Apple defends China moves amid FBI spat

Apple defends China moves amid FBI spat
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Apple is battling claims that it has regularly made concessions to the Chinese government at the same time that it refuses to help the FBI unlock the San Bernardino shooter’s phone.

The U.S. government has been pushing the allegations in the weeks leading up to Tuesday’s first court hearing in the case, accusing Apple of making “special accommodations” for China that it will not provide for FBI investigators.

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The claims have outraged Apple, which pushed back against the government for using “unidentified Internet sources to raise the specter that Apple has a different and sinister relationship with China.” 

“Of course that is not true, and the speculation is based on no substance at all,” said Apple General Counsel Bruce Sewell.

But experts say it’s plausible that Apple has had to make at least slight concessions on some of its hardline privacy positions in order to operate under China’s strict Internet regime. 

The tech giant is currently opposing a court order demanding that it help the FBI unlock an iPhone 5c used by San Bernardino shooter Syed Rizwan Farook. 

While the government is insisting that its request is tailored to the single phone in question, Apple and others have warned that complying would send a public signal to other countries — including those with questionable human rights records, like China — that such requests are fair game. 

“If it is allowed in this country, you can be certain the Russians and the Chinese are going to use it,” Sen. Ron WydenRon WydenTrump and GOP wise to keep tax reform and infrastructure separate Dem senator questions Justice Department on warrantless surveillance FCC says it cannot provide more proof of claimed cyberattack MORE (D-Ore.), a privacy-minded lawmaker who has strongly defended Apple, told The Hill. 

But the government claims Apple is already complying with similar requests in China.

Citing Apple’s own transparency reports, prosecutors noted that the company complied with 74 percent of China’s requests for data on over 4,000 devices during the first six months of 2015.

Perhaps more damning, the Department of Justice (DOJ) insinuated that Apple had already made security concessions for the Chinese government, violating the exact principle the tech giant is defending in its defiance of the FBI court order.

“Apple appears to have made special accommodations in China,” prosecutors wrote. “For example, moving Chinese user data to Chinese government servers, and installing a different WiFi protocol for Chinese iPhones.”

Some security experts say these changes — made to comply with China’s onerous tech regulations — could make it easier for the authorities to hack into Apple products. The concerns are not without merit. Beijing was widely suspected to be behind malware used to spy on Chinese iPhone users in 2014.

Apple critics have piled on, accusing the company of hypocrisy for not disclosing the changes.

“When China asked, [Apple] didn’t even tell us they were doing it,” Stewart Baker, a former top Department of Homeland Security (DHS) official, told the audience at the SXSW festival this week.

Apple lawyers say the DOJ is misleading the public. 

In a conference call with reporters this week, they pointed out with audible frustration that the same transparency report the DOJ is citing also shows Apple complied with 81 percent of U.S. government requests for data on over 9,000 devices. That’s a higher response rate on more than twice as many phones.

And according to the transparency report, the kind of information it has provided Chinese authorities differs from what the government is seeking to access on Farook's phone.

The requests with which Apple complied typically included information about an account holder’s iTunes or iCloud account, such as a name and an address. In no case has it provided the Chinese government with users' content, such as photos, email or device backups, according to the report. 

No government, including China, has ever asked it to do what the FBI is demanding — write a new piece of software to make it easier for investigators to hack into a device, Apple said. 

Apple attorneys were especially irritated by the suggestion the company had weakened security in order to operate in China.

They explained that while the company does maintain servers in China, the data stored there is encrypted and the key is kept in the U.S. The servers are kept locally simply to improve the streaming quality of audio and video files.

But many onlookers are skeptical that Apple can maintain access to China’s lucrative, but highly-regulated, tech market without providing some kind of concession. 

Apple was only able to offer its flagship iPhone 6 in China after convincing Beijing the smartphones met the country’s strict Internet control standards. 

Chinese officials said they conducted “rigorous security testing,” and that Apple handed over information regarding potential security issues with the phone, Reuters reported. Only then was the iPhone 6 approved for sale. 

“That was a coincidence, wasn’t it?” Baker wrote in a recent Washington Post op-ed. “I mean, the Chinese government wouldn’t play hardball like that, and if they did, the [Apple CEO] Tim Cook I know would have written a bold libertarian letter to Apple customers loudly rejecting any such linkage, right?” 

The Apple 4S, introduced two years earlier, was also modified for sale in China to ensure that it met a domestic encryption standard for WiFi networks. 

“Such accommodations provide Apple with access to a huge, and growing, market,” Department of Justice (DOJ) prosecutors wrote. 

Supporters of the company say the encryption protocol has not been determined to contain a “backdoor” giving Chinese authorities to access information. Instead, the purpose of the mandate was to create a technical barrier to trade for foreign firms that would boost China’s domestic industry.

But even if Beijing hasn’t yet asked Apple to help weaken security measures for the authorities, officials could soon take that step. 

A recently passed Chinese counter-terrorism law requires companies to help authorities decrypt data upon request, and offer investigators assistance when necessary. 

While the law only applies to telecom operators and Internet service providers, not tech companies like Apple, the vague wording could lay the groundwork for Beijing to legally force Apple to unlock iPhones in China. 

Currently, the vagueness gives American firms a space to negotiate with Chinese regulators, explained Samm Sacks, a China analyst at the political-risk consulting firm Eurasia Group, which has advised government agencies on Chinese tech policy. 

But the Apple-FBI ruling could determine how that law is interpreted moving forward.

“The problem is that space for negotiation will narrow if the Chinese government sees the U.S. implementing a much harder line on encryption,” Sacks said. 

“The Chinese government is watching very carefully the outcome of this case,” she added. 

--This post was updated on Monday at 10:43 a.m.