Legal Issues

by Mike Masnick


Filed Under:
all writs act, china, doj, encryption, fbi

Companies:
apple



We Read The DOJ's Latest Apple Filing To Highlight All Of Its Misleading Claims

from the uh,-that's-not-how-this-works dept

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The Justice Department has now filed its response to Apple's motion to vacate being forced to undermine the security features of Syed Farook's work iPhone. It's... quite a piece of work. The DOJ is pulling out all the stops in this one, and it seems to be going deeper and deeper into the ridiculous as it does so. Of course, it repeats many of the arguments in its earlier filings (both its original application for the All Writs Order as well as its Motion to Compel -- which even the judge told the DOJ she didn't think it should file). For example, it continues to assert that this should be judged on the "three factor test" that it made up from a Supreme Court decision that doesn't actually have a three factor test.

But the crux of the DOJ's argument is basically "how dare Apple make a warrant-proof phone" and thus it's Apple's fault that they haven't made it easy for the FBI to get what it wants. This argument is bonkers on many levels. Let's dig in:
By Apple’s own reckoning, the corporation—which grosses hundreds of billions of dollars a year—would need to set aside as few as six of its 100,000 employees for perhaps as little as two weeks. This burden, which is not unreasonable, is the direct result of Apple’s deliberate marketing decision to engineer its products so that the government cannot search them, even with a warrant.
This is a purposeful misrepresentation. The issue here is that the judge has made it clear that the key issue that she's concerned with is whether or not the request from the DOJ represents an "unreasonable burden" on Apple -- as the "burden" is the only actual test laid out in the US v. NY Telephone case the DOJ keeps pointing to. But Apple didn't present the time and manpower to show that it's the resources that are the unreasonable burden, but the potential impact on the safety and security of its customers. Focusing on the time is not the issue, but of course, the DOJ pretends it is.

Second, the DOJ's continued its ridiculous insistence that making your products safe and secure is a "deliberate marketing decision" -- which somehow makes it offensive in some way. Apple didn't engineer its products "so that the government cannot search them," it's so that your information is safe and secure from anyone, including criminals. You would think that law enforcement people in the FBI and DOJ would appreciate more secure devices that reduce crime. There was a time that they did. To sneeringly suggest that better protecting the public is nothing more than a "marketing decision" is ridiculous. Hell, even if it was a "marketing decision," a big part of the reason that "the market" wanted such features so badly was because the US government itself overstepped its bounds with mass surveillance.
The Court’s Order is modest. It applies to a single iPhone, and it allows Apple to decide the least burdensome means of complying. As Apple well knows, the Order does not compel it to unlock other iPhones or to give the government a universal “master key” or “back door.” It is a narrow, targeted order that will produce a narrow, targeted piece of software capable of running on just one iPhone, in the security of Apple’s corporate headquarters.
It has been explained -- at length -- by both Apple and various amicus briefs, how ridiculous this is. Everyone -- including the FBI -- has now admitted that this case is almost entirely about the precedent, and that a win for the DOJ will inevitably mean a long line of law local and federal law enforcement lining up outside Apple's headquarters in Cupertino with court orders in their hands, demanding that Apple help them crack into iPhones. That's a big deal. It also sets a precedent even beyond Apple, that companies can be forced to deliberately (1) weaken security on their devices and services and (2) lie to the public about it by "signing" the devices as legit.
The government and the community need to know what is on the terrorist’s phone, and the government needs Apple’s assistance to find out.
No it does not need to know and no it does not need Apple's assistance. Again, there is always evidence that is off-limits in criminal investigations, and there are ways in which the FBI can likely get into this particular phone.
Instead of complying, Apple attacked the All Writs Act as archaic, the Court’s Order as leading to a “police state,” and the FBI’s investigation as shoddy, while extolling itself as the primary guardian of Americans’ privacy.... Apple’s rhetoric is not only false, but also corrosive of the very institutions that are best able to safeguard our liberty and our rights: the courts, the Fourth Amendment, longstanding precedent and venerable laws, and the democratically elected branches of government.
Apple didn't attack the AWA as "archaic" so much as inapplicable in this situation. Once again, the DOJ is doing some serious misrepresentation in this filing (and we're just three paragraphs in).
This case—like the three-factor Supreme Court test on which it must be decided—is about specific facts, not broad generalities. Here, Apple deliberately raised technological barriers that now stand between a lawful warrant and an iPhone containing evidence related to the terrorist mass murder of 14 Americans. Apple alone can remove those barriers so that the FBI can search the phone, and it can do so without undue burden. Under those specific circumstances, Apple can be compelled to give aid. That is not lawless tyranny. Rather, it is ordered liberty vindicating the rule of law. This Court can, and should, stand by the Order. Apple can, and should, comply with it.
Three factors! Drink! And, yes, Apple put in place these "barriers," but not as barriers to the government, but as security for everyone -- and there's a very big question, which the DOJ so desperately wishes to avoid with the mumble jumble above, which is whether or not a company can be forced to purposely write and sign code that deliberately undermines security features.
In deciding New York Telephone, the Supreme Court directly confronted and expressly rejected the policy arguments Apple raises now. Like Apple, the telephone company argued: that Congress had not given courts the power to issue such an order in its prior legislation; that the AWA could not be read so broadly; that it was for Congress to decide whether to provide such authority; and that relying on the AWA was a dangerous step down a slippery slope ending in arbitrary police powers.
Once again, the DOJ is misrepresenting the issues at play both in this case and in NY Telephone. In that case, a key part of the SCOTUS decision was based on the fact that NY Telephone was a public utility and therefore had certain responsibilities. That's not true of Apple. The DOJ also misrepresents the Congressional situation, which is different here, in that Congress did pass a specific law in this area, CALEA, which explicitly says that Apple need not help in this situation. The All Writs Act is a "gap filling" law, for when Congress has not spoken. But on this issue, it has.
The Supreme Court’s approach to the AWA does not create an unlimited source of judicial power, as Apple contends. The Act is self-limiting because it can only be invoked in aid of a court’s jurisdiction. Here, that jurisdiction rests on a lawful warrant, issued by a neutral magistrate pursuant to Rule 41. And New York Telephone provides a further safeguard, not through bright-line rules but rather through three factors courts must consider before exercising their discretion: (1) how far removed a party is from the investigative need; (2) how unreasonable a burden would be placed on that party; and (3) how necessary the party’s assistance is to the government. This three-factor analysis respects Congress’s mandate that the Act be flexible and adaptable, while eliminating the concern that random citizens will be forcibly deputized.
Three factors! Drink!

