DOJ Appeals New York iPhone Unlock Rejection

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The U.S. Department of Justice is appealing a ruling in New York where a judge refused to grant a court order forcing Apple to unlock an iPhone. Like the San Bernardino case where a judge did approve the DOJ's request, agents cited the All Writs Act from 1789 as the basis for the request—although this time that argument didn't fly.

DOJ appeals New York ruling denying iPhone unlock orderDOJ appeals New York ruling denying iPhone unlock order

In the New York case, Federal agents asked the court for an order compelling Apple to help unlock an iPhone seized as part of an investigation into Jun Feng and a methamphetamine distribution conspiracy. They're hoping the iPhone's encrypted data includes the names of fellow conspirators.

The San Bernardino case, where a Federal judge did approve a similar order, relates to a mass shooting where Syed Farook and his wife Tashfeen Malik killed 14 of their county coworkers at a holiday party and injured 22 others. The court order says Apple must create a version of iOS for the FBI that removes the ten try limit for entering passcodes, removes the data self destruct feature that kicks in after hitting the failed passcode entry cap, removes the forced time delay between failed passcode attempts, and adds in a way to automate entering passcodes.

Apple filed a motion to vacate that order along with a formal objection, calling the order an overreach of authority, a threat to privacy and security, and a dangerous precedent. The FBI and DOJ initially claimed the order was a one-off request, but later reversed course saying it would open the door for similar requests. Already we've seen this New York case, the DOJ said it has several others waiting the outcome of the San Bernardino case, and the Manhattan District Attorney confirmed he has a long list of cases where he wants iPhone unlocking orders.

Apple cited the New York ruling in its formal objection to the San Bernardino court order. The company also commented on the court's denial for an unlock order in New York saying had it been granted it would "thoroughly undermine fundamental principles of the Constitution."

The DOJ, or course, doesn't see it that way and feels Apple should unlock Mr. Feng's iPhone. "Apple has the technological capability to bypass the passcode feature and access the contents of the phone that were unencrypted," the DOJ said in its filing, according to Reuters.

The twist in the New York case is that Mr. Feng failed Crime Lord 101 training by failing to upgrade from iOS 7 to iOS 8 or iOS 9. Apple started encrypting all data with iOS 8, which means the company potentially could access more information from Mr. Feng's phone that it otherwise would be able to had he upgraded from iOS 7.

That could play to the DOJ's favor, although the real question here is whether or not the government has the authority to compel Apple—and by extension, other technology companies—to bypass its own security measures designed to protect user data and privacy.

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It's clear the Department of Justice and FBI are more interested in easy access to our encrypted personal data than privacy and national security. The DOJ will keep bringing cases before judges asking for similar iPhone unlocking orders until it builds the precedent it wants, or Congress passes laws stripping away digital security.

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Comments

geoduck

I’m not really confident we can count on Congress coming down on the right side of this. How many members will want to vote in favour of a theoretical legal principle when they know next election cycle that vote will be dug up and advertized as “Senator X voted against law enforcement trying to protect you from drug cartels, pedophiles, and terrorists.”

Lee Dronick

  How many members will want to vote in favour of a theoretical legal principle when they know next election cycle that vote will be dug up and advertized as “Senator X voted against law enforcement trying to protect you from drug cartels, pedophiles, and terrorists.”

Frame it as investigative reporters and law enforcement will be able to get into politicians’ smart phones and dish out the dirt about bribes, campaign finance abuses, and sexual affairs.

zewazir

I’m not really confident we can count on Congress coming down on the right side of this. How many members will want to vote in favour of a theoretical legal principle when they know next election cycle that vote will be dug up and advertised as “Senator X voted against law enforcement trying to protect you from drug cartels, pedophiles, and terrorists.”

OTOH, polls are all over the place, with some showing more support for the FBI, some showing more support for Apple’s refusal.  Interestingly, those polls which show more people in favor of Apple complying with the FBI’s request, those majorities are small - or in some cases a plurality when factoring in the “I don’t know” answers. When support for either side of an issue is that evenly divided (which is SAD - why are people so willing to grant government anything they want in the name of “security” - be it from terrorists, or economics?) then trying to use a vote on that issue against a particular politician is risky at best. As such, any ad which states “Senator X voted (for OR against) law enforcement….” would have an approximately equal chance of backfiring as helping.

I don’t trust congress to EVER to the right thing. But they WILL do the more popular thing when running for reelection. Polls drive everything in an election year.  If we want them to support our privacy, we need to get vocal about it, and get those all-important polls showing the majority want to keep their data safe.

Jamie

Sigh. What has happened to my country? I’ve never wished Steve Jobs was alive more than of late.

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