The ongoing legal struggle between Apple and the Department of Justice shifted dramatically as federal officials dropped their effort to force the Cupertino tech giant to grant access to the iPhone used by Syed Farook, the terrorist who perpetrated the San Bernardino attacks.

Through means which have yet to be disclosed, DOJ gained access to the phone’s contents on its own, raising questions about its methods which may be revealed to Apple as the focus of litigation shifts away from Riverside, California, to New York.

Cracking the code

“F.B.I. investigators have begun examining the contents of the phone but would not say what, if anything, they have identified so far,” the New York Times reported. “The Justice Department also remained tight-lipped about how it was able to finally get into the smartphone after weeks of furious public debate.

“A second law enforcement official who spoke on the condition of anonymity to reporters in a conference call said that a company outside the government provided the F.B.I. with the means to get into the phone used by Mr. Farook, which is an iPhone 5C running Apple’s iOS 9 mobile operating system. The official would not name the company or discuss how it was accomplished, nor would officials say whether the process would ultimately be shared with Apple.”

But according to industry sources cited by NBC News, the Israeli firm Cellebrite was contracted to do the job. “The firm has been rumored to be behind the FBI’s newfound ability to access the device, thanks to a previous and unconfirmed report from an Israeli newspaper,” The Hill noted. Though Cellebrite and the Department of Justice have not confirmed the rumors or the reports linking the two, Bureau officials have “routinely contracted Cellebrite over the last five years,” The Hill added. “The company, which publicly boasts of its ability to hack into Apple devices, has received over $2 million in purchase orders from the agency since 2012.”

Another shoe to drop

Nevertheless, the details of the government’s behind-the-scenes efforts could soon come to light. “Apple is in the middle of a separate case in Brooklyn, New York, in which the Justice Department wants the company to unlock an iPhone used by an alleged drug dealer. So far, Apple has resisted,” as CNET observed. But if federal officials press forward with litigation, “both sides would have to exchange information and evidence. That’s when Apple could demand that the DOJ explain how it hacked Farook’s iPhone[.]”

According to Reuters, a federal magistrate ruled last month in the Brooklyn case “that he did not have authority to order Apple to disable the security of an iPhone seized during a drug investigation. The Justice Department then appealed to a district court judge.”

“After filing that appeal, U.S. prosecutors notified the magistrate in the San Bernardino case that a third party had demonstrated a new technique which could access the iPhone in question. The Justice Department disclosed the new technique to the judge one day after the demonstration, and then confirmed its success on Monday, according to court filings, though it did not reveal how its solution works.”

Notably, the means whereby the Department of Justice might access the contents of the alleged drug dealer’s cellphone could well differ from those used on Farook’s phone. That’s because “the Brooklyn phone runs an older version of Apple’s mobile operating system, iOS 7, than the phone in San Bernardino, which ran iOS 9,” as Quartz pointed out. “As such, it’s likely that the Brooklyn phone is easier to access. For example, hacking tools can be bought on eBay to unlock some phones running iOS 8 or earlier.”

Edward Snowden recently made headlines by claiming that the FBI lied about needing Apple’s help at the beginning of the controversy because of a relatively easy-to-implement passcode workaround.

Assembly Bill 1681, introduced by Assemblyman Jim Cooper, D-Elk Grove, would mandate that phones made “on or after January 1, 2017, and sold in California after that date” must be “capable of being decrypted and unlocked by its manufacturer or its operating system provider,” as CNET reported. “Any smartphone that couldn’t be decrypted on demand would subject a seller to a $2,500 fine. If the bill becomes law, there would be a ban on nearly all iPhones and many devices that run Google’s Android software across the state.”

With California home to both Google and Apple, observers quickly declared a broadening trend toward increased legal pressure on tech companies. But competing justifications for the crackdown have emerged, with lawmakers outside California opting to hang their own legislation on a different peg. As Ars Technica remarked of AB1681:

Despite very similar language to a pending New York bill, the stated rationale is to fight human trafficking, rather than terrorism.

AB1681’s language is nearly identical to another bill re-introduced in New York state earlier this month, but Cooper denied that it was based on any model legislation, saying simply that it was researched by his staff. He also noted that the sale of his own iPhone would be made illegal in California under this bill.

