FBI hacks Apple: Is the agency trying to circumvent the Constitution?


NEW CASTLE, Pa., April 4, 2016 -In February, California Magistrate Sheri Pym ordered Apple to create and supply the FBI with software to allow the US government to breach the most effective security features in all current iPhone models. The FBI initially claimed it needed Apple’s compliance to further its investigation into the San Bernardino terrorist shootings more than two months after the high profile incident occurred. Now, the agency’s abrupt reversal of its original position is raising even more alarms.

DOJ may not need Apple’s assistance to unlock iPhone

Not only did the FBI discover an alternative to Apple’s forced cooperation despite its insistance that there not was no other way to obtain the encrypted information on the iPhones in question. It now appears the FBI has had the ability to hack the iPhone 5C — the model used by the San Bernardino shooters — since 2013, with the help of its Israeli-based cyber security contractor Cellebrite.  If this information provess true, it suggests the FBI was plotting to abuse the U.S. legal system to silently secure its ability to violate the privacy of American citizens at will.

The Ford Expedition SUV involved in the San Bernardino shootout. (Public domain: released by the San Bernardino County Sheriff's Department in California)
The Ford Expedition SUV involved in the San Bernardino shootout. (Public domain: released by the San Bernardino County Sheriff’s Department in California)

With the two terrorist suspects dead and the lives of their associates under heavy scrutiny, the FBI hoped to gain new evidence from the perpetrator’s smartphone that might reveal insights into the shooters’ thinking or connections to unknown suspects. Given the timeline, however, the FBI could not honestly have hoped to gain new information that might prevent an imminent threat qualifying as a clear and present danger, which is the legal benchmark for violating the right to privacy.

Coupled with the latest revelations and the FBI’s eagerness to help other law enforcement agencies unlock iPhones in other cases, it appears the intelligence community was simply using the incident to acquire “master keys” for all iPhones and set a further precedent for such activities.

Along with the FBI’s resistance unwilling to inform Apple of the security weakness it is exploiting and assist the company in securing its products for all its users against criminal and state-sponsored hackers, this underhanded approach undermines the willingness of tech firms to cooperate with law enforcement.

In other words, the FBI expected Apple to cooperate with it, yet the agency abused the legal system to compel Apple to cooperate when it expressed serious reservations. Worse, the FBI attempted to publicly shame Apple when it pushed back, and sought to secure an ongoing ability to hack Apple products.

The FBI’s apparent ability to hack an iPhone model does not determine if the agency has the legal authority to search someone’s property. In addition, given the abuse of easy access to massive amounts of metadata by the NSA and CIA that was uncovered by the Edward Snowden Revelations, however, the FBI is asking Apple and the rest of the tech industry to ignore an unsettling history of national security overreach. In fact, they are undoing everything they did to prevent it from happening again.

Crackdown on terrorism threatens civil liberties

The Edward Snowden revelations demonstrated the 9/11 terrorist attacks gave America’s national security apparatus the rationale needed to ignore civil liberties in order to engage in unfettered intelligence gathering operations. From illegal wiretaps to mass collections of meta data, which enables analysts to understand intimate details of individuals’ lives, NSA programs such as PRISM exemplify a total disregard for a reasonable right to privacy as afforded under the Fourth Amendment.

Torture at the hands of CIA agents at the Guantanamo Bay detention camp, of course, demonstrate the lengths authorities are willing to go to circumvent legal limits placed on them. Just as the CIA and the George W. Bush administration argued that the torture of non-US citizens at Gitmo was lawful because the Constitution did apply to noncitizens outside of the Country, the FBI may be attempting to circumvent legal boundaries intended to serve as checks and balances.

Not only has the FBI tried to avoid the need to legally justify Apple’s forced cooperation through its use of the “All Writs Act,” which was part of the 1789 Judiciary Act. It is important to recognize that the company involved in the FBI’s apparent solution, Cellebrite, is an Israeli-based subsidiary of the Japanese Sun Products Corporation.

Israeli may be a close friend of the United States and a major beneficiary of American military assistance, but Israel is a country in a perpetual state of war. Israel controls somewhere around ten percent of the global cyber security industry. Its National Cyber Bureau represents one of the world’s most aggressive efforts to foster private-public cooperation on cybersecurity, and Israelis remain highly sensitive to even the most benign threats.

Israel’s cultural trauma tends to make the country’s hardliners overly aggressive toward outsiders and often negligent of civil liberties when it comes to non-Israelis. This is particularly true for the Palestinianians, which has earned Israel scathing reviews from oversight groups like Amnesty International.

Israeli’s efforts to criminalize activism against Israeli occupation and censor criticism of Israel across the entire Internetdemonstrates the need to scrutinize national security cooperation with Israel and Israeli firms.  More importantly, it suggests the FBI may be using Israeli firms in order to circumvent legal boundaries designed to problem the rights of Americans.

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