TechStuff Classic: Apple vs the FBI

March second, twenty sixteen. This is sort of an ongoing struggle between companies like Apple and various agencies because, as we will hear in this episode, the FBI wanted ways to be able to access locked iPhones that had been recovered from say a suspect, and Apple is trying to do its best to maintain consumer confidence by tecting their

data and their devices. We've heard similar things, which I'll talk about more at the end of this episode, that have involved other law enforcement agencies and investigative agencies here in the United States. But first let's listen to this classic episode from twenty sixteen. So we're gonna talk about something that's actually we're gonna have to work very hard for multiple reasons because we're talking about Apple versus the FBI.

The whole story that's unfolding as we record this, and to talk about what is behind that case, what are the implications, what is the FBI's argument, what is Apple's argument? And in addition to that, we have, of course the added responsibility of remembering that this is all centered around a truly awful crime. Yes, absolutely so. The what we're what we're talking about specifically hit inanstream news when Apple did something that a lot of tech companies have never done.

They issued a blanket statement letter and went public. Yeah, with they went public with a response to an FBI request. But I guess I'm getting ahead of it. What was the crime? Well, let's yeah, let's I'll give you the background on what's happened and we'll build from there. So first we have to look back on December second, twenty

fifteen in San Bernardino, California. That's in southern California, and that's when two well an American citizen and a legal resident husband wife team, both of Pakistani descent, committed a mass shooting. It was a Sayed Rizwantharouk and tash Fen Malik who committed this act, and it happened at the Department of Public Health. They were having an event that was starting off as a training event and then it

was supposed to transition into a holiday event. And after the training element, Farouk, who was actually at the event, he was in the employee of the Department of Public Health, he was a food inspector, left, came back with his wife. They were both heavily armed and they both started firing into the crowd of people at the Department of Public Health. Fourteen people were killed, twenty two injured. Very serious crime.

Then far and Malik left. They fled the scene. Turned out they had also left behind an explosive device, which thankfully did not detonate. Failed to detonate, and they fled in a vehicle that they had rented a few days before, and several hours later law enforcement tracked them down. There was a confrontation, there was a shootout, and then both of the shooters died as a result of that shootout.

The FBI has stated that they believed, based upon the evidence they were able to find that the two were acting on their own, that they were not part of some sort of terrorist cell in the United States. However,

they can't be absolutely certain of that. That's where the crux of this issue with Apple is going to come into play, and the big part of it is they can't account for it's just less than twenty minutes of the activity that happened between the shooting or leading up to the shooting, and around the shooting, because they're thinking that there's a possibility that something that happened within that time could give them more information and at least allow

them to confirm whether or not they truly acted on their own or if they were under the direction of some other group, which could potentially and this is an FBI argument, which could potentially give the government the ability to prevent a future attack. And more to that point, neither of them had been listed in any database as a potential threat, So that puts extra pressure on the government,

right because citizens say, well, why did this happen? The government says, we followed procedure and neither of them registered on any of our There were no red flags, so we had no way of knowing. And that means there's actual extra pressure on the FBI to investigate this thoroughly, partially to show that in fact, everything that could be done had been done short of taking some extreme step that none of us want to see, right, the idea of like, Okay, everyone of Pakistani descent has to leave

the country. That's ridiculous. We would that's that's returning to an era of the United States history that we do not want to revisit, a World War two internment camp situation. Yeah, we don't want that. We don't want that because it is never fair to lump innocent people in for or that one of them might be guilty. That's not cool, right, this is I'm already getting angry and i haven't even gotten to the part about the apple stuff yet. I'm

going for a slow burned thing myself. That's fair. So one of the thing that's that all of this is about, ostensibly any at any rate, is an iPhone. It's specifically an iPhone five C probably running iOS nine. That's based upon the various public filings we've seen about this. And it was county owned. It was owned by the Department of Public Health and then issued to Farouk who worked for the department Department of Public Health, so it was

county owned. The FBI went to the county and said, we want your permission to access the contents on this phone. The county said, of course, you have our permission, you can access it. Now, if that's all their worked to it, it'd be fine. Sure, I would just access the phone. They've already received permission from the phone's owner, and they could cull through it to look for any evidence that

would lead them to more information about this crime. But there is a security measure on the phone, and it's a very simple one. It's on lots of smartphones. It's a little password. In this case, it's a four or six digit pin which can be alpha numeric if you activate that option on the six digit. So it's one of the two, we don't know which, and without that pen, you cannot access the information because the way the pen works. This is where we get into the tech stuff. Been right.

There are two levels of encryption, or two keys to this encryption. One of the keys is the pen. The other key is hard coded onto the device itself. All right, It's only it's if you think about movies like those nineteen eighties movies with the nuclear power, where you have to have two generals put their keys into the same sort of thing. So if you don't have the pin, it can't combine with the hardware key, and therefore you

cannot unlock the information. The idea here is that Apple doesn't have the pen right, which is cool because it means that if you or I or you listeners have an iPhone, it means you can trust Apple. Because they don't know your pin right, they can't access your phone. You know, that was the whole point, right, Two points one.

