U.S. DOJ turns to 225-year-old law to force Apple, Google to unlock password-protected devices

“The Justice Department is turning to a 225-year-old law to tackle a very modern problem: password-protected cellphones,” Danny Yadron reports for The Wall Street Journal. “Prosecutors last month persuaded a federal magistrate in Manhattan to order an unnamed phone maker to provide ‘reasonable technical assistance’ to unlock a password-protected phone that could contain evidence in a credit-card-fraud case, according to court filings. The court had approved a search warrant for the phone three weeks earlier. The phone maker, its operating system and why the government has not been able to unlock it remain under seal. The little-noticed case could offer hints for the government’s strategy to counter new encryption features from Apple Inc. and Google Inc., say privacy advocates and people familiar with such cases say.”

“‘It’s part of what I think is going to be the next biggest fight that we see on surveillance as everyone starts to implement encryption,’ said Jennifer Granick, director of civil liberties at Stanford University’s Center for Internet and Society,” Yadron reports. “Pointing to the phrase ‘technical assistance’ in the order, she asked, ‘Does this mean you have to do something to your product to make it surveillance friendly?'”

“If an iPhone user sets a password for the device, the data is encrypted when the phone is locked. The only way to decrypt it – even if police ship it to Apple – is to know the password, which Apple says it doesn’t record,” Yadron reports. “Albert Gidari, a partner at Perkins Coie LLP who has worked with technology firms on surveillance matters, questioned the government’s approach. ‘There’s danger in this. How far do you have to go’ to assist the government, he asked.”

Read more in the full article here.

MacDailyNews Take: If Apple can’t unlock a device due to the way its designed, then they can’t unlock it. Case closed. But can the U.S. government force Apple to design devices that can be unlocked?

United States Constitution, Amendment IV:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety. – Benjamin Franklin, Historical Review of Pennsylvania, 1759

Freedom is never more than one generation away from extinction. We didn’t pass it on to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free. – Ronald Reagan, March 30, 1961

Visit the Apple-backed reformgovernmentsurveillance.com today.

Related article:
DOJ warns Apple: iPhone encryption will lead to a child dying – November 19, 2014

103 Comments

  1. We have the most Constitution Hostile administration in recent history. Credit card fraud is not national security. This justice department can’t be gone soon enough. Maybe if phones become far more secure there won’t be as much credit card fraud as we switch to services like Apple Pay. If however, a hole is left for the government to slither through others will as well. the attitude is insane. Screw security overall if we can put one criminal in jail?

      1. “The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.” – any rand

      2. Today I j-walked, coasted through a stop sign (California stop), ran a yellow, went 45mph in a 40mph zone, and forgot, once, to use my blinker, and my wife was not buckled up in the back seat.

        What a day! I hope the DOJ doesn’t come after me. I am sure the phone recorded each incident! Ha!

    1. Agreed.

      “The right against self-incrimination is spelled out in the Fifth Amendment to the U.S. Constitution”

      “The Fifth Amendment right against self-incrimination does not extend to the collection of DNA or fingerprints in connection with a criminal case. The Supreme Court has held the privilege extends ONLY TO COMMUNICATIVE EVIDENCE, and DNA and fingerprint evidence is considered non-testimonial.”

      What part of “Communicative evidence” does the DOJ not understand?

  2. The All Writs Act is a United States federal statute, codified at 28 U.S.C. § 1651, which authorizes the United States federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

    The Fourth Amendment IS the law.

          1. No I was awake for the part about how constitutional provisions and statutes should be strictly constructed in line with the expressed intent of the authors. So, if the same people who wrote the Fourth Amendment thought that it was ok to require third parties to cooperate with the execution of a warrant, that is pretty good evidence that the Fourth Amendment permits it. The alternative is that they suffered from a mental illness that prevented them from realizing that they were acting incoherently. You may think that the Framers were nuts, but I don’t.

            1. It makes absolutely no difference if “the same people who wrote the Fourth Amendment said that it’s ok…” or if Jesus and Allah, Buddha and his sister Linda voted for it. It contradicts the Fourth Amendment. It is unconstitutional, period.

