Government pressure for Apple to bypass encryption reduced as iPhone owner enters guilty plea

“Jun Feng, a defendant in a criminal case, has entered a guilty plea, removing pressure from a New York court to decide quickly whether Apple is required to aid investigators by bypassing his iPhone 5s passcode,” John Ribeiro reports for IDG News Service.

“Feng had been indicted on three counts related to the possession and distribution of methamphetamine. The U.S. Department of Justice had asked the U.S. District Court for the Eastern District of New York for an expedited decision so as to secure evidence in a trial scheduled to begin on Nov. 16,” Ribeiro reports. “But on Thursday, DOJ informed the court that Feng has entered a guilty plea. ‘The government persists in the application pending before the Court, but in view of the guilty plea, no longer requests expedited treatment,’ U.S. Attorney Robert L. Capers wrote in a letter to Magistrate Judge James Orenstein.”

“The guilty plea will probably raise questions as to whether access to the iPhone data was really critical to the DOJ’s investigations,” Ribeiro reports. “Judge Orenstein had earlier expressed his doubt whether the government could use the All Writs Act to force an electronics device provider to assist law enforcement in its investigations and had asked for comments from Apple on whether executing the order would be unduly burdensome.”

Read more in the full article here.

MacDailyNews Take: Case close. No trampling of rights required.

Hopefully, in another case, we’ll get it on the record that Apple is not required to unlock their customers’ personal data.

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 for the equation. And so, the government reaps what it hath sown. We guess law enforcement will have to get off their asses and do some old-fashioned leg work if they want to crack cases.

SEE ALSO:
Judge compares government request for Apple to access users’ iPhone data to execution order – October 27, 2015
U.S. judge expresses doubts over forcing Apple to unlock iPhone – October 26, 2015
US DOJ claims Apple lacks legal standing to refuse iPhone unlock order – October 23, 2015
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

26 Comments

  1. It is my profound hope that if MDN or its loved ones are ever victimized by a crime involving encrypted data, the police will “get off their asses,” unpack their deerstalker hats and magnifying glasses, ride their bicycles to the crime scene, and offer some “old fashioned leg work” to replace the evidence that might actually allow the arrest of the perpetrators. Privacy is great, but it is not a one-for-one replacement for public safety.

    1. #MyStupidGovernment has gone WAY out of its way to make it clear that they have NO intention of honoring either the Fourth OR Fifth Amendments to the US Constitution. As MDN pointed out: They created this problem. They sowed the unconstitutional seeds. They’re reaping the harvest of mass citizen distrust they sowed. It’s 100% on them and no one else.

      IOW: LAY OFF.

      1. Derek, Thank you for your CONTRIBUTION TO CIVILITY! I am not going to LAY OFF, because I value the 1st Amendment along with the 2d and 4th.

        Please explain to me what a couple of Assistant United States Attorneys who are just trying to do their jobs by putting away a drug dealer—using a warrant obtained in perfect compliance with the Fourth Amendment and a routine statute that was adopted by the very same individuals who adopted the Bill of Rights—have to do with the NSA. How is this 100% on them? How did they create this problem or sow any unconstitutional seeds? They followed the Constitution to the letter. Why should they pay for somebody else’s crimes?

        More to the point, why should the victims of crime reap this harvest? Why should people suffer from the meth trade in their neighborhood so that you can punish the NSA? I am not exaggerating when I say that people will die and lives be ruined because police and prosecutors are unable to do their jobs as the public expects. As C.S. Lewis described this sort of situation, “They make eunuchs and bid them be fruitful.”

        If you think that cost is acceptable as the price of freedom. I might even agree with you, given the unpalatable alternatives, but I am not going to agree that freedom is coming for free. All the folks here (including MDN management) who think that the police are just lazy and can easily work around this with a little extra work are clearly incorrect. No amount of shoe leather is going to help when there is no existing evidence of the crime that is not behind a wall that is unbreachable for all practical purposes.

        If you want to protest government excesses, I’ll be happy to join you. If you want to prosecute government criminals, I’ll be happy to help you. Just don’t ask me to celebrate the tradeoffs that are involved when criminals have access to unbreakable encryption. The results may be unavoidable at this point, but don’t fool yourself by thinking that the spread of encryption is being driven by honest Constitutionalists appalled by the Snowden revelations. It is being driven by people who can make a whole lot of money and acquire a whole lot of power if they can immunize themselves from public scrutiny and prosecution.

