Apple wants judge to rule if it can be forced to unlock defendant’s iPhone

“Apple has requested a court in New York to rule finally whether it can be compelled to assist investigators to break the passcode of an iPhone 5s belonging to a defendant in a criminal case,” John Ribeiro reports for IDG News Service. “The Department of Justice, citing a statute called the All Writs Act, tried to get help from Apple to bypass the security of the phone in government possession.”

“Apple’s lawyer said in a letter to U.S. Magistrate Judge James Orenstein of the U.S. District Court for the Eastern District of New York that the company would like an order as it has received additional requests similar to the one underlying the case before the court,” Ribeiro reports. “The question of whether a third party like Apple can be compelled to assist law enforcement in its investigative efforts by bypassing the security mechanisms on its device has been fully briefed and argued, according to the letter. ‘The Court is thus already in a position to render a decision on that question,’ Apple said.”

Ribeiro reports, “Judge Orenstein had earlier expressed 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 Apple for comments on whether executing the order would be unduly burdensome.”

Read more in the full article here.

MacDailyNews Take: Hopefully, we’ll get it on the record that Apple is not required to unlock their customers’ personal data.

SEE ALSO:
Government pressure for Apple to bypass encryption reduced as iPhone owner enters guilty plea – October 31, 2015
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

17 Comments

  1. Apple shouldn’t be required, either should the defendant (self-incrimination). How is it though that wired telephony IS required to keep records, cooperate with wire taps, etc.?

    As far as the authorities…
    Get a warrant, and hack it yourself.

    1. They did get a warrant. That is how the Feds got possession of the phone. Everybody (even the defendant) concedes that the warrant was issued in complete compliance with all the relevant constitutional and statutory procedures. Nobody thinks that the Feds did not have an absolute right to seize the device and search it to the limits of their ability, Nobody doubts that they can use anything they discover in a court of law. “Self-incrimination” (the 5th Amendment) does not limit the use of documentary evidence that has been lawfully seized.

      The issue in this case deals with a law—the All Writs Act—adopted by the First Congress of the United States (the very same individuals who adopted the Bill of Rights). In essence, it requires third parties to cooperate in the execution of all lawful writs (like warrants and subpoenas) issued by the federal courts. Three examples: 1. when a landlord is presented with a search warrant for an apartment on his premises, he is required to give law enforcement access to conduct the search, even though the landlord himself is not named in the warrant; 2. when a bank is presented with a subpoena for a customer’s financial records, it is obliged to produce them; 3. when an employer is presented with a copy of process to be served on an employee, it cannot make the employee unavailable for service. The First Congress recognized that without the All Writs Act, the constitutional procedures for issuing warrants and other writs would be ineffective. Any halfway competent criminal would find a way to shelter incriminating evidence behind a third party whose voluntary cooperation would be withheld.

      In this case, the Justice Department had obtained lawful possession of the phone and all the information it contained… but the data was encrypted and the owner refused to provide the passwords (as was his right under the Fifth Amendment). Justice then invoked the All Writs Act to request the cooperation of Apple in cracking the encryption. If the phone had been an iPhone 6 or 6s running the current iOS, they could have simply replied that compliance with the request was impossible because not even Apple could crack the encryption in a reasonable time without the password.

      As it happened, this was an iPhone 5s running the original software, which can be cracked by Apple to a certain degree. The Justice Department argued that because Apple could assist in the execution of the writ, they were required to assist. Apple argued otherwise. The judge was leaning their way when the defendant changed his plea and the government’s need to crack the phone evaporated. Otherwise, he would have ruled and the losing party would have taken the case to the highest appellate court that would hear it.

      Frankly, the issue is no longer very important as a practical matter. There are very few iPhones still in use with an older, crackable version of iOS. All 6 and 6s models come with uncrackable encryption as original equipment, and older phones that have been updated in the past two years use the same system. The All Writs Act only requires reasonable cooperation, not the impossible.

      1. Thanks for the feedback, my comment was more general. You seem to be an attorney, so let me ask you this.

        In other contexts, companies are required to make “reasonable accommodation”, for instance for workers with disabilities. Can a “reasonable accommodation” be required here? Since the airwave are licensed, therefore come with terms, can this be mandated by the FCC for instance? Can they mandate a “back door”?

  2. As nice as it would be to get this resolved, I am not expecting the judge to grant this request. The federal courts do no issue advisory opinions. They only settle actual controversies between two parties who both have skin in the game. That is true even in the special case of the Declaratory Judgments Act.

    There is no longer any live controversy between the parties in this case. Apart from the phone issue, it is a fairly straightforward drug prosecution. After the All Writs Act issue was briefed and argued (and after the judge informally indicated that he was leaning towards Apple’s position), the defendant pled guilty, rendering the search issues moot. There is no longer a live case, so if the judge were to issue a ruling now, it would be purely an advisory opinion with no precedential value. The government would appeal and the Court of Appeals would reverse.

  3. There we go folks, the news is out. Apple MUST assist FBI to unlock the phone.

    On the bright side……the phone was deemed to “belong” to the “company” and NOT the terrorist. The “company” he worked for GAVE PERMISSION to unlock it.

    So, no real legal earthquake!

      1. I disagree… Apple is not giving the goverment any tools here…. Apple can unlock this phone and give it to fbi to investigate the stored information on the phone that may be be helpful to national security.
        Apple is not going to teach anything to fbi or provide a back door.

        Its one specific phone belonging or used by to a known theorist .

Add Your Feedback

This site uses Akismet to reduce spam. Learn how your comment data is processed.