DOJ escalates war against Apple, files new motion to compel company to break into iPhone

“The Justice Department is pushing forward with its legal fight against Apple, urging a federal judge to compel the tech giant to help the FBI crack open a cellphone left behind by one of the San Bernardino, California, shooters,” Mike Levine, Jack Date, and Jack Cloherty report for ABC News. “‘Rather than assist the effort to fully investigate a deadly terrorist attack by obeying this court’s [previous order], Apple has responded by publicly repudiating that order,’ prosecutors wrote in a new filing today.”

“Syed Farook, who along with his wife, Tashfeen Malik, launched a deadly assault on Dec. 2, 2015, killing 14 of Farook’s coworkers at a holiday party. At the Justice Department’s request earlier this week, U.S. Magistrate Judge Sheri Pym in California ordered Apple to help the FBI crack open Farook’s iPhone,” Levine, Date, and Cloherty report. “But after Pym issued her order late Tuesday demanding that Apple assist federal agents, Apple quickly vowed to challenge the decision. ‘The United States government has demanded that Apple take an unprecedented step which threatens the security of our customers,’ Apple CEO Tim Cook said in a statement to customers. ‘[T]his order … has implications far beyond the legal case at hand.'”

Levine, Date, and Cloherty report, “If the battle between the FBI and Apple continues, it’s a matter that could work its way up to the U.S. Supreme Court.”

Read more in the full article here.

MacDailyNews Take: See ya in the Supreme Court!

SEE ALSO:
Libertarian U.S. presidential candidate John McAfee offers to unlock terrorist’s iPhone for FBI – February 19, 2016
Apple is still fighting Big Brother – February 19, 2016
Apple co-founder Woz: Steve Jobs would have fought this U.S. government overreach, too – February 19, 2016
Mother who lost son in San Bernardino terrorist attack sides with Apple against U.S. government backdoor demands – February 19, 2016
iPhones don’t kill people, people kill people – February 19, 2016
Court extends deadline for Apple to oppose order to unlock iPhone – February 19, 2016
Twitter, Facebook, Box support Apple against U.S. government demand to hack iPhone – February 19, 2016
No, Apple has NOT unlocked 70 iphones for law enforcement – February 18, 2016
Apple is right, the U.S. government demand would make us all less secure – February 18, 2016
How Apple will fight the DOJ in iPhone backdoor case: U.S. government’s position stands on 227 year old law – February 18, 2016
USA Today alters logo to support Apple in fight against U.S. government overreach – February 18, 2016
Obama administration claims FBI is not asking Apple for a ‘backdoor’ to the iPhone – February 18, 2016
Privacy activists plan rallies across U.S. to support Apple in battle against U.S. government on February 23rd – February 18, 2016
Google CEO Sundar Pichai wishy-washy on Apple’s fight against U.S. government backdoor demands – February 18, 2016
Why Apple is fighting back against U.S. federal government demands for iPhone access – February 17, 2016
Snowden backs Apple in fight over iPhone; blasts Google’s silence – February 17, 2016
Obama administration: We’re only demanding Apple hack just one iPhone – February 17, 2016
Security firm shows how Apple could bypass iPhone security to comply with FBI request – February 17, 2016
What the Apple court order means for your smartphone privacy – February 17, 2016
EFF opposes U.S. government demand to force Apple to unlock terrorist’s iPhone – February 17, 2016
‘Who do they think they are?’ Donald Trump blasts Apple for not unlocking San Bernardino terrorist’s iPhone – February 17, 2016
Tim Cook posts open letter opposing U.S. government demands to bypass iPhone encryption – February 17, 2016
Apple CEO opposes court order to help FBI unlock San Bernardino terrorist’s iPhone – February 17, 2016
Apple wants judge to rule if it can be forced to unlock defendant’s iPhone – February 16, 2016
U.S. House lawmakers seek to outlaw states from banning encrypted iPhones – February 10, 2016
Obama administration wants access to smartphones – December 15, 2015
Obama administration’s calls for backdoors into encrypted communications echo Clinton-era key escrow fiasco – December 14, 2015

37 Comments

    1. Apple will not win. They can kick and scream and so can you all. The interests to society in terms of prosecuting the crimes commited will win over any arguments and PR BS Apple does.

      I understand all of the fear people have around this, but this was a terrible crime and Apple will be forced to cooperate. What Apple has done is created fear and made you all think that there’s nothing they can do to stop the spread of their “hack”. This is complete bullshxt.

      1. You clearly have zero understanding of the case or of the issues at hand.

        First, your statement, “The interests to society in terms of prosecuting the crimes commited [sic] will win over any arguments and PR BS Apple does.” makes no sense at all. You clearly don’t know that the people who committed those crimes are dead so prosecuting them makes no sense at all.