            2. look stupid, this is the key provision in the law: “…and agreeable to the usages and principles of law.”

              What is the law? What is Fourth Amendment? Is the Fourth Amendment the supreme law of the land? What are its principles?

              jeez.

  3. The DoJ is also now forcing psychiatrists to give technical assistance in unlocking people’s minds to force them to reveal information that they hold private.

    1. And coming soon to a courthouse near you, your lawyer forced to give technical assistance to the government on how best to convict you. And what about the 5th amendment? You can get a warrant to search my house and take my property, but hacking my password is compelling me to be a witness against myself.

        1. What pisses me right now is the Obama administration is after Honda and others to replace millions of airbags for free. Screw the government, if people are stupid enough to buy defective cars they deserve to die. Stop the government tyranny. We should be responsible for ourselves, we do not need this commie nanny state. Right?
          .

  4. A most excellent question by MDN, “But can the U.S. government force Apple to design devices that can be unlocked?”

    Certainly a law can be passed to allow this, and it can be a mouse/mouse trap game. Apple could possibly design devices that cannot be unlocked to be used elsewhere but the United States.

    There are however other solutions possible, one is to get the user to unlock the device. That would certainly be a lot easier, as there are water boarding torture techniques that have been used, (up to 183 times on one individual so you know it’s gotta work) and certainly that is a working option with all the pieces in place. Another approach is to simply lock up the individual. Again this is a procedure that is already in place, keeping individuals locked up for up to 13 years without charging them is a pretty good indication that the infrastructure already exists.

    It’s always more effective to break in through the path of least resistance. Apple’s encryption is a tough nut to crack. An individual under water torture will no doubt pour out all sorts of information. The answer is simple, especially when you don’t have any ethics or moral backbone.

    1. No they can’t force Apple to design an unlock because Apple didn’t lock it, the user did.

      First all these puppets wanted Apple to design a lock so people would stop stealing it and now they want them to remove it or have a way to by-pass it so just they can break into it?

      Let them try. Again, Apple doesn’t put the lock on, the user does.

      1. An excellent point, but I’m sure that a government with that focus can come up with a device law to ensure that they have access to it. Oh they might not be able to prevent the design and marketing of the product to the civilized world, but they could limit its use within the United States.

        Then again, for those who really enjoy bureaucracy, how about a password licensing and registration act? You’d have to register your password, possibly renew it, for a small fee so that a government can access if if needed.

  5. Don’t even start with the political bullshit on this one. Not to make excuses for Obama’s corruption and lawlessness, but I can see Mitt Romney’s Justice Department coming at Apple just as hard over this crap with the same shenanigans. When it comes to surveillance the parties are united in their foaming hunger to screw us all over.

  6. The 6th amendment guarantees the right to know who your accusers are and the nature of the charges and evidence against you. However, in 2012, a new law was passed that gives the FTC the right to obtain a temporary restraining order against a person or company without the defendant being present in court to dispute the charges. When the TRO is granted, all of the companies and owner’s personal and business assets are frozen. They are left with the money they have on their person to live on, hire a lawyer and their business is shut down until a formal hearing has been held to hear the case. How can you mount any kind of defense if your computers, bank accounts and records are confiscated? First the Patriot Act, the unbounded control by the NSA and now a string of laws that take more and more of our freedoms away. What’s next?

  7. This is not about law enforcement. This is about power. The Justice Dept. feels that it should have the power to invade every area of our lives, and they’re pissed off that Apple and Google have shut them out. They can send me to jail for the rest of my life, but I will not give them my password, and I won’t unlock my iPhone or iPad with Touch ID. The framers of the Constitution did not intend for government to have this much power, and I will not accept any court or lawyer telling me otherwise.

    1. Well said. We are reaching a critical juncture in the development of our country. Technology is making it possible to actually monitor and control millions of people with frightening levels of granularity. An iPad can reduce millions to your address and phone number in seconds given the appropriate criteria. We need better minds than the fools in Washington to truly represent us and make sure the nation remains free in the future.

