Judge declines to order Apple to disable security on device seized by U.S. government

“A federal magistrate in Brooklyn is temporarily refusing to order Apple to disable security on a device seized by the government, citing Congress’ failure to act on the hot-button issue of encryption despite urging from law enforcement officials,” John Riley repots for Newsday.

Congress has done nothing that would remotely suggest an intent to force Apple, in the circumstances of this case, to provide the assistance the government now requests. Several of its members have introduced legislation to prohibit exactly what the government now asks the court to compel. — U.S. Magistrate James Orenstein

“Andrew Crocker, a lawyer with the Electronic Frontier Foundation, said he believed that Orenstein was the first judge to question the government’s legal authority under the so-called ‘All Writs Act’ to compel Apple to unlock a phone,” Riley reports. “But he also said the issue may be moot if the device in question is of recent vintage, because Apple itself is unable to de-encrypt its new operating systems and will probably tell the court so.”

Read more in the full article here.

MacDailyNews Take: The U.S. federal government should adhere to the U.S. Constitution and governments everywhere should respect their citizen’s rights.

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.United States Constitution, Amendment IV

Because the U.S. government spooks trampled all over the U.S. Constitution, constantly demanding that Apple grant access to customers devices, Apple decided to remove themselves from the equation. The government reaps what it hath sown.

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 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

Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take, but as for me, give me liberty, or give me death! – Patrick Henry, March 23, 1775

Visit the Apple-backed reformgovernmentsurveillance.com today.

A message from Tim Cook about Apple’s commitment to your privacy:

At Apple, your trust means everything to us. That’s why we respect your privacy and protect it with strong encryption, plus strict policies that govern how all data is handled.

Security and privacy are fundamental to the design of all our hardware, software, and services, including iCloud and new services like Apple Pay. And we continue to make improvements. Two-step verification, which we encourage all our customers to use, in addition to protecting your Apple ID account information, now also protects all of the data you store and keep up to date with iCloud.

We believe in telling you up front exactly what’s going to happen to your personal information and asking for your permission before you share it with us. And if you change your mind later, we make it easy to stop sharing with us. Every Apple product is designed around those principles. When we do ask to use your data, it’s to provide you with a better user experience.

We’re publishing this website to explain how we handle your personal information, what we do and don’t collect, and why. We’re going to make sure you get updates here about privacy at Apple at least once a year and whenever there are significant changes to our policies.

A few years ago, users of Internet services began to realize that when an online service is free, you’re not the customer. You’re the product. But at Apple, we believe a great customer experience shouldn’t come at the expense of your privacy.

Our business model is very straightforward: We sell great products. We don’t build a profile based on your email content or web browsing habits to sell to advertisers. We don’t “monetize” the information you store on your iPhone or in iCloud. And we don’t read your email or your messages to get information to market to you. Our software and services are designed to make our devices better. Plain and simple.

One very small part of our business does serve advertisers, and that’s iAd. We built an advertising network because some app developers depend on that business model, and we want to support them as well as a free iTunes Radio service. iAd sticks to the same privacy policy that applies to every other Apple product. It doesn’t get data from Health and HomeKit, Maps, Siri, iMessage, your call history, or any iCloud service like Contacts or Mail, and you can always just opt out altogether.

Finally, I want to be absolutely clear that we have never worked with any government agency from any country to create a backdoor in any of our products or services. We have also never allowed access to our servers. And we never will.

Our commitment to protecting your privacy comes from a deep respect for our customers. We know that your trust doesn’t come easy. That’s why we have and always will work as hard as we can to earn and keep it.

Tim

SEE ALSO:
Apple refused to give iMessages to the U.S. government – September 8, 2015
Obama administration war against Apple just got uglier – July 31, 2015
Edward Snowden: Apple is a privacy pioneer – June 5, 2015
U.S. Senate blocks measures to extend so-called Patriot Act; NSA’s bulk collection of phone records in jeopardy – May 23, 2015
Rand Paul commandeers U.S. Senate to protest so-called Patriot Act, government intrusion on Americans’ privacy – May 20, 2015
Apple, others urge Obama to reject any proposal for smartphone backdoors – May 19, 2015
U.S. appeals court rules NSA bulk collection of phone data illegal – May 7, 2015
In open letter to Obama, Apple, Google, others urge Patriot Act not be renewed – March 26, 2015
Apple’s iOS encryption has ‘petrified’ the U.S. administration, governments around the world – March 19, 2015

20 Comments

      1. They all have so far and they all will. As soon as I heard the phrase “Homeland Security” I knew we were in trouble. It was the first step toward creating a new national police force.

        Supposedly it was to help bring together information from existing intelligence agencies with a director who reported to the President. It didn’t take long for it to become yet ANOTHER MASSIVE ABUSE OF FEDERAL POWER. If you cannot see the dangers in big government, just look at Homeland Security. One day an administrative service, the next they’re buying billions of bullets.

      2. You are blinded by your misguided partisanship, George. The DHS is, by its very charter and nature an abuse perpetrated by the U.S. Government. Former President Bush and his cronies did indeed create and utilize the DHS. There is no denying it. And, I might add, the U.S. Tortured prisoners under the direction and protection of the Bush Administration. There is no denying that, either.

