Tuesday, March 22, 2016

There's no conspiracy behind the FBI-v-Apple postponement

The FBI says it may have found another way to get data off an iPhone, and thus asked to postpone a hearing about whether Apple can be forced to do it. I thought I'd write a couple of comments. Specifically, people are looking for reasons to believe that the FBI, or Apple, or both are acting in bad faith, and that everything that happens is some sort of conspiracy. As far as I can tell, all evidence is that they are acting in good faith.

Orin Kerr writes:
If that happens, neither side will look good in the short term. The FBI won’t look good because it went to court and claimed it had no alternatives when an alternative existed. The whole case was for nothing, which will raise suspicions about why the government filed the case and the timing of this new discovery. But Apple won’t look good either. Apple claimed that the sky would fall if it had to create the code in light of the risk outsiders might steal it and threaten the privacy of everyone. If outsiders already have a way in without Apple’s help, then the sky has already fallen. Apple just didn’t know it.
I don't agree.

It's perfectly reasonable that alternatives for the FBI didn't exist a few weeks ago, but exist now. Once the case hit the news, jailbreakers and 0day hackers could have looked for a bug to exploit, then created just the solution the FBI wants. They can do it in only a couple weeks, which would take Apple much longer, because they are vastly more motivated to do the work.

Conversely, Apple doesn't claim the "sky will fall". It only claims that developing a backdoor will make life easier for the hackers. Imagine that the hackers are charging the FBI $1 million. From Apple's perspective, the sky hasn't fallen, as the iPhone is safe from anybody who can't afford $1 million. Conversely, if some tool leaked out on GitHub, so that anybody could download it, then relatively the sky will have fallen for Apple. The point is that this isn't black-or-white, sky-falling issue, but one of a vast grey area somewhere in between.

Thus, the evidence is that both sides appear to be acting in good faith. The FBI exhausted all alternatives at the time, but then hackers created a new alternative. Apple doesn't want to do anything more that could help those hackers.

The FBI and Apple are, of course, aware of how this one case fits into their long term plans. Thus, we know that what they say in public, and what they file in their briefs, have a larger agenda than just this case. But at the same time, the FBI could not have started this process if an alternative had been available at the time, or Apple would have contested the order by simply pointing out the alternative. That this didn't happen means that both the FBI and Apple were unaware of a a better alternative. Thus, as far as I can tell, there's no conspiracy here.


Elizabeth Stratton said...

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Ewing Fox said...

Wait A minute! You are writing this on the internet - you aren't supposed to posit a reasonable and measured hypothesis!

Thanks again for a wonderful article.