        Yes it *was* a terrible crime, and Apple’s creating a new variant of iOS to beat the iPhone’s security measures will not change that. It will not help bring that couple to justice. It will not prevent other crazy people from doing a similar act a year or two or five from now.

        And, if you think there is “actionable information” on that phone think instead of two things that will refute that nonsense thought:
        1) Anyone with any interest in the information on that phone has moved, changed their names, and gone completely underground. Any information about them that might be gleaned from that phone is already completely useless.
        2) The terrorists had other phones (plural) than this one. They destroyed those other phones before the U.S. Government could get their hands on them. They did not bother to destroy this phone. You can guess which phones had real information about their actions on them and which one had nothing worthwhile on it. The answer should be obvious.

        And, any “hack” will spread. To believe it will not is pure fantasy. You’ve not heard about the hack of U.S. Government servers? This happens way too often to even try to count. You’ve never heard of a disgruntled employee posting something on the ‘net that they shouldn’t? You’ve never heard about someone selling a company’s trade secrets? There are many, many vectors for this code to get out — and it will get out once (if) it’s created.

        There are many, many other reasons why the U.S. Government forcing Apple to build a variant of iOS to get around the built in security features is an idiotic idea in the extreme. However, your reasons don’t hold up under even the most superficial inspection.

        1. Neither you nor anyone else knows confidential information regarding this case. There could be others involved. The evidence on that phone could be useful to that end. And it can also be useful to provide more information on the crime.

          It’s irrelevant that the criminals are dead. The wheels of justice continue and law enforcement must analyze all evidence in conducting their investigation.

          Bottom line: you’re a layman with no access to information regarding the case. You’re a know it all sitting on the sidelines.

          1. Curious. What did the FBI/CIA/Government do before there were phones? Text messaging? Before the digital age. Wire taps (some legal, some not), leg work, investigation, paper trails. Privacy is privacy. Even the mother of one of the sons murdered felt that the constitution was larger than one act of violence. Another ploy to accomplish an end by any means, even if it’s on the backs of people who lost there lives. I am a firm believer, as most have posted, that there are very few vestiges of privacy left, and even if all are relinquished, violent acts will still ensue and lives will still be lost.

            1. Times change. What existed yesterday and the way people communicated has changed. People used to fax and use typewriters and talk on landline phones a lot.

              Monitoring and investigating those things in the past helped law inforcement prosecute crimes. Today, we communicate more by text message and Email and social media messaging. It’s no less valid to monitor and investigate these things as it was in relation to things in the past that are now dated.

              And in the future when we’re brain wave computing or whatever, law enforcement will need to keep up accordingly.

            2. Did you ever think that the precedents set by our courts could affect the way other countries deal with Apple as well? Do you think China is going to accept from Apple that the FBI are the only ones that get a hack to the iPhone? If Apple refuses, did the government have the right to force Apple to make a change that will cost them hundreds of billions over a few years? Does government have that right over free enterprise in a capitalist country?

            3. You and some others PRESUPPOSE that this decision is bad because you are spurred by Apple’s fear mongering PR letter.

              You are manipulated by the media and Apple. There is NO EVIDENCE WHATSOEVER that Apple can’t hack the phone and have the hack destroyed and not revealed. NONE. This could be done in a controlled way. Or another way of retrieving the data could be done. And there is NO EVIDENCE WHATSOEVER that that shows that Apple doesn’t have this in place already.

              The bottom line is, Apple probably has this software already and/or the ability to easily grab data from anyone’s iPhone. They just don’t want anyone to know and they don’t want to break into people’s phone.

              This isn’t your decision. And this isn’t Apple’s or the media’s decision. There is no conspiracy. We need to fight crime and terrorism. I am a freedom fighter but this is getting absurd you guys.

              So manipulated by the media. Get on with your lives.

            4. And there is NO EVIDENCE that the Easter Bunny doesn’t exist. There is NO EVIDENCE that BIGFOOT won’t walk into court and say “I did it!” That is the level of your argument. . . and the level of intellectual muddiness you present. To believe that something exists merely because there is no evidence that it doesn’t is waffle headed.

            5. What’s “waffle headed” is believing what a corporation tells you through a PR piece, and thinking that what they told you is inclusive of everything. And that they didn’t leave pieces of information out that don’t suit their own purpose and agenda. And also that a notriously secret company doesn’t have the ability to keep a hack under wraps. And that the same company who made the iPhone doesn’t know how to hack it. Etc.

              It’s called inference and given these things, evidence to the contrary is required to defeat the inferences.

    2. If Apple comply with this request I’ll not update my devices anymore. I’ll not buy iOS devices, I’ll just buy a dumb phone. I guess not only me, lots of consumers will do the same, this will affect Apple sales.

  1. This was just the obvious procedural next step. Apple will contest the motion to compel, the judge will rule, and the loser will take the issue up the appeals ladder.

