FBI’s One-off iPhone Hack Argument Crumbles as More Cases Line Up

| Analysis

The one-off use the FBI promised for the iPhone it wants Apple to help hack already looks to be falling apart because the Department of Justice is working to get similar orders for about 12 more cases. Like the iPhone in the San Bernardino shooting, the DOJ is using the All Writs Act in an effort to force Apple to bypass the passcode security features built into iOS.

More iPhone unlocking cases are lining upMore iPhone unlocking cases are lining up

Sources speaking with the Wall Street Journal said the DOJ is trying to get at potential evidence on iPhones with passcode locks in place, much as it is doing in the San Bernardino case. These 12 other cases, however, don't involve terrorist acts, and are essentially on hold while the fight over whether or not Apple should create a less secure version of iOS for the FBI plays out.

The current case involves Syed Rizwan Farook and his wife Tashfeen Malik who opened fire on their San Bernardino County Department of Public Health coworkers on December 2, 2015. They killed 14 people and seriously injured 22 more before fleeing and ultimately getting killed in a shootout with law enforcement.

Mr. Farook's work-issued iPhone was recovered, but FBI agents couldn't look at its contents because it was protected with a passcode. Apple's built-in security measures will destroy the data on the device after 10 failed login attempts, so the FBI obtained a court order compelling Apple to create a version of iOS that removes the 10 login attempt limit along with the forced delays between trying different passcodes, and also requires the company to create a way for the FBI to automate passcode entry.

Apple has resisted the court order saying the government is overstepping its bounds, that creating the weaker iOS version would set a dangerous precedent, and that it would lead to similar orders.

"The government suggests this tool could only be used once, on one phone. But that's simply not true," said Apple CEO Tim Cook. "Once created, the technique could be used over and over again, on any number of devices."

FBI Director James Comey said that's not true, and this fight is all about a single iPhone used in a terrorist act. The court order does say Apple can destroy the software once the FBI's case wraps up, and Mr. Comey stated in an open letter, "The San Bernardino litigation isn't about trying to set a precedent or send any kind of message."

With news of these additional cases the DOJ has lined up, however, it's looking like Mr. Comey's statement is somewhat disingenuous. As if that isn't enough to tear down the one-off argument the FBI asserted, Manhattan's district attorney said he plans to force Apple to unlock iPhones should the ruling stand.

Apple has helped law enforcement in the past, and currently has a team available to work with law enforcement at any time. The team helps agencies recover unencrypted data when presented with search warrants, but doesn't have any way to bypass the passcode on iOS devices.

The American Civil Liberties Union and Electronic Frontier Foundation condemned the FBI's court order saying it's unconstitutional and an "unlawful move by the government." Facebook, Google, Twitter, and other tech companies have come to Apple's defense, too.

Apple vowed to fight the court order and retained Theodore Olson and Theodore Boutrous, both attorneys with a strong history defending freedom of speech cases. Apple is digging in its heels for a big fight and will likely use the First Amendment's free speech clause along with the Fourth Amendment's protection from unreasonable search and seizure as part of its defense.

Apple hasn't even hit its February 26th deadline to respond to the court order—an order that says it's a one-off deal—and already similar order requests are lining up. Mr. Cook and Apple are right to fight this order, and their industry colleagues should be very concerned if it stands.

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Comments

furbies

Quis custodiet ipsos custodes

Old UNIX Guy

Federal Bureau of Incompetence Directory Comey has achieved something truly remarkable ... in a presidential election year *he* has becoming the biggest liar of all!

I am truly amazed (and disgusted)...

aardman

Dir. Comey is just hewing to the tradition set by that great American J. Edgar Hoover.

ipaqrat

It’s not too big a stretch to imagine a turnkey Hack-o-Matic, somewhat like a Stingray.

If memory serves, the courts determined that knowledge cannot be forcibly extracted from one’s mind, though something intrinsic to one’s corporeal being can - i.e., they can’t make you reveal your passcode, but they can force you to apply your biometrics.

It’s a reasonable extension that specific hacking methods, in the collective mind of Apple, et al, can’t be forcibly extracted, i.e., under threat to life, liberty and the prosciutto happiness (prosciutto makes me happy, anyway). However, if anyone at Apple wrote something down, then that might be compelled under subpoena.

I bet some opportunistic engineers at Apple are siphoning data out to CyanogenMod, even as we pontificate. And a clever law enforcement agent might clean up by pretending to represent CyanogenMod to trick said Apple staffer into the scheme. Whereupon the law enforcement agent would retire to Aruba after selling out to foreign powers, and ratting the Apple staffer out for theft of intellectual property. And of course the law enforcement agent was a foreign double agent anyway because clearance investigations are outsourced. And the Apple staffer was actually following Apple’s orders to obfuscate and mislead (like with the enigma thing in WWII) because they suspected such entrapment by law enforcement agencies. But the Apple staffer was actually a Samsung splinter cell…

Not that I’m cynical, or anything.

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