The DOJ insists that even with CALEA not saying it can do this, that doesn't matter, because CALEA is all about what companies can be forced to do prior to a warrant, not after.
CALEA, passed in 1994, does not “meticulously,” “intricately,” or “specifically” address when a court may order a smartphone manufacturer to remove barriers to accessing stored data on a particular smartphone. Rather, it governs what steps telecommunications carriers involved in transmission and switching must take in advance of court orders to ensure their systems can isolate information to allow for the real-time interception of network communications
But of course, under that interpretation, then the All Writs Act grants tremendous powers -- exactly the kinds of powers the DOJ insists elsewhere in this brief that isn't at issue in this case. I don't see how the DOJ can have it both ways.
As Apple recognizes, this Court must consider three equitable factors: (1) how “far removed” Apple is “from the underlying controversy”; (2) how “unreasonable [a] burden” the Order would place on Apple; and (3) how “necessary” its assistance is to searching Farook’s iPhone.
Three factors! Drink!
Apple is not so far removed from the underlying controversy that it should be excused from assisting in the execution of the search warrant. In New York Telephone, the phone company was sufficiently close to the controversy because the criminals used its phone lines. See 434 U.S. at 174. The Court did not require that the phone company know criminals were using its phone lines, or that it be involved in the crime. See id. Here, as a neutral magistrate found, there is probable cause to believe that Farook’s iPhone contains evidence related to his crimes. That alone would be sufficient proximity under the AWA and New York Telephone, even if Apple did not also own and control the software on Farook’s iPhone.
But again, under such an interpretation, the AWA can be used to force basically any tech company to figure out ways to spy on users if the FBI comes calling and gets a magistrate judge to rubber stamp an order. That's... crazy. Just because they use your technology does not mean that you're somehow legally on the hook for helping the FBI investigate their usage.
As Apple’s business model and its representations to its investors and customers make clear, Apple intentionally and for commercial advantage retains exclusive control over the software that can be used on iPhones, giving it monopoly-like control over the means of distributing software to the phones. As detailed below, Apple does so by: (1) firmly controlling iPhones’ operating systems and first-party software; (2) carefully managing and vetting third-party software before authenticating it for use on iPhones; and (3) continually receiving information from devices running its licensed software and its proprietary services, and retaining continued access to data from those devices about how its customers are using them. Having established suzerainty over its users’ phones—and control over the precise features of the phones necessary for unlocking them—Apple cannot now pretend to be a bystander, watching this investigation from afar.
This is kind of an incredible argument when you think about it: because Apple makes sure that its devices have updated software to keep it safe from vulnerabilities, that means that Apple is somehow connected to any use of the phone and responsible for helping the FBI crack into the phone. Does the FBI really want to encourage companies to stop offering any follow on support for software? Because that's the argument they're making here.
Thus, by its own design, Apple remains close to its iPhones through careful management and constant vigil over what software is on an iPhone and how that software is used. Indeed, Apple is much less “removed from the controversy”—in this case, the government’s inability to search Farook’s iPhone—than was the New York Telephone company because that company did not deliberately place its phone lines to prevent inconspicuous government access.... Here, Apple has deliberately used its control over its software to block law-enforcement requests for access to the contents of its devices, and it has advertised that feature to sell its products.
This argument is particularly maddening: basically continuing the ridiculous line of thinking that protecting user privacy is some sort of deliberate marketing strategy against the government, rather than in favor of protecting customers' own security and privacy.

And then we get even more maddening. In discussing the "burden" the DOJ literally tries to argue that if there is a burden, it's Apple's fault for designing a system so secure.
Apple is one of the richest and most tech-savvy companies in the world, and it is more than able to comply with the AWA order. Indeed, it concedes it can do so with relatively little effort. Even this modest burden is largely a result of Apple’s own decision to design and market a nearly warrant-proof phone.
This is monumentally misleading. The whole DOJ premise is that Apple deliberately is trying to interfere with legal investigations. But that's bonkers. Apple is just trying to build a secure phone for its users -- and a natural and unavoidable consequence of that is that it makes it more difficult for law enforcement to get access to that info. But that's because the whole point of such security is to make it more difficult for everyone who is not the phone's owner to get access, because that's how you protect them.

The DOJ is so vain it thinks Apple's security is all about them.

Then we get back to the lying:
Apple’s primary argument regarding undue burden appears to be that it should not be required to write any amount of code to assist the government.
Not really. Its primary argument is that the burden is in writing any amount of code that undermines the safety and security of its customers. That last part is kind of the important part. No wonder the DOJ ignores it.
Apple asserts that it would take six to ten employees two to four weeks to develop new code in order to carry out the Court’s Order.... Even taking Apple at its word, this is not an undue burden, especially given Apple’s vast resources and the government’s willingness to find reasonable compromises and provide reasonable reimbursement.

Apple is a Fortune 5 corporation with tremendous power and means: it has more than 100,000 full-time-equivalent employees and had an annual income of over $200 billion dollars in fiscal year 2015—more than the operating budget for California.... Indeed, Apple’s revenues exceed the nominal GDPs of two thirds of the world’s nations. To build the ordered software, no more than ten employees would be required to work for no more than four weeks, perhaps as little as two weeks.
Again, this is misleading (sense a theme?). First, as noted above, the "burden" is not so much in the time or engineers allotted to this issue. Second, even if we accept the DOJ's assertions here, it's misleading. The Apple filing noted that it would take that much effort just to create the initial code and to test it, but then noted -- quite rightly -- that if in the testing any problems arose, as they almost certainly would, it would need to basically redo the process. Part of the point, which can slip by non-technical people who have no experience developing and deploying code, is that this process could take a long, long time, and involve a lot of effort before it's actually safe to use on the actual phone.