    See my long posts in the “70 iPhones” thread for why I think Apple should win, even though I have a lot of sympathy for the difficulties that unretired prosecutors face from strong encryption, and the resulting threats to public safety.

  2. Maybe someone can point me in the right direction. But from what I understand. They’re not asking apple to just get into this phone in question but created (a new build for iOS) a way for Apple to get into ANY iPhone. Creating a “backdoor” if you will. Anybody have an article or can explain this to me?

    1. TxUser wrote:
      Friday, February 19, 2016 – 2:22 am · Reply

      As someone who worked as a prosecutor for 30 years, I can assure you that encryption presents a problem for law enforcement and public safety… a very real problem, not a made-up one. However, Apple did not create that problem and emasculating Apple’s security measures will not solve it. Virtually unbreakable encryption is reasonably easy to implement. If it were not built into our phones, it would be available via a native or web application.

      Right now, Apple can truthfully tell not only its customers, but also the literally thousands of national, regional, and local jurisdictions where it does business that not even Apple itself can access the encrypted contents of a new iPhone. You may not believe that, but if the FBI did not believe it, it would already have arrested Apple’s management for making a material misrepresentation to a federal officer in the course of a criminal investigation.

      In order to create a bypass for the 10-try limit, Apple will have to develop new software that does not already exist. The California federal court has ordered Apple to involuntarily devote its labor to that project, which will not benefit but very seriously harm the company. Could a Mississippi court in 1956 have lawfully ordered African-Americans to chop cotton in the public interest? I think not.

      There is no question that the All Writs Act can reach out to require the cooperation of some third parties, but that reach is limited. If the FBI wants to search a house, it cannot draft the neighbors to help conduct the search. It cannot force Google to help crack an iPhone. Apple has no connection to this device except as its manufacturer. It has no connection to the data at all.

      The actual owner has given its consent to a search, but the owner’s employee who knew the passcode is deceased. There is no living person with standing to challenge the search. Apple’s assistance is not being sought to assist with the search or seizure of the device, but with the interpretation of the data contained on it. Does the government position mean that the FBI could force a third-party translator to interpret the data on a phone seized from someone who spoke Navajo? Could it require someone to learn Navajo so they could translate?

      The New York Police Commissioner has stated that they have at least dozens, if not hundreds, of locked iPhones that have been seized in the course of criminal investigations. If Apple had the means to unlock all those devices, is there any doubt that the NYPD would go to state court and get orders compelling the company to do just that? The promise of the US Department of Justice that the San Bernardino case is a one-time deal does not bind state prosecutors or even the federal officials who will take office next January 20. Putting the issue of foreign requests to one side, the volume of domestic demands on Apple to unlock phones would become enormous. That might quickly extend beyond the criminal courts, as civil courts required Apple to unlock phones that might contain information relevant to civil suits or family law disputes.

      Once the use of the cracking tools became widespread, it would only be a matter of time (and not much time, at that) before somebody leaked the details. How much remains secret about the upcoming iPhone and iPad upgrades? Groups like Anonymous and WikiLeaks would be glad to disseminate the information. After that, nobody could place any confidential information on an iPhone with the assurance that nobody could defeat the encryption.

      Right now, Apple can sell phones outside the United States (notably in China) because it can promise the local government that the US Government cannot use an iPhone to tap communications between two local citizens. The US lets Apple export its technology because it can promise that it does not have the means to comply with a foreign court’s order to crack the encryption on the phones of political dissidents (who are often defined as terrorists by the local government). Without those guarantees, Apple might well be prevented from selling its devices outside the USA.

      Within the US, it can sell phones to doctors, lawyers, and ministers because it can promise them that privileged communications with their patients, clients, or penitents will remain secure. It can sell iPhones to businesses because it can promise that proprietary information on the devices will remain confidential. Without that assurance, those professions would have to drop back on face to face conversations or exchanging written notes. Why pay the extra money for a smart phone when it cannot be used with safety?

      I have every sympathy for the situation of the Assistant US Attorneys in Southern California. I have been there. Yes, there could be serious consequences if this iPhone 5c is not cracked. Yes, people could die and felons go free if the New York iPhones remain locked. However, we must consider the countervailing threat to our system of liberties. The consequences of forcing a third party to work for law enforcement (to its own detriment) in a case where it is just a bystander are simply too serious to regard as reasonable.

      1. “Yes, people could die and felons go free if the New York iPhones remain locked.”

        And our judicial system is based upon erring on the side of safety, i.e., willing to let a few guilty go free in order that the innocent not be convicted. Even then, the system makes mistakes.


  3. TxUser wrote:
    Friday, February 19, 2016 – 2:22 am

    As someone who worked as a prosecutor for 30 years, I can assure you that encryption presents a problem for law enforcement and public safety… a very real problem, not a made-up one. However, Apple did not create that problem and emasculating Apple’s security measures will not solve it. Virtually unbreakable encryption is reasonably easy to implement. If it were not built into our phones, it would be available via a native or web application.

