Like sands through the hourglass, so are the iPhones the government wants Apple’s help breaking into.
Recently, the FBI said it had paid for a “tool” that broke into the iPhone 5c used by San Bernardino shooter Syed Rizwan Farook. The FBI also said that even though this tool allegedly works on a narrow slice of phones, they’d be happy to help other law enforcement agencies use it to break into locked phones they’ve seized in the course of investigating crimes.
But one phone it can’t crack is an iPhone 5s running iOS 7 that was used by a meth dealer named Jun Feng in a drug case in New York. We’d already heard a little about this case when Magistrate Judge James Orenstein ruled in late February that Apple didn’t have to provide assistance, and the All Writs Act (which was also called into question in the San Bernardino case) wasn’t sufficient for issuing this order.
Of course, that ruling was appealed by the government, and on Friday the government submitted a letter reminding the court that the matter is still open and that the government still needs Apple’s help. The full letter is here:
In re Order Requiring Apple Inc. to Assist in the Execution of a Search Warrant by Kif Leswing
Apple’s next steps
Apple held a conference call with reporters on Friday and its attorneys, speaking on background, said they would continue to fight this appeal. The company isn’t refusing to help the government obtain information, but Apple attorneys emphasized that Apple only wanted to hand over information they had in their possession, on their own servers, such as iCloud backups.
Since Feng’s iPhone 5s is running iOS 7, the information on it isn’t encrypted by default, and Apple does have a method to extract that data without needing to know the locked phone’s passcode. The company has done this in the past, but is now taking a harder stance because it doesn’t feel that the warrant, issued under the All Writs Act, is lawful.
The All Writs Act, which was also at the heart of the San Bernardino case, has been interpreted by the courts as allowing the government to compel third parties (like Apple) to assist law enforcement under a few conditions, one being that the assistance is really necessary. In the New York case, Judge Orenstein apparently didn’t feel the government had made a good enough argument for this, and instead was pursuing a precedent for using the All Writs Act to compel, well, pretty much anything. Orenstein wrote in his ruling, “It is thus clear that the government is relying on the AWA as a source of authority that is legislative in every meaningful way: something that can be cited as a basis for getting the relief it seeks in case after case without any need for adjudication of the particular circumstances of an individual case.”
In San Bernardino, the government claimed multiple times that only Apple could unlock the phone (the FBI was even asking Apple to rewrite a one-off version of iOS to bypass its security protections), and then suddenly claimed they’d gotten into the phone with another third-party tool and would not be pursuing that case further. According to Apple’s attorneys, the fact that the Department of Justice is still pursuing the New York case—in which the meth dealer in question has already confessed and is due to be sentenced in May—shows that the government didn’t bring the San Bernardino case purely to fight terrorism, and that the government’s goal is certainly bigger than any one phone.
Apple will file a briefing in the New York case next Thursday and eventually there will be a hearing. Apple’s attorneys said that they hope the judge hearing the appear, Judge Margo Brodie, will press the FBI on why Apple’s help is necessary in this case, when it apparently wasn’t for the encrypted phone in the San Bernardino case. Apple says they won’t be suing the government to find out what the solution wound up being in the San Bernardino case, and isn’t interested in that solution becoming public, or in forcing the FBI to reveal its secrets or its methods in court. But it doesn’t seem fair for an assistant U.S. attorney to be able to say, effectively, Apple needs to help us, your honor, please make them, without backing that up with some showing of what’s already been tried.
Long-term, Apple would still like the solution to come from Congress, but its attorneys didn’t yet have an opinion on the “Feinstein Burr bill” that was leaked in a draft version on Thursday, titled the “Compliance with Court Orders Act of 2016” (PDF), since they hadn’t read it. The negative reaction to that bill by security experts was swift and severe. “This basically outlaws end-to-end encryption,” Joseph Lorenzo Hall, chief technologist at the Center for Democracy and Technology, told Wired. “It’s effectively the most anti-crypto bill of all anti-crypto bills.”