EFF in the News
For his part, Kurt Opsahl, an attorney with the Electronic Frontier Foundation, also said that he had never heard of such a court order.
"The only precedent that comes to mind is the 9th Circuit case about car satellite phones from 2003," he told Ars.
"The FBI wanted to bug a car through its integrated sat phone system. Because 'the Company could not assist the FBI without disabling the System in the monitored car,' the order was reversed."
The FBI'S order to Apple to help them figure out the password of San Bernardino shooter Syed Farook's iPhone is "unprecedented and dangerous," said Nate Cardozo of the Electronic Frontier Foundation.
While the AWA has been referred to in the past, this order drastically widens its scope. It’s one thing to require a company to assist in carrying out a search warrant, but in this case, the FBI is requiring Apple to build entirely new code to access the device in question, and part of that code would rely on Apple using its private key to authenticate it. This essentially amounts to the FBI requiring Apple to lie about its security checks, Nate Cardozo, staff attorney at the Electronic Frontier Foundation, told The Verge.
"No court has approved an order or law that would compel a company to do something or speak in a way that wasn't completely true," he said. "In this case, Apple is being compelled to create computer code that is false in a very meaningful way."
This is where Apple’s argument comes in. A specific exception made in the AWA is that it cannot require third parties to assist in ways that would be "unreasonably burdensome." By following this order, Apple could argue, it would place a burden on its reputation. No one will ever trust the security of their devices again, Cardozo said. "It’s an extraordinary burden — not just one of cost and time, but of a loss of good will in Apple."
The technical issues raised by Schneier illustrate how the FBI's case isn't even really about hacking into the phone, said Nate Cardozo of the Electronic Frontier Foundation.
Apple and the FBI will presumably go back court to argue over whether or not Apple should comply with the court order. Cordozo believed the FBI would be happy to win that fight. A victory would give the feds another tool to obtain information from consumer technology.
Nate Cardozo, a staff attorney at civil liberties group the Electronic Frontier Foundation, says there's nothing to stop this argument being applied to other platforms. "If the FBI's argument against Apple succeeds have, nothing prevents them from ordering Moxie to backdoor Signal," he wrote on Twitter on Wednesday.
“Tor is essential,” Shari Steele says over the phone. “Tor is so critically important. We can’t afford to not have Tor.”
That’s the kind of thing someone might say when all hell is about to break loose, but Steele sounds downright ecstatic. Over her career, she has taken on United States Department of Justice (DOJ), the National Security Agency (NSA), and the Federal Bureau of Investigation (FBI). She built the Electronic Frontier Foundation (EFF) into an international powerhouse for protecting online rights.
As a category, the internet of things is useful to eavesdroppers both official and unofficial for a variety of reasons, the main one being the leakiness of the data. “[O]ne helpful feature for surveillance is that private sector IoT generally blabs a lot, routinely into some server, somewhere,” said Lee Tien, a senior staff attorney at the Electronic Frontier Foundation. “That data blabbing can be insecure in the air, or obtained from storage.”
Jamie Williams, a legal fellow on the civil liberties team at the Electronic Frontier Foundation, said the bill ignores the reality that it is technically impossible to give the government access to personal data without making consumers more vulnerable.
"If device manufactures were to build such vulnerabilities into phones, it would be a serious threat to privacy and security - leaving us all less safe as a result," Williams said. "And a law mandating that a manufacturer retain the capability to decrypt or unlock a phone also could present significant First Amendment implications."
The pro-privacy and internet freedom group Fight for the Future recently launched a petition against the bill. The group argues that requiring phone companies to put "secret backdoors" in smartphones "would mean we have no way of knowing if our private communications are actually private at all."
"I think we have lawmakers at both the state and federal levels who are listening to the experts when they say that it's not possible to force providers and manufacturers to provide access to encrypted data without simultaneously undermining encryption," Andrew Crocker, an attorney at the Electronic Frontier Foundation, told Ars.
"We also have lawmakers who are instead proposing vague and/or ineffective ‘solutions’ to that fundamental concern. That's really the sum of these Crypto Wars: The ‘pro encryption’ side has the weight of technical and policy expertise. The ‘anti’ side repeats that it can be done without saying how."
"This kind of precedent is long established,” said Nate Cardozo, a staff attorney focused on hacking rights at the Electronic Frontier Foundation, referencing the destruction of the Creeper virus in 1971. “For instance, what is generally considered to be the very first virus ever was taken down by a gray hat. So you could say that this sort of action is as old as computer viruses themselves.”