’t affect anyone else, ever.

Really? He has to be joking. Either that or he’s braindead.

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