Posted by: David Harley | October 26, 2015

Glass Houses and Open Back Doors

An article by Richard Chirgwin for the Register – You own the software, Feds tell Apple: you can unlock it – sums up neatly the current argument in the US Federal Court about Apple’s reluctance to bypass the iPhone lockscreen, which the company states it cannot do on its latest iOS versions (8 and higher): he talks about ‘the Feds claiming in court that Cupertino’s license agreement gives it the right to do what the government tells it.’

Shades of Marriot Edgar’s monologue on the Magna Carta, as immortalized by Stanley Holloway:

…in England to-day we can do what we like,
So long as we do what we’re told.

The current case concerns an iPhone 5s running iOS7, so Apple could bypass the lockscreen in this instance (as it has in the past in order to cooperate with law enforcement), but has presented a number of arguments against doing so in this instance.

The Electronic Frontier Foundation asserts that the US government argument ‘…runs counter to basic principles of user autonomy’ and doesn’t feel that the All Writs Act carries much weight in this context. Apple’s later response is based on the arguments that:

  • All Writs Act Authority Does Not Apply to Matters Covered by CALEA, or Specifically Omitted – in other words,  ‘the All Writs Act does not apply when another statutory scheme addresses the issue or Congress has consciously determined not to take action.’
  • Even if the All Writs Act Applies, it Cannot Require Apple to Provide Expert Forensic Services on a Device it Does Not Own or Possess
  • This Case is Unlike Other Cases Upholding Use of the All Writs Act

The EFF is not breaking new ground by pointing out that ‘these one-sided end-user license agreements, or EULAs, are both exceedingly common and a raw deal for users.’ Mark Minasi’s book from 2000 on ‘The Software Conspiracy’ points out that even then, virtually all licenses tried to limit the customer’s ability to rent out the software, and even to sell it or give it away.

(He also talked about software ‘sold’ on an annual basis, the customer being required to renew the licence at the end of the year, and cited a case I remember well, where an antivirus software license prohibited a customer from reviewing the product without the permission of the vendor. Well, having worked with companies who’ve been badly mauled by incompetent reviews, I’m not entirely unsympathetic to that last one…)

It’s probable (or at any rate generally assumed) that most people don’t bother to scroll through interminable multi-screen EULAs to see exactly what they’re signed up to: I suspect that many would be taken aback if it turned out that those agreements include an implicit understanding that any vendor might be forced to carry out forensic analysis on the government’s behalf. Out in the real world, though, this is often already the case. In this instance, though, it may be that the case will ultimately stand or fall on constitutional issues, notably the Fourth Amendment. But let’s not be naive about this: nowadays, most governments will press for an opportunity to get a copy of our back door keys.

David Harley

 

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