Apple Hires Former Solicitor General, Who Lost Wife In 9/11, To Defend It Against FBI
from the if-you're-going-to-pull-emotional-strings-about-terror... dept
Two can play at the “pull on the heart strings about losses due to terror” game apparently. While the FBI has rolled out the “but the poor victims of San Bernardino” argument for why it wants to force Apple into hacking the security of its own customers, Apple has countered with a big gun of its own: it has hired former Solicitor General Ted Olson to defend the company against the FBI in this case. Olson is a mega-star in legal circles. He’s argued tons of cases before the Supreme Court, and of course, was Solicitor General under George W. Bush (whose election he helped ensure in representing him in Bush v. Gore).
But… he’s also well known because his wife, Barbara Olson, was onboard American Airlines Flight 77 that was one of the four hijacked planes during 9/11 (it was the one that crashed into the Pentagon). I’m sure that Apple hired Olson because of his legal and litigation skills. He’s obviously extremely qualified for the job. But the fact that he also presents a sympathetic narrative concerning victims of terrorist attacks seems like an added bonus in a bizarre fight that seems to focus almost as much on the public perception of parading victims around, as it does around the actual legal issues.
Olson already has been out in public arguing on behalf of Apple. I’d embed the video from ABC but (irony alert) they don’t use HTTPS encryption, so I can’t… However, Olson does note:
Apple has a responsibility to maintain the trust and faith of millions of people who have depended on Apple to produce a product that protects their privacy and their intimate personal lives. This is a Pandora’s box. We’re not just talking about one magistrate. There are hundreds of magistrates. There are hundreds of other courts. There’s no limit to what the government could require Apple to do if it succeeds this way….
[….]
This is not just one magistrate in San Bernardino. There are judges all over this country, and we’re talking about foreign governments. People in foreign countries are going to be very, very susceptible to invasion of their privacy if Apple can be forced to change its iPhone.
[….]
Congress has decided not to enter into this area and not to require Apple to do, essentially, what is very difficult to do, and would require Apple to comply with these kinds of court orders all over the country and other parts of the world, damaging your personal privacy, your financial privacy, your health records, your location, and where your children are. The implications of this are quite serious.
… And remember, terrorists seek to change our lives. They wish to take away our civil liberties. We can’t surrender our civil liberties and give the terrorists victory that they actually seek.
He may be overstating the case, in that things like location information aren’t at stake here, but a lot of the other stuff is — and he’s right that we shouldn’t be compromising our civil liberties in response to terrorist attacks.
Filed Under: backdoors, civil liberties, doj, encryption, fbi, going dark, ted olson, terrorism
Companies: apple
Comments on “Apple Hires Former Solicitor General, Who Lost Wife In 9/11, To Defend It Against FBI”
although location is not specific to this case, but the “request to modify underlying OS” is.
So next time they might be requesting Apple to create a special firmware to track people’s location for reason X. If you are going to touch the system, what can’t you change to track?
Ted Olson is also famous for being one of the two lawyers to argue against Prop-8 all the way to the Supreme Court (a case that many believed would be the one to legalize gay marriage nationwide at the time he took the case).
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I don’t care.
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I don’t care that you don’t care.
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But, of course, he cares. A person who truly doesn’t care wouldn’t feel the need to post a comment saying nothing but “I don’t care”.
Hiring Olson? Now THAT’S a double-dog dare!
This.
“We can’t surrender our civil liberties and give the terrorists victory that they actually seek.”
This. A thousand times this. So much of what’s happened in the last 15 years, from spying on American citizens to invading Iraq to attempts to undermine cryptography to the TSA, has been a blind, foolish, knee-jerk reaction to what is in reality a tiny threat.
It took a while for me to realize this, but the 9/11 attacks were inconsequential (except for what they taught about asymmetric warfare and our military’s incompetence). They were awful for those affected, of course, but they were NOT an existential threat to the United States: they were a pinprick. We ourselves have done ten thousand times more damage in the intervening years — despite the complete absence of any other similar attacks.
And why there haven’t been any is really no mystery: Napoleon nailed this two centuries ago: “Never interrupt your enemy when he is making a mistake.” There’s really no need for any terrorist group to attack the United States when we’re doing such a thorough job on ourselves.