Next up, the DOJ continues to insist that there can't possibly be any danger in creating this code, because Apple surely knows how to guard it, and further, that even if the code got out, that it wouldn't matter because it's asking for code that will only run on the Farook phone.
Next, contrary to Apple’s stated fears, there is no reason to think that the code Apple writes in compliance with the Order will ever leave Apple’s possession. Nothing in the Order requires Apple to provide that code to the government or to explain to the government how it works. And Apple has shown it is amply capable of protecting code that could compromise its security. For example, Apple currently protects (1) the source code to iOS and other core Apple software and (2) Apple’s electronic signature, which as described above allows software to be run on Apple hardware.... Those —which the government has not requested—are the keys to the kingdom. If Apple can guard them, it can guard this.
But, again, that leaves out the reality of testing this particular code and how that makes it much more likely the code will get out. This argument was presented in the amicus brief filed by iPhone forensics and security experts.

Next up, the DOJ totally misrepresents Apple's current assistance to government requests for information from the Chinese government. The DOJ is trying to argue, misleadingly, that Apple has no problem doing the same stuff for China, so that its worries about this case, creating a precedent for authoritarian regimes, is nonsense. But it's the DOJ's argument that's truly nonsense:
Apple suggests that, as a practical matter, it will cease to resist foreign governments’ efforts to obtain information on iPhone users if this Court rules against it. It offers no evidence for this proposition, and the evidence in the public record raises questions whether it is even resisting foreign governments now. For example, according to Apple’s own data, China demanded information from Apple regarding over 4,000 iPhones in the first half of 2015, and Apple produced data 74% of the time.... Apple appears to have made special accommodations in China as well: for example, moving Chinese user data to Chinese government servers, and installing a different WiFi protocol for Chinese iPhones.... Such accommodations provide Apple with access to a huge, and growing, market.... This Court’s Order changes neither the carrots nor the sticks that foreign governments can use on Apple. Thus, it does not follow that if America forgoes Apple’s assistance in this terrorism investigation, Apple will refuse to comply with the demands of foreign governments. Nor does it follow that if the Court stands by its Order, Apple must yield to foreign demands, made in different circumstances without the safeguards of American law.
What the DOJ is referring to here is Apple's latest transparency report in which it notes that it complied with 74% of government requests for information from China. You can see it here:
But again, Apple has always been willing to respond to legitimate government requests for information that it has access to. That's why that same chart shows that it complied with 81% of US requests as well. But that says absolutely nothing about the requirement to build a special system to hack in and access data that it does not currently have access to.

The rest of the China stuff, about servers and WAPI, is just the DOJ picking up on Stewart Baker's conspiracy theory that he posted a few weeks back. Lots of countries (stupidly) demand local storage, not necessarily because of surveillance reasons, but because they think it's good for their economy. And the reason Apple used WAPI was because that was the standard used in China for WiFi-like wireless. And as for the idea that Apple magically gave access to the Chinese, that makes no sense, given that Apple then had to fight a man in the middle attack against iCloud in China that was claimed to have originated from the Chinese government. If Apple gave it access, why would the government need to run a MiTM attack? The whole argument makes no sense.
In the first half of 2015 alone, Apple handled 27,000 “device requests”—often covering multiple devices—and provided data approximately 60% of the time.... If Apple can provide data from thousands of iPhones and Apple users to China and other countries, it can comply with the AWA in America. (Id.) This is not speculation because, in fact, Apple complied for years with American court orders to extract data from passcode-locked iPhones, dedicating infrastructure and personnel in order to do so.
Again that's different. That's about supplying the info that Apple had access to and not about writing code to undermine security features. Apples and oranges.

Finally, the DOJ mocks Apple's constitutional arguments on the First and Fifth Amendments.
Apple’s claim is particularly weak because it does not involve a person being compelled to speak publicly, but a for-profit corporation being asked to modify commercial software that will be seen only by Apple. There is reason to doubt that functional programming is even entitled to traditional speech protections....

To the extent Apple’s software includes expressive elements—such as variable names and comments—the Order permits Apple to express whatever it wants, so long as the software functions.
We're not "compelling" you to say this exactly, we're letting you say whatever you want... so long as it does what we want it to. That still seems like compelled speech, no?
Apple lastly asserts that the Order violates its Fifth Amendment right to due process. Apple is currently availing itself of the considerable process our legal system provides, and it is ludicrous to describe the government’s actions here as “arbitrary.”
Once again, it appears that many of the DOJ's arguments here are misleading in the extreme. Apple's response is due next week, and I imagine it will be quite a read as well.

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  • icon
    That One Guy (profile), 11 Mar 2016 @ 6:30am

    From hypothesis to working theory

    'This burden, which is not unreasonable, is the direct result of Apple’s deliberate marketing decision to engineer its products so that the government cannot search them, even with a warrant.'

    'Here, Apple deliberately raised technological barriers that now stand between a lawful warrant and an iPhone containing evidence...'

    'Apple has deliberately used its control over its software to block law-enforcement requests for access to the contents of its devices, and it has advertised that feature to sell its products.'

    'Even this modest burden is largely a result of Apple’s own decision to design and market a nearly warrant-proof phone.'


    Yeah, I'd say that after a filing like that my belief that if the FBI/DOJ gets their precious precedent in this case that any company that even attempts to move to encryption that they themselves cannot break(otherwise known as 'encryption without a gigantic freakin' hole in it') will be demonized as 'attempting to avoid their lawful obligations' has gone from a 'probably' to 'dead certainty'.