      1. No, no, no…”better minds in Washington” is not the solution. The solution has already been answered by the best minds that ever lived in this country from within the Constitution years ago. The Bill Of Rights strikes this kinda crap down every time. It simply needs to be enforced, adhered to. Ya know, the oath every president swears.

        1. You’re right of course, but how do you find people who recognize this? It’s not going to come from the Republican or the Democratic sides. The only difference in the two parties really is who they pay lip service to. Ultimately, we the people still get screwed.

          1. You are both right on this one, problem is the common pool is poisoned by “your either with is or against us” rhetoric and partisan brainlessnes.

            That leaves no place for common sense, cause, good or ground. We are all so divided in dogma that a fraction seems whole in comparison.

            There are so many advances that cam be made for the benefit of all causes if people would pull their asses out of their heads once and for all…

            Divided we fall one and all – there are no dibs on freedom and justice.

            1. As Steve Jobs said one time, “Microsoft doesn’t have to lose in order for Apple to win” which can be paraphrased to “Political Party #1 doesn’t have to lose for Political Party #2 to win.”

              The people of our country have put too much power into the hands of too few people. We need a strong 3rd party and term limits. Democrats and Republicans are 2 sides of the same coin. They pretend to argue and fight, but it really is an illusion created in order to divide us more and more. That division reduces the strength of the USA.

              Our official motto should be: “United we Stand, Divided we shall fall.”

            2. maybe also remove money from politics, starting with elections? Candidates get limited to the same amount of money from a government pool. That way they don’t spend their time in office influenced by cash that got them there, and cash needed for the next term. It’s money that corrupts politicians for the most part.

          2. You are both right on this one, problem is the common pool is poisoned by “you’re either with us or against us” rhetoric and partisan brainlessness.

            That leaves no place for common sense, cause, good or ground. We are all so divided in dogma that a fraction seems whole in comparison.

            There are so many advances that can be made for the benefit of all causes if people would pull their asses out of their heads once and for all…

            Divided we fall one and all – there are no dibs on freedom and justice.

            1. unless I have misread him, I think TM and I are in agreement on this subject. It is not a matter of “rhetoric and partisan brainlessness.” It is simply enforcing the Bill Of Rights and supporting those representatives who do.

        2. EXACTLY Bot. These nut cases wrecking my government must be supremely ticked off that the best defense against their crimes is to simply ENFORCE THE US CONSTITUTION. Here we are, actual patriots, whom they undermine and despise. But dare they lock us up in jail for defending our well defined basic governmental laws? Hmm???

    2. A great post Howie, thanks.

      I love what you said and it is good to stand up to one’s principles, even if one has to spend their life in jail over it. It’s a bit different now though, I think that after a few water board treatments most of us would be begging to give out our passwords, and confess to any crime we may have committed, heck possibly confess to any crime just to get the torture to stop.

      After all I think the latest US president said something like “we tortured some folks.” and once you start getting that sort of rhetoric, well you know the destination of that group, with or without a hand basket.

      Again great post thank you for making it.

  8. The argument, as I understood it, was not about court-ordered access to a phone, but about the NSA’s blanket trawling of personal information without a warrant.

    Apple’s view was that secret requests, without a court order, for client’s personal information was wrong and, as a consequence, Apple strengthened security in its products so that it would not be able to comply with such orders.

    If this means that law enforcement authorities now find that it is impossible to access a suspect’s phone without their cooperation then the blame for that rests squarely with the NSA.

  9. Hey America. Remember these guys?

    George Washington, George Read, Gunning Bedford, Jr., John Dickinson, Richard Bassett, Jacob Broom, James McHenry, Daniel of St. Thomas Jenifer, Daniel Carroll, John Blair, James Madison, Jr., William Blount, Richard Dobbs, Spaight, Hugh Williamson, John Rutledge, Charles Cotesworth Pinckney, Charles Pinckney, Pierce Butler, William Few, Abraham Baldwin, John Langdon, Nicholas Gilman, Nathaniel Gorham, Rufus King, William Samuel Johnson, Roger Sherman, Alexander Hamilton, William Livingston, David Brearley, William Paterson, Jonathan Dayton, Benjamin Franklin, Thomas Mifflin, Robert Morris, George Clymer, Thomas FitzSimons, Jared Ingersoll, James Wilson, Gouverneur Morris, William Jackson.