History will not treat us kindly if we manage to self-destruct in panic and fear over (almost) nothing.
Re: This.
Just a few months after 9/11, I was told that Osama bin Laden already won. The chain reaction from that event would erode US liberties and drive the national debt to an uncontrollable level and eventually, the US would destroy itself from within. I didn’t believe it at first but as time moves on, it keeps looking as if it is a possibility. If Apple loses, it will only add another victory to the terrorists as another liberty is destroyed.
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So if I said, I told you so, would it matter?
You didn’t listen then… you and many other still do not listen now.
Osama did win, and your children will see to it that it stays that way.
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osama bin lauden was a saudi national spreading islamic sharia law to afganistan and he was supported and financed by saudi arabia(and by proxy the USA to kick the soviets out). under obama military hardware sold to saudi arabia has gone to 46 billion dollars. that hard trumps bush and really all arm sales deals since ww2. why are we selling 46 billion of military hardware to a country dead set on imposing sharia law and as a policy doesnt support any technology past the time of Muhammad, who has religious police for enforcing islamic law.
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why are we selling 46 billion of military hardware to a country dead set on imposing sharia law and as a policy doesnt support any technology past the time of Muhammad
I think you may have contradicted yourself there.
Re: This.
Agreed, except on the part where you said the military is incompetent. I think it is Washington DC that is incompetent. I’d wager our military could pretty much do whatever is required if they weren’t constantly hamstrung by wavering politicians and FUBAR ROE. That’s like blaming a dog for not stopping a burglar when the dog was chained in the backyard.
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Agreed, except on the part where you said the military is incompetent.
Really? Let’s consider that. On 9/11, our military — which has enjoyed an enormously bloated budget for over half a century — failed to defends its own headquarters from a single lumbering, slow, non-stealthy, unarmed civilian airliner flown by barely-trained amateurs, clearly visible on radar and with fairly obvious intent.
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Civilian and military aircraft go off course and stop communicating for a variety of reasons not related even indirectly to terror.
I don’t know about you, but I don’t want those aircraft tracked and shot down for that without someone making for dern sure those pilots are really up to no good.
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On 9/11, our military — which has enjoyed an enormously bloated budget for over half a century — failed to defends its own headquarters from a single lumbering, slow, non-stealthy, unarmed civilian airliner flown by barely-trained amateurs, clearly visible on radar and with fairly obvious intent.
If the Air Force had been ordered to patrol the DC area and shoot down anything they suspected of hostile intent, that airliner would have gone down. On the other hand, probably way more people would be killed by the Air Force if we did that than were killed on 9/11. It’s not a matter of military capability or competence.
Re: This.
It’s why terrorists are called terror-ists and not war-ists.
“… And remember, terrorists seek to change our lives. They wish to take away our civil liberties. We can’t surrender our civil liberties and give the terrorists victory that they actually seek.”
For some reason i was thinking that he was referring to the FBI as being terrorists with what he said.
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Lets look at it this way. Both are the terrorists and therefore NEITHER should get what the want.
The people clamoring for Government to protect them are effectively saying it is okay for my loved ones to have died so the terrorists can get their way because I am now playing into their hands and asking for the government to take mine and everyone else’s liberty away for a false sense of security that Government cannot provide to begin with, especially when we are just welcoming them into our borders without much restraint.
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The FBI may be doing the dirty work for the terrorists, but the terrorists could never afford the upkeep of their payroll.
You know the old saying
Fight fire with fire.
We must stay the course...
We spent billions on tiger repelling rocks and there are to many people profiting from maintaining those rocks to consider the rocks might not do anything. We told people they protect us from tigers and we will do anything to keep that story alive.
The is a terrorist under every bed, and a list of them is on this suspects phone. This isn’t just grandstanding and trying to get citizens to cheer as more of their rights are eroded. If we can get this access we will be able to undo all of the horrors that happened. Pick which ever story line you need to swallow this.
I’ve seen journalists demanding Apple comply, I’d like all of them to post all of their notes and sources online… so we can make sure they aren’t helping terrorists. Any resistance we call them terrorist sympathizers and get them decried.
