We already knew about San Bernardino and Brooklyn, but according to court documents unsealed on Friday, Apple’s legal struggle with the FBI includes a case in Boston, too.
The Massachusetts chapter of the ACLU was successful in getting the documents unsealed after filing a motion in court. The ACLU is undertaking a nationwide project to uncover information about All Writs Act warrants being issued “to attempt to conscript Apple or Google to break into personal electronic devices.” So far they’ve found more than 60 cases in 20 states, stretching back to 2008.
The ACLU’s legal director, Matthew Segal,
said in a statement:
This is an important victory for open courts and open government. Vital issues about the security of our personal information should not be litigated behind closed doors. Yet, since at least 2008, that is exactly what was happening with the government’s efforts to force technology companies to access their customers’ devices. We collected these cases and filed this motion because we believe that getting these issues right requires dealing with them openly.
We filed our motion to unseal this case because we believe that the public’s rights will not be respected if they are not litigated openly. Now that the government has agreed that this case should be unsealed, and now that a court has unsealed it, we hope that undue secrecy will not occur in the next case or in any other pending case. This was an important first step. Now that this basic information is publicly available, we will look closely at the documents to determine any potential next steps.
The Boston case
In the Boston case, Magistrate Judge Marianne Bowler issued an order under the All Writs Act (
PDF) ordering Apple to assist breaking into an iPhone 6 Plus used by an alleged gang member accused of committing violent crimes in aid of racketeering. The warrant was issued February 1 and expired after 14 days, but it’s not clear that the FBI ever executed the warrant.
The government’s initial All Writs Act application in that case (
PDF) doesn’t mention which version of iOS the locked device is running. But the iPhone 6 Plus shipped with iOS 8, so it’s pretty safe to assume it’s iOS 8 or iOS 9. The request points out that Apple has complied with search warrants issued under the All Writs Act in the past, and that “Examining the iOS device without Apple’s assistance, if possible at all, would require significant resources and may harm the iOS device.”
The resulting order (
PDF) says that Apple has to provide “reasonable technical assistance, [consisting] of, to the extend possible, extracting data from the device, copying the data from the device onto an external hard drive or other storage medium … and/or providing the FBI with the suspect Personal Identification Number or Personal Unlock Code so that access can be gained to Target Telephone 1.”
But the order also clarifies that encrypted data is enough: “To the extent that data on the device is encrypted, Apple may provide a copy of the encrypted data to law enforcement but Apple is not required to attempt to decrypt, or otherwise enable law enforcement’s attempts to access any encrypted data.”
Apple’s own documentation describing how law enforcement can request its assistance (
PDF) points out that since iOS 8 and iOS 9 decrypt all the data on the phone by default as soon as you set a passcode, Apple can’t help: “The files to be extracted are protected by an encryption key that is tied to the user’s passcode, which Apple does not possess.”
How is this different?
In the two most public All Writs Act cases,
the FBI withdrew its request in the San Bernardino case, claiming a third party
sold them a tool to break into an iPhone 5c running iOS 9. In another case in Brooklyn, the government still wants Apple’s help extracting data from a meth dealer’s iPhone 5s running iOS 7.
In the Brooklyn case, Apple does have a method to extract the data from the iOS 7 phone without needing the passcode. But Apple is resisting anyway on the grounds that the government doesn’t need Apple for this—plenty of third-party security firms could handle the same task—and because Apple’s lawyers feel like these All Writs Act warrants are an overreach that’s more about setting a legal precedent than getting into any single device.