March 12, 2016

DOJ to Apple: Start Cooperating or You’ll Get the Lavabit Treatment

DOJ to Apple: Start Cooperating or You’ll Get the Lavabit Treatment

DOJ has submitted its response to Apple in the Syed Farook case. Amid invocations of a bunch of ominous precedents — including Dick Cheney’s successful effort to hide his energy task force, Alberto Gonzales effort to use kiddie porn as an excuse to get a subset of all of Google’s web searches, and Aaron Burr’s use of encryption — it included this footnote explaining why it hadn’t just asked for Apple’s source code.

That’s a reference to the Lavabit appeal, in which Ladar Levison was forced to turn over its encryption keys.

As it happens, Lavabit submitted an amicus in this case (largely arguing against involuntary servitude). But as part of it, they revealed that the reason the government demanded Lavabit’s key is because in deference to [Edward Snowden’s] background and skillset, the Government presumed the password would be impossible to break using brute force.”

But that says that for phones that — unlike Farook’s which had a simple 4-digit passcode — the government maintains the right to demand more, up to and including their source code.

The government spends a lot of time in this brief arguing it is just about this one phone. But that footnote, along with the detail explaining why they felt the need to obtain Lavabit’s key, suggests it’s about far more than even Apple has claimed thus far.

This is the post that convinced me to read the legal filings last night! She does use a lot of screenshots which I can’t capture, however, I did isolate the appropriate sections. I’ll start with the obvious reference:
“”Rather, relying on its exclusive knowledge of its software, Apple simply
asserts a single, complicated process, without any further elaboration.
In sum, Apple has failed to show that the only concrete burden it can identify—a
relatively low amount of technical labor—is undue, unreasonable, and noncompensable.

  1. Impinging on Apple’s Marketing of Its Products as Search-
    Warrant-Proof Is Not an Undue Burden

Apple next claims that complying with search warrants will undermine the
public’s trust in the security of the company’s products and services—a reformulation of
its concern, raised in the Eastern District of New York, that compliance will tarnish its
brand. This is the same argument made by the corporations and rejected by the courts in
New York Telephone and Mountain Bell, Mountain Bell argued that
complying with the order would jeopardize its relationship with its customers, and that it
For the reasons discussed above, the FBI cannot itself modify the software on
Farook’s iPhone without access to the source code and Apple’s private electronic
signature. The government did not seek to compel Apple to turn those over because it
believed such a request would be less palatable to Apple. If Apple would prefer that
course, however, that may provide an alternative that requires less labor by Apple
programmers. See In re Under Seal, 749 F.3d 276, 281-83 (4th Cir. 2014) (affirming
contempt sanctions imposed for failure to comply with order requiring the company to
assist law enforcement with effecting a pen register on encrypted e-mail content which
included producing private SSL encryption key).” I took a long section because I thought it would be better to give some context to the situation. Yeah, Emptywheel is right here, they were explaining why they didn’t ask for source code, signing keys, and who knows what else? File that one under everything, shall we? However, let’s just look at the citation, (and what’s written around it.) See In re Under Seal, 749 F.3d 276, 281-83 (4th Cir. 2014) (affirming
contempt sanctions imposed for failure to comply with order requiring the company to
assist law enforcement with effecting a pen register on encrypted e-mail content which
included producing private SSL encryption key.” OK so what’s happening there? The government is well… celebrating. It could also be said that they’re saying we won this case back in 2014, and we can easily win cases like this again! Most of the time when you see a citation, (although not all the time, it’s cited and the brief goes on. Sometimes, there’s a bit of context, but long citations like this are used fairly infrequently, (at least from what I’ve seen.)
The government also took the opportunity to go after everyone who filed amici curiae briefs in support of Apple. ”Apple and its amici try 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.” I’ve never seen this happen before, and I’m pretty sure I know why the government is doing this. Given the reference I just finished explaining, we all know why. I’ve seen cases where the EFF and the ACLU file briefs, and no one says anything. Keep in mind that the government said almost exactly the same thing back in 2013/2014, (that the debate was causing alarm and spreading fear.)


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I read 220 pages of DOJ defamation tonight! Yeah I did, Thanks Emptywheel! she wrote a post that convinced me to play “find the hidden references,” but the references weren’t exactly hidden,
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