They will tell you this isn’t the same thing… I’d like to point out we now get molested to get on a plane after they told us that was to silly to ever happen. Give them a millimeter and look the marathons they took.
We are handing the terrorists huge victories.
We live in a constant state of fear.
We distrust those who are different.
We blame a skin color/religion as being responsible.
We mistreat people while claiming we don’t do those things.
We overreact to everything and give up more rights & liberty because this time it’ll be enough to make the whole world safe.
We flip out over the smallest things and the first thought is its a bomb not someone forgot their bag.
We accept new powers to stop terrorists, and never question why they use them in almost exclusively in cases not involving terrorism.
We screw up other countries, then pretend they were asking for it while shirking helping the victims of actions we started.
This is just 1 more stepping stone on the road to hell.
We have people who dare to speak out about the behavior of the government labeled as terrorists.
We have secret courts with secret laws and twisted definitions of the law to allow torture.
We spy on everyone yet the only terror plots we manage to stop are those created as PR stunts.
Many people are trying to mock Trump for his outlandish claims of what he’ll do when he is elected… yet no one seems to notice we are already doing many of the things he talks about.
Re: We must stay the course...
We blame a skin color/religion as being responsible.
Two very different things.
Lumping them together like that is a huge mistake (and actually racist).
We rightly opposed Nazism and Soviet Communism because they were oppressive ideologies that aimed at world conquest – if necessary by force.
Why should we treat another ideology with the same aims/methods differently just because it self-identifies as a religion?
Actually the failure to hold the religion/ideology responsible is the root of the problem.
None of our leaders that you rightly criticised for the policy mistakes that have led us down this road have actually blamed the religion/ideology.
In fact all the problems that you list are actually the direct result of that failure.
Instead they prefer to blame the “old enemy” Russia – actually on our side in this fight – and ignore the intelligence provided from there that could have stopped the Boston bombing.
We screw up other countries, then pretend they were asking for it while shirking helping the victims of actions we started.
Because we won’t blame the religion (and because we are foolishly allied to Saudi Arabia) we choose the wrong targets and attack or undermine secular dictators who were doing the job of holding the ideology down.
Now those secular dictators were/are not very nice people – but that is what is necessary to keep order until the argument can be won then that is the lesser of two evils.
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Whilst I largely agree with your point, I would say you’re falling into an equally big hole of intolerance by suggesting that a group that “self-identifies as a religion” is therefore representative of that religion. Daesh is no more synonymous with Islam than the IRA was for Christianity.
Memo to Ted
Keep in mind that there may be evidence on the iPhone 5c in question that one or more TLAs may actually wish to destroy.
Re: Memo to Ted
They can achieve that by doing nothing and leaving the phone in an evidence locker, or by destroying the phone.
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That implies intelligence.
Besides, have you considered how many people has the FBI set up to commit crimes they never would or could have without the FBI’s help?
Now think about what they might not want found out.
Now think about how pursuing other avenues of investigation might pan out.
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Bingo! So that means case closed for Apple or this is really is about setting precedent. Apple should demand that in the scenario that they lose at SCOTUS, that all data retrieved be made public.
After all, the perps are dead, their privacy is not at issue.
Under no circumstances, should a tool be provided to the FBI and allow the FBI to retain posession of the phone. That would allow the FBI to delete evidence in secret and/or create evidence in secret. No judge worth their salt should allow that. Apple should move the court to take posession of the phone in question, preferably to deliver the phone to a third party.
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After all, the perps are dead, their privacy is not at issue.
But maybe the prvacy of those with whom they had contact via those phones would be an issue.
Good Strategy
It’s often said that to fight the enemy, you need someone from the enemy to help you in that fight.
Ted Olsen is as good as they come. He knows the dirty tricks the government does, as he did them for the government for many years. Being Solicitor General does that for you.
It looks like Apple is prepared for the big showdown that we’re going to get..in the Supreme Court. I wish I could watch it from the gallery when it happens, and it will happen.
All we need now is popcorn and a few prayers.
Re: Good Strategy
It’s often said that to fight the enemy, you need someone from the enemy to help you in that fight.
Ted Olsen is as good as they come.
