U.S. feds want Apple’s help to defeat encrypted phones, invoke 18th-century All Writs Act

“Newly discovered court documents from two federal criminal cases in New York and California that remain otherwise sealed suggest that the Department of Justice (DOJ) is pursuing an unusual legal strategy to compel cellphone makers to assist investigations,” Cyrus Farivar reports for Ars Technica.

“In both cases, the seized phones—one of which is an iPhone 5S—are encrypted and cannot be cracked by federal authorities,” Farivar reports. “Prosecutors have now invoked the All Writs Act, an 18th-century federal law that simply allows courts to issue a writ, or order, which compels a person or company to do something.”

“Some legal experts are concerned that these rarely made public examples of the lengths the government is willing to go in defeating encrypted phones raise new questions as to how far the government can compel a private company to aid a criminal investigation,” Farivar reports. “Two federal judges agree that the phone manufacturer in each case—one of which remains sealed, one of which is definitively Apple—should provide aid to the government.”

Read more in the full article here.

MacDailyNews Take: As we wrote last week, 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 articles:
U.S. DOJ turns to 225-year-old law to force Apple, Google to unlock password-protected devices – November 26, 2014
DOJ warns Apple: iPhone encryption will lead to a child dying – November 19, 2014

37 Comments

    1. 30 years ago, before the mobile phone became the default, a standard, rotary dial phone, Princess or not, held no data. The Feds used other means. There were enough ways then and the fact that a phone now stores data should not be considered new territory for government spying. You make this type of surveillance the new norm and as soon as your brain waves can be used to reveal data, you can bet the Feds will apply for a warrant to read your mind. IT WILL HAPPEN! Make no mistake. Unless we establish some boundaries.

      1. Ah, but any ‘data’ between phones (primarily voice) was accessible to the government because it was being transmitted.. Would you suggest that in order to return to that level of data accessibility that even if data is held on the phone it will also automatically be backed up in the cloud thus eliminating the need for government to decrypt the phone? Maybe when data couriers like proposed in “Johnny Mnemonic” there will be some need for a warrant to access the data held in your mind. 😀 /jk

  1. This also becomes a big issue about “whether” Apple has the capability to assist or “can” Apple actually assist. If the iPhone with iOS 8 is designed such that even Apple cannot (not will not) crack the encryption, then all the writs in the world won’t do the government any good.

    Plus, if any person has such a case against them, they should release this information to the media to bring added pressure against the government’s efforts. If a gag order is in place, well, “leaks” happen all the time.10

    1. It just occurred to me. Wasn’t there some kind of law against exporting high level encryption hw/sw from the US? Do they (Apple, Google, etc.) have weaker encryption standards for devices sold overseas?

  2. So if a court issues a writ for Amazon to build a supercomputer the size of a flea, at what point does “it is not possible no matter how hard we try” enter the discussion?

  3. If Apple and other companies are compelled to open smart phones for the government doesn’t this also make phones in general less secure and more open to hackers then as well? Including phones of government officials? Can’t have your invasive guv’ment data stealing cake and eat it too.

  4. It is pretty effed up. Obamanation’s DoJ has a hard on for the National Security State and the mainstream of Republicans that will be running Congress come January are in the same basic place. The Liberal and Libertarian Civil Liberties people in both the Democratic and Republican Parties are largely marginalized and ignored by the press/media.

    If you have kept up with the whole Snowden thing as well as the others this issue, our government and most of the governments of the world have decided that they will surveil you- laws and public opinion be damned. Even a highly watered down law to roll back some of the worst abuses was blocked in the Senate by the Republican Caucus under the supermajority nonsense. The new Senate in January will not be any better on this issue.

    The two trends I see worldwide related to this:
    1- Far more opaque government due to new laws that restrict public access to information and even government funded research combined with politically imposed gag orders on public employees to keep knowledge and information from the public.

    2- Far more encroachment on privacy and the civil liberties of citizens in good standing. The cops, spies and corporate America want to watch your every move and give not a damn if you like it or not. Many public companies, while decrying government spying, are gathering your every move online and selling it to the government.