    They don't even have the precedent yet and they're already filing legal claims attempting to paint Apple's implementation of encryption in a way to imply that it could only have been done to avoid warrants, nothing else.

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    • identicon
      Anonymous Coward, 11 Mar 2016 @ 9:24am

      Re: From hypothesis to working theory

      One more for the list of horribles:
      Congress intended the All Writs Act to flexibly meet “new problems” like those devised by Apple.
      Emphasis added.

      Too much of this Reply reads like an indictment. There are no 'upon information and belief', no 'allegedly'; just declarative statements that Apple is...doing something against the government's wishes. Something the government is desperately trying to paint as semi-treasonable.

      Were this a TV show, the Reply would have been submitted by a stereotyped crooked lawyer, wearing a shiny suit and with slicked-backed hair. But this document has been submitted with the full and terrible weight of the United States Department of Justice behind it. Its inferences are shockingly insulting to Apple employees in particular and the world-wide tech sector working to ensure some measure of security to our electronic world.

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  • identicon
    Anonymous Coward, 11 Mar 2016 @ 6:49am

    Require weak crypto so strong crypto can be surveilled

    "Apple speculates that there is no law-enforcement benefit to removing barriers to unlocking an iPhone because criminals and terrorists will encrypt their data in other ways. ... even if there are further layers of encryption, the government may be able to pierce that encryption—but only if it can get into the phone in the first place"

    DoJ: we need weak crypto, so we can see when the bad guys are using strong crypto !

    But weak crypto is useful *only* for cheap, ubiquitous mass surveillance.

    DoJ/FBI is fronting for NSA here.

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  • identicon
    Anonymous Coward, 11 Mar 2016 @ 6:59am

    iPhones are a criminal's best friend

    "Apple suggests that because so much criminal evidence is
    hidden on its warrant-proof iPhones, it should not be compelled to assist in gathering evidence related to the terrorist attack in San Bernardino"

    iPhone users obviously have a lot to hide, which is why they use iPhones in the first place. We need to be able to monitor ALL those iPhones to make sure that there's nothing funny going on.

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  • icon
    Groaker (profile), 11 Mar 2016 @ 7:04am

    The FBI and the DOJ have already demonstrated that they have no concept of what a lawful warrant is.

    The FBI agents are under investigation again for coverup in the shooting deaths of LaVoy Finicum. Finicum may have been a wretch, and his behavior may have been traitorous. But that does not give the FBI the right to possibly have killed an unarmed Finicum, lied about their actions, attempted to coverup what happened, and may have falsely accused Oregon State Police for the killing of Finicum.

    I don't have the time to list all the lies, prevarications, perjuries, subterfuges and crimes committed by the FBI and the DOJ. But suffice it to say, the FBI and the DOJ are no box of dots.

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  • identicon
    Anonymous Coward, 11 Mar 2016 @ 7:05am

    Its a good job its a Friday - I'm gonna be rough this weekend!

    reply to this | link to this | view in chronology ]

  • icon
    Berenerd (profile), 11 Mar 2016 @ 7:11am

    "would need to set aside as few as six of its 100,000 employees for perhaps as little as two weeks. This burden, which is not unreasonable, "

    Not that it matters....

    Lets apply this to FOIA requests? Half a million dollars? Really?

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  • icon
    sciamiko (profile), 11 Mar 2016 @ 7:12am

    It's a tantrum

    All the law enforcement agencies around the world find it's much more comfortable sitting in an office examining electronic data, instead of going out knocking on doors and asking questions. So when they get frustrated, like not being able to read data from a phone, they throw a tantrum, like a 2-year old.

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  • identicon
    Anonymous Coward, 11 Mar 2016 @ 7:13am

    For Apple it comes down to a simple choice and that's a business decision.

    They can knuckle under and do this new cracking OS and watch their global market disappear as people decide they can no longer trust Apple with their privacy or Apple can fight it and earn some reputation on standing up for it's customer base.

    Take a look at what happened to Cisco after the Snowden leak that showed the NSA intercepting packages in shipment to add backdoors. Not long after that China said no more Cisco products will be sold in their country. One whole country gone from their profits. Several other countries decided they could no longer trust the products from Cisco and started dealing with other countries who were not US corporations.

    Then there is the issue that DOJ doesn't care if the product has bugs in it. Which is part of Apple's concern and why in part it would take so many different people to make this happen. In my line of thought, Apple would have to lay out major expenses just in labor pay to see it done. Notice that no where in there is the DOJ saying anything about paying Apple to do this. In otherwords, the DOJ and the FBI want Apple to do this for free! Why not go this route with GM and have them make tanks for the military for free? Ir's the same principal.

    McAfee offered to do it for free. Notice the FBI and the DOJ have ignored that because it's not what they are wanting out of this. Even Snowden says the FBI has long had methods to get around these issues and called the whole thing bullshit.

    Finally remember when they could not get congress to approve a law for this very thing? Their response was to say they'd wait until the next terrorist incident to push it. Fits just like a puzzle piece into this mess. They'v made an incident to fit the part. The whole business isn't really aimed at what is on that phone. It's aimed at setting precedence so they can do this again and again. As soon as the door is opened all these other states have encrypted phones involved in crime they want to look in but as of now can't do that.

    This whole thing is a farce.

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    • icon
      Groaker (profile), 11 Mar 2016 @ 7:22am

      Re:

      Nothing so pleasant as a farce. It is a crime. A spear thrust into the heart of the Costituition.

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    • icon
      Rabbit80 (profile), 11 Mar 2016 @ 7:48am

      Re:

      "Notice that no where in there is the DOJ saying anything about paying Apple to do this. In otherwords, the DOJ and the FBI want Apple to do this for free! Why not go this route with GM and have them make tanks for the military for free? Ir's the same principal. "

      You mean except where they say the governmet is willing to provide reasonable reimbursement?
      "Apple asserts that it would take six to ten employees two to four weeks to develop new code in order to carry out the Court’s Order.... Even taking Apple at its word, this is not an undue burden, especially given Apple’s vast resources and the government’s willingness to find reasonable compromises and provide reasonable reimbursement. "

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      • identicon
        Anonymous Coward, 11 Mar 2016 @ 8:03am

        Re: Re:

        ...and the government’s willingness to...provide reasonable reimbursement...

