US DOJ claims Apple lacks legal standing to refuse iPhone unlock order

“A federal filing has shed some light on the court matter involving Apple’s unwillingness to unlock an iPhone 5s owner’s phone running iOS 7,” MacNN reports. “The filing, made yesterday, points out the suspect’s name, as well as device type, and notes that Apple has had no problem unlocking devices with court order in the past. Additionally, the US attorneys claim that Apple has no legal standing to decline the search warrant on the basis of tarnishing the brand of the company.”

“Judge James Orenstein so far, is refuting rulings from the ’70s that have been applied by judges recently, and are now being used by the US government to compel Apple to unlock the phone,” MacNN reports. “In his statement, Orenstein stated that Apple is free from what is required of a ‘highly-regulated public utility,’ and as a private firm can ‘choose to promote its customers’ interest in privacy over the competing interest of law enforcement.'”

“The federal filing states that “Apple has acknowledged that it has the technical capability to do so again in this case. It musters only two reasons not to compel its assistance now: it invokes the costs associated with devoting employee time to bypassing passcode-locked iPhones involved in criminal activity and potentially to testifying in federal court,” MacNN reports. “The US government is seeking an expedited judgement to use the materials found on the phone for trial. Arguments, and a follow-up Apple filing, are expected later today.”

Read more in the full article here.

MacDailyNews Take: Since the phone in question is running a pre-iOS 8 operating system which Apple has the capability to access some user-generated files in Apple’s native apps, but it cannot extract email, calendar entries or any third-party app data, according to an earlier response to the court from Apple attorneys:

In most cases now and in the future, the government’s requested order would be substantially burdensome, as it would be impossible to perform. For devices running iOS 8 or higher, Apple would not have the technical ability to do what the government requests—take possession of a password protected device from the government and extract unencrypted user data from that device for the government. Among the security features in iOS 8 is a feature that prevents anyone without the device’s passcode from accessing the device’s encrypted data. This includes Apple. — Apple Inc. legal team

SEE ALSO:
Apple tells U.S. judge it can’t unlock iPhones running iOS 8 or higher – October 20, 2015
a href=”http://macdailynews.com/2015/10/20/apple-ceo-cook-defends-encryption-opposes-back-door-for-government-spies/”>Apple CEO Cook defends encryption, opposes back door for government spies – October 20, 2015
With Apple court order, activist federal judge seeks to fuel debate about data encryption – October 12, 2015
Judge declines to order Apple to disable security on device seized by U.S. government – October 10, 2015
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

[Thanks to MacDailyNews Readers “Fred Mertz” and “Edward W.” for the heads up.]

51 Comments

  1. I don’t understand. If you have, or a judge believes you have incriminating evidence in a locked safe, you will be contempt of court if you don’t open it. The police don’t have to get the safe manufacture to open it.
    No different for a phone.

    1. That’s not correct. There is a Fifth Amendment right against self-incrimination. You cannot be compelled to say anything against yourself or to take an action which would lead to self-incrimination. Courts have ruled that demanding you to reveal your phone password or passcode would violate the Fifth Amendment. There is one interesting aspect to iPhones locked with a fingerprint which I don’t believe has ever been addressed. Courts have ruled that you can be forced to give your fingerprints. If the phone in question has been locked with a fingerprint, there is the technology available to transform a fingerprint into a 3D print image, which just might unlock the phone.

        1. Thanks for reminding me of that obvious fact which I overlooked! Apple is way ahead of me. I’m sure this phone had been turned off because Apple says a wipe instruction was received after the phone was seized and is still pending.

          1. Problem with the DOJ’s case is that they have not proven there is anything on the iPhone that is evidence. It was retrieved from the perpetrators home not at the scene of the crime and as such can’t be forcibly unlocked until there is reasonable suspicion of something on the iPhone that is evidence. So far the DOJ has not proven reasonable suspicion of evidence on the iPhone until they do they really don’t have any case to have apple to unlock it. Incidentally Apple has not refused to unlock the device they just want evidence that proves it contains things that would benefit the case first.

            1. Wrong. Police need probable cause to seek a search warrant from a judge or magistrate. The probable cause is based upon the investigation and the officer must swear under oath before the judge will sign the warrant. Probable cause is way up the ladder from suspicion. You use suspicion on the street corner to frisk someone for a weapon.

          2. There you go, yet another wrinkle in gaining evidence in a digital world, devices sometimes have the ‘feature’ to be wiped remotely thus possibly destroying evidence. I guess a method to prevent that from happening has to be thought up.

          1. In 48 hours TouchID will need the passcode anyway. And in any case I don’t understand the case law on TouchID (fingerprint) since it’s just a shortcut for your passcode. Which you can’t be forced to supply. Wtf?

            1. Your fingerprint is a physical aspect of your body, which the state is allowed to inspect if they have reasonable suspicion you committed a crime. Your passcode is the content of your brain, and the Fifth Amendment protects you from being forced to testify against yourself. Forcing you to reveal your passcode is arguably forcing you to reveal information that might incriminate you. The Fifth Amendment of the Constitution is supposed to prevent that.

      1. I think the action has to directly incriminate you for the 5th to work. Opening safes, allowing authorities with proper warrants to enter your home in themselves do not incriminate the owner. It’s the evidence that is found by the search that becomes incriminating. As such inf0stud is probably correct in saying that refusing such properly issued warrants/requests is in contempt of court or possibly an obstruction of justice.