Apple wanted to make its secure enough so that consumers would say, I feel good about buying an iPhone because I know whatever I store on it, whether it's something that's personal or it's just you know, it's no one else's business, whatever it may be, sure no one else is going to have access to that unless I give them my pen. It's good for Apple, not just because consumers are happy, but because Apple then has an out.

If the government comes to Apple and says, hey, we want you to break into this phone, they can literally say we cannot do that. It's not that we will not, it's that we literally physically cannot grant your request because it's impossible. And there's also I would just to expound that point a little bit further. This I'm not suggesting as their conscious will or intention, but this also removes

possible culpability. Yes, yes, so all of these are very important points, right, So let's get into a little bit more of why the FBI is coming to Apple. So let's say that it's a four digit pin. Okay, all right, all numeric, all numeric, simplest version. That means there are ten thousand combinations that are possible for that pen. That's it. That's you're limited to ten thousand, okay, which is that's a lot, but it's not that much if you're going

to do something like a brute force attack. Right. So, if you do a brute force attack on a normal system, and there are only ten thousand variations, it's with a fast enough computer, it's just a matter of minutes, right, But there are some limitations on the iPhone that make this harder. Does it freeze if you enter the incorrect pin? Oh?

It does more than freeze, all right. So first of all, there is an eighty millisecond delay when you enter a pin and when it gets verified that it is or is not the correct one when the key turns right. So with that eighty millisecond delay, that doesn't sound like much, but it means you can't just blast a whole bunch of numbers through. Also, you have to type it in on a screen. You can't hook it up to a computer and just digitally send the various pin combinations to

try and get through. You have to actually tap them on the screen to do it over and over. So that means you tap in the number eighty milliseconds pass, you get the confirmation or denial. Tap in a number next. If you hit ten consecutive incorrect pen entries, the phone interprets that as saying someone else who is not the owner has gotten possession of this phone. So in order to protect the owner's information, we're scrambling everything and you

lose all the metadata. Everything is useless. So even if you got the pen afterward, you would not be able to access the stuff you were looking for in the first place. You would maybe be able to turn on the phone, but there wouldn't be anything there to find. Yeah, you would have just you would have just it would be like you just accidentally set fire to the file room, Like you know, like you can't get into the file room door, and whatever you try and do accidentally sets

a fire inside the file room. You then get the key to the file room, and then you think, well, what's the point lady lost everything, and it's it's virtually assured. Yeah that out of those thousand, yeah, out of those ten thousand tries, your first ten are going to be wrong. Yeah, I mean just the odds are pretty much against you,

unless you're ridiculously lucky. So there's that, and of course they don't they also if it were an actual later iPhone, if it weren't the iPhone five C, they would have an added problem, which is that with the later models there's an additional delay after four failed tries. So if you try four times and fail, it will then give you a five second delay before you can try the fifth time. After that, it gives you a fifteen second delay after that, like by the time you get to

the ninth try, it's an hour delay. Like, think about what you're doing, right, So, but the five C doesn't have that, so you may have read about that delay. It does not qualify for this particular space. Through force won't work in the most basic pin situation. But in the sixth digit alpha numeric, I just imagine the same rules apply, but the yeah, yeah, yeah exactly, But the possible answers are much greater because now you've got six digits you've also got the possibility of alpha characters in

their alphabet characters. I believe so. Um so, anyway, from why I hear, if you were to try and use brute force on a six digit alpha numeric one, it would take you with a with a fast computer that had been optimized for this, it would take you about six years to break through it. And that's going through all the different possible combinations, assuming that there's not another kill switch type deal like there is with the iPhone.

By the way, that's software that Apple has built into the iPhone, or really firmware that Apple is built into the iPhone. It's not like it's a fundamental you know quality that all smartphones. Oh right, yeah, yeah, that's that's specific to Apple phones. Right, So you've got this problem, right,

You have the FBI. They've gotten permission from the owner of the phone to access the phone's contents, but the owner of the phone doesn't know the pen because the owner of the phone had had issued it to an employee. The employee had come up with the pen, So they don't know. If it's a four digit, they don't know, if it's a six digit, they don't know. They don't know if this this feature where after ten tries everything

gets erased. They don't know if that's necessarily active because you can turn it off, but all indications point to it being on. For one, it was on when the phone was issued to Farouk right, and people typically don't change their defaults vs phone users. So FBI wants Apple to do something particular, and it's something different from what we've talked about in previous episodes about a backdoor entrance

into a system. It's not quite the same thing. So you've got this phone, you can't brute force attack it without risking damaging the contents. Apple cannot access the information on this phone by design, they did not want that

to have that capability. So what the FBI wants Apple to do is build a new version of iOS just for this phone, a specific iOS for this own that disables the safety features that would one prevent brute force attacks from happening quickly, to allow brute force attacks to happen by hooking up the phone to a computer so you don't have to tap those numbers in it shore