        The government may be offering to pay for the labor to provide what they want but Apple is still out the legal fees, which may end up being more than the labor to provide the requested service.

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      • identicon
        Anonymous Coward, 11 Mar 2016 @ 7:02pm

        Re: Re:

        Is reasonable reimbursement going to cover the loss of business and damage to reputation? That, it seems to me, could run into the billions.

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    • icon
      Mike Masnick (profile), 11 Mar 2016 @ 7:55am

      Re:

      Notice that no where in there is the DOJ saying anything about paying Apple to do this. In otherwords, the DOJ and the FBI want Apple to do this for free!

      That's not even remotely true. Every single filing in the case has said that they will pay reasonable costs.

      McAfee offered to do it for free. Notice the FBI and the DOJ have ignored that because it's not what they are wanting out of this.

      And later admitted he was lying to get attention.

      I agree that there's a lot of crazy stuff in this case, but don't get overwhelmed and post falsehoods as well.

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      • identicon
        Anonymous Coward, 11 Mar 2016 @ 8:49am

        Re: Re:

        "That's not even remotely true. Every single filing in the case has said that they will pay reasonable costs."

        I agree with you completely except there is a problem with that statement and that is the DOJ using the qualifying word "reasonable" which at this point makes it meaningless.

        For instance, they think this is a "reasonable" request. They also think warrantless bulk surveillance of US citizens constitutes a "reasonable" search. Their definition of "reasonable" is not the same as everyone else's definition which is to say it means to them whatever they want it to mean at the time.

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      • icon
        That One Guy (profile), 11 Mar 2016 @ 9:00am

        Re: Re:

        That's not even remotely true. Every single filing in the case has said that they will pay reasonable costs.

        Which is true, technically, but the kicker of course is who gets to define 'reasonable'.

        If a company was forced to create a blatantly offensive ad and air it on tv and put it up online for example the costs to create the ad itself would be fairly mild, 'reasonable' you might say. The effect of the ad though would be huge, and involve drastically more money, both short and long-term.

        Along those lines unless the DOJ/FBI's idea of 'reasonable' is in the eight or nine digits range, I rather doubt Apple is likely to see it as a fair reimbursement of doing what they demand.

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        • identicon
          Anonymous Coward, 11 Mar 2016 @ 9:38am

          Re: Re: Re:

          Since we are talking about what is "reasonable" let's say the FBI covers the cost of producing their little project. Let's add to it all of the legal expenses involved. Then add to that the projected loss of profits incurred due to the fact that they were forced create such an update.

          And since this is only about this one phone, covers the cost of developing and deploying an update to all other existing iOS devices that would render not only this software but all future attempts to deploy similar tactics useless. How's that for "reasonable"?

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    • icon
      John85851 (profile), 11 Mar 2016 @ 10:07am

      Re:

      Why not go this route with GM and have them make tanks for the military for free? Ir's the same principal.
      I think the better comparison would be if the government told GM that it had to build armor onto its existing cars for free. After all, GM already has the infrastructure to make cars, so it shouldn't be that hard to add armor to it. And let the GM engineers figure out the specs for the armor for free as well.

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    • identicon
      Anonymous Coward, 11 Mar 2016 @ 1:17pm

      Re:

      "McAfee offered to do it for free"

      Except that he lied (and I think the FBI/DOJ knew he couldn't)

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  • identicon
    Anonymous Coward, 11 Mar 2016 @ 7:20am

    Endless...

    The assault on liberty is so endless that we have long forgotten that even a request such as this should be considered TREASON!

    The FBI is attempting to betray the American People, this qualifies as Treason!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Mar 2016 @ 8:23am

      Re: Endless...

      You're forgetting. The American people are only the top 1% and corporations. The rest of us are the American serfs and those rights are only implied.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Mar 2016 @ 8:38am

        Re: Re: Endless...

        But we have the power to fight back, I just cannot figure out why no one wants too?

        There is no such think as a perfect candidate, but there is no chance the George Washington would be elected as president of this nation because of the gross ignorance of the people.

        We could also stop convicting people of crimes through jury nullification until they get heads out of their asses as well.

        The biggest problem in America is not the 1%, it is the 99%, its gross negligence and willful ignorance. We are getting the government we deserve and people are rejecting that reality despite the fact that it is a truth as irrefutable as gravity!

        "The People" are the cancer of this nation and the politicians are just the toxins we produce!

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 11 Mar 2016 @ 10:04am

          Re: Re: Re: Endless...

          "But we have the power to fight back, I just cannot figure out why no one wants too?"

          That question is not hard to answer. The first is the current state of economy. Many people I know are working so hard and so many extra hours of overtime that they have no energy left to do anything else. They are stuck in this cycle because they are parents and need to provide. This group of people will only fight back when the majority are suddenly unable to provide even after working 2-3 jobs. Hence my reference to serfs in our current environment.
          Next is the older generation doesn't seem to think things are that bad and generally call people not doing well lazy. Only one elderly gentleman I know who is extremely active in politics thinks things are going the wrong way. This is because the overall issue is complicated and people are not willing to look into the details. Even calling people unpatriotic for daring to go against the government. Many of these people think Snowden is a traitor.
          The third answer is look at what happens when things do get violent, the US isn't afraid to put people in jail for the most minor of things. If you are providing for a family and you get caught in a protest that turns violent. Now you are in jail with the possibility of losing your job.
          So unless the majority of the population can do a mass protest all at once, nothing will happen until it reaches a critical break point for people.

