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.

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