Encryption

Don't Forget: Apple Still Has an Encryption Fight Going in New York

The fight over government access to your private data will not be ending anytime soon.

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iPhone
Credit: Robert Scoble / photo on flickr

At the same time the FBI was trying to force Apple to help open a San Bernardino terrorist's work phone in California, the Department of Justice was also attempting the same tactics in a drug-related case in Brooklyn.

The FBI was winning its case in San Bernardino (or at least it initially got a federal judge's support) and then withdrew its request after Apple filed a response in opposition to the order and the law enforcement agency apparently found a third party to crack the iPhone for them.

But over in Brooklyn, the feds found a less friendly judge. The judge ruled in February that it was government overreach to attempt to use the All Writs Act to try to force Apple to assist the government in cracking the security of the phones it creates in order to assist the feds in gathering data about crimes. Magistrate Judge James Orenstein was very firm about it, too, stating that the argument that the Department of Justice presented was tantamount to a belief that the courts could order any American to do just about anything in order to assist the government in investigating a crime unless a law specifically forbid it.

While the judge ruled against the Justice Department, that fight's not over, either. Just as Apple could appeal the ruling that they must assist in San Bernardino, the Justice Department may appeal the decision that tells them no. Today in a court filing, Justice Department lawyers said they're going to decide in the next two weeks whether they're going to appeal in Brooklyn.

One suspects that the delay may have something to do with whether, once again, the feds can figure out how to crack the phone's security on their own. But as Reuters notes, the Department of Justice declined to provide much detail as to why they want to wait to respond:

The U.S. government did not disclose any details in a letter to the Brooklyn judge on Tuesday. Instead, prosecutors only agreed with a request by Apple to delay briefing deadlines in the case, and said it would update the court by April 11 as to whether it would "modify" its own request for Apple's assistance.

An Apple spokesman declined to comment. In court filings the company has said it would want to question any potential government claim that the technique which worked in California would not work in Brooklyn.

So stay tuned. Even if the feds don't need Apple's help in Brooklyn either, the state of New York wants to demand "back door" access to bypass phone encryption to get data, and the U.S. Senate is drafting legislation to authorize judges to demand Apple and other data providers assist law enforcement in accessing information.

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  1. A drug-related case? Well, we are at war….

  2. The DoJ does not want to wage this war out in the open.

  3. Well, apparently some random company out there has made Apple’s encryption its bitch, so it’s all useless anyway.

    1. “random company”

      riiiiiight.

    2. Well, apparently some random company out there has made Apple’s encryption its bitch, so it’s all useless anyway.

      The San Bernadino case was useless posturing! IMO, now the shoe is on the other foot. We’re back to; the government, on the one hand, wants the surveillance state while, on the other hand, doesn’t want to cripple American businesses (cede control to more ‘open’/deliberate monitoring regimes) with known vulnerabilities/monitoring.

      So, it’s now the DoJ’s move on whether they share how the phone was hacked or not and then continue to pursue further cases or not.

    3. Well, apparently some random company out there has made Apple’s encryption its bitch, so it’s all useless anyway.

      It’s not Apple’s encryption. It is AES 256 bit encryption which is the same encryption used for top secret documents. If they did manage to find the passcode it is likely due to it being a weak passcode.

    4. The phone was a crappy 5c.

  4. What’s pathetic is that some think back door cryptography is about “just one phone”. You clearly have no understanding of how technology works. The fact that anyone would buy that garbage shows how stupid the ones falling for it are, and how evil those pushing that narrative are.

  5. Before they catch a court order, Apple (and Android) need to push out an update, right away, that puts “encryption at rest” on the phone whenever the lock screen comes up, and makes all subsequent updates completely under the control of the owner.

    That way, when they do catch the court order, all they can do is put the mandatory backdoor out as an optional update. I’m sure there’s a way to do it so that the only possible way to defeat the encryption at rest is to unlock the phone with the right passcode, as well.

    1. Before they catch a court order, Apple (and Android) need to push out an update, right away, that puts “encryption at rest” on the phone whenever the lock screen comes up, and makes all subsequent updates completely under the control of the owner.

      I’m pretty sure this is already SOP for Android. At least, encryption at rest is optional upon approval and system updates require approval (all depending on hardware/network provider interactions, of course).

      1. er ‘is a user option or requires user approval’ whatever.

  6. Can someone please explain how this is different than a subpoena in a case where the recipient is not actually involved as plaintiff or defendant, but is going to be deposed? Time is wasted, no actual compensation is given, and it can be held in a difficult and inconvenient place for the deponent. But the subpoena must be obeyed or the deponent will be jailed on contempt and charged costs.

    1. IANAL, but my understanding is that it’s a legal quadrangle-rectangle-square hierarchy. The All Writs Act gives the courts the ability to generally issue court orders and a subpoena is a specific kind of court order. So, Apple isn’t subpoenaed because they aren’t testifying or providing records/information. The FBI just wants their labor. And, there is a notion of ‘least burdensome’ and ‘good faith’ with regard to subpoenas that may not or does not exist wrt court orders generally (in the Apple case, it’s not clear that the order isn’t impossible to fulfill). It’s the difference between the government politely asking you to march to the courthouse or face jail time vs. anyone who can obtain a court order forcing you to march to your death or face jail time. Your will/desire isn’t really in play either way it’s just a question of how bad the actions juxtaposed against ‘or jail time’ can be.

  7. Siri, how does it feel to be raped in the ass by an above-the-law federal agency?

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  9. The government did not crack the Apple iPhone’s security. They are simply saying they did so they can weasel out of the case without a ruling by the court that would set a precedent that would affect their All Writs case in NY. Over a dozen privacy groups and privacy experts have filed briefs supporting Apple and the Supreme Court has struck down laws passed in the 1990’s banning the private use of encryption. The government’s plan to place a Clipper Chip in every electronic device and their Key Escrow plan were struck down by the courts also.

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