          "The biggest problem in America is not the 1%, it is the 99%, its gross negligence and willful ignorance."
          I see it more like a sinking boat. Yes, it is the water's fault but it is due to the hole in the boat to begin with. The 99% are responsible for letting it happen but it was the 1% who started it by bribing our government(Lobbying, Insider trading).

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 11 Mar 2016 @ 11:27am

            Re: Re: Re: Re: Endless...

            The work people with no energy left still have no complaint. There is enough time to NOT vote in people like Bush/Obama/Hillary.

            The issues are never complicated, this is nothing more than an escapist excuse to avoid making a tough decision or to high some nefarious bullshit agenda.

            I agree with you on the police state is a very serious problem and only second to illegal immigration, but none of the candidates running now even care about that problem because "We The People" keep signing away our jury rights followed quickly by the Jurist's being completely ignorant or down right antagonistic of their duties and lying to jurors about the concept of Jury Nullification.

            Corruption is so rampant that I am not even sure people understand what corruption is anymore because they have gotten so used to seeing it and even adoring it in the likes of Bush & Hillary for example.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 11 Mar 2016 @ 12:29pm

              Re: Re: Re: Re: Re: Endless...

              "The issues are never complicated" I completely disagree with this. The issues that are in front are never complicated but combined all the rules, laws, regulations, and policies that have been passed it it becomes quite complicated. Our current state of economy is the result of several changes over the past 40 years. An interesting documentary about is called Inequality for All.

              reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 11 Mar 2016 @ 10:41am

          Re: Re: Re: Endless...

          But we have the power to fight back, I just cannot figure out why no one wants too?

          The history of violent revolutions show that the most likely outcome is an even worse regimes than the one that gets overthrown.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 11 Mar 2016 @ 11:16am

            Re: Re: Re: Re: Endless...

            But we still have to try, the USA did occur originally. Whether it be by divine proclamation, human effort and ingenuity, or puerile luck is besides the point.

            reply to this | link to this | view in chronology ]

            • icon
              John Fenderson (profile), 11 Mar 2016 @ 1:50pm

              Re: Re: Re: Re: Re: Endless...

              But you don't want to jump out of the frying pan into the fire. Straight-up revolution has an absolutely terrible track record. And don't forget that the American revolution only went the way it did because the colonies were being used in a proxy war by the world powers.

              One of the key ideas of the American system is that the system allows for effective revolution to take place without war or collapse. What's been happening is that the citizenry has been passive. I am optimistic that those days are waning and we will see a sort of revolution. The signs are everywhere. The danger is that it would be of the violent sort rather than the political sort. If that happens, then we're all in far a whole lot of true pain and darkness.

              reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 14 Mar 2016 @ 1:30am

      Re: Endless...

      It would serve the FBI right if the judge decided in their favor about the AWA...then immediately struck it down as unconstitutional. It would be, after all, if it does indeed do what the FBI claims it does.

      reply to this | link to this | view in chronology ]

  • icon
    beltorak (profile), 11 Mar 2016 @ 7:25am

    > This argument is particularly maddening: basically continuing the ridiculous line of thinking that protecting user privacy is some sort of deliberate marketing strategy against the government

    At this point, the two are kinda synonymous; protecting my privacy necessarily pits all involved against the government, and it's entirely due to tactics like this.

    > But again, Apple has always been willing to respond to legitimate government requests for information that it has access to. That's why that same chart shows that it complied with 81% of US requests as well. But that says absolutely nothing about the requirement to build a special system to hack in and access data that it does not currently have access to.

    The tech companies are getting raped here, and the perpetrator is claiming to the judge that it's not rape 'cause "they gave me a handjob before; consent was already given!".

    I hesitate a bit to draw a comparison to rape here. But seriously. We, The People, are getting fucked.

    reply to this | link to this | view in chronology ]

  • identicon
    Dingledore the Flabberghaster, 11 Mar 2016 @ 7:25am

    Next week

    the DOJ tries to use the All Writs Act to force Zippo to unburn the paper used to light a fire that terrorists might have written a pizza order on. It was a margherita.

    reply to this | link to this | view in chronology ]

  • icon
    ThatFatMan (profile), 11 Mar 2016 @ 7:25am

    The FBI/DOJ argument is bad and they should feel bad. This is solely about precedent, and should they succeed, it will always be about "just this one phone", every time. You'd even think by now, with the AWA being some 200 years old now, give or take, that they'd have some better case law to rely upon.

    Consider this: At some point the FBI/DOJ, in an investigation, has came across documents written in code or a locked safe that might contain evidence of a crime. But when has the government tried to compel Microsoft to help them decode those documents because their software was used to write them? When have they tried to compel the makers of Liberty safes to crack open one of their safes because it might have evidence contained inside? After all, their arguments are that because they write software or created the security features that are now getting in the way, they should be compelled to assist the government. They didn't, because even though these situations aren't exactly the same, they knew it was a dead end, it would never work and they could never compel those companies to do what they now want Apple to do. There is no precedent, because they would not have succeeded before and because what they are asking for is completely ridiculous. And they should never succeed in this.

    I will say however, that should the FBI/DOJ ultimately succeed, I sincerely hope that Apple "accidentally" bricks that device and triggers a memory wipe too, so that iPhone can never provide them with what they seek and to make law enforcement in general think twice before asking Apple to help them.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Mar 2016 @ 7:25am

    "Apple didn't engineer its products "so that the government cannot search them," it's so that your information is safe and secure from anyone, including criminals. You would think that law enforcement people in the FBI and DOJ would appreciate more secure devices that reduce crime."