and three disabling that kill switch. So what the FBI wants Apple to do is to build up a brand new iOS again just for this one phone, and then install it on the phone. This would all you know, hypothetically happen on Apple grounds, like at an Apple location, either at the corporate headquarters or wherever. And then in theory, you would then destroy the the the custom iOS because you only needed it for that one phone, right, because it was so easy to toss the one ring, bring

it back to more door and destroy it. Right. Yeah, yeah, you know what, Mount Doom plenty of backdoors. It's fine, it's integral to the plot. That was That was Sauron's problem was that he did not plug the security vulnerabilities into Mount Doom. I mean, that's that's a classic example, like you know, right up there with the whole land War with Asia thing. So FBI has been very very careful in framing this in a way that presents it

as a reasonable request, one time thing. That's a that's a big deal, right saying this is for one phone and one phone only, you would you know, we're suggesting the Apple creates an iOS that's directly tied to a unique identifier on that phone, meaning even if the iOS were somehow to leak, sure it would not be applicable to any other device on the market, so it could only work for this one phone. So that that sounds

good in its current form. That's that's important. They didn't go so far as to say that that's the important part that's left out, but yeah, so that's that was reasonable. You could argue saying this is for one case only.

It's it's an important case. People died as a result, extraordinary, and we need to have a clear timeline because we don't know if there's something what is there something planned for December second, twenty sixteen, right, or was there another person involved that we need to get hold of, because

otherwise that this could happen again. So they've said, you know, one time only, use going to destroy it after that use Hey, an Apple, if you don't want to make this iOS, that's fine, you don't have to do it. We'll do it. We'll hire some people to reverse engineer it, build out an iOS ourselves. Here's the thing, though, Those iPhones will only verify firmware if there's a special Apple

digital signature attached to the firmware. So in other words, if the digital signature, which is unique to Apple, if that's not in there, it won't be verified by the device, it won't be loaded on because Apple famously wants to make sure that their hardware and software works together. And that's it. No one else gets to play in that

play box. Yeah, it's the same with their Matt computers forever, right, Like you were really meant to run Apple software on Apple hardware and never the twain shall part, right, So, same thing with this iPhone. So the fbis is so we're not even asking you to give us the digital signature, which would be disastrous if Apple did that. The whole point of the signature is to make sure that only Apple can do this stuff. What they're saying is will make this iOS, will give it to you. Yes, you

will sign off and send it. Right, you give a little stamp of approval with your little digital signature, and then we can load it onto this phone. But that way you don't even have to build the code. See we're being really reasonable. We'll be back with more with Apple versus the FBI after these quick messages. So here's here's the other issue. Apple kind of shot itself in

the foot. See this is kind of a workaround already, this idea of being able to create a new kind of firmware to work around the security measures while not affecting any of the underlying data. The reason why that's possible at all is that Apple has allowed for the possibility of issuing a firmware update to a phone without

the phone's owner having to accept it. Ah. Yes, see, if Apple had designed this so that when it pushed out a firmware update, you, as the user, had to log into your phone and accept it, there'd be no way for Apple to do this because you would already have to have the pen in order to accept the update. So you can't work your way around the pin because even the update to try and do the workaround would still need the pen. But that's not the case. Apple

can issue a firmware update without the user's consent. This, by the way, also a security problem. Not just a security problem in this particular case. But what if someone at Apple, you know, decided to code it in so that you could activate the microphone remotely. Yeah, and they and they shoot this firmware update out and you don't have the ability to deny it. You might not even be aware that it happens unless you happen to be using your phone when the firmware update gets pushed to

your phone. That's an issue. So because Apple can do this, that gives FBI the the leg up to make this request. So the FBI just is trying to be as reasonable as possible in their request while avoiding the addressing the problems that could arise should Apple agree to it. And yeah, that's that's the thing. Okay, that's that's that's the thing.

No matter how single use this might be. Yeah, no matter how noble or even crucial the cause, right, there's not there is not a practical way that this would work without severe repercussions. Yeah, there's a there's a word I like to use in this case. It's called precedent. Ah. So when you said a precedent where Apple agrees, acquiesces, surrenders, is compelled to however you want to put it, to agree to FBI's demands, you can't undo that. That has happened.

And perhaps more importantly, not only has it happened in the US government, but now other governments that operate where Apple sells products could come to Apple and say, we know you can do this because you have done it, and we know you will do this because you did do it. So if you want to do business in our country, you know, the one that starts with Chu and ends with Aina. You will do this for us.

And when you're talking about a government like China's government, you could see how this could be used to an abusive extent. Anyone who is identified as a dissident could be targeted. And China's an enormous market. Right, Apple cannot, as a publicly traded company turn its back on the biggest emerging market in the world, not even emerging, it's emerged, the biggest market in the world. Also, it's a there are manufacturing basis for apples in China. That's part of it.

