DOJ Drops Other Big Case Over iPhone Encryption After Defendant Suddenly Remembers His Passcode

from the wait,-what? dept

While so much of the attention had been focused on the case in San Bernardino, where the DOJ was looking to get into Syed Farook's iPhone, we've pointed out that perhaps the more interesting case was the parallel one in NY (which actually started last October), where the magistrate judge James Orenstein rejected the DOJ's use of the All Writs Act to try to force Apple to help unlock the iPhone of Jun Feng, a guy who had already pled guilty on drug charges, but who insisted he did not recall his passcode.

There were some oddities in the case. Feng had pled guilty and there was some issue over whether or not there was still a need to get into the iPhone. The DOJ insisted yes, because Feng's iPhone might provide necessary evidence to find others involved in the drug ring. The other oddity: Feng's iPhone was running iOS7. While the device itself was a newer model iPhone than the one in the Farook case, it still has an older operating system, where it was known that Apple (and others) could easily get in. So it made no sense that the FBI couldn't get into this phone. In fact, Apple's latest filing in the case, just over a week ago was basically along those lines, noting that the DOJ claimed Apple's assistance was "necessary," but that seemed unlikely.

And... late on Friday, the DOJ did the exact same "run away!" move it did in the Farook case, telling the judge that it had suddenly been given the passcode, so there was no need to move forward with the case at all.
The government respectfully submits this letter to update the Court and the parties. Yesterday evening, an individual provided the passcode to the iPhone at issue in this case. Late last night, the government used that passcode by hand and gained access to the iPhone. Accordingly, the government no longer needs Appleā€™s assistance to unlock the iPhone, and withdraws its application.
According to a (paywalled) WSJ article, Feng, who has been waiting for his sentencing, and thinking that his case was otherwise over, only just found out that there was this big fuss around his own case... and told the DOJ he miraculously remembered the passcode. Hallelujah. A miracle... and the DOJ was magically saved from a precedent it didn't want.
The Wall Street Journal reported last week that Mr. Feng only recently learned his phone had become an issue in a high-stakes legal fight between prosecutors and Apple. Mr. Feng, who has pleaded guilty and is due to be sentenced in the coming weeks, is the one who provided the passcode to investigators, according to people familiar with the matter.
Of course, it's worth noting, however that while this particular case may be effectively over, it's not that great for the DOJ, in that no one got to officially review magistrate judge James Orenstein's fairly epic smackdown of the DOJ earlier in the case. That, of course, has no value as a precedent, but that doesn't mean it won't be quoted or pointed to in other, similar cases.

On the flip side, of course, there's the argument that every time the case starts looking bad for the DOJ, they miraculously get into the phone in question. At the very least, this ought to raise questions about why the DOJ keeps insisting that it needs Apple's help... But the fact is these cases are going to keep coming.

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  • icon
    Chris-Mouse (profile), 25 Apr 2016 @ 3:51am

    So now that Apple has shown it will fight any such request to crack the security on a phone, which other company will the FOJ go after in an attempt to get the precedent it wants?

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

    • identicon
      William H. Taft, 25 Apr 2016 @ 4:13am

      Re:

      There's no other company on their list: Apple is the big prize, the only prize. The (non-Google) Android ecosystem is such a hot mess that they needn't bother, while Google and Amazon are likely collaborators.

      Apple has huge name recognition, respected security, and willing to play hardball with the government. They're the crown jewel of the tech world and the only real candidate to set such a precedent.

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

      • icon
        Chris-Mouse (profile), 25 Apr 2016 @ 6:39am

        Re: Re:

        True, but if the DOJ goes after someone like a manufacturer of hard drives with whole drive encryption, and force them to break the encryption, the DOJ can then use that precedent to come back after Apple.

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

        • identicon
          William H. Taft, 25 Apr 2016 @ 8:17am

          Re: Re: Re:

          That is certainly true, but it neglects the publicity angle- I don't believe the DOJ is solely out to get a legal precedent. It appears to me that they are attempting to try these cases in the "court of public opinion." The feds, with the "leaks" about how they got into the SB phone and the seemingly incessant press coverage, are pandering to the public in hopes of appearing to have the moral high ground.