    Anyone who uses encryption to make it harder and difficult for criminals and terrorists to get access too is according to the likes of the FBI making it harder and difficult for the likes of the FBI to get access to and then must therefore be anti FBI etc and a supporter of criminals and terrorists is my way of looking at from the FBI point of view.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Mar 2016 @ 8:10am

      Re:

      If the FBI takes any attempt at keeping your data safe from criminals as a deliberate attempt at stopping the FBI, does this mean that the FBI is admitting to being a bunch of criminals?

      reply to this | link to this | view in chronology ]

  • icon
    Ed (profile), 11 Mar 2016 @ 7:40am

    So, after all this plays out, should the courts side with the DoJ and order Apple to comply, if Apple just flattly says, "No", what could happen? Fines? If Apple just says, "No" to those as well? What could the DoJ possibly do to them?
    I really hope Apple sticks to their moral high ground here. No matter the consequences.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Mar 2016 @ 7:47am

    DoJ doubletalk

    Everyone -- including the FBI -- has now admitted that this case is almost entirely about the precedent
    (I haven't—be that as it may.)

    This morning I'm watching the Mar 9, 2016 DoJ Oversight Hearing in Senate Judiciary. Attorney-General Loretta Lynch is the sworn witness.

    I've just gotten past Sen. Orin Hatch's opening question about at the 43:00 timemark. Sen. Hatch asks a rather focused question, whether there is “a limiting principle?”
    Sen. Hatch:  . . .  It seems the current dispute is less about one iPhone, and more about the precedent that will be established both here and abroad. What would limit law enforcement the next go around from asking for additional access? Is there a limiting principle here? Can you understand why this is really such a difficult issue to resolve?
    Attorney-General Lynch's response to this question extends from about the 43:45 timemark until the 46:10 remark, following which:
    Sen. Hatch: Ok, I understand your position.
    I've listened to her response a few times now, and it was very impressive.

    If I had been a senator asking that question, I would have held up my hand somewhere in the middle of Attorney-General Lynch's response, and repeated the question. The senators only have seven minutes each during the opening round, and Chairman Grassley is attempting to squeeze a second round into this hearing.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Mar 2016 @ 9:08am

      Re: DoJ doubletalk

      Sen. Hatch: Ok, I understand your position.
      Go Utah!

      Quite a bit after the senior senator from Utah finished his questions, and immediately following the gentleman from Rhode Island, the junior senator from Utah, Mr Mike Lee begins his questioning at about the 1:32:30 timemark.

      Now, I'm just about to listen to Attorney-General Lynch's response.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Mar 2016 @ 10:36am

      Re: DoJ doubletalk

      Mar 9, 2016 DoJ Oversight Hearing in Senate Judiciary.
      ~2:22:20   Sen. Lindsey Graham (S.C.):   When it comes to the problem with Apple, in San Bernardino . . .

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Mar 2016 @ 10:57am

        Re: Re: DoJ doubletalk

        ~2:22:20   Sen. Lindsey Graham (S.C.):   When it comes to the problem with Apple, in San Bernardino . . .

        ~2:27:25   Sen. Graham: &nbp; And -- but it's just not so simple. And I'll end with this. I thought it was that simple. I was all with you until I actually started getting briefed by people in the intel community, and I will say I'm a person who's been moved by the arguments . . .

        reply to this | link to this | view in chronology ]

  • identicon
    Toby Bearden, 11 Mar 2016 @ 7:49am

    since they are referencing previous scotus cases

    "Apple’s claim is particularly weak because it does not involve a person being compelled to speak publicly, but a for-profit corporation being asked to modify commercial software that will be seen only by Apple. There is reason to doubt that functional programming is even entitled to traditional speech protections"

    Might as well use Citizens United in our favor. If it's good for the goose....

    reply to this | link to this | view in chronology ]

  • identicon
    norahc, 11 Mar 2016 @ 7:53am

    I guess the DoJ felt it needed to file something more than Cartman yelling, "Respect my authoritah!", because that's how this filing sounds.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Mar 2016 @ 8:04am

    To be honest here, I couldn't keep reading after the FBI invoked the Fourth Amendment as if they respect it at all.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Mar 2016 @ 8:08am

    Oblig. car analogy

    It's Ford's fault that we can't simply shutdown a car with a remote control. After all, they decided to make the body of the car out of steel, acting as a faraday cage for the actual engine components.

    And Ford is not so far removed, because they perform recalls and regular servicing on their vehicles.

    It was Ford's business decision to prevent its vehicles from being controlled remotely through the entertainment and environmental systems.

    ... Ford appears to have made special accommodations in England as well: for example, moving the steering column to the right-hand side of the vehicle ...

    reply to this | link to this | view in chronology ]

  • identicon
    bob, 11 Mar 2016 @ 8:11am

    has the FBI tried...

    has the FBI tried using the fingerprint sensor?
    with an existing finger, or if fingers aren't available creating a gel mold of known suspect fingerprints and using that on the fingerprint sensor?
    sure, the person MIGHT not have used that feature but...
    I'd bet if he did, and the FBI hasn't tried this,
    they'd feel pretty stupid right about now.

    reply to this | link to this | view in chronology ]

  • identicon
    stumpy, 11 Mar 2016 @ 8:21am

    Thanks. I'm in Ireland. I follow your comments because. 7 years later some bright spark in goverment here will try his luck and becauce computer*

    reply to this | link to this | view in chronology ]

  • identicon
    Capt ICE Enforcer, 11 Mar 2016 @ 8:43am

    3 rules

    1) Has your department stopped an attack? No
    2) Has your department offered its services to help others protect themselves? No
    3) Should your department be allowed to continue working?

    I think some people should be fired....

    reply to this | link to this | view in chronology ]

  • identicon
    David, 11 Mar 2016 @ 9:27am

    You are being disingenuous here:

    And, yes, Apple put in place these "barriers," but not as barriers to the government, but as security for everyone.

    This is just a pretense. By far the largest danger to the constitutional guarantees and the security of communication and personal assets is posed by the government.

    It's not ordinary criminals and terrorists who are building the NSA computing center in Utah which would be completely out of scale for just the pretended processing of metadata.

    And Apple reacted with its encryption schemes to the Snowden reports, exactly in order not to be able to serve government requests in future.

    Yes, encryption without escrow keys is aimed particularly at locking out access by the government. Because the government has by far demonstrated the largest amount of criminal energy aimed at attacking its citizens.