        Should the current Administration have found a way to modify the activities of the DHS to be within the bounds of the Constitution? I believe so. But Congress was an impediment in this regard. That is why Guitmo still exists. Congress would not allow the prisoners to be brought into the CONUS, nor did Congress want them to be released.

        No matter how you look at it, the current Administration inherited a full bag of crap from the Bush Administration – two long wars, economic collapse, unrest in the Middle East, high and rising unemployment. You are entitled to be disappointed that Obama has not achieved more during his two terms. But Most of the blame goes to a confrontational and gridlocked Congress.

          1. Yeah, building towards a totalitarian government is a bipartisan effort. Does anyone who unquestioningly supports one of the two major parties really not get that yet? Or, are they just pretending to themselves it isn’t true?

  1. So, members of congress know that if they force Apple to comply, they would be subject to those same rules. I am sure members of congress want to keep their phones sealed as well.

    On the part of Apple, they have repeatedly said they do not have the keys to your data. Which means they would just as easily destroy your phone as they would be able to open it up. On the other hand they could just say, our compliance will take aproximately 13 billion years. We will get started on it right away.

  2. This is partly a smoke screen and part laziness on the part of government.
    I have a good friend who works for a local (local for me) CSI police department. He tells me that he can get into an iPhone. He says it is much, much, much harder and requires very special software, but he can do it. He also rolls his eyes and says that Android phones are a piece of cake to break into.

    1. And?
      If I am given physical access to any device, I can get into it given enough time.
      What this is about is the government getting access to my information and data without me knowing about it, without a valid warrant issued by the Courts and without probable cause.

  3. The US constitutional amendment IV was not created to protect the criminals. It is a document to prevent the abuse of power of the state from harming political opponents. We can all recognize what constitutes a criminal act and the law should not prevent those criminal from feeling the consequences of their actions.

    1. We do not “all recognize what constitutes a criminal act” – that is the rightful authority of the court system, not public opinion or “mob justice”.

      You believing a person is a criminal or is irrelevant in our legal system. Everyone is innocent until the court of law proves them guilty of a specific crime beyond a reasonable doubt.

  4. There is a reason that you need special training before you install high-wattage electrical equipment. There is a reason you need a medical license before you do brain surgery. There is a reason that you need both training and a license before you give legal advice.

    “This” is not about the government obtaining information “without a valid warrant issued by the Courts and without probable cause.” There IS a warrant in this case, issued by the Courts and WITH probable cause. The device in question was seized pursuant to that warrant. MDN can quote the 4th Amendment until the cows come home, but they aren’t telling the judge in this case anything he doesn’t already know. He has expressly considered the Constitution and found that this seizure was lawful. Do any of you have any information to the contrary? I thought not.

    The question is also not about whether a third party can be compelled via the All Writs Act to assist the government in executing a lawful warrant. Obviously it can. Every day, landlords are ordered to open apartment doors so that the police can search the tenants’ property pursuant to lawful warrants. Every day, banks are ordered to turn over safety deposit boxes pursuant to a lawful warrant for the contents. That sort of thing has been going on regularly since the First Congress (the same men who wrote the Fourth Amendment) adopted the All Writs Act. There is no other way that many, and perhaps most, searches can be conducted.

    No, the question is quite specifically whether Apple can be compelled under the Act to help decrypt the device after it was properly seized. The question is probably moot, since Apple doesn’t have any more ability than the government to read the device without the key… and Apple doesn’t have the key. Assuming (contrary to fact) that Apple could help the government, MUST it do so? That, and that alone, is the question the magistrate felt he needed to answer.

    There is no clear legal precedent, but the question has been discussed for years. Congress has been given every opportunity to clarify the law and has refused to do so. Given that fact, the magistrate in this case refused to expand the reach of the All Writs Act on his own initiative.

    We call that judicial restraint. It does not mean that there would necessarily be any Constitutional prohibition should Congress choose to include Apple—along with landlords and banks—within the requirement that citizens must assist the government in executing all lawful writs, including VALID search, seizure, and arrest warrants.

    Apparently, the dead horse needs beating again—the Fourth Amendment does not prohibit government searches and seizures. It provides quite specific procedures for doing exactly that. When the government follows all of those procedures, it is doing exactly what the Constitution allows it to do. If it could not conduct any searches at all, it could almost never obtain the tangible evidence necessary to prosecute past offenses and stop ongoing crimes.

    Such a rule would also cripple defendants who need to obtain exculpatory evidence by use of judicial writs. Imagine, for example, if a bank could prohibit the search of its clients’ safety deposit boxes simply by refusing to allow the government or defense access to its vault. Imagine if witnesses to crime could not be compelled by subpoena to testify, either for the prosecution to prove guilt or by the defendant to bolster innocence.