        1. TxUser, what is not at dispute is the relevance of the information for prosecution. If the government got hold of the information, I am sure the man would have been convicted even without his guilty plea.

          What is at dispute is whether the government should have access to this private information whenever it wants to. What is at dispute is whether the government would misuse that information to pressure people to do their bidding, or to destroy their reputations.

          Those who oppose Apple complying with the government request are simply opposed to the principle of providing such information to the government because they think that the government is much more likely to abuse this information to enhance its own power rather than to use it to catch criminals.

          The risks outweigh the benefits. That’s all.

          1. What is at dispute is whether the government should have access to this private information whenever it wants to.

            The issue is more complex than that. One could argue:
            1) The police, FBI, CIA, NSA should be allowed to access user information whenever it wants under its own rules… loss of privacy = security!

            2) The government should be allowed to access user information under a proper court issued subpoena with all kinds of statutory limitations to protect the rights of non-criminals.

            3) Companies like Apple should be allowed to provide systems that are so secure that compliance with a subpoena would be impossible for even the provider of the system itself.

            There are obviously other perspectives on this issue, but these are the main ones.

            The problem with #1 is that we’ve seen abuse, and the potential for greater abuse is easy to see. This is why so many people are against it.

            The problem with #2 and #3 is that they conflict with each other even if people believe what they want is a combination of the two.

            We can’t have a truly secure system like Apple has attempted to develop and at the same time allow government access, even with a properly obtained subpoena.

            If #2 and #3 above are worth pursuing, a mutually exclusive decision needs to be made. Do we trust the warrant/subpoena system as well as a system that would enable it within what Apple (and others) develop*, or do we acknowledge that criminals will be able to utilize these systems knowing there’s no way their use would ever be brought into a court room… as well as all the other ways they could be used…. listening in on communications for tracking, linking, targeting terrorists?

            *And keep in mind, being able to hand over the keys under even the strictest of standards of court authority means having the existence of the keys and the system to provide this, which in of itself is open to abuse, risk and potentially even the enabling of an entity like the NSA to develop their own keys… which could unintentionally result in a #1, not #2 above.

            1. A good summary of the problem, which takes into account the risks of Approach #3… while recognizing that it may now be the least horrible of a very bad lot. My issue with others in this discussion is not their conclusion that encryption is better than unrestricted access, but their insistence that it has no real costs.

              Quite obviously, the people who wrote the Fourth Amendment supported #2 (or its equivalent in the pre-digital age). If they wanted #1, they wouldn’t have included the language about the people being secure in their persons and papers. If they wanted #3, they wouldn’t have provided for the issuance of warrants and subpoenas with appropriate constitutional and statutory safeguards.

              Unfortunately, technology has reached the point where #1 is undercut by the ability of private and governmental hackers, foreign and domestic, to invade the people’s information with an ease the Founders could never have dreamed of. #2 is undercut by the ability of everyone to protect their information from access, even with a proper judicial writ. The Founders couldn’t have imagined that, either.

              That just leaves #3 as even a technological possibility at the moment. In effect, restricted access under Fourth Amendment safeguards is no longer a practical alternative between unrestricted access and no access at all.

              That does not make Option #3 a Good Thing. As you point out, it means that criminals (including those who work for our government, foreign governments, and terrorist organizations) will be able to do pretty much whatever they want, knowing that their information can never be presented in a courtroom against them. Society might judge that to be less horrible than allowing state and private hackers unrestricted access, but “less horrible” is not a condition to be celebrated.

              I am astonished at the glee expressed on MDN because prosecutors in New York would apparently have been unable to use properly seized phone data against a (now confessed) drug dealer, who probably got a much lighter sentence recommendation as a result of his foresight. The joy isn’t even consistent with other opinions being expressed by the same posters.

              I am particularly baffled by one key point. They insist that “the very notion of secrecy is repugnant to a free society,” thus justifying the works of Anonymous, Wikileaks, Guardians of Peace, and other folks who hack government and corporate databases and release their contents to the public. Secrecy is such an evil thing that defeating it justifies someone with a Top Secret clearance using it to steal reams of classified material and post it on the Internet. That isn’t a new position, of course (see Pentagon Papers). What seems strange is the insistence not only that secrecy is evil, but also that everyone is entitled to absolute privacy going far beyond what the Fourth Amendment guarantees. How is that consistent?