Lawyers are hired hands – they will argue any case that they are paid to argue. You are right that getting the best is good. Identifying a lawyer as “from the enemy” is wrong. Professional integrity requires a lawyer not to let their personal opinions affect their conduct of a case.
Fourth Amendment and expectations of privacy
Well first, I think the leading argument ought to be sufficiently strong. That it forces Apple to make an inferior product. A “backdoor” does not, after all, query the accessed for a badge, and customers may not stay with Apple because you can’t program a backdoor without knowing how it’s accessed. How many Apple employees will have access to everyone’s data?
Secured phones became a real concern after Snowden revealed that the hypothetical fears about Apple’s employees were actual violations for NSA employees, using similar access to spy on girlfriends or spouses.
Re: Fourth Amendment and expectations of privacy
“That it forces Apple to make an inferior product. “
It appears that Apple made the inferior product, which is why we are here having this discussion. If their encryption could not be brute forced (save for 2 arbitrary limitations in their OS), then nobody would be here at all.
The story takes a completely different tone when you realize that much of this is related to Apple’s level of embarrassment in being caught out on the situation.
Oh, and the lawyer… what a choice. I am thinking the LGBT community (big supporters of Apple, from what I can tell) will find themselves having a real problem here. Their rights are being “protected” by the very lawyer who tried like hell to take away their rights.
Apple may have inadvertently created their own major fail.
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If memory serves me correctly, Olson and David Boies were lead counsel in the ultimately successful effort to strike down California Proposition 8.
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Not sure, I thought they were on the other side, my bad if I am wrong.
Re: Re: Fourth Amendment and expectations of privacy
From His Bio on Wikipedia:
Olson, over time, came to believe that there is a constitutional right for same-sex marriage.[9] In 2009 he joined with David Boies, his opposing counsel in Bush v. Gore, to bring a federal lawsuit, Perry v. Schwarzenegger, challenging Proposition 8, a California state constitutional amendment banning same-sex marriage
I’m really not sure what the problem is here, from a technical point of view. Legally and ethically the arguments have already been made, but technically this case is simply a question of whether the iPhone already has a backdoor or not. And if it does, whether Apple will choose to eliminate said door before it’s used on more than 1 possible person.
Manufactured Outrage Designed to Inflame the Public?
The fact that this one phone has become a cause célèbre leads me to believe that the proverbial “someone” is foster mass hysteria to use this one phone as an “ice breaker” to weaken encryption in the name of Orwellian “security” to “protect” the public. Virtually unmentioned is the need for unbreakable security to protect our credit card transaction, protect our businesses, or to protect our power grid. I guess protecting them is not a “security” issue.
Furthermore, many security people are pointing out that bad players, such as China and Russia, are attempting to hack into US computer systems. They consequently insist that our computer systems be made more secure. Yet, with this one iPhone, as an example, they actually want to make our computer systems less secure. Hypocrites.
“He may be overstating the case, in that things like location information aren’t at stake here” with what we know about nsa/cia/fbi stealing certificate authority keys. it would be highly probably that the government would take this less secure firmware tamper a little then be able to remotely deploy it by impersonating apple and forcing a software upgrade giving them root.
it strikes me that we are spending billions on the premise that we are dealing with terrorist who contact other terrorist on their gov’t issued work phone. And we still couldn’t see anything coming.
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You some citations for that? If not, then you need to get struck again. If the perpetrators had the insight and went to the effort to destroy their personal phones, probably knowing they wouldn’t live through their ordeal, they why didn’t they have the insight and go to the effort to destroy the work phone as well? After all, what does it take, heavy object and fair aim cause there is all the time in the world before one gets out of their car and picks up the guns to go do nasty stuff.
Location Information is at stake here too
If you think that after getting a backdoor past Iphone’s encryption the government won’t use said backdoor to refine their metadata program (which includes location data) you haven’t been paying attention.
Yes they can get the location data of a phone right now. If they get this backdoor they will be able to get the location data of a person: the sounds around a person in said location, what did they type and what time and where and what did they keep from their typing and what did they delete.
Yes right now because most people don’t know how to use (or choose not to) their cybersecurity options they get most of such data anyways, but if they get this backdoor in the choice to keep at least parts of such data private is removed from all mobile phone users.