    These were the folks who signed the Constitution, arguably the greatest document ever written on the rights of the common man. As a Brit, I have nothing but the utmost respect for the Constitution and those who fought to enshrine for all time what are now regarded as axiomatic principles of humanity.

    And yet you continue to allow the perfidious actions of your own government that seek to erase those extraordinarily wise words one at a time. Please, take back your rights and principles before it is too late.

    =:~)

    1. unfortunately, it is too late. the leaders of the u.s. republic sold out to the global elite long ago. the insensate electorate is in an irreversible, impotent, comatose state with major elections now decided by ‘dead’ people and entitlement enslaved illiterates from the hood.

    2. Yes, and how many of these folks were slave owners? At least two were. That of course puts a damper on the whole thing. While it has great merits theoretically, insofar as the value of the document regarding human rights its value is of questionable value as it is practiced these days.

      There are much more valuable documents written on the rights and privileges of beings. As they have a holistic life/existence approach and have stood the test of time for thousands of years some of them, and are still practiced by the living, they leave most Constitutions in the dust.

        1. Hey, you are posting good. I’m glad you took me up on it. Just one huh? Sure, but let me point out that this particular one is a binary triplet and you’ll have to learn the alphabet of the language that is used. It’s a chemical language so each letter represents a chemical.

          The letters are ACGT and sometimes U. Each word if 3 letters long.
          The language was written a long time ago, and it’s even more useful to the Hitch Hiker’s Guide to the Galaxy. It’s so useful that not just humans carry around a copy of it but most living critters.

          It’s knows as the language of DNA. Oh but don’t fret there is something quite similar that was written about it, actually one of the oldest writings if not the oldest writing by the human species, it’s known as the I Ching. It’s a binary triplet code variation, two letters or symbols, 6 letters to each word, giving 64 basics words. It’s very well designed, to stand the test of time.

          Hope that helps botvinnik. Have a good one.

          1. well not really..you posited, “There are much more valuable documents [than the Constitution] written on the rights and privileges of beings..” I asked you to name one, you replied with an esoteric language, binary triplet, then referred to Hitchhikers’s Guide To The Galaxy. Then a reference to I Ching. None of your examples are documents, nor do they address the question of self-governance.

            1. I had no idea you were incapable of deciphering the difference between esoteric and scientific language botvinnik but I’ll be happy to try again.

              To start off with, all my examples are documents according to this definition: “is a written or drawn representation of thoughts” except for DNA, which I explained is a chemical language but the language can be written down. You may wish to check out the “Selfish Gene” by Richard Dawkins for a more layman’s approach to the intricacies of how the DNA promotes the rights and privileges of living beings. It’s a more recent document but a good one. You know that word “meme” that’s so popular these days at the forum. The author is the one the coined the term.

              I don’t know if there are any coined words in the U.S. Constitution or if they just used rehash of already known words.

              The comment about DNA “The language was written a long time ago, and it’s even more useful to the Hitch Hiker’s Guide to the Galaxy” was intended as a light hearted joke, certainly one that would not make sense to anyone who had not read the book nor seen the movie, nor listened to the radio series, nor aware of the great mac fan Douglas Adams.

              Now the I Ching is a document botvinnik, unless you have a different definition for document to put forth.

              I’ll gladly add more on “examples of much more valuable documents written on the rights and privileges of beings”. Any good old science book will do. The flagrant violations of the U.S. Constitution demonstrate it’s value as a document. The lack of any known violations of Newton’s law of universal gravitation demonstrates a much greater value on the rights and privileges of beings.

              Newton’s law of universal gravitation states that any two bodies in the universe attract each other with a force that is directly proportional to the product of their masses and inversely proportional to the square of the distance between them.