World worry

California policymakers have become an intimate part of the global push to prevent smartphone encryption from helping individuals and groups evade law enforcement monitoring and detection. At the Davos Open Forum, Rep. Darrell Issa, R-Calif., joined an international panel of public and private-sector officials to air concerns about the potential for over- or under-enforcement. “Governments claim the need for greater security and seek to monitor global communications, while citizens, more willing than ever to share, demand greater protection of their digital privacy,” according to Vice News, whose editor in chief moderated the discussion.

In the U.S., meanwhile, top law enforcement officials have sought to coordinate a nationwide effort patterned after California’s and New York’s, each of which drew support from its respective Attorneys General. “The National District Attorney’s Association hasn’t hidden its intention to mobilize its local offices,” according to The Verge. “The association, along with the International Association of Chiefs of Police, announced in November that they planned to partner with state legislators to enact mandatory smartphone decryption bills around the country. The group wrote in a letter that it looked ‘forward to working with lawmakers to strengthen our current laws, and ensure they are representative of today’s technology and the challenge public safety officials face in preventing crime and safeguarding their communities.'”

An uphill battle

But pushback has already begun from within the crypto and tech communities. On the one hand, advocates and activists have long warned against granting governments a so-called “backdoor” to the data and metadata stored on devices and accessible through them. “There have been people that suggest that we should have a backdoor,” Apple CEO Tim Cook recently said on “60 Minutes,” as the Silicon Valley Business Journal noted. “But the reality is if you put a backdoor in, that backdoor’s for everybody, for good guys and bad guys.”

On the other hand, however, going further, “legal and technical experts argue that even if a national ban on fully encrypted smartphones were a reasonable privacy sacrifice for the sake of law enforcement, a state-level ban wouldn’t be,” as Wired observed. “They say, the most likely result of any state banning the sale of encrypted smartphones would be to make the devices of law-abiding residents’ more vulnerable, while still letting criminals obtain an encrypted phone with a quick trip across the state border or even a trivial software update.” For that reason, both the California and New York bills face an uphill climb, despite strong pressure to pass them — or some version of them — into law.

Aws Mohammed Younis Al-Jayab — Facebook

Two Iraqi refugees, one in California, have been arrested on joint terrorism-related charges.

“From his pictures on Facebook, Aws Mohammed Younis Al-Jayab looks like any other millennial with a wardrobe of Nike sneakers, Ray-Ban sunglasses and flannel shirts. But federal officials say the 23-year-old was living a double life — one as a refugee starting a new life in America and another as a young man anxious to return to the Middle East to fight in the Syrian Civil War,” the Daily Mail reported. “The Iraqi-born Palestinian man was arrested Thursday in Sacramento, California on charges he was plotting to travel to Syria to join the al-Nusra Front terrorist organization.”

Under the radar

As the New York Times reported, Jayab’s alleged partner in the scheme, 24-year-old Omar Faraj Saeed Al Hardan, “was arrested in Houston and charged with three counts of attempting to provide material support to the Islamic State, according to a statement from the Office of the United States Attorney for the Southern District of Texas.”

“Prosecutors said that Mr. Jayab entered the United States from Syria as a refugee in October 2012, living in Arizona and Wisconsin before settling in Sacramento. Mr. Hardan, who lives in Houston, entered the United States as a refugee in 2009 and was granted legal permanent residence status in 2011, according to law enforcement.”

“Prosecutors allege Al Hardan was coordinating efforts with another Iraqi refugee living in California, Aws Mohammed Younis Al-Jayab,” the Associated Press reported. “The two men communicated through Facebook messenger from April 2013 to October 2014 and talked about getting weapons training and eventually sneaking into Syria to fight alongside the terrorist group,” according to prosecution witness Department of Homeland Security Special Agent Herman Wittliff.

In custody

While Al Hardan’s family has been evicted from their apartment, “Al-Jayab remains jailed in Sacramento, California,” the AP added. “Authorities say Al-Jayab fought twice in Syria, including with a group later affiliated with the Islamic State between November 2013 and January 2014.”

Hardan was denied bond by U.S. District Judge Lynn Hughes. Based on details relayed by Wittliff, he ruled “there would be a serious risk that the Iraqi refugee would flee if released from federal custody,” reported Fox News. According to the channel, Wittliff “said that in addition to Al Hardan wanting to set off bombs at the two Houston malls, including the popular Galleria mall, the Iraqi man was also learning how to make electronic transmitters that could be used to detonate improvised explosive devices. Al Hardan wanted used cellphones — a collection of which were found in his apartment — to detonate the devices, Wittliff said.”

