Yesterday a federal judge ruled against the FBI in its efforts to get Apple to unlock the phone of a suspected drug dealer. This ruling has an impact on the other case in which the FBI has demanded that Apple unlock the phone of the San Bernadino shooter. The government is using a 227-year old law known as the All Writs Act as the basis for its claim. (Neil Richards and Woodrow Hartzog explain the origins and purpose of this law.)
A federal judge on Monday rejected an FBI request to order Apple to open the iPhone of a drug dealer in a major setback to the US government’s increasingly heated efforts to force the company to help unlock an iPhone used by a San Bernardino terrorist.
The ruling late on Monday by magistrate judge James Orenstein rejected the US Justice Department’s attempt to gain access to the iPhone of accused crystal meth dealer Jun Feng, whose case is ongoing, though Feng has pleaded guilty. He will be sentenced in April.
The ruling comes just hours before Apple and justice department officials are set to clash in Congress over a court ruling calling on Apple to weaken the password protection of an iPhone belonging to San Bernardino killer Syed Farook.
Tim Cook, the head of Apple, has been engaged in a very public fight with the FBI over their demand that the company allow the government to access the contents of the phone used by one of the San Bernadino shooters. The Intercept has had a series of articles explaining what is at issue in this complicated case. Basically it boils down to the government asking Apple to weaken the encryption that it has built into its software.
As Dan Froomkin and Jenna McLaughlin write:
The more we learn about the FBI’s demand that Apple help it hack into a password-protected iPhone, the more it looks like part of a concerted, long-term effort by the government to find new ways around unbreakable encryption — rather than try to break it.
The court order Apple is fighting would require it to come up with a new way to hack into an iPhone 5c belonging to San Bernardino killer Syed Rizwan Farook.
The fact is that Apple couldn’t break the encryption scrambling the phone’s data if it tried. But the FBI doesn’t have to worry about that if it can just open the phone with the right password.
As Apple CEO Tim Cook put it, in his rebellious public response to the court order: “The ‘key’ to an encrypted system is a piece of information that unlocks the data, and it is only as secure as the protections around it.”
McLaughlin examines Apple’s strong response to the court order.
The response Apple lawyers filed Thursday to a court order that the company write software to defeat its own security protocols is exhaustive, fiery, accessible, and full of memorable passages.
The lawyers were asking a federal magistrate judge to vacate what they called her “unprecedented and oppressive” order demanding that Apple design and build software to hack into an iPhone used by San Bernardino killer Syed Rizwan Farook.
And they were relentless.
McLaughlin also writes that the FBI likely knows that there is nothing worth getting from the phone but that they are using this case, with all its anti-terror fearmongering, to establish their right to get backdoors to encryption.
A locked phone used by a dead terrorist initially may have seemed like the perfect test case for law enforcement to argue that it needs ways to get around advanced device security.
But authorities may have picked the wrong phone after all. It’s becoming increasingly clear that law enforcement doesn’t really think there’s any important data on San Bernardino killer Syed Rizwan Farook’s iPhone and that it has more precedent-setting value than investigative value.
“I’ll be honest with you, I think that there is a reasonably good chance that there is nothing of any value on the phone,” San Bernardino Police Chief Jarrod Burguan told NPR reporter Steve Inskeep on Friday.
Ted Rall makes the point that this is really a case of the FBI against what Edward Snowden has unleashed and the fact that Apple is fighting this request and is being supported by other tech giants is because of the heightened awareness created by Edward Snowden.
A few years ago, no one — left, right, libertarian — would have supported Apple’s refusal to cooperate with a federal investigation of a terrorist attack associated with a radical Islamist group, much less its decision to fight a court order to do so. If investigators hadn’t combed through the data on the phone used by Syed Farook before he slaughtered 14 people, it would have been seen as dereliction of duty. Obviously the authorities need to learn everything they can about Farook, such as whether he ever had direct communications with ISIS or if there were any coconspirators. Looking at evidence like that is what law enforcement is for.
Rather than face Uncle Sam alone, Apple’s defiance is being backed by Facebook, Google, Microsoft, Twitter and Yahoo — companies who suffered disastrous blows to their reputations, and billions of dollars in lost business, after NSA whistleblower Edward Snowden revealed that they spent years voluntarily turning over their customers’ data to the spy agency in its drive to “hoover up” every email, phone call, text message and video communication on the planet, including those of Americans.
The NSA almost certainly has the contents of Farook’s iPhone — and yours, and mine — on a server at its massive data farm in Bluffdale, Utah. Thanks to a court order and inside-the-Beltway turf battles, however, the NSA can’t/won’t turn them over to the FBI.
This is what happens when government treats citizens with contempt. Citizens return the favor.
Today Apple will be testifying before congress about its refusal to do what the FBI is demanding. Its top attorney Bruce Sewell will be asking them these questions:
“Do we want to put a limit on the technology that protects our data, and therefore our privacy and our safety, in the face of increasingly sophisticated cyber attacks?
“Should the FBI be allowed to stop Apple, or any company, from offering the American people the safest and most secure product it can make?”
“Should the FBI have the right to compel a company to produce a product it doesn’t already make, to the FBI’s exact specifications and for the FBI’s use?”
The defenders of the FBI keep saying that they are only asking for this one phone in this one instance but that is not true.
Micah Lee describes what FBI is asking Apple to do and why, and how it can be foiled.
YESTERDAY, APPLE CEO TIM COOK published an open letter opposing a court order to build the FBI a “backdoor” for the iPhone.
Cook wrote that the backdoor, which removes limitations on how often an attacker can incorrectly guess an iPhone passcode, would set a dangerous precedent and “would have the potential to unlock any iPhone in someone’s physical possession,” even though in this instance, the FBI is seeking to unlock a single iPhone belonging to one of the killers in a 14-victim mass shooting spree in San Bernardino, California, in December.
It’s true that ordering Apple to develop the backdoor will fundamentally undermine iPhone security, as Cook and other digital security advocates have argued. But it’s possible for individual iPhone users to protect themselves from government snooping by setting strong passcodes on their phones — passcodes the FBI would not be able to unlock even if it gets its iPhone backdoor.
The NSA has portrayed itself as this behemoth that is capable of great technological feats with an array of massive computers and skilled cryptographers that can break into any system. But the reality seems to be that while it can and does vacuum up all the communication traffic, it can it can be foiled by strong encryption from making sense of the data.