              I find it nice and refreshing that no politician, no law enforcement agency can violate my right to attract any and every other body of the universe. Same can’t be said about the Constitution, I mean it is limited to select few “all men created equal”. It certainly to my knowledge does not incorporate women (and slaves), not to mention that pragmatically it really means “all Americans are created equal”.

              It’s not much different than Apple. Everyone else is running around waving their “me me me I’m the center of the universe” constitution while Apple is playing with an ecosystem of diverse life.

              I hope this helps botvinnik. Enjoy.

            2. There you go, I think you got it. Now how about some tit for that. Can you name two of the constitution signatories that were also slave owners.

              That constitution you talk about, did not work so well for the Indians either. I guess they were not included in the “all men” category. Certainly women were the same, no vote for them, no representation until some limited voting rights were gained by women in Sweden the late 19th century.

              So basically any new constitution that considers “all people” would be an improvement. Even better yet a constitution inclusive of all living things. Even better a constitution inclusive of all things.

              That’s where the laws like the one Newton brought forth leave the U.S. Constitution in the dust.

              My original point.

              A whatever is very sweet indeed. Thank you botvinnik. Have a great Thanksgiving.

            3. You think you’re sitting in jail you’re gonna I Ching you up some Saturn to come bail you out?

              Sheriff Ted: “Shit, let Road Warrior out immediately! Here comes Saturn and all her rings comin’ right here at the courthouse!”
              Deputy Doofus:”I told ya Sheriff, he’s one with the mothafuckin universe!”

              Get real.

  10. I recognize that there aren’t many other former prosecutors or peace officers posting here, but I’m sure most of you have watched police procedurals like Law and Order, CSI, or NCIS. A very high proportion of the cases solved on those shows—and in real life—require evidence that was acquired using a valid search warrant or through some other Constitutional form of search or seizure. That has been true since even before the Bill of Rights was written. That is why the Fourth Amendment specifically permits reasonable searches and seizures, including searches pursuant to a lawful warrant.

    Now imagine that warrants suddenly become useless because the evidence seized cannot be used in court or to further an investigation because it is hidden behind uncrackable encryption. That means that criminals will go unpunished and will be free to hurt future victims. That isn’t exaggerated hyperbole, but a sober statement of fact. The tradeoffs are real, not hypothetical.

    Now a reasonable person might conclude that protecting privacy is a greater good for a greater number than protecting the public from criminals. I would not go that far, but others are entitled to their own opinion.

    If this case, the unnamed mobile maker was ordered to cooperate with a single warrant issued against a specific target. There is nothing particularly novel about that. The law goes back to the lifetime of the Framers and has been used regularly from that day to this.

    It is sheer speculation to think that the courts are going to allow prosecutors to use the Act to expand investigations beyond the specific persons and places named in a lawful warrant. So, it isn’t going to be used to require a back door for all phones. That would be an unconstitutional general warrant. Ordering assistance with a specific warrant is almost an everyday event (think of self-storage facilities being asked to help the police open a particular unit named in a warrant).

    So don’t get your knickers in a twist.

    1. You do not belong here. On this MDN show we will oppose any law or any tax or any thought that our elected officials propose. We must wait until Obama is out and then we will all support the very same things because FOX news says too. So go peddle your reasoned bullshit somewhere else. Your kind of logic is never welcome here, commie libtard person.

    2. TXUser, 20 years ago, your logic might make more sense. But, when literally thousands (millions??) of individuals privacy has been violated by the NSA, who are you going to trust. In that case, a court order was not obtained and a single individual or individuals were not named. That sort of broad abuse of power, “gets my knickers in a twist.” It causes me to be very suspicious of any further attempts to invade our privacy. How hard is it to get a warrant for a wire tap when you have reasonable cause that a person or persons is a potential terrorist? If I have a safe in my home that has a lock that cannot be breached, is the company that built it obligated to have a backdoor access capability?

      1. Of course you can get a wiretap warrant if you can set out a good reason in a sworn affidavit and persuade the independent judiciary that there is probable cause to conduct the search.

