EFF in the News
Electronic Frontier Foundation executive director Cindy Cohn explains why Apple's strong standpoint could be its winning ticket, even if the FBI cracks the iPhone via third-party help.
"The concern is the FBI is trying to shift the ground by saying you can build a lock as strongly as you want so long as you also build us a pick to unlock it," Cohn said. She notes that this option creates much more danger than the FBI unlocking the iPhone unassisted by Apple.
What little we do know about the vulnerabilities equities policy is because the Electronic Frontier Foundation, seeking transparency, sued the NSA and Office of the Director of National Intelligence.
After a legal battle more than a year long, the EFF got a redacted document that vaguely describes the policy.
"We need more transparency over how the policy works. It took a lot for us to know anything about it," said Andrew Crocker, the EFF staff attorney who led the fight.
According to the Electronic Frontier Foundation, the FBI could come back to court in a few weeks and try again, or look for another test case with which to set a legal precedent.
“The F.B.I. and D.O.J. often pursue these kinds of cases under seal, and the public doesn’t know about them at all,” said Andrew Crocker, a lawyer with the Electronic Frontier Foundation, a digital rights organization. Mr. Crocker said the “public nature” of this case allowed more people to be involved.
Nate Cardozo with the Electronic Frontier Foundation: "This is a victory for Apple."
“The equities process is supposed to apply to anytime the government discovers, learns of, buys or uses vulnerabilities of any kind," said Nate Cardozo, staff attorney at the Electronic Frontier Foundation. “If it’s anything where they’re attacking the phone in software, it would be subject to the equities review."
In the end, requiring that all software be breakable would be totally ineffective because it could easily be downloaded from outside the United States, said Nate Cardozo, a staff attorney with the Electronic Frontier Foundation, a pro-privacy non-profit based in San Francisco.
“Even if you did mandate that Apple and Google and others had to build in backdoors, nothing would stop the bad guys from just buying Chinese or Swiss or Brazilian devices that don’t have those backdoors,” he said.
The U.S. government and the FBI have in past years attempted to get Congress to pass legislation that would require companies to build backdoors into their electronic devices. None have become law.
Several members of Congress are currently working on new versions of such legislation. Should any of them pass, EFF and other pro-privacy groups are ready.
"We would gleefully file a pre-enforcement challenge — and I think we would win,” said Cardozo.
Andrew Crocker, an attorney at the Electronic Frontier Foundation, pointed out that while the public still doesn’t know what decryption capabilities the FBI and other federal agencies have, it is known that the government retains zero-days for their own purposes.
He said he thinks "it’s possible" that the DOJ would try to bring a similar case again. "But part of the reason they didn’t want to have this reason was that they couldn’t say in good faith that they had tried all the other alternatives," he told Ars.
Nate Cardozo, staff attorney at the Electronic Frontier Foundation, a civil liberties group backing Apple, said the San Bernardino case was the "hand-chosen test case" for the government to establish its authority to access electronic information by whatever means necessary.
In that context, he said, the last-minute discovery of a possible solution and the cancellation of the hearing is "suspicious," and suggests the government might be worried about losing and setting a bad precedent.
Apple is not claiming any victories yet, and some legal experts also cautioned against jumping to conclusions. But Nate Cardozo, a lawyer at the civil liberties advocacy group Electronic Frontier Foundation — which supports Apple's position — says this marks a pivotal point.
"This filing today represents the FBI completely backing down on this particular case," Cardozo says — but "there may be another case in the future."