    Right now, Apple can truthfully tell not only its customers, but also the literally thousands of national, regional, and local jurisdictions where it does business that not even Apple itself can access the encrypted contents of a new iPhone. You may not believe that, but if the FBI did not believe it, it would already have arrested Apple’s management for making a material misrepresentation to a federal officer in the course of a criminal investigation.

    In order to create a bypass for the 10-try limit, Apple will have to develop new software that does not already exist. The California federal court has ordered Apple to involuntarily devote its labor to that project, which will not benefit but very seriously harm the company. Could a Mississippi court in 1956 have lawfully ordered African-Americans to chop cotton in the public interest? I think not.

    There is no question that the All Writs Act can reach out to require the cooperation of some third parties, but that reach is limited. If the FBI wants to search a house, it cannot draft the neighbors to help conduct the search. It cannot force Google to help crack an iPhone. Apple has no connection to this device except as its manufacturer. It has no connection to the data at all.

    The actual owner has given its consent to a search, but the owner’s employee who knew the passcode is deceased. There is no living person with standing to challenge the search. Apple’s assistance is not being sought to assist with the search or seizure of the device, but with the interpretation of the data contained on it. Does the government position mean that the FBI could force a third-party translator to interpret the data on a phone seized from someone who spoke Navajo? Could it require someone to learn Navajo so they could translate?

    The New York Police Commissioner has stated that they have at least dozens, if not hundreds, of locked iPhones that have been seized in the course of criminal investigations. If Apple had the means to unlock all those devices, is there any doubt that the NYPD would go to state court and get orders compelling the company to do just that? The promise of the US Department of Justice that the San Bernardino case is a one-time deal does not bind state prosecutors or even the federal officials who will take office next January 20. Putting the issue of foreign requests to one side, the volume of domestic demands on Apple to unlock phones would become enormous. That might quickly extend beyond the criminal courts, as civil courts required Apple to unlock phones that might contain information relevant to civil suits or family law disputes.

    Once the use of the cracking tools became widespread, it would only be a matter of time (and not much time, at that) before somebody leaked the details. How much remains secret about the upcoming iPhone and iPad upgrades? Groups like Anonymous and WikiLeaks would be glad to disseminate the information. After that, nobody could place any confidential information on an iPhone with the assurance that nobody could defeat the encryption.

    Right now, Apple can sell phones outside the United States (notably in China) because it can promise the local government that the US Government cannot use an iPhone to tap communications between two local citizens. The US lets Apple export its technology because it can promise that it does not have the means to comply with a foreign court’s order to crack the encryption on the phones of political dissidents (who are often defined as terrorists by the local government). Without those guarantees, Apple might well be prevented from selling its devices outside the USA.

    Within the US, it can sell phones to doctors, lawyers, and ministers because it can promise them that privileged communications with their patients, clients, or penitents will remain secure. It can sell iPhones to businesses because it can promise that proprietary information on the devices will remain confidential. Without that assurance, those professions would have to drop back on face to face conversations or exchanging written notes. Why pay the extra money for a smart phone when it cannot be used with safety?

    I have every sympathy for the situation of the Assistant US Attorneys in Southern California. I have been there. Yes, there could be serious consequences if this iPhone 5c is not cracked. Yes, people could die and felons go free if the New York iPhones remain locked. However, we must consider the countervailing threat to our system of liberties. The consequences of forcing a third party to work for law enforcement (to its own detriment) in a case where it is just a bystander are simply too serious to regard as reasonable.”

  4. This farcical situation has global implications. Apple must hang tough otherwise every tinpot government will demand similar considerations, else they ride roughshod over their electorate—the people who, for better or worse, actually mandate these lunatics.

    I put it to you, my fellow readers, that Apple has a much bigger war chest than the US government who, judging by the current level of debate, are trying to bring a fart to a shit fight.

    And why is it, if the NSA/CIA/(insert you favourite TLA here) are so fecking smart—and who supposedly have access to all the latest crypto-cracking toys—that they’re going cap in hand to Apple? To me, there is the very distinct and rotten stink of decaying fish in the State of Denmark. ‘Ware your leaders, people, for the excrement is about to hit the air extractor with full force!

    =:~)

  5. How interesting, the FEDS waited and chose the “perfect” situation to go after our privacy.
    Apple knows what’s at stake. They cave in, they loose billions and set a precedent for this and EVERY government globally.

  6. In the face of such governmental hate and in the light of the same government not allowing Apple to bring home its foreign earnings without taking much of it, has the time come for Apple to leave the US of A? Canada would welcome them with open arms after the darling Research In Motion / BlackBerry failed.

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