That's already been a security concern. Let's also consider I mean, if we're being honest, Okay, how how do I say this correctly? Jonathan? Oh? Yes, Okay. While there is no universally acknowledged proof that corporate corporate espionage projects or operations coming from China are sponsored by the government, right, there is widespread certitude that that is the case. Ockham's razor, right, Right,

Ockom's razor. You look at it and you think, okay, it is entirely possible that any hackers operating in China One, maybe they're not Chinese. Unlikely but possible too. Maybe they're operating from a different country and using proxies to go through China. But considering the firewall of China, that seems like that extra headache for those hackers. Three, they could

be operating. They could be Chinese and operating in China, but not be directed by the Chinese government, in which case they would still have to use proxies in order to access that level of infrastructure. It just gets to a point where you think the simplest explanation is, in fact, there are these state backed hackers that are doing this on behalf or on the request of Chinese government. If not on the request, at least with the implicit approval.

There we go at least someone looking the other way. But even that's not enough. There's assistance involved anyway. I'm

derailing us as well. The point being that if if Apple were to agree to this FBI request, that is a distinct possibility that it would face not only future requests from from other government agencies as well as the FBI, but from other countries as well, and that it would it would be the wedge that drives open the possibility of the things like these backdoors that Apple and other companies have been resisting for years now. No, there is one other there there is a case that I think

we should clarify here. Um when we talk about precedent, there have been precedents in the in the legal past wherein Uncle Sam was allowed to compel a company right to do and this is different. But we do need to I think we need to differentiate these because it is legal in the US to compel a third party, whether an individual or a corporation to um help how do they word it, like execute a court order or

something like. Yeah, So you're you're talking about the all Ritz Act, right, which is a very old thing, back to what's seventeen eighty nine. Okay, US wasn't even the US very much the right. This is not a smartphone specific law. There were still occasional battles with the British going on. Okay, seventeen eighty nine, so all the states were here, yet many of them were not here yet. Yes, seventeen eighty nine is when this want was first written

down as part of the Judiciary Act. So specifically, what the all Ritz Act allows the government to do is to compel a third party to accommodate federal orders like a search warrant. So, in other words, the federal government can issue a search warrant to law enforcement. The law enforcement can go to let's say it's an apartment building. They can go to the manager of the apartment building and say, we have the search warrant. The all Ritz Act tells us that you have to allow us to

go into this apartment to search it. And then the apartment owners says all right and lets them in. Now, this serves a couple of different purposes. It expedites the work of the federal government in investigations and things of that nature. And it also provides a protection to those third parties because the third party is having to comply

with a federal request. And if you are a person like an apartment manager and your other tenants are coming to you and saying why are you letting them into someone's room without their permission, you can say I have to by law. That protects you as the owner as well, because it means that you're not you're not You're not a rat. You know you're you're you're following the law. You're obeying the law. Right, So automatically, anything you do in the assistance of the execution of that court order

is automatically legal. I mean as long as you're yeah, as long as they're not saying, hey, we need a search warr and you go sure, Hey, while I'm on the way, do you mind even steal the car right or there? Or they can't say, hey, we're going to get a search warrant? Do you want to just lessen

now right? That would not be cool. But there's a very important idea that's attached to the US all Ritz Act, which is that, and the Supreme Court has ruled on this, you cannot rely on the all Ritz Act to compel a third party to action if it creates an unreasonable burden upon that party. So you might say, well, what's the unreasonable burden for Apple? I mean, all they're asking for is a way around this security system, just time, just the one time. So there are actually several counter

arguments to this. Um. First, uh, you know, Apple is saying their programmers may not even know how to make the code that would allow for this to happen. They like, listen, we don't even know that we can build this yet, So you're asking us to do something that we don't know we can build. So that's an unreasonable burden because it means we have to dedicate our assets to from from projects that they should be working on to trying to figure out if this thing is possible and if so,

how to do it now. The FBI's argument was essentially, hey, you're in the business of writing codes. There should be no problem, right. I would desperately need a bleep sound effect right now. But I call BS. Let's be nice. I'll call BS on that argument, because to me, that's the same as coming up to Let's say, let's say Ben that you are a cook, yes, and you cook in an Italian restaurant. You're you're the Italian restaurant's head cook. Three initial in stars. I go up to you and

I say, hey, listen, I'm from the federal government. I got this, uh, this this executive order, this federal order for you. Okay, all right, you have to now go and make a dinner of Peruvian food right now for thirty people that are in the restaurant. You can do it because you cook right exactly. Or it's like saying, yeah, it would be a disastrous Peruvian dinner at very least a looser interpretation, like for another example, let's say to make it even broader. Yeah, because I think this is

this is pretty good too. So, uh, Jonathan, let's say that you are a doctor. All right, Okay, you're at your doctor, doctor Strickland, doctor Strickling. Hey, hey call me Jonathan, doctor Strickland's my dad. You right, So you're an easy going doctor, clearly, Um, and you are, and uh you you're an ear nose and throat man. Okay yea. And uh so I come up to un say I'm from the federal government. I have an executive order but not

an appointment. So you're already kind of irritated, right, and I'm like, and I say, I need you to make the cure for cancer. Yeah that's a bit much. Yeah, I mean you're a doctor, right, you know about organs and stuff cancer affects bodies. Or going to Harley Davidson Davidson and saying, look, you you make stuff where wheels are connected to chassis and they turn and a motor keeps things going. I need you to make a bus. Yeah, I mean, as you see where the where it's ridiculous.

