I like Apple Inc. For one, it makes some pretty handy devices I use. For two, they've got guts. It takes a lot to tell the federal government to shove it where the sun don't shine, and that's exactly what Apple has been doing in regards to federal (and state) governments' continued attempts to hack into its operating system in order to extract data during investigations.
As a criminal defense attorney, I have to hope that privacy-rights persevere, and it's inspiring when I see it in play.
However, what first appeared to be gearing up as an epic war between the FBI and Apple seemed to fizzle out when the United States Justice Department quietly withdrew its request for a court order requiring Apple to help the agency hack into the iPhone owned by San Bernadino shooter Syed Farook.
"Never mind," the agency seemed to say, "we don't need your help anyway."
Why? Because the FBI found a way to circumvent the iPhone's security and encryption systems to hack the phone without Apple's help. How? It paid private hackers more than $1 million dollars to get into the phone.
Although that announcement was made somewhat anti-climactically, it certainly wasn't a white-flag of surrender. Instead, when the FBI won the first fight by hacking into the iPhone, it simply changed the battle plan from "drop the atomic bombs" to clandestine guerilla-warfare.
At first, there were significant questions about the FBI's ability to hack the iPhone and gain access to the San Bernadino shooter's data. How were they able to do it? If the FBI can hack the iPhone, who else has the ability to circumvent its security and privacy protocols? Will the federal government use this information in other criminal cases, or share the ability to access iPhones with local law enforcement agencies? And is there anything preventing Apple from further updating its software and hardware to prevent future hacks?
I have fought many cases on the state-level involving local government's unsuccessful attempts to get into my clients' iPhones, depending on which model and operating system they were dealing with. So, as the weeks pass following the FBI's announcement that it accessed the iPhone without Apple's help, I'm glad to see some of the answers are starting to take shape--but the answers are not particularly good for Apple...or for the general public's right to privacy.
Recently, the FBI briefed certain Senators about the iPhone hack, saying that the agency purchased a "tool" from a third-party source. Sources speculate that with that "tool," they were able to circumvent a feature which temporarily disables the phone when a wrong passcode is entered. Once there were no time limits locking the agency out of the phone for an incorrect password attempt, the agency was able to gain access to the phone in just minutes. Edward Snowden, the former CIA contractor who leaked information about widespread NSA surveillance, postulates that the FBI would simply need to find a way to bypass the phone's auto-erase feature:
All the FBI needs to do to avoid any irreversible auto erase is simple to copy that flash memory (which includes the Effaceable Storage) before it tries 10 passcode attempts. It can then re-try indefinitely, because it can restore the NAND flash memory from its backup copy [...]
The FBI can simply remove this chip from the circuit board ("desolder" it), connect it to a device capable of reading and writing NAND flash, and copy all of its data. It can then replace the chip, and start testing passcodes. If it turns out that the auto-erase feature is on, and the Effaceable Storage gets erased, they can remove the chip, copy the original information back in, and replace it. If they plan to do this many times, they can attach a "test socket" to the circuit board that makes it easy and fast to do this kind of chip swapping.
Prior to the FBI's ability to hack the iPhone, it said that Apple had "exclusive technical means" to unlock the iPhone. Snowden called that assertion "bullsh-t"--and since the Justice Department gained the means of accessing the phone from someone other than Apple, it sounds as if Snowden's B.S. detector was right on the money.
It is certainly concerning--and it should especially be concerning to Apple--that the tool that allowed the FBI to hack the iPhone 5c is available from a third party source. It is out there, and it is available for purchase.
The FBI has not, however, revealed the name of the third-party source, nor has it decided to share the specifics of the tool with Apple. After all, if Apple knows how its phone was hacked, then it will most likely create security measures that block the tool and close the loophole that allowed access in the first place.
Still, one glimmer of hope for privacy advocates and Apple is that FBI director James Comey says that the third-party tool the FBI used to gain access to Farook's iPhone 5c is limited strictly to that phone. He told a group of professors and students at Kenyon College in Ohio that the tool only works in accessing an iPhone 5c running iOS 9:
But should the American public trust this statement? What would the federal government have to gain by an admission that they could hack more phones than just one small percentage of one company's offerings? Remember, all's fair in the pursuit of national security...
Even more troubling, if a third-party has developed a tool that can hack into a specific type of phone, and that party has the ability to sell that tool--well, wouldn't it be profitable for that company to sell the tools to hack into different types of phones separately?
Despite the fact that the FBI ultimately did not need Apple to hack Farook's iPhone, the Senate Intelligence Committee is still considering encryption legislation that would penalize companies--like Apple--who refuse to decrypt user devices. Apple, on the other hand, says it values the right to privacy of data, and it isn't willing to back down.
Call me crazy, but assurances of privacy from the FBI and the Justice Department don't seem to go very far these days.