          If they can take on Apple and win, then what tech company stands a chance? The DOJ wants to take a position of authority over the tech industry, and wants a favorable public opinion to make what they're doing seem legitimate. Just my take.

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

  • identicon
    Anonymous Coward, 25 Apr 2016 @ 4:22am

    Hands up who thinks the FBI and DOJ committed a felony whilst 'attempting' to access this phone?

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

  • identicon
    Quiet Lurcker, 25 Apr 2016 @ 5:12am

    Really???

    Two deus ex machina escapes from bad-precedent-setting cases in as many months?

    Does the DOJ really want that All Writs Act power that badly?

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

    • identicon
      William H. Taft, 25 Apr 2016 @ 5:53am

      Re: Really???

      Of course they want it that badly and the feds are going to keep trying until they get the precedent they want. It's a war of attrition: the DOJ can "lose" 1000 times in a row; all they need is that one case to go their way.

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

  • identicon
    pants down, 25 Apr 2016 @ 5:23am

    pants down

    These cunts at the doj need a fucking bullet to the head now. why hasnt it happened yet hey you idiot americans. fuckin do the job, bullet to the head of all your government officials to protect the future. fuck them the cunts.

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

  • icon
    Peter (profile), 25 Apr 2016 @ 5:31am

    How often ...

    ... can you look a judge in the eye, swear by the life of your mother and the holy bible that you can save mankind from terrorism, impending doom, drug trafficking and other evil if only he will force Apple to crack a phone ...

    ... and then come back a few days later, to call off the show after you miraculously found a spare key under the doormat where you had not thought of looking before?

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

  • identicon
    The Bad Anon, 25 Apr 2016 @ 6:05am

    Once is a coincidence. Twice is a conspiracy

    Given the government's obvious desire to set legal precedent that favors their "collect-it-all" approach, I have to wonder if they got the password from the defendant on the first day of questioning and decided to hide that knowledge for a while in order to take another crack at defeating Apple.

    Normally an explanation like this one wouldn't hold as much water, but since this isn't their first time trying to empower themselves through the All Writs Act, the question basically writes itself.

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

    • identicon
      kallethen, 25 Apr 2016 @ 6:15am

      Re: Once is a coincidence. Twice is a conspiracy

      I'm trying to remember the exact timeline, but this case was running concurrently with the San Bernadino case. I think the NY case may even have started first.

      So, I agree with the suggestion that the FBI was trying to maximize it's chances by pursuing two cases in stead of one (and, indeed, that did work to their favor as the two judges came to opposite decisions). But it wasn't a "we failed in San Bernadino, let's try NY!" It was, "Let's try both at once!"

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

  • identicon
    Anonymous Coward, 25 Apr 2016 @ 6:30am

    I cant imagine why anyone would hire someone who has worked for these 3 letter agencies. It really is hard to fathom just how crooked and untrustworthy they have become.

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

  • icon
    Ninja (profile), 25 Apr 2016 @ 7:38am

    How many years did they threaten him with I wonder? Or was it plain old torture? I'm going for the first since the CIA is not involved but who knows, eh?

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

    • icon
      Derek Kerton (profile), 25 Apr 2016 @ 8:31am

      Re:

      Nah. Plea deal. "Feng, U want shorter sentence for druggy drug stuff? OK, log into this phone."

      "OK. Give me that plus immunity for whatever u find on phone?"

      "Done."

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

      • icon
        M. Alan Thomas II (profile), 25 Apr 2016 @ 4:28pm

        Re: Re:

        More generally, "cooperation" is worth points in the federal sentencing guidelines, as I recall. As is taking responsibility (i.e., pleading guilty).

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

        • icon
          That One Guy (profile), 25 Apr 2016 @ 4:54pm

          Re: Re: Re:

          No really, the system isn't gamed such that insisting on your innocence and taking the matter to court is counted against you, honest! /s

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

  • icon
    That One Guy (profile), 25 Apr 2016 @ 7:57am

    "Oh would you look at the time, looks I've got to leave, NOW."

    Yeah, I imagine this will be their standard tactic from here on out until a case goes their way and they get the precedent they dearly want.