It's it's you can't argue that because this company is in the business of doing this one thing, which by the way, is just one part of Apple's business, absolutely, that they are capable of making this other thing that happens to fall into that same category. That is ludicrous on the face of it. So that's argument number one about it being a burden. Okay. The second burden is the one that we've already touched on. It sets a precedent.

If Apple can be forced to attack the security of its own system in this case, it could happen again and that would be a disastrous result for consumer uh, you know, confidence in Apple's products. Right, that's very bad for Apple's bottom line. So if Apple says, look, you will make us lose millions, if not billions of dollars in revenue, how is that not an unreasonable burden? How can you argue that that burden is reasonable? Right exactly?

And that's so. And not only that, but then you get into the foreign agent approach, the foreign state approach, saying what if this means that China comes to us and says, because of this other thing that we agreed to do, we now have to do it in China all the time, and real human beings are being pursued and their lives are turned upside down and ruined as a result of it. And it's all because we have to comply, because this has already set a precedent that's

an unreasonable burden. And finally, they've even said that it's a violation of their right to free speech. And the reason for that is because code has been ruled as a type of free speech in the past, and if the government compels Apple to write code that Apple doesn't believe in, they're being compelled to speak against their own beliefs, thus a violation of free speech. Now that argument, most people are saying it's probably the weakest of all of their styling on it a little, but I gotta admit

that's pretty awesome style. Well, yeah, that is. I enjoy it. And there, while it's reaching, it's not invalid. And let's consider that Apple legally, in this kind of case, is playing against Uncle Sam and on its home territory right.

And this means that you you might often wonder why when there are suits or countersuits or legal problems, why so many cases open with just this laundry list of arguments, And it's because it's you know, if we could go back to my Italian restaurant, you're just throwing this spaghetti

at the wall. It's a scattered gun approach, it absolutely is, or if you prefer, it's casting a very wide net because you aren't sure which tactic is necessarily going to be your best one from the starting gate, so you want to throw out all of them at once, and if it's if it's a compelling enough argument, then you can get things thrown out before they go any further. And in fact, Apple has said that they're willing to go all the way to the Supreme Court with this

particular fight. The CEO said that publicly. Yeah, which interesting because I you know, we recently lost a US Supreme Court justice here in the United States, and I actually think he probably would have sided with Apple on this one because of his very strict view of the constitution, right he's an originalist antonin Scalia. Yeah, So going back to this argument of it, I'm going to read a quote and I want to see what your reaction is,

because I know what mine was. This is from Congressman David Jolly of Florida, who said Apple's leadership risks having blood on their hands. Ben is shaking his head and looking at me in disdain. Not at me, he's looking through me. It's absolutely insincere, first off, and it's usually whenever you listeners, whenever you hear people make lurid imagery based appeals to emotion, right, or these these hyperbolic accusations that this is the bread and butter of I'll say

it the political class theater exactly. That's a great phrase. And so to say this in such a way, what it does is psychologically you get an image of somebody with with literal blood on their hands, and then you know they're trying to cast aspersion against Apple, not by not by making any point about the arguments Apple is making right, but by going instantly to, uh, these people are murderers, right if we don't do why are you

defending murderers? That's that's that's essentially you know, uh, the argument about you know, it's it's one of those those legal arguments you will hear occasionally. This is an illegal argument, but it's like the legal arguments you will occasionally hear where it's clear that the lawyer is trying to appeal to the jury's sense of emotion. Sure as opposed to addressing the facts of the case itself. Right, Um, so, I agree entirely with you. The first reaction I had was,

I'm offended by that statement. I mean, it's condescending and it imagines that it imagines that the person that would be swayed by that is not intelligent enough to read, and it it deflects the fact that there are two people who were responsible for that terrible exact attack, two people, and those two people are the people who are holding the guns and pulling the trigger and aiming at people.

Those those are the ones who have blood on their hands, and of course they're they're both dead now, they both died in the shootout with the law enforced. But the point being that they're the ones responsible, not Apple. Apple did nothing in relation to this crime. In fact, Apple didn't give the fricking phone to Furut that was issued by the county. Apple just made some made a device that has this level of security on it that people wanted.