    The Framers of the 4th Amendment (the same guys who wrote the All Writs Act) knew how to absolutely prohibit something. They did so in the 1st Amendment. They deliberately did not do so in the 4th. They wanted the government to have the power to obtain proper judicial writs, they expected third parties to respect those writs, and they expected that the writs would allow the state (and defense) access to admissible evidence. If every bit of information in America is stored behind unbreakable encryption, the 4th Amendment warrant requirement will have become an exercise in futility.

    1. Your post was a worthy read.

      MDN, righteously, is cherry picking which parts of the Constitution to adamantly support. Though Apple, not being a governmental arm, isn’t bound to the Constitution, is a blatant violator of the spirit, if not the letter, of the First Amendment.

      So, though I like that Apple isn’t decrypting the device, as you point out, most likely they can’t, and are capitalizing on an opportunity to come cross as defenders of liberty, while being no better than a group of book burners.

    2. While I agree with the general tone of your post, you seem to be forgetting that the warrant system is badly broken with secret courts, secret warrants, secret demand letters, etc. If ALL of that were to be brought into the open as it was originally envisioned by those who drafted the U.S. Constitution and the first ten amendments then the government being able to force one entity to give up another’s private information would be OK. As it is, such forcing is absolutely NOT OK.

      1. Thanks for pointing that out. I agree that there should be no secret warrants and secret courts, etc. But I do believe in warrants (and courts). When that happens, the corporation, or person, is absolved of responsibility, and that falls on our elected leaders.

      2. In the late 1970s, I had an account with a small-town bank that had no computers. Bookkeepers wearing green eyeshades entered transactions by hand into paper ledgers. I received no monthly statement. When my ledger page was full, they mailed me a copy for my records. (By the time I arrived, they had a “Xerox machine,” but the customer copies had previously been made by hand as well.) I used my copy to reconcile the physical books I maintained for my law practice with an adding machine, pencil, and paper. Legal billing was done the same way, by mailing the client a copy of my hand-written time records. Most of this would have been familiar to James Madison.

        If I were ever accused of a crime, the prosecutor, my defense team, the judge, and the jury had access (through judicial process, if necessary) to all my financial records. Multiple paper copies were maintained by me, the bank, my clients, and the bookkeeper who prepared my tax returns. Most of the business documents I had created still existed as physical copies in multiple locations. Both the writers and recipients of all my correspondence, dating back for years, kept duplicate copies in filing cabinets. My parents even preserved the letters I wrote them in college. With a proper judicial warrant or subpoena, all this was available to the justice system.

        The invention of things like adding machines, typewriters, and copiers had not fundamentally altered the way records were kept when the Constitution and Bill of Rights were adopted. As recently as the 1970s, that extended to other areas. Even large businesses that could afford mainframe computers kept backup copies of their vital records on paper. Criminal enterprises necessarily handled their information the same way as everybody else. Ransom notes and extortion demands existed in written form. Child pornographers unavoidably kept physical negatives and prints. Snuff films only existed as tangible copies on acetate. Gangs and spies talked face to face or on the phone in the clear.

        Encryption techniques were well-known when the Constitution was adopted, but until the very late 20th century they were too difficult to use in practice for anything other than short high-priority messages involving national security or espionage. Without computers, high-volume encrypted communications were expensive and could easily be cracked. So, except for the people’s private thoughts, almost every bit of information that existed anywhere was accessible to both prosecutors and defense teams as provided by the Bill of Rights. The balance of rights and responsibilities between the state, persons accused of crime, victims, witnesses, and other third parties remained essentially unaltered from the time of the Founders down to the birth of the Millennial Generation.

        That balance has been fundamentally altered. The guys in green eyeshades had retired from the Walburg State Bank even before it was acquired by Wells Fargo. All the information that was kept on paper ledgers is now solely in digital form on encrypted servers. No criminal without a significant mental deficit keeps anything in hard copy. He stores his records electronically behind a firewall and strong encryption, and only communicates via secure channels. Even the thug on the street corner knows to use a burner phone and keep no paper records, and serious criminal figures like drug lords and terrorists are even more careful. In the face of that, traditional search and seizure procedures are hopelessly out of date. Getting a warrant (or a defense subpoena) used to translate into getting useful information… but no longer.

        I won’t try to justify the excesses at the NSA, GCHQ, etc. They are indefensible, but it is important to realize that they were motivated by the breaking of the Constitutional balance. Traditional forms of criminal and counterespionage investigation—chiefly the assembling of paper records obtained through ordinary search warrants—are no longer effective. A child pornographer who keeps his product, from production to consumption, behind secure encryption is almost untouchable. So is a white-collar criminal who is careful to keep the second set of books on servers that only he can access. So is a kidnapper, drug dealer, or terrorist who never commits anything to paper or unencrypted email. The misguided efforts to gather electronic information were motivated by an understandable desire to protect the public even when the traditional means of protection had broken down.

        Most of us would rather live in an ordered society than in Mogadishu or Tripoli, where power comes solely from the barrel of a gun. Even the strongest 2d Amendment advocate understands that. Our response to the Snowden revelations should be to find ways to protect both our safety and our privacy, not to condemn even lawful searches conducted pursuant to the very procedures written into the Bill of Rights.

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