FBI Court Filing Plays Fast and Loose with Apple Facts

Apple-OrangeThe FBI on Thursday filed a response to Apple's response to a court order mandating that Apple create a version of iOS—dubbed FBiOS or GovtOS in the media—shorn of several key security features. In its filing, the FBI attempts to deconstruct Apple's arguments against the order, but in one area in particular, the government's attorneys play fast and loose with the facts in an apples-to-oranges comparison.


The FBI accuses Apple of trying to "alarm this Court with issues of network security, encryption, back doors, and privacy, invoking larger debates before Congress and in the news media."

"That is a diversion," the filing asserts. "Apple desperately wants—desperately needs—this case not to be 'about one isolated iPhone.'"

According to Wired, Apple General Counsel Bruce Sewell threw the accusation back at the FBI during a press conference on Thursday, saying:

The tone of the brief reads like an indictment. In thirty 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.

That's not hyperbole, in my opinion.


Some of those allegedly false accusations might be ones concerning China. In the filing, the U.S. government suggests that Apple routinely helps the Chinese government in the same way that the FBI is asking for help now, and it uses Apple's Transparency Report to make the claim.

"According to Apple's own data," the government wrote, "China demanded information from Apple regarding over 4,000 iPhones in the first half of 2015, and Apple produced data 74% of the time."

Those numbers come from Apple's Transparency Report, in which Apple discloses the number of requests it gets for assistance and the percentage of cases where it then renders assistance. In the first half of 2015—the period covered in Apple's most recent report—Apple received 1,129 "Device Requests" in China covering 4,398 devices. Apple provided "some data" in 74 percent of those cases.

And that's apparently where the FBI's attorneys would like the courts and anyone following this case to stop reading or thinking. The implication is that Apple has done what the FBI is asking be done to Syed Farook's work iPhone thousands of times in China. It then extends that argument to say Apple's cooperation with China renders moot any concerns about precedents enabling foreign authoritarian regimes to demand similar backdoors.

Here's what "Device Requests" actually are, according to the same Transparency Report:

The vast majority of the requests we receive from law enforcement relate to information about lost or stolen devices, and we report these as device requests. Device requests may include requests for customer contact information provided to register a device with Apple or the date(s) the device used Apple services. We count devices based on the individual serial numbers related to an investigation.

Put another way, those numbers are in no way similar to what's being demanded of Apple in the FBI's case. To wit, Apple executives and attorneys have stated categorically that the company has never created the tools the FBI was demanding, that it deemed such tools too dangerous to exist. That is, roughly, the exact opposite of Apple routinely doing what the FBI wants.

The FBI is trying to equate-through-implication that telling the local police where a stolen iPhone is, or giving them iCloud-related date, is is no different than creating a back door that threatens the privacy and security of all iPhone owners.

I should also note that Apple had some 3,824 such requests covering some 9,717 devices in the U.S. in the same period, and it provided "some data" in 81 percent of those instances, a higher number and greater percentage than in China.

Appleorange image courtesy of Shutterstock.

Next: WAPI and Never Never Land

Page 2 - WAPI and Never Never Land



The FBI also implies that Apple is in cahoots with China by hosting local iCloud services on servers in China, and that Apple has given China backdoor access into all iPhones by supporting WAPI, a China-specific implementation of Wi-Fi.

China requires new Wi-Fi infrastructure in China to use WAPI, and you may remember that Apple initially shipped iPhones in the country without Wi-Fi when it first entered the Chinese market. Apple later added WAPI support that worked alongside other Wi-Fi protocols on devices sold in China.

iPhones, China, Yuan"Thus," the FBI quoted a third party as saying, "[Apple] is presumably sharing confidential information with the [Chinese] government."

The FBI offered no proof or examples to support such an allegation, and there aren't any known backdoors in WAPI. Most observers believe WAPI's primary purpose is to be a trade barrier to Western tech companies wanting to operate in China.

That said, there is some controversy concerning WAPI in that the encryption method used to secure data transmissions in the protocol are considered proprietary state secrets by the Chinese government. By definition, there could be a backdoor into it, but no one has found one or claimed to have found one.

Nevertheless, the FBI said that by supporting WAPI, Apple has willingly thrown in with China to gain "access to a huge, and growing, market."

"This Court's Order changes neither the carrots nor the sticks that foreign governments can use on Apple," the FBI wrote. "Thus, it does not follow that if America forgoes Apple's assistance in this terrorism investigation, Apple will refuse to comply with the demands of foreign governments. Nor does it follow that if the Court stands by its Order, Apple must yield to foreign demands, made in different circumstances without the safeguards of American law."

Never-Never Land

Apple General Counsel Bruce Sewell was right when he characterized the FBI's filing as one "intended to smear the other side with false accusations and innuendo," and this is especially true with the portion dedicated to China. The assertions don't comport with reality, and this has sadly been the case throughout everything we've seen when it comes to this one iPhone.

The FBI and its attorneys appear to be living in a magical Never Never Land where backdoors stay secure and America isn't the rally leader on issues of privacy and security. It's that last point that makes me the angriest—to pretend a U.S.-mandated backdoor in iOS won't have ripple effects around the globe strains all credulity. I can only hope the judge sees through such arguments.

Lastly, the biggest irony in this whole business is how the FBI seems oblivious to the reality that it—the United State's top law enforcement agency—has asked for a backdoor into iOS while authoritarian China hasn't. Yet.