People wanted that level of security. They want the reassurance that Apple itself can't access their phones without their permission. It's a very important cornerstone of security. In fact, if you look at iOS eight or earlier, Apple could bypass security, they could access the information on a phone without your pen, without you acquiescing and allowing that to happen. But they specifically change that with iOS nine. They made it so that they could not do that because they said, it's

important for consumers to trust the company. And how can you build trust if you know in the back of your mind and this company could at any moment access my private information that I have not chosen to share with them, Well, you know that trust is destroyed in that case, right, kind of brings us back to that unreasonable burden. So these arguments are continuing. I think the next stage doesn't start till till March tenth, and we're

recording this on February twenty sixth. So I am very hopeful that the government sides with Apple on this ultimately, that when this gets the courts at any rate side with Apple on this, because if they do not, this is the This could be like the snowball effect where we see more requests of this nature come in and

thence it. Once it's been established as precedent, it's much easier to happen in the future, and it's easier to see larger requests, like things that are that go beyond all we need you to help us circumvent the security and may go into we need you. We finally are

going to get what we wanted all this time. We want a direct path that like a doorway that's labeled FBI that lets us go straight into the data that your users are storing on their devices, which leads to because the FBI, this leads to a horrific situation, because the FBI is an institution sure made up of individuals. Remember when the Snowden leaks revealed to us the extent of unethical use of surveillance by the NSA. People would

look up their ex girlfriends or they were star ex boyfriends. Yeah, they were just looking up people that they were interested in with absolutely no oversight. As a matter of fact, when we talked about the Chinese government looking the other way for hackers, that was the same thing that occurred with the NSA. To assume that, for some reason, given the opportunity, individuals in another law enforcement branch or another institution would not do the same thing, yeah, is cartoonishly naive.

We will conclude our twenty sixteen discussion about Apple versus the FBI after this quick break, you know, using the argument of this is a one time use, that wouldn't stop the FBI from requesting another one time use, or another one time use, or even extending that beyond it, saying all right now, we want a one size fits all approach to doing the same thing because it's too much time for us. And don't worry, we'll get a cord order before we do it. Will make sure that

nobody else gets access to this ability. And you'll know that the cord order is good because they'll be classified. So we'll just inform you when the orders are approved. I have said it many times that there is no way to ensure security by enforcing a vulnerability. Yeah, and

I think that's a way to encapsulate it. But there is a question that I have that I'm sure a lot of you have as well, ladies and gentlemen, which is, let's say the worst happens, Yes, okay, worst happens court rules in favor of the FBI, and Apple says, nah,

we're not going to do it. Well, I mean if if the court, assuming he goes all the way up to the Supreme Court, this could end up becoming a matter of law where it's codified that companies have to obey that within the United States, which would mean far reaching implications, not just for Apple, but for all companies, everyone, any any tech company, any company really that any company doing business in the US, not even based here, but just doing business. So that's a big deal. It's it's

potentially disastrous for privacy. There's rampant possibilities of misuse. We've talked about the possibility that if you do create a vulnerability, someone somewhere is going to try and figure out a way to also gain access to that vulnerability, right, And these are not necessarily other law agencies or intelligence agencies, or maybe they are intelligence agencies. They just have to

be intelligence agencies working for a different country. And yeah, and here's the problem, because we've talked about this before, man I. Legislation, I think we talked about this with

autonomous vehicles before. Legislation is almost always outpaced by technological innovation. YEA, yes, yeah, but you will almost always see a case where someone has figured out something really interesting to do with technology, or perhaps even really scary things they could do with technology, and there are no laws to cover it because before that person figured it out, it didn't exist. So you don't write laws for stuff that doesn't exist. We don't have a law saying listen, guys, I I just it's

keeping me up at night. We have got to write a law about what happens in the case that the Lochness Monster is real, gets out of Scotland, comes over to New Jersey and starts to eat people. We need a law to protect us from this potential catastrophe, right, I'm ridiculous. Yeah, Like if we're senators, everyone in the audience and you, Jonathan, myself, and then one of us

walks in and says, guys, I know that. I know that we have some other issues coming up, and we have to nominate this court justice, and there's an election coming up. But I think we need to look into the future and look at the big picture, which is moon boot theft, right, because I don't want people shoeless on the Moon when and if we build a colony there. Yeah, I think arguing, for example, for robot rites right now

might be a little premature that kind of thing. Maybe not forever, but for now, it's definitely it's good to think about. But you know, you make a very astute point when you say, if we're talking about codifying something or codifying a law, then what happens is once the Supreme Court rules on something like this and it becomes a matter of law, it is much It is very, very difficult to get that kind of ruling. The Supremes are pretty busy people. Yep, they don't hear every case

that's brought before. They absolutely don't. And then but the thing is, you think it's hard to get one of the to get those justices to change the substance of American jurisprudence. Imagine trying to get them to change it back. This is like a Pandora's box Pandora's jar situation. Yeah, now this is not not good. You don't want this

to happen for multiple reasons. Now, all that being said, are our sympathies with the families of those who are wounded and killed as a result of this mass shooting. Absolutely I feel off for them. And if there were any other way to get to that information that did not require Apple to be complicit in destroying its own security, I would be in favor of it. And in fact, the FBI has taken such pains they got access to