    If Americans keep falling into the Red Pill/ Blue Pill trap and expect things to get beaten regarding privacy, I think you will be severely disappointed. Both parties are run by people in the pocket of the National Security State.

  5. I’m firmly on the side of the people and against the government snoops. But while I may strongly disagree with them, I do understand why law enforcement and government officials are freaking out over modern, encrypted data storage.

    For the entire history of this country, the authorities have been able to get any information they want out of you, provided they know where it is and can get a judge to let them take it. Hide it in a house, office, or safe? They’ll get a search warrant. If you’re keeping it in your head, they’ll get a warrant to tap your communications.

    But now, for the first time in history, law enforcement is up against a means of securing information that can’t be defeated with a warrant. No warrant can give the authorities the means to defeat encryption, only you can do that. So of course they’re freaking out.

    Still, I say “tough titties”. They’re just going to have to adjust to a new world where they can’t get anything they want just because a judge says so.

    ——RM

    1. Ah! Somebody who actually gets it. The folks in the intelligence services who violated US law to violate the Bill of Rights are criminals who don’t deserve an ounce of sympathy. However, that simply isn’t relevant to the question of whether honest law enforcement officers who scrupulously follow all the relevant legal guidelines should be prevented from gathering any of the evidence that the courts have relied on for centuries. The All Writs Act isn’t some esoteric dead letter. It is the basis for asking the owners of a self-service facility to help the police execute a search warrant on one of the units, or getting the phone company to provide subpoenaed billing records

      Without that evidence, a far higher proportion of criminals are going to be free to move along to new victims. Without the deterrent effect of a probable jail sentence for these offenses, more people are going to be tempted to commit them. That means still more victims, some of whom will die or suffer lifelong scars as a result. Contrary to some of the claims here, that isn’t fascist hyperbole. It is a sober statement of fact.

      It doesn’t do to say that the cops can just go back to doing old fashioned police work. Developing probable cause for a warrant and then using the lawful fruits of the search to convict criminals IS old-fashioned police work. The Founders knew that, and they expressly provided for it in the Fourth Amendment.

      How do you propose to convict anyone of possessing child pornography if they acquire it via an encrypted communication and then store it on an encrypted device? That isn’t a victimless crime; it finances a high proportion of all child abduction, enslavement, torture, and sexual abuse. How do you propose stopping terrorists in advance or convicting them afterwards if they have no paper trail because they never committed anything to paper? That isn’t a victimless crime, either. Ask anyone who lives in Baghdad, Kabul, or Lower Manhattan.

      That said, I don’t have any solution to the problem that wouldn’t probably be worse than the problem itself. Privacy is an important value, and we should accept some threats to our security to preserve it. My problem with the discussions I see online every time this issue is raised is that so few commenters realize just how seriously public safety is going to be affected if the police can no longer do what they are meant to do.

      The commenters here need to consider that reality and not keep attacking the straw man of conflating lawful, constitutional acts by local police with unlawful acts by the NSA.

  6. Again, Apple does not put the lock on the device the “user” does. The government would need to change the laws to force the user to allow access, not Apple.

    Not that I have anything to hide but I would smash the device or wipe it long before I let them conduct an illegal search.

    1. Since we’re talking about locks securing contents. How is it handled with companies that design and sell safes? Using that as a precedent, should a similar system be put in place for companies providing other sw/hw (e.g. encryption) means of securing items?

    2. It’s ironic the government wanted phones to be more secure to reduce crime (phone theft). Now they want easy access to see what is inside. I guess they didn’t think that requests through.

  7. I agree 10000% with the pro-privacy folks in an ideal world, and I certainly would prefer that the government not snoop on my phone, email, etc.

    Unfortunately, this isn’t an ideal world.

    While a laudable idea in principle, the people being protected by Apple’s encryption in court are mostly going to be drug dealers, terrorists, swindlers, child pornographers, and the like. The evidence on their phones would get them he conviction they deserve.

    It’s a double-edged sword. I have nothing to hide, but really like the fact that I have privacy.

