Apple Responds To DOJ's Attempt To Get Into Drug Dealer's Phone: Why You So Dishonest?

from the and-off-we-go dept

As we’ve discussed at length, there are multiple cases going on right now in which the US Justice Department is looking to compel Apple to help access encrypted information on iPhones. There was lots of attention paid to the one in San Bernardino, around Syed Farook’s work iPhone, but that case is now over. The one getting almost but not quite as much attention is the one happening across the country in NY, where magistrate judge James Orenstein ruled against the DOJ a little over a month ago, with a very detailed explanation for why the All Writs Act clearly did not apply. The DOJ, not surprisingly, appealed that ruling (technically made a “renewed application” rather than an appeal) to an Article III judge and the case was assigned to judge Margo Brodie.

Apple has now filed its argument against the DOJ, making a variety of points, but hitting hard on the idea that the DOJ is flat out lying in now claiming that Apple’s assistance in unlocking this phone is “necessary.” As we’ve noted, the end result of the San Bernardino case, where the FBI eventually “figured out” how to get into the phone, raises questions about whether it truly exhausted all possibilities in this case — which involves a newer phone, but an older operating system.

… the record is devoid of evidence that Apple?s assistance is necessary?and remains so even after a similar claim of necessity was proven untrue in a recent proceeding in California. Indeed, in its original application to Judge Orenstein, the government acknowledged that it sought Apple?s help to spare the government from having to expend ?significant resources.?…


The government has made no showing that it has exhausted alternative means for extracting data from the iPhone at issue here, either by making a serious attempt to obtain the passcode from the individual defendant who set it in the first place?nor to obtain passcode hints or other helpful information from the defendant?or by consulting other government agencies and third parties known to the government. Indeed, the government has gone so far as to claim that it has no obligation to do so… notwithstanding media reports that suggest that companies already offer commercial solutions capable of accessing data from phones running iOS 7, which is nearly three years old.

And, of course, Apple suggests (as it has all along) that the DOJ is totally misreading and/or misrepresenting the All Writs Act:

The government would have this Court believe that the All Writs Act, first enacted in 1789, is a boundless grant of authority that permits courts to enter any order the government seeks?including orders conscripting private third parties into providing whatever assistance law enforcement deems appropriate?as long as Congress has not expressly prohibited its issuance. DE 30 at 18. But that characterization of the All Writs Act turns our system of limited government on its head. It simply is not the case that federal courts can issue any order the executive branch dreams up unless and until Congress expressly prohibits it. That construction of the All Writs Act has it exactly backwards. If the government?s view is correct, Congress would never need to pass permissive legislation in the law enforcement context because everything would be on the table until explicitly prohibited. That may be what the government prefers, but it is not the legal system in which it operates.

The company also questions whether or not it’s really necessary for the government to get into this phone, given that the defendant in the case, Jun Feng, has already pled guilty and the phone hasn’t been used in years. Also, the government didn’t even seek a warrant to get into the phone for over a year after seizing it.

Apple also raises some procedural concerns. As noted above, the government just asked for a new judge to review, rather than doing an official appeal, and Apple points out that it’s doing this to try to avoid certain standards:

In its papers, the government takes great pains to characterize its brief as a renewed application rather than an appeal from Judge Orenstein?s order, presumably to bolster its contention that Judge Orenstein?s order should be reviewed de novo…. In doing so, the government attempts to obscure the fact that this matter was extensively briefed, a hearing was held, supplemental briefing was provided, and Judge Orenstein issued a 50-page order. Moreover, the government?s insistence that it is entitled to a do-over is belied by Federal Rule of Criminal Procedure 59 and Section 636 of the Federal Magistrates Act.

One of the key points made by the DOJ in its filing in this case was that Apple had been fine with previous such All Writs Act orders on phones running iOS 7, where it does have more access to information. But Apple notes that the details of this case are different in important ways: this is the first case where the judge specifically brought Apple into court, rather than ruling without Apple being involved at all (i.e. “ex parte”).

To be sure, courts have previously issued ex parte orders directing Apple to ?assist in extracting data from an Apple device through bypassing the passcode in order to execute a search warrant.? But the government?s cited orders were issued ex parte, without Apple?s participation, without the benefit of adversarial briefing on the scope of the All Writs Act, and with no supporting analysis. Apple also was not a party in United States v. Blake, No. 13-CR-80054 (S.D. Fl. July 14, 2014), in which the court denied the defendant?s motion to suppress evidence gathered from an iPhone that Apple helped unlock. Accordingly, such cases are not even persuasive authority on the scope of the All Writs Act, let alone precedential; certainly such ex parte orders issued with little analysis should carry less weight than Judge Orenstein?s lengthy and reasoned opinion.

Most of the other arguments cover things discussed earlier, around why the All Writs Act doesn’t apply and why CALEA covers this situation and does not require Apple to assist.

So, while the San Bernardino case may be over, the NY case is still raging. I imagine the DOJ’s next filing will be… interesting as well.

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Comments on “Apple Responds To DOJ's Attempt To Get Into Drug Dealer's Phone: Why You So Dishonest?”

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That One Guy (profile) says:

"Here's an idea, how about you do your work /and/ mine."