the iCloud backups that this phone creates. The problem being that the phone didn't have an iCloud backup for the month leading up to the actual attacks, So there could be information on the phone that's not on the cloud, and that's why the FBI wants to get access to that. I totally understand the reasoning behind it, but two things, of course, keep me from being completely sympathetic. One is that the FBI has for years been trying to get

backdoor access to multiple systems exactly. Yeah, So that so you could argue that perhaps this mass shooting is being leveraged cynically by the FBI in order to further their goals, because it's hard to say no to such an emotionally devastating event. Opportunistically, I would say, yeah, I do know, I believe it. And this is just my personal opinion

based on again precedent. It is completely within the realm of not only possibility but plausibility that an institution would wait for an opportune time to make this this kind of legislation, like the argument for Internet surveillance, based on saying, hey, we need to protect people, we need to protect you from inappropriate content and your children, think of the kids. Right, Really, this is this is a lot of the same stuff

we heard in the wake of the Patriot Act. Absolutely where a lot of people felt the Patriot Act was a reactionary piece of legislation that was drafted far too quickly and what had had reached far far are too why for what it was proposing, what what everyone claimed it was all about? Right, and uh, that was a big mess. This is also potentially a really big mess. And the Patriot Act, the substance of it was pretty

much had been written in advance. Yeah, yeah, which is pretty like now that used to be a controversial statement, but now it's acknowledged. Yeah, so this is this is uh, I mean the fact that the FBI has had this plan for a while, not this specific implementation, but this desire to get this workaround access to things. And I mean, I totally understand their point of view. Two, they're trying

to investigate things. It's not like the FBI is necessarily made up of the cigarette smoking man and all of his cronies. You know, I'm not I'm not going I don't. I don't mean to to uh disparage then I don't want to demonize them, Right, That's not That's not what I'm trying to get at. Either. The FBI's intends may in fact be nothing but noble that they want this in the efforts to investigate, solve crime, prevent crime from happening,

and not in any way that is malevolent. However, the fact remains, whether their intentions are noble or not, it opens up this opportunity for people whose intentions are demonstrably not noble to take advantage of those same opportunities. Well, yeah, and you know, I'm glad you said that, because I wanted to see something that I want to add to this something that is rarely said when we talk about

government surveillance or concerns about privacy. Right, one thing that is rarely said is that law enforcement agencies, law enforcement institutions, and individuals in the US actually do quite an extraordinary

job compared to a lot of places. If you're fortunate enough to grow up in a place that has rule of law, where you can walk down this street in the dark, or you can say you can say, uh, you know, whomever your senator president is, you can go on the internet and say I think they stink yeah, I think you're in jerk. Yeah, I think you're the piece of bologna with shoes. And then but in other countries, we you know, people get arrested for that, people get imprisoned.

So we're not get a race, yes, like not just arrested or imprisoned, but the government in some countries will take steps to make it seem like that person was never a person exactly. They'll keep the photos, but you won't be in them. And I say that because it's a sense of much needed perspective. However, you know, I'm not demonizing the people who work at the FBI institutions, whether private or public, seek power, they seek further influence. And that's it's not because it's some sort of James

Bond super villain thing. It's not specter. And it's because it allows for it allows for an easier, more efficient pursuit of whatever the original mission would be. Right, all right, we got a little bit more to say on this topic before we get to that, though, Let's take another quick break. Ben and I we both talk about things that here at work where we say, gosh, I wish we had X because it would make our lives so much easier. Well, even if we got X, we would

come up with why. That would be the next one. Right, we get X. X is awesome, X is helping us out. We're like, oh man, it's so good to have X here. But you know what, Yeah, it would be great if we had WHY because if we had WHY, we could really do our jobs. Well, we get why, and then you know, man, X and why or work out like a dream. But boy, if we had Z, can you imagine the level we get to now what we do, Ben, We make fun audio podcasts, videos and articles that go

on the intranet and that's awesome. And so really our capacity to do horrible, horrible harm is fairly limited. I mean in respect to how our jobs comparatively. Yeah, yeah, Nick. Granted, if either of us wanted to go outside and just start throwing Kingo pops popsicles at people, we could go on a popsicle rampage havoc. But that's that's not job related.

The FBI, the CIA, the NSA, a lot of those three letter organizations, in pursuit of what they need to do in order to fulfill their their organization's mission, in some cases will step over lines that we cannot allow people to cross because it creates a system that is at least as dangerous as whatever problem they're trying to solve. You know. Another example of this is the the idea

that the idea of absolute prevention. Like you know, there was the old conversation about tortures several years ago, when it was the ticking time bomb argument, which was, should torture be legal if there is a criminal in custody who is suspected of having knowledge of another nine to eleven here? Yeah? Yeah, Jack Bauer from twenty four kind of argument, Should torture, while reprehensible, be allowed when it gets results? And this, this kind of reasoning is dangerous.

