Apple to DOJ: Sorry, No Can Do
By Philippe Gastonne - September 18, 2015

In an investigation involving guns and drugs, the Justice Department obtained a court order this summer demanding that Apple turn over, in real time, text messages between suspects using iPhones.

Apple's response: Its iMessage system was encrypted and the company could not comply.

Government officials had warned for months that this type of standoff was inevitable as technology companies like Apple and Google embraced tougher encryption. The case, coming after several others in which similar requests were rebuffed, prompted some senior Justice Department and F.B.I. officials to advocate taking Apple to court, several current and former law enforcement officials said.

While that prospect has been shelved for now, the Justice Department is engaged in a court dispute with another tech company, Microsoft. The case, which goes before a federal appeals court in New York on Wednesday and is being closely watched by industry officials and civil liberties advocates, began when the company refused to comply with a warrant in December 2013 for emails from a drug trafficking suspect. Microsoft said federal officials would have to get an order from an Irish court, because the emails were stored on servers in Dublin. – New York Times, Sept. 7, 2015

Relations between the U.S. technology industry and federal law enforcement look less cordial every day. This summer saw FBI Director James Comey begging them to believe he is not a maniac for demanding back-door access to private customer data. Now Microsoft is fighting the feds in court while Apple simply tells them, "Tough luck."

The NYT account says senior government officials wanted to take Apple to court, too, but exactly what they would demand is unclear. Apple says the requested information is encrypted such that even Apple cannot decipher it. This isn't something a court order would change. Someone at higher levels must have realized how ridiculous such a case would look to the judge who heard it.

Meanwhile, Microsoft is fighting a different battle. The government wants copies of e-mails stored on Microsoft servers in Ireland. Microsoft says it will only hand over the data if an Irish court orders it to do so.

The dilemma illustrates the difficulty the whole industry now faces in trying to operate internationally. What happens when one government orders your company to do something that another government forbids?

Microsoft claims its position actually helps the United States. Put the shoe on the other foot. Suppose the Chinese government ordered Microsoft to surrender data that resides on U.S.-based servers. What would the U.S. government say then?

Apple's solution is simpler: Make the data inaccessible to anyone except the owner. Why Microsoft can't do the same is unclear, but it would be no surprise if they were considering it.

Media coverage glosses over a small but important detail: Neither of these cases involves terrorism. They are drug and/or gun investigations. Yet it is the threat of terrorism that government officials wave to justify their demands for back-door access.

We see in their actions that terrorism is simply a convenient excuse. What the government wants is open access to everyone's data, for whatever purposes it might wish. Apple and Microsoft at least appear to be resisting. They are in for a long fight.

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  • Bill Ross

    I am skeptical that this is a fake pushback by crony capitalist (dependent on state not smiting them for lack of servitude) tech giants, just to lull us into a false sense of security. Very few, including tech giants (with the consequence of economically collapsing their businesses, shunned by consumers) appear willing to choose chance of long term survival versus short term being smited by states by choosing the far more flexible “or else” option over “obey”.

    and, the law choosing to do the right thing for those who choose to litigate? REAL law tolerates zero opinion or wiggle room for the biased man (rule of man) on the bench. Give me a break:

    free-marketeers, innovators: The problem (thus economic opportunity) still exists, create REAL solutions, have the satisfaction of prospering by doing what sane people love the most: thwarting tyranny.

    to be perfectly clear: If you want the job done properly, to secure YOUR freedom: Do it yourself, insure that crime against YOU does not pay. Do not trust third parties, whose self interest ALWAYS trumps yours, including tech giants.

    • Philippe Gastonne

      Agreed this could be staged to make us drop our guard. That is why my last line says Apple and Microsoft “appear to be resisting.” I don’t fully trust either company.

      • Bill Ross

        Recall that this has already played out with Blackberry, who caved, and were smited by the market, in consequence.

        • Philippe Gastonne

          Yes, and right afterward Blackberry received a huge Pentagon contract that saved the company. Very convenient. I had forgotten that until you mentioned it.

          I think it is also possible the companies cooperate with certain parts of the MIC but not others. The NSA/Pentagon wing doesn’t necessarily get along with the DOJ/FBI wing.

          • Bill Ross

            that`s the biggest factual mistake of liberty fighters: assuming we are up against a monolithic force, as opposed to factions with myopic self-interest, warring against each other as well as us. They are also divided and can be played against each other, weakening them is one pincer of narrowing their options. The other pincer is an alliance of “we, the individuals” uniting behind rule of law representing our own self-interests, respecting the equal self interests of our allies, which I am sure all here have studied. If not, link above.

