DOJ Keeps Pointing To A '3 Factor Test' In Its Cases Against Apple; Except No Such 'Test' Exists

from the making-it-up-as-we-go-along dept

The deeper you dive into the various DOJ filings to try to use the All Writs Act to force Apple to hack into encrypted iPhones, the more and more dishonest they seem. We already covered some of the misleading claims in the DOJ's latest filing in NY, including pointing to a 2012 case as evidence that the All Writs Act can be used to force Apple to break into a phone, when the actual ruling in that case said only that Apple had standing to oppose an All Writs Act order.

However, buried in an excellent article by Sarah Jeong at Vice's Motherboard about that same filing, there's another interesting tidbit that seems worth exploring: in both the NY and California cases, the DOJ has repeatedly pointed to a so-called "three factor test" under United States v. New York Telephone Co., which is the key case that established that it's acceptable, under the All Writs Act, for the FBI to force a telephone company to install and use a "pen register" device on telephone lines (to track who they call). In the original motion for the order in the San Bernardino case, here's the DOJ's argument on page 14 and 15 of that document:
In New York Telephone Co., the Supreme Court considered three factors in concluding that the issuance of the All Writs Act order to the phone company was appropriate. First, it found that the phone company was not "so far removed from the underlying controversy that its assistance could not be permissibly compelled." ... Second, it concluded that the order did not place an undue burden on the phone company.... Third, it determined that the assistance of the company was necessary to achieve the purpose of the warrant.... Each of these factors supports issuance of the order directed to Apple in this case.
The DOJ repeated this paragraph verbatim in its motion to compel (on page 15) and again (verbatim) in the filing in NY (page 38).

The magistrate judge in NY, James Orenstein, accepted this three factors test, and used it to argue that the DOJ's application actually failed to meet the requisite factors (starting right on page 1):
In addition, applicable case law requires me to consider three factors in deciding whether to issue an order under the AWA: the closeness of Apple's relationship to the underlying criminal conduct and government investigation; the burden the requested order would impose on Apple; and the necessity of imposing such a burden on Apple. As explained below, after reviewing the facts in the record and the parties' arguments, I conclude that none of those factors justifies imposing on Apple the obligation to assist the government's investigation against its will.
There's just one problem in all of this -- as highlighted in Jeong's article linked above, and discussed in more detail by Orin Kerr last month: there is no three factors test in the US v. NY Telephone case. As Jeong summarizes:
You could argue it’s three factors, or maybe four, or even five. The point is, NY Telephone isn’t as easy to apply as the government makes it out to be. Everyone in the Apple case is playing in uncharted waters.
Kerr notes that the paragraph in the Supreme Court's ruling, far from laying out a "three factor test" appears to be "frustratingly murky."
The tricky part of New York Telephone is that the Court left the actual test for what the AWA allows frustratingly murky. The Court was comparatively clear about one essential limit on a Court’s power under the AWA: “We agree that the power of federal courts to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed.” Okay. But the rest of what the Court says is really unclear.
Here are the key paragraphs from the Supreme Court ruling:
Turning to the facts of this case, we do not think that the Company was a third party so far removed from the underlying controversy that its assistance could not be permissibly compelled. A United States District Court found that there was probable cause to believe that the Company’s facilities were being employed to facilitate a criminal enterprise on a continuing basis. For the Company, with this knowledge, to refuse to supply the meager assistance required by the FBI in its efforts to put an end to this venture threatened obstruction of an investigation which would determine whether the Company’s facilities were being lawfully used. Moreover, it can hardly be contended that the Company, a highly regulated public utility with a duty to serve the public, had a substantial interest in not providing assistance. Certainly the use of pen registers is by no means offensive to it. The Company concedes that it regularly employs such devices without court order for the purposes of checking billing operations, detecting fraud, and preventing violations of law. It also agreed to supply the FBI with all the information required to install its own pen registers. Nor was the District Court’s order in any way burdensome. The order provided that the Company be fully reimbursed at prevailing rates, and compliance with it required minimal effort on the part of the Company and no disruption to its operations.

Finally, we note, as the Court of Appeals recognized, that without the Company's assistance there is no conceivable way in which the surveillance authorized by the District Court could have been successfully accomplished. The FBI, after an exhaustive search, was unable to find a location where it could install its own pen registers without tipping off the targets of the investigation. The provision of a leased line by the Company was essential to the fulfillment of the purpose— to learn the identities of those connected with the gambling operation—for which the pen register order had been issued.
So yeah, it mentions the three things the DOJ keeps insisting are the "three factor test" (if the third party is not "so far removed," if there is no "undue burden" and if the assistance was deemed "necessary"). But there's a hell of a lot of other stuff in there as well, including the fact that in that case, NY Telephone was "a highly regulated public utility." So that seems like a relevant "fourth" factor that weighs against the DOJ (and they conveniently skip over).