Not I'm not saying that because of any desire to see human tragedy, but I'm saying it's dangerous because of the assumptions it makes. Yes, that a special case will remain a special case, right, and that perhaps the next case, which maybe isn't quite so special, like, well, you know, we've done it before, so what's the deal here? Yeah? I mean you were cool last time. What happens? Yeah? So this is this is exactly why neither I think

I feel pretty strongly about this. I think I'm on the right track that neither you nor I feel that the FBI should win out in this particular case. I think this is something where we really need to see Apple come out on top. I am not a huge fan of Apple. I don't own a lot of Apple products I have. Apple does not sponsored this show. I'm not getting any money from Apple. If anything, I'm losing money to Apple because my wife is a fan. She wants to get an Apple Watch, but I am not.

I'm not getting anything from Apple. I do think they're in the right, but because I don't want to see a precedent where a company that creates a secure system has to be or can be compelled to compromise that security. It defeats the purpose of the security. And whether it's this case, which is extraordinary and very emotional, or something much less impactful for the general public, maybe it's something,

you know, simpler and less dramatic. It doesn't matter. You cannot You cannot go down that pathway and expect things to turn out all right. You've got to figure out

other ways to do that kind of investigation. Either Apple needs to go in a direction where they can they can access user data without having to circumvent a security system like this, which means they have to go backwards, which can really is not a possibility, or Apple and other companies have to create systems where it really is impossible for them to access without the consent or the

actions of the owner of the device. I suspect that every company is rushing to develop that kind of approach right now, because none of them want to be in this position where Facebook, Google, Microsoft all publicly showed support for Apple. Apple right now is um you know, part of Apple hired a dev that worked on Edward Snowden's favorite messaging app, obviasually. Yeah, and I don't know how much of that is meant to be like a pr move.

But also they have, um, you know, the leaked Snowden papers are out there, and I know I'm harping on them. It revealed an ugly behind the scenes look at corporate involvement with government request for surveyor you know, so the average consumer you me, h, Gary Busey whomever. We have much less trust in general in these companies because we have a reason not to trust them. Well, we have

handed over so much of our own personal data. We trust that the devices that hold that personal data aren't going to just give that away to whatever entity without our consent. We trust that that's not going to happen. When things like this pop up where we start to question that trust, that's problematic. There's someone else that Apple has recently hired, Ted Olson. Does that name sound familiar to you, Ted? Ted Olson's a lawyer. So Ted Olsen's

going to be representing Apple. Ted Olson's probably best known for representing George W. Bush in the Bush versus Gore election fallout. You know, for those of you in the United States, when when Bush was running against Gore, there was this whole battle about, you know, voting recounts, voting recounts, and Olsen represented w George W. Bush on that and Bush ended up winning that. So now he's representing Apple in this particular battle with the FBI. So interesting to

see these kinds of personalities involved in this. And now I know that with the public perception it's been a little c saw ish, but general public, I would argue the people who are not necessarily paying attention to the text sphere, I think a lot of them are citing with the FBI because it's a terrorist story. It's a story about trying to establish the most information of about these these shooters as possible. Sure, do you think so? Though?

I do? I think that I think at least a lot of polls that I've seen leading up to today, the general public tends to side with the FBI because the FBI has a very emotional story. Apple's story is much more rationally based, intellectually based, and the FBI story is is penned on this event, this very emotionally charged Eventum. I don't know that that's going to continue. I think. I think people who are savvy in the text sphere,

I think the majority of them side with Apple. But it's still because it's still it goes back to the taking time bomb argument, you know. Yeah, yeah, So this is one of the stories that we definitely had to cover. I mean, obviously it's it's such a huge it's probably

the biggest story in tech right now as we record this. Um, And I'm glad that you could join, maybeen to chat about this, to kind of give your your insight as well, and to talk about why this is so important not just from a technology standpoint, but just a philosophical standpoint in a matter of law as well. Okay, that concludes that twenty sixteen episode on Apple versus the FBI. As I mentioned in the intro, this is an ongoing issue,

and it's not just about accessing physical devices. There have also been lots of attempts from the FBI and other agencies to convince companies like Apple to give them backdoor access to otherwise encrypted forms of communication. As I have said repeatedly in various episodes, this is a terrible idea. Anytime you create a purposeful backdoor to an otherwise secure system, assuming that that is even possible, because it's not always possible. But if you do that, all you have done is

really introduced a vulnerability. You have created a huge target for every hacker out there that is that wants to be able to infiltrate that system because you have created a work around through the otherwise legitimate way to send encrypted data back and forth. It is never a good idea to do that. It just it decreases security rather than increases it. And so this is an ongoing issue between investigative agencies and tech companies. I don't expect we're

going to see it go away anytime soon. There will always be a struggle but I sure hope that we never get to a point where more and more tech companies begin to introduce these backdoors, because it just makes everyone less safe in the long run. If you have suggestions for topics I should cover in future episodes of tech Stuff, please reach out to me and let me know. One way, of course, is to download the iHeartRadio app. It is free to download, it's free to use. You

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