            BTW, IMHO, the most accurate analysis (so much so that it is the plan of arbitrary rulers / fools) is Machiavelli, “The Prince” which appears to be a satirical work, analyzing fools and the consequences of their actions, as opposed to a recommendations by a master manipulator regarding how to secure and hold rule (enslaving all others):


            terminology update:

            Rulers: absolute control of monopoly of some facet of civilization. “Central banking interests is the “ring than binds them all”

            Barons: limited liability corporations

      • Greg Caton

        This is such a crock, I can’t believe anyone could take it seriously.
        When ANY agency says: I want that information, the tech companies jump to attention.
        When Uncle Sam says “Jump,” companies like Apple and Microsoft say, “How high.”
        I saw that in my own federal case in 2010 and I’ve heard the same from others.
        Any notion that the U.S. government and the tech companies do not work as a single
        fighting unit against the general public is completely disingenuous.
        This article is a psyop, so yes, Philippe, it is designed to make us drop our guard.

        • Bill Ross

          boggles the mind that you would take offense against someone and an article by someone who is agreeing with you. And, psyop? No wonder the liberty constituency is so divided, quibbling over terminology, attacking individual allies, as opposed to letting the cold hard facts speak for themselves.

          Use your mind, go from

          Not Ready, Aim wrong target, Fire TO
          Ready, Aim, Fire

          or, remove foot from mouth

      • Blank Reg

        I trust Apple a lot more than Microsoft. Google “Windows 10 data vulnerability”. Yeah, M$FT will resist GOVERNMENT attempts to get data, because they want it all for themselves.

    • Earn nest

      That was my immediate first thought as well. But the line between state and servant is blurred gray.

    • Centurian

      I agree. The very notion that Apple, which created the encryption methods and installed them in on your devices using keys that only they have (have you created an encryption key for your iPhone, iPad or Mac?) is ludicrous. For it to work, the key has to be used on both ends. Since, if they exist at all, the keys would be different on different devices, then, the servers in the middle must be able to interpret from one to another. So, if you and your receiver did not create or knowingly use a key, then Apple did. If they have the key to any supposed encryption, then they can deliver all of the content and data.

      I really believe that this is a ruse to make us feel better about our security and take the edge off of the recent revelations of federal snooping.

      I have a friend in the top levels of cybersecurity. He and I both firmly believe that it is foolish to believe for one second that every phone call, cell phone call, email, message, website visited, online search, online purchase, banking transaction, bill paid, stop light run, etc. is not captured and recorded. The only things saving most of us most of the time are the shear volume of data and government incompetence in finding and using it.

      • Bill Ross

        “The only things saving most of us most of the time are the shear volume of data and government incompetence in finding and using it.”

        disagree. Position on the list of “predation” is combination of proportional to perceived threat (of boat rockers) and economic efficiency: the ratio of “proceeds of crime” / “cost of predation”

        This truth is intuitive: to rock the boat is survival threatening, choosing “or else” rather than “obey”

        economic defense is a matter of not being low hanging fruit, reduce stealable property and productivity to fall below their radar. This is why we are undergoing a planetary social / economic collapse, as did USSR: people choosing survival over productivity, to avoid predators. Easily proven:

        and, the further the surveillance state is tolerated to progress, the more targeting info that predators have, at cheaper cost, allowing them to move down the list that you, even if you are a statist pawn are on. First they came for the alleged terrorists…

        • Centurian

          You are, of course correct. When they get to you on the list revolves around what you do to rate higher on the list. If somewhat under the radar, it may take a lot longer. But, when they become interested, they will ferret out the data they have on you and use it. Often in less than obvious ways. Espouse certain positions or support certain cases and you suddenly find the IRS or some other agency wickedly interested in you. Most people can’t believe that it is possible for people to be suppressed, ruined and jailed in this country for simply supporting the wrong candidates, ideas or organizations. Yet it occurs daily.

      • Bill Ross

        They are storing “evidence” that can be “interpreted” against you, when it is YOUR turn to be low hanging fruit

  • This is not really a battle service providers should be having to fight on the behalf of their clients, for the sake of their customer’s liberty. It is for the the service providers to fight because, if they fail to be able keep their customers data private, customers will tend not to use their services. The same type of battle has taken place with banks and banks lost. It is for much the same reasons that government want access to digital data records and bank records – to have the means to investigate for tax ‘evasion’. Be in no doubt.

    The harder the tax inspector can potentially squeeze the high the rate of taxation that can be exerted (extorted).