        1. Obtaining a warrant obviates that the place to be searched and what is being searched for is given, unless you have proof that you can get a warrant otherwise I’d like to hear it.

          So to be clearer, if a warrant is to search the iPhone for emails that incriminate owner is provided and the request is to unlock the phone to proceed, wouldn’t the unlocking not fall under the 5th since the act of unlocking itself is not incriminating? Only the email found is used as testimony/evidence. The only case where I can see the 5th working is if a person denies ownership of the iPhone but is compelled to press his finger on the fingerprint scanner. This would prove he is the owner thus incriminating himself and thus protected by the 5th.

      2. Ignoring the legal aspect here, a 3D print of your finger wouldn’t work. Neither would work if someone cut off your finger and tried to unlock the phone. Touch ID requires a living tissue, a finger with a pulse.

    2. You don’t have to open a safe. Conveniently lose the key or forget the combo. Cops have no problem kicking down a door to get in. Give them your phone and say “look all you want”. It ain’t your problem if they can’t get into it.

    3. The government will find a way into the latest phones. All this will do is accelerate government coming up with solutions to bust ur phone open, which also includes opening the phone and extrating data from the flash drive.

      Then they’ll ask u to pay their costs.

    4. By that logic..then you could be held in contempt for not admitting guilt..or turning over the murder weapon, etc. it doesn’t work that way. The accused has no obligation to help the accuser.

      1. M:

        It does work that way, just not necessarily in the US with your 5th amendment which doesn’t exist in several other countries.

        Further, when it comes to third party liability like Apple in a case that involves someone else, there’s also the possibility that Apple could be held to be obstructing justice and be in contempt if a court order is rendered.

        This is property and if warrants are obtained, law enforcement may use force to enter, for instance, a house. If you try and stop them from doing that, you’ll be in contempt of that warrant and will be obstructing justice, two separate charges.

        The same goes for a phone. If there is a warrant to search a phone, and you don’t provide the password to get into it, you could be held to be obstructing justice and be in contempt of a warrant because you’re “blocking” law enforcement from accessing that property.

        If you have a valid excuse, for example, like not remembering the password, then you may use something like the defence of reasonable diligence. But that would have to stand up and it’s hard to believe a person who uses a phone all of the time doesn’t remember their 4 digit unlock passcode.

        The law is complex.

    1. Now Botty, are you trying to protect your criminal friends again or are you just spouting off your right wing ideas to impress your Republican bosses (who are protecting the rich and/or criminal friends).

  2. The serious legal question here is not if you (the suspect) can be compelled to unlock the device. It is whether the manufacturer of the device can be compelled to facilitate the unlocking.

    If you have a safe, and it is locked with a combination that nobody knows but you, law enforcement can’t ask you to incriminate yourself by giving them the combination. The question is, are they legally allowed to blast the safe open in order to access the purportedly incriminating evidence in there? In other words, can they use other arbitrary measures to obtain the content that is protected and to which you alone have access?

  3. And the most important point here is:

    Can law enforcement compel manufacturer of a device to provide access to a device that is locked by its user with a pass code / lock which only the user knows and no one else (assuming that the manufacturer has technical ability and necessary skills / tools to do this)?

  4. DOJ is asking Apple to open the safe they created.

    I would say, the DOJ, in the best of it’s abilities should have to hire Apple as consultants towards cracking open that safe, themselves. The tools needed are simple: a quantum computer and 10,000 years. – So be it. That’s the kind of safe it is.

    The DOJ can’t ask Apple to make a spare key, or weaken the safe.

    In all situations, Apple is complying with the demands of the DOJ. In the justice system, a good will effort is all that is required to comply with the law.

    Apple’s duty to our nation, is to create the most secure system humanly possible. I think they have done that.

      1. Actually, it’s already been established that the government can order a business to do something that it would normally refuse to do, and can impose substantial fines on that business if it refuses. The reason WHY the business refuses is unimportant, so long as the government can come up with a pretext why the refusal is discriminatory.

        1. Yes, for example such advanced (encryption) tech could be considered ‘munitions’ and banned (or seriously restricted) from export thereby affecting distribution of products using that tech. A popular example is the initial limitation of PS3 exports due to the power of the Cell processor on fears that it could be removed and used in missile guidance systems.

  5. Just declare the phone contains proprietary, private, copyright material, protected by the device’s encryption, under the Digital Millennium Copyright Act (DMCA). This would also make it illegal for law enforcement to make a copy of the phone’s contents since circumventing the encryption would be in violation of the DMCA.

  6. Hey, DOJ. Serves you right. Why don’t you go ask Mr Bromwich or Judge Cote for help? Or Amazon? Maybe you should have thought about it more _before_ you decided to screw Apple royally.

    Personally, I think you will have to water board Tim Cook to get any help from Apple. But, somehow, I also don’t think that would work.

    Bravo, Mr Cook. Well played.

    1. I believe Apple will do it if a court orders it, but not if it is just DOJ doing the asking. Exactly as it should be: Apple is not at war with the U.S. government, but it isn’t going to do illegal or unethical things just because that government asks.

  7. What is it the Gov doesn’t get .. we own the iPhone, if they want someone’s data, you do it like any other evidence. You get a Judge’s order, go the person’s house and search for evidence.

    What you don’t do is search everyone in America’s data at will any time for generic reasons. Maybe they should READ the Constitution on private property and a persons home, belongings, etc..

    The gov just doesn’t want Apple to get the data from a person suspected of a crime, they want a back-door into everyone’s phone at will … can you say No Way !!

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