    They'll demand that a company 'provide assistance' in order to 'secure vitally important information', insist that they absolutely cannot do it without the company's forced help, and should the case look like it's going south for them they'll suddenly 'discover' that they can actually unlock the device, or didn't actually need what was on it after all, and drop the particular case in hopes that another works out better for them. Rinse and repeat until they get the desired result.

    At this point it should be blatantly clear to even the thickest judge that the DOJ has no interest in the cases themselves, all they're interested in is the precedent they hope to gain from them, and the cases, and more importantly the DOJ/FBI's claims should be looked at under that light.

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

  • identicon
    Anonymous Coward, 25 Apr 2016 @ 9:19am

    DoJ Offered Unlimited Conjugal Visits

    The DoJ gave Feng a sweet-heart deal to turn over his passcode. He is getting unlimited conjugal visits while he is in prison. He only needs to state that his visitor is his wife. They prison isn't verifying that he is married to them.

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

  • identicon
    kitsune361, 25 Apr 2016 @ 9:32am

    Feng, who has been waiting for his sentencing, and thinking that his case was otherwise over, only just found out that there was this big fuss around his own case... and told the DOJ he miraculously remembered the passcode. Hallelujah. A miracle... and the DOJ was magically saved from a precedent it didn't want.


    This is really what happened. He's been rotting in jail for god knows how long and they probably basically told him, give us the passcode or we'll hold up sentencing, play ball and and get time served + probation. It's a ridiculously common federal prosecutor tactic.

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

    • identicon
      Anonymous Coward, 25 Apr 2016 @ 10:48am

      Re:

      "This is really what happened."

      Silly fox, there's no evidence the phone has actually been unlocked. Show me the phone with an unimpeachable trail of custody by the DoJ/LEOs. Show me the "unhelpful" information on the unlocked phone. Nowhere did this article say, "Feng said" - it said the "the DoJ SAID Feng said."

      - Tanuki

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

  • icon
    vdev (profile), 25 Apr 2016 @ 8:02pm

    not an "escape"

    FBI bailed on this but the damage is done. It might not set a binding precedent but any judge who gets one of these cases will certainly read Orenstein's denial order.

    The FBI should have withdrawn their original request as soon as San Bernardino happened. Make up an excuse, any excuse. Since Feng had pled guilty, pursuing this had little possible upside. Orenstein hadn't drunk the KoolAid FBI was peddling and refused to make an ex parte decision. They knew there was going to be a fight with not much to win and a lot to lose.

    And now they've lost it.

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

  • icon
    vdev (profile), 25 Apr 2016 @ 8:07pm

    a few snippets from Orenstein's order

    >It is also clear that the government has made the considered decision
    >that it is better off securing such crypto-legislative authority from
    >the courts (in proceedings that had always been, at the time it filed
    >the instant Application, shielded from public scrutiny) rather than
    >taking the chance that open legislative debate might produce a result
    >less to its liking. Indeed, on the very same day that the government
    >filed the ex parte Application in this case (as well as a similar
    >application in the Southern District of New York, see DE 27 at 2), it
    >made a public announcement that after months of discussion about the
    >need to update CALEA to provide the kind of authority it seeks here,
    >it would not seek such legislation. See James B. Comey, "Statement
    >Before the Senate Committee on Homeland Security and Governmental
    >Affairs," (Oct. 8, 2015),
    >https://www.fbi.gov/news/testimony/threats-to-the- homeland
    >("The United States government is actively engaged with private
    >companies to ensure they understand the public safety and national
    >security risks that result from malicious actors' use of their
    >encrypted products and services. However, the administration
    >is not seeking legislation at this time.").

    >I therefore conclude that what the government seeks here is "to have
    >the court give it authority that Congress chose not to confer."

    >Director Comey's salutary call for meaningful public debate can
    >therefore be achieved only by recognizing that the All Writs Act does
    >not serve as a mechanism for courts to give the executive branch
    >authority it fails to secure from the legislature.

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

  • icon
    Aaron (profile), 27 Apr 2016 @ 10:35am

    If I'm reading the details correctly, the DOJ's claiming that they needed Apple's help getting into the phone, having done everything they could go try to unlock it, and also that the person whose phone it is hadn't known they were trying to unlock it and told them the passcode as soon as he found out.

    How does that make any sense? Wouldn't asking the guy be first on their list of things to do to unlock the phone?

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


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