    So yes, I would be willing to give up that protection from my phone being unlocked by court order in order to get a few more scumbags off the street.

    And you can spare me the Ben Franklin quote.

      1. PS – You have mentioned being spared the Franklin quote, here’s one I’m sure you WILL appreciate:

        “The best way to take control over a people and control them utterly is to take a little of their freedom at a time, to erode rights by a thousand tiny and almost imperceptible reductions. In this way, the people will not see those rights and freedoms being removed until past the point at which these changes cannot be reversed.”

  8. So… 18th century laws don’t die, hell, they don’t even fade away. They just stew around until some self serving politico type calls upon it.

    Makes me wonder what 18th century laws are being violated by 21 century laws???

  9. As I have said before this is barking up the wrong tree. All you need is a password and fingerprint from a user to unlock the iPhone and get the data. That’s simple enough, just restrain the user and force the fingerprint on the phone, and after a few water boarding sessions I’m sure there will be no problem getting the password.

    The infrastructure is already in place, and hey not only has the U.S. president admitted that “we tortured some folks” but those responsible for the torture have gone away scott free and won’t even be prosecuted. Come on this is the U.S. government, they think they can get away with anything and they will unless of course the people do something about it, but that does not seem likely to happen.

    1. boy, we are already “helping” the ol’ Reds, er Feds as much as we can:

      “… the Treasury took in $341,591,000,000 in revenues. That was a record for the period between Oct. 1 and Nov. 25 [2014].”

  10. Just wondering: what if they caught a terrorist, and the government KNEW they had plans for an imminent attack on the US on their cell phone. Would you all be so willing to say private information needs to remain private?

    Think about it…

    1. If there was the required proof under your scenario of an imminent attack and the details for that attack were on the cell phone then I guess there would be cause to get that information and the proper procedure to obtain that information.

      Now, if it were a case of an iPhone that could not be decrypted, then under the scenario I previously described, the suspected terrorist would be tortured for the password and obviously forced if a fingerprint was required. Another possibility would be to hold the terrorist suspect indefinitely.

      It’s not much different than what is being done now. I’ve read of one incident of a terrorist suspect being tortured 183 times and another being held for 13 years, before being released and never charged.

      Of course there is the other scenario where the terrorists are totally open about their plans. Imagine, as unlikely as the scenario might be, that someone goes to the UN with a bunch of totally made up tales about some country that is not the US having weapons of mass destruction and then disregarding the democratic principles of the UN decides to send thousands of supporters over to kill the head of state and a whole bunch of citizens, replaces the government, tortures some folks along with other atrocities. It would be astonishing if they faced no criminal prosecution, unless of course they were US citizens.

      Still, would you be willing to say kaplanmike that this country pretty well has lost total credibility on the world stage and is no longer to be considered part of the civilized world?

      Think about it…cause chances are you won’t be able to act upon it.

  11. I don’t have an issue with a legal, court-ordered, inspection of evidence for the purpose of investigating a crime. Nor should anyone. I do have an issue with a secret, unauthorised, inspection of a phone by authorities who are merely collecting information from a device just in case it might prove useful at some point in the future.

    While the NSA, and others, have been collecting information on ordinary citizens in secret, other law enforcement bodies continue to do their jobs catching criminals and the community needs to support their efforts.

    If your daughter is murdered or your neighbour is arrested with 500kg of Ice or your banker is suspected of conspiring to defraud you of your investments then you will want the appropriate law enforcement bodies to be able to inspect the mobile phones of the suspects involved.

    Phones carry useful information: GPS trails, messages, contact lists, photos and various other items of evidence which might either prove guilt or innocence.

    Privacy is important, but if we expect our police forces to protect us from crime we can’t hobble them by denying them access to evidence.

    If a suspect refuses to unlock a phone and the police can persuade a judge to grant an order, the manufacturer should be willing, even happy, to assist.

    It would be ironic if Apple were the victim of a major theft by a gang operating at a major airport and were unwilling to help the police track down and round up gang members after the arrest of one of the culprits.