And, as Kerr notes, unlike basically any judicial "test," this one fails to lay out any of the ground rules:
The paragraph above is pretty confusing. It begins with the idea that the AWA doesn’t apply to someone “so far removed” from the controversy; then turns to the need for the phone company’s help; then talks about what is “offensive” to the company; and then covers the burden to the phone company, focusing on how much it cost the business and interfered with it. But the paragraph doesn’t link these ideas or say how they relate to one another. It doesn’t say what the standard is for each idea or how much weight to give it.
In other words, this was just a way for the Court to get the case off the docket, not to set a "test" that would be applied 40 years later. Kerr later expands:
We’re mostly left with the uncertainty of the New York Telephone case itself. Beyond the “unreasonable burden” test, it’s not clear what to make of the other matters that the court mentions. Are they all just factors in a grand multi-factor test? Are they actually parts of the undue burden standard, just not explicitly labeled that way? Are they parts of what makes the order “appropriate”?

Once you figure that out — if you can — there’s the uncertainty about what each mentioned standard means.
Kerr then spends a lot of time noting that even with the actual establishment of the "unreasonable burden" test, there are no actual details or explanations to go with it and you can come up with a wide variety of possible interpretations that would lead to very different results. In short, there's no big "test" developed here, and despite nearly four decades, there's no evidence that anyone else has really made use of this "test" to determine the ground rules for it.

Either way, it seems clear that the DOJ keeps making some pretty direct claims in its filings that are based on either direct misreadings of things, or deliberately misleading the courts about these things. That seems like a dangerous game to play.

Filed Under: all writs act, doj, encryption, fbi, pen register, supreme court, three factor test
Companies: apple


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  • identicon
    Anonymous Coward, 9 Mar 2016 @ 9:48am

    They are going to eventually win.

    Even SCOTUS has become corrupt and has turned against the Constitution & The People for which it informs in futility.

    Bit by bit corruption grows more and more without abatement.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Mar 2016 @ 11:15am

      Re:

      The FBI ALREADY has the ability to push firmware onto any iPhone. They just don't want to do it and get caught because of the fallout that they have (long ago) bought apple programmers off and had backdoors slipped in without Apple's direct knowledge.

      Far better in their eyes to 'force' Apple to do it for them to cover up the backdoor's existence, otherwise Apple is going to RUSH to iOS 10 and close those doors firmly.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 Mar 2016 @ 12:53pm

        Re: Re:

        The problem is we don't know what to believe.

        Both Apple and the Government are lying curs. Neither of them can be trusted to be honest.

        I would not bet on Apple rushing iOS anything out to actually ensure Encryption. Since they did not do so from the start, why is everyone going to be dumb enough to believe they will do it now?

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Mar 2016 @ 9:57am

      Re:

      if they ever pass a country wide law removing the 2nd amendment that will be the time it is too corrupt to fix without violence.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 9 Mar 2016 @ 9:52am

    OMG, lawyers took a murky opinion and argued that a three-point test is the proper way to interpret it?? That's soooooo scary! This is so dangerous, Mike. Nice sleuthing. And regurgitating.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Mar 2016 @ 10:39am

      Re:

      Well, considering it's coming from the lying terrorists in the FBI, it's pretty much an open secret.

      Which is not something I thought I'd ever get to say in my lifetime and not appear a complete whackadoodle.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 Mar 2016 @ 11:17am

        Re: Re:

        Yep who'd have thought the FBI itself was actually a terrorist organization operating WITHIN US borders, actively and malicious murdering US citizens, having essentially no oversight and an unlimited budget....

        the FBI far from protecting ANYONE is the enemy of the United States, its people and government and needs to be stopped and the kingpins controlling it need to be charged with treason.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 9 Mar 2016 @ 12:43pm

          Re: Re: Re:

          I thought it... right from the moment they were allowed to use the term "National Security" to hide any activity. Also thought of it the moment they created the Definition of what a Terrorist was for legal purposes.

          No nation survives this without becoming corrupt, in fact, it was corruption that allowed it to begin so once it has occurred you know that we are past the point of no return.

          All we can do now is sit and watch as we all slowly slide into hell while the vast majority of Dems and Reps deny the problem right in front of their faces.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 10 Mar 2016 @ 9:59am

        Re: Re:

        the rabbit hole get's much deeper and darker if you only explore it more

        reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 9 Mar 2016 @ 10:01am

    Build your own 3 factor test

    First, it found that the phone company was not "so far removed from the underlying controversy that its assistance could not be permissibly compelled." ... Second, it concluded that the order did not place an undue burden on the phone company.... Third, it determined that the assistance of the company was necessary to achieve the purpose of the warrant....