        So what? No terrorist talented enough to be a real threat (and no real child pornographer or real embezzler) is going to say anything in an unencrypted communication. If you do all your preparation and conspiring using IMs or emails with end-to-end encryption, and keep all your plans and kiddie porn on encrypted devices, no warrant is going to do law enforcement any good.

        As I have being saying, it is certainly a valid position to regard the protection of people from valid Fourth Amendment searches as so important as to justify letting a significant number of criminals continue their careers. What I am finding objectionable here are the people who are arguing that there will be significant losses to public safety if the Fourth Amendment authorization for reasonable searches becomes a dead letter. The risks are very real, even if you think it is worth it.

        1. Sorry, “who are arguing that there will NOT be” costs to public safety. If you don’t trust the government, why do you trust criminals and terrorists not to take advantage of their new immunity from lawful searches?

            1. Agreed, but what does that have to do with this discussion? Crooks are goons, even if they are cops. That is irrelevant to whether we should prevent the cops who aren’t goons from lawfully gathering evidence against the goons who aren’t cops.

              My local police aren’t the NSA. You seem to think that goonishness by the American (and British and Chinese and…) intelligence services means that the guy in my community who is collecting child pornography should be granted immunity. I fail to see how the one has anything to do with the other.

              Again, I wouldn’t have a problem if you were just arguing that protecting our privacy is worth a significant erosion to public safety. To a point, I might even agree with you.

              Where we differ is when you argue that the use of lawful warrants issued in complete compliance with the Fourth Amendment is for some unexplained (and probably unexplainable) reason a bigger threat to our freedom than the criminals that the Founders aimed the Fourth Amendment against.

            2. There is no bigger threat than authority that would abuse the Bill Of Rights. No child pornography, no terrorism, no any other lurid.dramatic crime you can quote justifies it. As I understand your viewpoint, you posit that police should be able to access, with a warrant, any personal papers or property..and that an iPhone with advanced encryption, only accessible by the user’s password should be legally mandated for access. The Fifth Amendment specifically states that “No person … shall be compelled in a criminal case to be a witness against himself.”
              A policeman, a president, a judge. a senator all take sworn oaths to defend, preserve and protect the Constitution.

              If the Fourth and Fifth Amendments make a cop’s job more difficult, then tough, it’s more difficult.

            3. more importantly, consider the obverse of this coin…assume there is no Fourth and Fifth Amendments, what stops a cop or a state prosecutor from framing you for a crime? What protects you, as a citizen, from manipulation of evidence, an intentional misinterpretation of emails, texts and photos on your unencrypted iPhone?

            4. For the third or fourth and final time, rhetoric about government agents who violate the constitution and laws is simply irrelevant to a discussion of searches and seizures carried out in letter-perfect compliance with the Bill of Rights. The one doesn’t have anything to do with the other.

              I don’t have a solution to the problem of criminals who hide from lawful judicial process behind unbreakable encryption. Like you, I can’t come up with a cure that isn’t roughly as dangerous as the disease.

              Unlike you, I can see that it IS a problem. We are all at a substantially greater risk of being affected by criminal goons who would have been caught and in jail before unbreakable encryption came along.

            5. Well if you hate the police and prosecutors that much, try living somewhere that doesn’t have any. Send back a report from the Islamic Caliphate, Northern Nigeria, or the cartel enclaves in Mexico and let us know how that works out for you

  11. It is not just the Federal government and their agencies like the NSA. Our judicial system is grossly lacking. When a Federal judge can be appointed for life, earn $174,000 a year in salary plus another $21,000 in teaching and then bitch because the salary is too low, they have picked the wrong profession. I’ll take a guaranteed job at that level of current income despite performance reviews for life. I sat in Nevada Federal court two months ago when the judge (appointed by Obama) came to court without reading the case documents. He was totally unprepared to hear the case. Disgusting. The hearing was put off a month after the case had already been delayed a month. Pity the defendant. Hear the case…hang the defendant or let him go. This delay crap is ridiculous and simply adds to the cost of litigation…and no one really cares except the defendant because everyone gets paid.

      1. Passed by the (previously) required minimum number of States to approve. Some of which, I believe are actually in the limbo state of awaiting for enough states to ratify passage.

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