    1. Wow! Someone else who gets it and is getting one-star reactions for it. It may very well be that we are stuck in a brave new world where lawful search warrants are no longer effective in catching and convicting criminals. Any cure for that may well be worse than the disease; I don’t have any solution that don’t have huge drawbacks. We may just have to live with the increased danger.

      However, I have a law degree and 30 years of obeying the ethical guidelines for prosecutors that insist that “the role of a prosecutor is not to seek convictions, but to see that justice is done.” Our legal system is not symmetrical; “the role of a defense lawyer is to zealously represent his client to the full extent of the law.” As a prosecutor, I had to live with the reality that there are a lot of crimes that simply cannot be successfully prosecuted without crossing legal or constitutional boundaries into the realm of unreasonable searches or involuntary confessions. Those crooks went free, while I had to move along to my next case.

      The public will not accept that. See the reaction to the Ferguson event or to the acquittals of O.J. Simpson and George Zimmerman. They jump to conclusions about who is guilty and expect the system to deliver that result. When it does not, they want to change the system. Back on Sept. 11, 2001, my colleagues and I thought the biggest risk to the U.S.A. in the aftermath of the attacks was not from Al Qaeda but from a public reaction that would limit Americans’ freedom more than the terrorists ever could. Sure enough, along came the Patriot Act and all the CIA and NSA abuses that went well beyond it. Prosecutors like me were expected to cut corners to obtain convictions and get obviously bad guys off the street.

      If legal searches become ineffective in stemming crime, the public is going to demand illegal searches. If lawful interrogation fails to obtain important information, the public is going to demand “enhanced interrogation techniques.” I’m not talking about rogue police or prosecutors here, but about changes in public attitudes that make the unconstitutional act of today the popular (and therefore politically unavoidable) act of tomorrow.

      Unless we can reach acceptable compromises between privacy and safety now, the public will eventually demand that the government defend their safety at any cost to their privacy. That is the real threat from the technological obsoleting of Fourth Amendment warrant procedures.

        1. Ok, I understand that you must have had some bad experiences with some bad police and prosecutors. Maybe you live in some unknown jurisdiction where non-citizens don’t have any rights and citizens are regularly abused.

          I live in Texas, where we have a hell of a lot of non-citizens, and I have never, ever heard of a court that did not afford them all the same substantive and procedural rights as any other person before that court. That is probably because the U.S. Supreme Court has consistently held since 1886 that the due process and equal protection guarantees of the Fourteenth Amendment apply equally to all “persons” within the United States, regardless of their citizenship.

          Now, I have heard of cops who treated aliens differently than citizens, but the reason I heard of it was typically because one of my professional brethren was prosecuting the cop for violating the alien’s civil rights. No wonder you aren’t worried about terrorists if you think they can be subjected to unreasonable searches or tortured into confessing.

          Again, I don’t think anybody in the Department of Justice is advocating for unconstitutional, illegal, or even unreasonable searches. What they are reacting to is the new situation where even the most legal search in U.S. history would be useless because the only evidence of the crime lies behind unbreakable encryption.

          No matter how many times you claim that the police can just go back to the methods they used before cell phones were invented, it still isn’t true. Those methods depended on the existence of physical, accessible evidence that simply no longer exists.

          My fear is that if the pendulum swings too far in favor of privacy over public safety, an outraged and fearful electorate will force the pendulum to swing back with a vengeance. I don’t know quite how to avoid that, but I do know that attacking the police for doing their job isn’t the way.

  12. This controversy is like the Second Amendment crap, people who say if you take away everyone’s firearms, then the criminal won’t have any…uh, that’s what criminals do, they break the law and firearms. Conversely, people who say if you stop companies from allowing encrypted data on smart phones on all American citizens, we can stop the terrorists! Uh, what would stop a terrorist from modifying a phone overseas with encrypted data functions? Isn’t that what terrorists do?

    1. Though seemingly correct in theory, why should we make it easier for criminals with less means to acquiring such encryption tech overseas to stay above the law by having ‘perfect’ encryption?

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