    Apple is correct that they are mainly protecting their users against criminals, and the government is corrent that Apple is mainly protecting their users from government access.

    Arguing on a technical basis that it's impossible to protect against criminals while simultaneously providing access to the government is just silly when the most important criminal is the government.

    Let's hope that privately committed cybercrime will take a hit because of the measures against government criminality just like Hepatitis infections took a drop when AIDS entered the scene: because that was when everybody started using gloves in hospitals and avoiding blood exposure.

    Things became so bad that one finally did what one should have done in the first place.

    That's what's finally happening with encryption.

    Thank you, Edward Snowden.

    reply to this | link to this | view in chronology ]

  • icon
    MarcAnthony (profile), 11 Mar 2016 @ 9:32am

    To the extent that all code is expressive

    To the extent Apple’s software includes expressive elements—such as variable names and comments—the Order permits Apple to express whatever it wants, so long as the software functions.

    The FBI plans to let Apple choose their variable names and make notes in their own code? How magnanimous! I’m sure that the people who died in the founding and service of this country would appreaciate the government’s redefinition of the constituent elements of speech and forcing people to write things that have been relegated to non-expressive status. /s

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Mar 2016 @ 9:47am

      Re: To the extent that all code is expressive

      Apple’s claim is particularly weak because it does not involve a person being compelled to speak publicly, but a for-profit corporation being asked to modify commercial software that will be seen only by Apple

      1) I don't remember the first amendment being limited to protecting'public' speech.

      2) Because everyone is watching the outcome of this case, regardless of the words used in the code, the gist of what Apple writes is very much public.

      3) Why is there a dichotomy between speech that is functional and speech that is just expressive? Isn't all speech functional at some level (i.e. it accomplishes something)? And even if there was a difference, why would functional speech be the less protected of the two?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Mar 2016 @ 9:35am

    lawyers and their big words

    I had to look this one up-

    suzerainty:
    the dominion of a dominant state controlling the foreign relations of a vassal state but allowing it sovereign authority in its internal affairs

    WORD POWER!

    reply to this | link to this | view in chronology ]

  • icon
    Robert Beckman (profile), 11 Mar 2016 @ 11:42am

    "ordered liberty"

    "Rather, it is ordered liberty vindicating the rule of law"

    This is a really great line. I've been playing Helldivers a recently, which plays on authoritarian regimes a lot, and they have another great term that this brought to mind, "managed democracy."

    We need to be clear: this isn't about liberty, this is about ordered liberty.

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Monkey (profile), 11 Mar 2016 @ 1:19pm

    Three factors! Drink!

    Loved how they repeated it soooooo many times you had to simplify and just link to a previous article:

    Three factors! Drink!


    That just says it all

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Mar 2016 @ 1:58pm

    Clock is ticking...eventually the FBI will show its hand at some point and try to take over control of the government "because terrorism"....

    Get control of Android/iOS and blackmail people so the dominoes fall into place.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 11 Mar 2016 @ 4:55pm

      Re:

      I think it's more likely to be the military. It's already its own branch of government in many ways. Did you know that Americans trust the military establishment more than any branch of government? And by a lot.

      reply to this | link to this | view in chronology ]

  • icon
    Whatever (profile), 11 Mar 2016 @ 6:04pm

    It's too bad you aren't equally critical of Apple's over the top hype, like the "force us to turn on microphones and cameras on every Iphone in the world" type claims they are making.

    If you want to cut through the crap on something, you need to treat each side in the same manner. Apple is way over doing it, why nothing negative about them? Oh, because you agree with their hyperventilating sky is falling concepts?

    Sad.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Mar 2016 @ 4:30am

      Re:

      RIAA is way over doing it, why nothing negative about them?

      NYPD is way over doing it, why nothing negative about them?

      DOJ is way over doing it, why nothing negative about them?

      Physician heal thyself!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous, 11 Mar 2016 @ 7:21pm

    And to think I was taught in high school that the Dept. of inJustice operates in good faith.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Mar 2016 @ 12:59pm

      Re:

      And to think I was taught in high school that the Dept. of inJustice operates in good faith.

      That didn't just so happen to a be a government approved school, did it?

      reply to this | link to this | view in chronology ]

  • identicon
    Jam, 12 Mar 2016 @ 10:50am

    Crazy Idea: Drop all objections but the objection on 1st Amendment grounds

    IANAL
    This is an idea from way outta' left field, but hear me out.

    There is another provision of the law that probably does not apply (again IANAL), but is almost certainly connected to this case. DMCA 1201 criminalizes the creation or distribution of a particular type of encryption backdoor, DRM circumvention tools.

    What I'm hoping for is a judgment along the lines of "the 1st Amendment prohibits the government from compelling a) encryption backdoors, b) particular software, or c) particular software features" with any of a, b, or c (although all 3 would be nice).

    Such a conclusion seems like it could easily lead to "the 1st Amendment prohibits the government from gagging/prior restraint of a) encryption backdoors, b) particular software, or c) particular software features".

    Under this final conclusion, DMCA 1201 cannot stand.

    reply to this | link to this | view in chronology ]

  • identicon
    Rob, 12 Mar 2016 @ 12:58pm

    In the footnotes...

    In the footnotes, the DOJ adds,

    > "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 labour by Apple programmers."

    Wouldn't turning over the code present another place from which someone could steal the tool, thus increasing security risk and introducing more burden? The FBI previously said Apple should hold onto the source code. Darrell Issa seems to have been the one to suggest this course. It was not on Comey's mind two weeks ago.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Mar 2016 @ 1:11pm

    Not hard at all!

    Apple asserts that it would take six to ten employees two to four weeks to develop new code in order to carry out the Court’s Order.

    If it would take six to ten Apple employees two to four weeks, then why doesn't the FBI just put ten of it's own super-genius FBI agents on it? They could probably do it in half the time!

    reply to this | link to this | view in chronology ]


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