    The FBI is so far removed from the underlying controversy (ie: it doesn't understand or pretend not to understand) that it cannot be permissibly compelled to uphold the Constitution.

    The FBI is merely doing it's job and sometimes it means there's no way to access information either because of legal or technical reasons so it would not be an undue burden on them and the case if they either accept the current evidence that already solves the case by far or do their job and explore other means or other sources of information.

    The phone isn't even needed to conclude the involved are murderers, criminals so the FBI doesn't need further assistance, at least here. And even where they think they need they can pursue other venues.

    Maybe it can be worded in other ways but I think I made my point.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Mar 2016 @ 10:06am

    > The order provided that the Company be fully reimbursed at prevailing rates, ...


    I don't recall seeing anything about reimbursing Apple its costs for developing this new operating system.

    Assuming Apple were to go through its standard procedures - and add additional "OMG Top Secret Security" - would the government be pleased to find that this one-off solution (You did promise that this was about Only One Phone, didn't you?) cost them eight to nine digits worth of work?

    Mind that because they were working for the government on this, all of the people involved - engineers, quality assurance, devops, management - would need top secret clearances, with added expense for that, and a pay bump to keep them sweet...


    All that to find out if one phone that the shooters didn't feel worth destroying had intelligence value not already found in its iCloud backup.

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 9 Mar 2016 @ 2:01pm

      Re:

      I don't recall seeing anything about reimbursing Apple its costs for developing this new operating system.


      Yes, the original order DID include that Apple would be reimbursed "reasonable costs" for the work.

      reply to this | link to this | view in chronology ]

      • identicon
        New Mexico Mark, 10 Mar 2016 @ 3:44am

        Re: Re:

        From a commercial standpoint, I assume the "reasonable costs" would be reimbursement of the cost of the arsenic the company would be forced to take in order to poison its own flagship product. Somehow I don't think it is possible for this type of action to have anything approaching reasonable reimbursement.

        reply to this | link to this | view in chronology ]

    • icon
      Craig Welch (profile), 9 Mar 2016 @ 9:57pm

      Re:

      >> Mind that because they were working for the government on this, all of the people involved - engineers, quality assurance, devops, management - would need top secret clearances, with added expense for that ...


      No they wouldn't. They would be working for Apple.

      reply to this | link to this | view in chronology ]

    • icon
      Avatar28 (profile), 10 Mar 2016 @ 7:59am

      Re:

      I don't think they would need security clearances and I doubt it would cost 8-9 figures. However, I did some back of the envelope calculations based on the number of engineers and support personnel they said would be needed for at least a month. I came up with around 80-100k assuming that it takes a month or a bit more for salaries of those involved. That doesn't count the indirect costs of pulling engineers and support people off their regular OS update cycles, likely delaying those products or requiring more overtime.

      Yes, Apple has a lot of money but I can't see how that doesn't count as unduly burdensome. It's not like they can just plug in the thing and take 5 or 10 minutes to do.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Mar 2016 @ 9:45am

      Re:

      Fully reimbursed? so thats 3 TRILLION DOLLARS for all the lost customers?

      Not sure if Tim Cook would go for that but the shareholders sure would.....

      reply to this | link to this | view in chronology ]

  • identicon
    Patator, 9 Mar 2016 @ 10:43am

    These "3 factors" must be freemason code for a cry for help.
    Or... Something.

    reply to this | link to this | view in chronology ]

  • identicon
    Stosh, 9 Mar 2016 @ 12:24pm

    So destroying the security of your entire product would in no way an "unreasonable burden"...gotta get some of whatever the DOJ is smoking.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Mar 2016 @ 1:46pm

    Wannabe three-factor test

    DOJ would like the three-factor test to exist, just like any student would like to pick the questions on their final exam.

    But there's a difference: the student would actually study the questions they picked. Trust the DOJ to screw that part up.

    reply to this | link to this | view in chronology ]

  • icon
    wshuff (profile), 10 Mar 2016 @ 6:31am

    I like this line from the Supreme Court's opinion:

    "A United States District Court found that there was probable cause to believe that the Company’s facilities were being employed to facilitate a criminal enterprise on a continuing basis. For the Company, with this knowledge, to refuse to supply the meager assistance required by the FBI in its efforts to put an end to this venture threatened obstruction of an investigation which would determine whether the Company’s facilities were being lawfully used."

    So, what was at stake was the refusal "to supply the meager assistance required by the FBI." Meager. I don't think that word can be applied to anything that Apple is being asked to do.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Mar 2016 @ 9:41am

    Of course it exists, it has just been sealed for "national security" reasons. Though it might as well not exist for us no doubt they will act as if it does and we must trust them when they talk about it.

    Only terrorists distrusts their government, or refuses to take them at their word.

    reply to this | link to this | view in chronology ]


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