              What a Brave New World!

        2. I’m not paranoid today. Sorry. I will continue to be a ‘Constitutionalist’ and be a total PITA when #MyStupidGovernment blows off We The People’s blatant and clear constitutional rights. FUD is no deterrent to demanding our rights. Not ever. So sorry. 😀

        3. “whole lot of power if they can immunize themselves from public scrutiny and prosecution”

          …Hmmm. That’s the definition of the norm for police and political miscreants right there.

    2. “Privacy is great, but it is not a one-for-one replacement for public safety.”

      If there is no privacy, then what are we protecting?

      No-one said leg work is a *replacement* for evidence, it is an alternate line of inquiry to FIND evidence. There is no guarantee there is evidence on the phone.

      OK, so a perpetrator is an old-fashioned sort of bloke. He doesn’t do stuff on his phone, he is actually known to write stuff down on, you know, paper. Great, so let’s go to every girl he ever met in his life and make her turn over all love letters, just on the off-chance that he wrote one incriminating phrase. Nice.

      1. “The very word “secrecy” is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it. Even today, there is little value in opposing the threat of a closed society by imitating its arbitrary restrictions. Even today, there is little value in insuring the survival of our nation if our traditions do not survive with it. And there is very grave danger that an announced need for increased security will be seized upon those anxious to expand its meaning to the very limits of official censorship and concealment.”

        JFK

    3. The problem you miss is the tendency for govt officials to misuse their power.
      They don’t like you. Let’s see what we can dig up to tarnish your standing in the community.

      Cops kill kids for flashing their lights…. Just cause they can. True story and only one of many.

      Even the founding fathers did not trust big government and made it in 4 parts so each section would watch over the others. Smart folks.

      1. three parts actually, executive, legislative and judicial.

        the media, aka the 4th estate, is a sort of honorary title, not written into the constitution as a part of the governing structure of the nation.

        just to be clear.

        other than that, the rest of your post is largely on target

    4. Freedom is never free. Those who willingly give up their freedom for the sake of one or two convictions, sacrifice their freedom for nothing. Apple was unlikely to be able to comply with this unreasonable demand. They have removed themselves from the equation for good reason.

    5. It’s logic like TxUser that leads to totalitarian governments. Those that seeks to destroy the constitution will exploit emotions to justify their aims. Protect the constitution and you protect the greater good for all. Sacrifice the basic tenants of the constitution, and the door is wide open for exploitation and totalitarianism.

      1. itot,
        Please reread all that I have written above and then point out, with specific citations, what I have said that leads you to believe that I do not respect the Constitution as much or more as you do. Until this came up, I did not think that the provisions of the Fourth Amendment allowing for the issuance of judicial warrants upon probable cause were particularly controversial.

  2. @ MDN – The case with Apple is not closed, it’s just the government “no longer requests expedited treatment” – but the DOJ IS still persisting in the application.

    1. There remains no indication that Apple could comply, no matter how much the pressure. It’s rock solid, modern encryption. Maybe in a millennium or two the NSA will have enough nanocomputers to crack it. As I point out above: It didn’t have to be this way. The US (and UK…) government destroyed public trust. It’s over. They get to eat all the crow.

  3. NUTS! it’s apple’s software. apple is responsible.

    That was a very smart augment to make. They, the lawyers, deserve a promotion.

    This is why they should sell you the software along with the device. microsoft and others have the same problems. Criminals, when asked to unlock (decrypt) a phone, or lay claim to what’s on it, will claim they can’t, and won’t, it belongs to a third party. But the government has opened a can of worms as now they need proof that the person they picked up put whatever on the phone and not put on by a third party via a backdoor.

  4. Both sides of the issue have validity. If you see some creep surreptitiously taking photos of your little girl, you reported this to the cops and the only proof is on the phone itself, what do you do?

    Perhaps there could be a tiered encryption system – with one level that only works with a unique code key based on MAC address and which requires a federal court order and tightly controlled software to execute the code — perhaps linked to an agent’s badge number or ID number for accountability.

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