Fueling national fears

The arrests have fueled election-year concern, especially among Republicans, that U.S. screening processes have not been adequately tightened amid the rise of ISIS and the recent waves of Mideast migration it has caused. Texas Gov. Greg Abbott, a consistent critic of President Obama’s border and security policies, took the opportunity to press home the point. “I once again urge the president to halt the resettlement of these refugees in the United States until there is an effective vetting process that will ensure refugees do not compromise the safety of Americans and Texans,” he said, according to the Daily Mail.

And Texas Rep. Michael McCaul, currently pushing a bill that would mandate additional procedures, tied Hardan and Jayab to the broader security situation in a statement. “While I commend the FBI for their hard work, these arrests heighten my concern that our refugee program is susceptible to exploitation by terrorists. The president has assured us that individuals from Iraq and Syria receive close scrutiny, but it is clearly not enough,” he concluded, according to the Christian Science Monitor.

“McCaul introduced the American Security Against Foreign Enemies Act last year, which calls for Federal Bureau of Investigation background checks in addition to initial Homeland Security screenings for all ‘covered aliens,’ or refugees with ties to Iraq or Syria. The bill passed 289 to 137 in the House in November.”

“Californians have already bought a record number of firearms in 2015, including major spikes in sales on Black Friday and the days after the San Bernardino attacks,” reported the San Jose Mercury News, citing new federal and state data on the sales. “Firearms purchases in California triggered 1.51 million federal background checks in the first 11 months of the year, breaking the previous annual record of 1.47 million set last year,” the paper added.

A rush to buy

The reaction to the San Bernardino shootings was swift, with “as many as 6,000 guns being sold a day in the days after two jihadists massacred 14 people,” according to Fox News. “Figures provided by the California Department of Justice to FoxNews.com show that in the four days after the massacre, there were 20,664 sales, compared to only 12,649 from Nov. 29 to Dec. 2.”

Gun shows have also seen swelling crowds. Ten days after the attack, “Southern Californians flocked to a weekend gun show in Del Mar, many voicing concerns that another mass shooting could lead to tighter restrictions on gun sales,” according to the Los Angeles Times. “Organizers of the Crossroads of the West gun show said the weekend’s attendance could exceed 15,000 people — twice as large as usual.”

“Salesman James Wright, from a San Fernando-based ammunition factory, sold nearly 20,000 rounds of target-practice ammunition in an hour, leaving his black banquet table almost bare by 10:30 a.m. He had arrived with fewer supplies than usual, he said, because his other customers — gun stores and shooting ranges — had doubled their usual orders after the San Bernardino shooting.”

Protection and preemption

Anecdotal evidence has substantiated claims that more Californians are turning to guns for personal defense. In interviews with the San Bernardino Sun, locals expressed concerns that purchasing a gun had become essential to protecting themselves and their family. “This happened too close to home. I need to protect my family,” said one.

“I have two girls, 18 and 20, living at home. I realize that If someone breaks in with a gun, the police may not be able to arrive in time to help,” said another.

But buyers were driven by several factors since the attacks. In addition to personal safety and the holiday gift-giving season, some were motivated by a desire to get out ahead of possible regulations that would add additional strictures to California’s tough gun control rules. “Every single time the politicians start talking about firearms bans or increasing regulation, folks start to realize, ‘This is a right that if I don’t exercise it, I may lose it,'” Craig DeLuz, spokesman for the California Association of Federal Firearms Licensees, told the Eureka Times-Standard. “It’s not the sole motivator, but it’s a significant motivator.”

National trends

Reports from retailers have indicated that both guns and ammunition have done big business. “Though gun sales had already set records for seven consecutive months, several national retailers saw their sales triple in the two weeks since the attack in California,” the Washington Free Beacon observed. The California trend has mirrored a significant uptick nationwide. Rex McClanahan, president of Bud’s Gun Shop, a top online gun store, told the Free Beacon that “sales had actually increased substantially just before the attack out in San Bernardino. We actually expect to see a significant increase every year about that time due to the upcoming holidays, Black Friday, Cyber Monday, etc.”

Recent history has suggested that gun purchases routinely rise in the wake of mass shootings, whether carried out by terrorists or not. “Numbers from the FBI’s National Instant Criminal Background Check System, which can be used as an indicator of sales, show that there were significant spikes in background checks after the December 2012 Sandy Hook massacre, the July 2012 movie theatre shooting in Aurora Colorado, and the November 2009 Fort Hood massacre,” Fox News noted.