Indeed, in its original application to Judge Orenstein, the government acknowledged that it sought Apple’s help to spare the government from having to expend “significant resources.”

Translation: “We’re not saying we can’t do it, we just don’t want to bother with it ourselves. As such they should be forced to do it for us.”

Last I checked “We’re too lazy to do our own jobs” wasn’t a valid argument to force a private company to do a government agency’s work for it.

madasahatter (profile) says:

Re: "Here's an idea, how about you do your work /and/ mine."

The donut eaters would rather sit around the table eating donuts, drinking coffee, and watching whatever the shop is streaming on the flatscreen. Actually get off their behinds and use the information they already have is a sacrilege called working.

The metadata such numbers called or texted should be enough to allow a brief visit with an abbreviated version of 20 questions. Even if it was a burner phone, a little bit of actual work might tie the phone to a person; it had to be purchased by someone, somewhere.

JoeDetroit (profile) says:

Again, what is it they think they will find?

I’ve yet to hear any good explanation as to why they want to get into these phones. All I keep hearing is “we don’t want to leave any stone unturned…” or something to that effect.

Can someone please tell me what a criminal might leave on a phone that law enforcement could use? Pictures of people that they can claim are accomplices? Movies of them breaking the law? We all know that criminals can be stupid but I think these things are actually quite rare. WAIT! A drug dealer’s to-do list?

They have all the calls & texts & quite likely recordings of the actual calls. What is it about these phones that are making them go to all this effort?

art guerrilla (profile) says:

Re: Again, what is it they think they will find?

just like droning poor brown people half a planet away produces an endless stream of terrorist recruits, so does the police state treatment of citizens here produce a whole country who despises the goons of Empire…

(except for the propaganda victims and authoritarians who EVEN IF they themselves were 100% innocent and got jacked up by The Man, would aver that it as 100% righteous and double-plus good that they got jacked up, ’cause doesn’t that show just how much The They are looking out for us ? ? ? snort none so blind…)

John Fenderson (profile) says:

Re: Again, what is it they think they will find?

They want to make as big and public a stink about this as they can, as often and for as long as they can, to try to shift the public view towards the idea that this is a big problem. The end goal is backdoor (or something that achieves that effect) all communications.

Why do they want to do that? Who knows? I can only think of one reason: they want power.

jim says:

Apple wrong again!

Actually I’m for apples fight against, but they are wrong in their summation. They should not be appealing the old law, they should be appealing the currant laws. The old law was changed by the courts to wiretap and surveillance, and the search of homes for known evidence. In other words to invade your privacy to find evidence that is known by other sources. The FBI was wrong in the first place by asking for all write, just for ease of sources. They should have filed the other ways at the same time. That’s all that needed to be done, and Apple was still going to stall, but Apple is fighting the wrong game now. You see, the geni is out of the bottle now. Every two bit hacker is wondering, how? And looking thru the black hat lists on how. Did Apple forget something. Or did the update mechanism open new holes? Or is one of the common apps bad, or a security protocol leaky. I agree with snowden, Apple slit their wrist, now, this fight is wrong, spending money on lawyers, not checking to see their stuff is better, or improve to beyond reproach.

Whatever (profile) says:

I am starting to wonder if the DOJ’s process right now it to hand Apple a whole bunch of rope and hope they make a noose for themselves. Apple seems to be coming closer and closer to making outlandish statements and (as jim mentions above) chasing legal theories that might be the wrong fight altogether.

The DOJ has a lot of patience, and Apple’s lawyers seem pretty trigger happy, and seem to be providing way too much material to work from. Sooner or later, they will say something stupid and the DOJ will jump on them for it.

My guess is that by the end of 2017, Apple will have been spanked on this issue, and their encryption will be back doored or will be made in some way hackable by large scale brute force.

John Fenderson (profile) says:

Re: Re:

“Apple will have been spanked on this issue, and their encryption will be back doored or will be made in some way hackable by large scale brute force.”

If Apple were to do this, and fail to keep it 100% secret, it would be the end of them as a major consumer product company. I’m not sure how much it would reduce US sales, but sales in the rest of the world would plummet.

I suspect that they’d be willing to spend a pretty sizable chunk of that $200+ billion cash reserve they have to fight that eventuality. Or perhaps withdraw from the US market.

Whatever (profile) says:

Re: Re: Re:

” it would be the end of them as a major consumer product company.”

I am not so sure. If they are in EXACTLY the same position as every other company (ie, Android and Windows phones / tablets) then they may not suffer as much.

Well, then again, because they have staked their claim so hard on this issue, it may come back to bite them in the ass. Worst of all, they have no Steve Jobs to save them from hell this time.

John Fenderson (profile) says:

Re: Re: Re: Re:

They aren’t really in the same position as the others, though. Windows phones don’t really count, since nobody really expects security from them anyway. Android phones are made by a variety of manufacturers — and most of them aren’t US companies — and the US represents a significant, but relatively small, percentage of their sales. They are much better able to take steps to mitigate the damage, either by withdrawing from the US market or (more likely) by producing special US-only phones.

JBDragon (profile) says:

This matter was settled 20 years ago. The FBI giving the same going dark,etc excuses. Congress already acted and came out with CALEA. So I don’t get how the FBI can be pushing the “All Writs Act” anyway!!!

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