    I had a chat over the phone with a friend who is struggling in business and suggested a strategy that is ostensibly not detectable – let a new business, legally independent of his, take over his trade and so switch profits to that company to avoid tax – but it is not legal for him to deliberately do this. It would be imposable to prove such premeditation in normal circumstance but if all communications are monitored and recorded you never know if and when a case can be made against you. The tightening vice is thus a powerful subliminal control. Enter the Panopticon – see:

    The other side of the coin is the danger that an ever deepening totalitarian and brutal government can use such a system to exert control (which in places like Egypt is already clearly the fact). Since the US government has already granted itself the extra-judicial power to murder people, (even its own citizens if they are purely suspected of insurrection with just meta-data providing the supposed evidence to trigger their targeting), they are looking to the enlightened like a despotic regime too. Just more slick with bamboozlement and public relations.

    And even if you do not accept that today’s government will use such powers to tax more and control descent; what guarantee do you have that a government in the future would not arise and, finding all the freedoms to protect the public from their occurrence already stripped away, crush the people to the will of ‘the state’ without impediment.

  • Jim Johnson

    Kids: the nice government you invoke will grow up and devour you. Period. Every time. Get active around home. Keep it small. Honest. Period.

  • FreeOregon

    If these companies actually protect privacy, I think I’ll upgrade my computer, iPad and iPhone.

    • Bill Ross

      and, if its all a terror marketing strategy?

      and, even if your comm is encrypted, they can still map your communications network and “co-conspirators”. Entire infrastructure “bugged”

      don`t believe me, try this:

      besides, we are fast approaching or have passed the tipping point where opposition should go from covert to overt

      • bh9

        It appears Microsoft and Apple have taken that huge step. No more kissy-face with governments which plainly and shamelessly abused their lawful authority. Since neither of these companies is short on financial resources, over-reaching governments cannot easily bully them into compliance by threat of years of litigation paid for by public money.

  • WPalmer

    Who was it who said… To paraphrase.
    “If you surrender freedom and liberty for security, then you will end up with neither.” ?
    Perhaps me…. It is a contortion of Ben Franklins’ comment.
    But nonetheless true.

  • PJ London

    If Apple are using 256bit encryption then they should just give the data to them (after being issued with a court order).
    It will only take 9.2 followed by 49 zeros (9,200,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000) years to decrypt and as the universe has only been 1.4 followed by 13 zeros years old, I am confident that the data is safe.
    But hey, “Good Luck”.

  • The perception now is that data and data flow information (metadata) is not secure. Business adapts and migrates.
    There may be relative degrees of security. There is significant evidence of MS creating and not fixing back doors and collaborating from the outset. Apple may just be more sophisticated. If I were MS/Apple I might welcome a public spat to increase credibiity – but nowdays that is so often callously contrived – such as Obama and the Israeli Gov relative to Iran, where the rabid dog threatens pre-emptive attack and Obama, breaking ranks doesn’t support it – but all towards negotiating from a position of ‘strength’ in which the adversary is unsettled and more compliant.

    So what and who can you trust ?- look to the fruits to determine the roots – and do not trust anything without the ring of integrity – including your own mind. Deceit is the war of disinfo – and it is propagated by the deceived with the contents of what we fear deny in ourself.

    The response I feel to make is to be much more vigilant and to rid myself of deceit – much of which is a laziness of inattention amidst a conflicted and diluted sense of purpose. This means noticing what is out of integrity and its reverberations and resonances within me. In other words the reflections are not to be taken at face value – but nor are they without a gift from which to grow in self-acceptance. A mind at war with itself is a mind into which deceit is already established.

  • Samarami

    “…The dilemma illustrates the difficulty the whole industry
    now faces in trying to operate internationally. What happens
    when one government orders your company to do something
    that another government forbids?…”

    The answer could be in a dominent social theme embedded within this article: global “jurisdiction”. Sam

    • bh9

      That’s what the US is striving to achieve, and has significantly accomplished that goal in some areas like banking and tax information sharing. But it seems unlikely other jurisdictions will cede sovereignty to the US across the board when laws of many of those jurisdictions provide far more stringent penalties for releasing personal data except by warrant.

      Companies like Microsoft and Apple cannot legally operate in those jurisdictions if they “obey” contrary legal demands from US authorities which compromise laws of local jurisdiction.

      Apple has the right answer — to encrypt data so nobody but the user can access it. Microsoft (and others) will likely have to follow suit because the only really bullet proof legal defense against court demands for customer data is an absolute incapacity to produce it.

      In the long term, it may turn out that protection of personal data which doesn’t rely on good will of either corporations or governments proves to be the only guarantee against abuse. A good thing for liberty.