This un-nuanced adoration could also be found from the longtime newspaper journos who run Calbuzz:

“Releasing this report is an important step to restoring our values and showing the world that we are a just society,” Feinstein said on the Senate floor, calling the CIA’s post 9/11 interrogation program, “a stain on our values and our history.”

Under enormous pressure, Feinstein could have punted, mumbled about bipartisanship and played it safe by letting Republicans water down the report or bury it for good after she loses her committee chairmanship when the new Senate convenes. Such an option was most likely a non-starter for someone of her self-regard, but that she ultimately did not choose it may well stand as the greatest legacy of the 81-year old Senator’s years in Washington.

But if you bothered to look beyond the conventional wisdom advanced by the New York Times and the print media, much of the Left wasn’t buying the Feinstein-is-a-hero narrative. This is from BuzzFeed’s news coverage:

The Central Intelligence Agency tricked everyone. Senate Democrats’ recently released inquiry into Bush-era torture revealed a lot of shocking new details, but none quite as shocking as the the idea that the CIA successfully misled Congress, President George W. Bush, and even top intelligence officials about how brutal and ineffectual the program really was.

Most damningly — and politically conveniently — the report somehow manages to combine harrowing details of torture while exonerating nearly every top official whose job it was to prevent it from happening, and place the blame on a powerful political entity that is the most likely to emerge unscathed: the CIA itself.

Fox News shows had many variations on the same theme of scapegoating and blame-ducking. Here’s an example:

SEAN HANNITY: Let’s go to Dianne Feinstein back in 2002 when she said the following, this was quoted in New York Times, where she said, you know, it took that real attack, I think, to kind of shiver our timbers enough to let is know that the threat is profound and that we have to do some things that historically we have not wanted to do to protect ourselves.

You were there. You knew these senators, these lawmakers. Do you remember any specific meetings? Was Dianne Feinstein told specifically what the CIA was doing in terms of enhanced interrogation?

JOSE RODRIGUEZ: There are about 40 instances where we briefed the Senate and the House intelligence committees over the life of the program from 2002 to 2009. And we briefed Dianne Feinstein and Nancy Pelosi and Rockefeller and many others all the time. And we at the outset, at the beginning, back in 2001, I remember very clearly them telling me, you know, the problem that you guys have is that you are risk adverse. You need to use the authorities that we have given you to go out there and destroy this organization and to kill bin Laden. So we feel that we briefed them and briefed them thoroughly, and they are, you know, hypocritical.

Libertarians and anyone who believes in individual rights and who fears government power have to be happy that Feinstein has to a degree pulled back the covers on the anti-terrorism industrial complex.

But anyone who has watched the good cop/bad cop routine from Washington pols on national security  is not likely to readily accept the Feinstein-as-hero narrative.

“Intimidation tactics targeting the employees of major corporations are nothing new and have a history of success: Indeed, animal rights activists achieved some major victories in securing the closure of animal testing facilities in the ’90s and early 2000s through the intimidation of key investors. This intimidation was deemed terrorism, but, hey, it worked. The Google protesters appear to be paying homage to this model. Their manifesto ends, ‘We’re coming for you next,’ and echo the Animal Liberation Front’s haunting slogan, ‘We are everywhere.’ …

“Whether targeting individual Google employees is an effective tactic is not really my interest here. Certainly, I concede that it will hardly uproot Google’s hegemonic position, nor will the surveillance state be dismantled. Andrew Leonard cited one Bay Area resident describing the latest militant anti-Google  protest as ‘a group of people violently broaching civic norms.’ I say: precisely. Civic norms in our current epoch entail the forgoing of privacy, the enabling of a totalized surveillance state, the steady displacement of poor residents by wealthier implants in all major metropolises. The world’s richest 85 people has as much wealth as half the world’s population put together. These are our current civic norms; they deserve some violent broaching.”

What’s striking about this isn’t just Lennard’s endorsement of terrorism. It’s her righteous tone — her confident presumption that she holds the moral high ground.

It may be far more excessive, but her prose shares the tone of the Nanny Staters who want to tell people how to live.

I’m appalled by this. But I also welcome it. What’s happening in San Francisco is only likely to further the tech community’s embrace of libertarian values.