Lawyers in Law
“Lawyers are hired hands – they will argue any case that they are paid to argue. You are right that getting the best is good. Identifying a lawyer as “from the enemy” is wrong. Professional integrity requires a lawyer not to let their personal opinions affect their conduct of a case.”
The way our justice system is set up is of an ‘adversarial’ nature. There’s a ‘us and them’ mindset between all law enforcement agencies and the lawyers who represent defendants.
That goes for civil as well as criminal.
It is actually an advantage to think this way, because the prosecutor is not going to give out brownie points for thinking in the clouds and magical fairies. They’re paid to win cases and get convictions.
The defense is paid to defend their client from all legal harm that might come their way-the best lawyers also fight tooth and nail for their clients.
A lot of lawyers will act as though they are fighting a battle, and it is a subtle battle of wits that only those who are mentally prepared can do with competence.
As for the ‘enemy’ part-I can’t say that the government is acting with our own best interests in mind when they demand such outrageous and ultimately dangerous things from a private company that could affect millions of people all over the world.
Let’s put it this way: do you trust the government to tell you the truth?
I hope Tim Cook and Apple prevail. Ted Olsen is a very wise choice, no matter how you frame his expertise.
How very Republican of you, Techdirt, using 9/11 to fearmonger and play up the sob story while you continuing pushing this ridiculous crusade against catching bad guys. :
It just shows how out of touch the tech community and Techdirt is when they dig their feet into the ground over stupid issues and try and protect mass murderers.
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Haven’t you caught on yet. To law enforcement everybody else falls into three groups:
1) Politicians, who can harm their careers if the annoy them.
2) Criminals.
2) The rest, who are criminals that they haven’t got the evidence on yet, but they will when they can execute warrantless searches.
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LOL. No.
To tinfoil hat nutters, maybe.
Gotta love the lunatics who think the FBI is sitting here waiting so they can get your Flabby Bird scores.
NEWSFLASH. Don’t want your phone used as evidence in an investigation? DON’T COMMIT A CRIME.
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How naive, I suppose some think it is “cute”.
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Actually, that is the entire purpose of the FBI counterintelligence group. That and looking for naked photos of you. If they happen upon something else they turn it over to the operations team who will cook up a false flag scenario in order to bust your ass.
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Don’t want your phone used as evidence in an investigation? DON’T COMMIT A CRIME.
You actually believe law enforcement never investigates the wrong person?
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Come now, the police never make mistakes, so if the police are investigating you it means you’re guilty of something. It’s not like they’d screw up and raid someone’s house for, oh I dunno, drinking tea and growing tomatoes.
Clearly those that are worried about the security of their phones are worried because they’re criminals, as the police and government are never wrong, and would never go on a fishing expedition on an innocent person’s phone for possible evidence or personal photos.
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if the police are investigating you it means you’re guilty of something.
That’s usually true, just because most people are guilty of something. Which is just one more reason we shouldn’t be bending over backwards to make law enforcement’s job easier.
So, if the FBI lose this case, I guess they’ll probably conjure up a “think of the children” scenario:
* Some terrorists kidnapped all the students of a junior high class
– then demanded some impossibly outrageous thing for letting them go.
* One of the terrorists “accidentally” got shot by the police.
* That terrorist had on him.. an iPhone with iOS 9.
And then, the FBI got have all the public support they needed.
“If only we had had that backdoor now, we could (probably) have saved those children. Evil Apple is to blame for their deaths.”
By then, however, most of the actual terrorists had already changed into using 3rd party technologies, making the “unlock the phone” point kinda moot.
if the police are investigating you it means you’re guilty of something.
No-the correct phrase is:
if the police are investigating you it means they believe you’re guilty of something.
Only a jury or a judge can pronounce guilt. The cops are happy to help, of course.
#StandWithApple
If you’d like to support Apple’s stance on privacy, there is a White House petition at https://petitions.whitehouse.gov/petition/apple-privacy-petition
Olsen
Olsen, of course, was one one of those who claimed to receive a phone call from his wife from flight 77 on 9/11.
Something that was technologically impossible until five years later.
http://www.globalresearch.ca/ted-olson-s-report-of-phone-calls-from-barbara-olson-on-9-11-three-official-denials/8514
nice post