If the biggest wealth creators in the 21st century strongly believe in individual liberty and value the entrepreneurial spirit more than the glories of government, that’s a good thing.

By Chris Reed

The fallout from the April 15 terrorist attack at the Boston Marathon continues. Initially, the primary reaction was tired partisan attempts to imply the fault was either somehow a) the president’s fault because of his foreign policy or b) the Republicans’ fault because of the sequester. Then the focus was on the mainstream media’s series of gigantic mistakes on alleged key developments in the investigation — something longtime MSM critics found both enjoyable and unsurprising.

But now that one suspect has been killed and another is in custody, and the big thinkers are divining what it all means and how we should react as a nation, watch out.

At least for civil libertarians and for fiscally sane policy wonks who watch local government in California and elsewhere, the consequences of the attack are likely to be troubling and disappointing.

Enabling those who seek executive power without limits

On the first front, the attack has encouraged the advocates of the surveillance state and emboldened those who believe limits essentially no longer apply to the power of the executive branch.

It is one thing to believe that every effort should be made to track the communications and activities of suspected terrorists. But it is another thing to believe that there should be literally no limit on the amount of information the government is allowed to clandestinely collect on everyone else, even the obviously innocent. And it is wholly another thing to believe that the U.S. government has the right to kill not just foreign suspects but U.S. citizens abroad without trial or due process — especially when those Americans are not engaged in activity posing an imminent threat to U.S. interests.

Yet neither party truly opposes this assertion of near-unlimited government power. Democratic objections to the George W. Bush administration’s excesses vanished when he left office — even as the Obama administration in many ways exceeded Bush 43’s overreach. Republican objections to Obama’s policies — at least from GOP veterans who were mega-hawks post-9/11 — seem expedient and insincere.

Just six weeks ago, however, Sen. Rand Paul demonstrated that the American public didn’t want unlimited government power and a president to be judge, jury and executioner. The first-term Kentucky Republican’s filibuster over the Obama administration’s stunning claim of unlimited drone assassination power won broad support from the U.S. public, according to polls, and prompted a rare concession from the Obama administration: Attorney General Eric Holder’s statement that the federal government did not have the right to rub out Americans in America who weren’t threatening anyone.

For civil liberties, war on terror worse than normal war

But Boston has blunted Rand Paul’s message. The case for a government security apparatus unconcerned with constitutional niceties once again seems strong to many shaken Americans.

The warnings of my former Orange County Register colleague, the late Alan W. Bock, seem more prophetic with every year.

In the run-up to the beginning of the U.S.-Iraq war in 2003, Bock told me that wars are always an occasion for governments to vastly increase their power and to expand the dimensions of what is allowable conduct, but that the war on terrorism might be particularly destructive to liberty.

Bock believed that the undefined, apparently never-ending U.S. global war on terror triggered by 9/11 might leave the federal government in a default mode in which it never stopped seeking expanded power.

A decade later, a Republican president and a Democratic president alike have shown Bock’s fears were valid.

When veneration of public-safety officers carries a literal price

The other fallout to fear from the Boston terrorist attacks may seem far more parochial and seemingly minor. But it is neither petty nor minor. It is the strong possibility that the heroism of the “first responders” to the bombings will translate into additional political clout for public-safety unions who are in many cases the main threat to the financial stability of cities and counties in California and across America.

The veneration going to law-enforcement officers and firefighters is similar to that accorded our military service members since the Persian Gulf War in 1990-91. But those in the military haven’t been able to use this veneration as a club to win labor agreements that provide automatic raises from the government even as it pursues bankruptcy, as is the case with public-safety workers in San Bernardino.

After 9/11, this veneration reached extraordinary extremes. It provided political cover in an era in which pension spiking and manipulation at the behest of police and fire unions exploded at the local government level, enabled by the dot-com boom filling pension-fund coffers. In that period, when I wrote skeptically about public safety pensions at the Register, the terrible events of that Tuesday morning in Manhattan in late summer of 2001 were often thrown back at me. This was nothing new in Orange County, where public-safety employees know they will get the benefit of the doubt because of their images.

Now the veneration that police and fire personnel count on is revving up once again.

But while appreciation for the heroism of first responders is appropriate, political exploitation of that appreciation to pry money from tottering cities and counties is crass and depressing. Unfortunately, based on what we’ve learned in California, such exploitation is an absolute certainty in coming months and years.

For those who believe in liberty and solvent local government, the fallout from April 15 is to be dreaded.