U.S. drops bid to force Apple to help unlock iPhone in Brooklyn after source provided passcode

“The U.S. government said it no longer needs Apple Inc.’s help to get into an iPhone used by a drug dealer in New York after obtaining a passcode, ending a second courtroom battle over whether the company can be forced to help unlock its devices,” Christie Smythe reports for Bloomberg. “”

“In the Brooklyn case, the government said in a court filing Friday that it had obtained and used a passcode by hand and gained access to the iPhone ‘late last night,'” Smythe reports. “Because it no longer needs Apple’s assistance, it said it was withdrawing its request for a court order.”

“In what could be the next brewing court fight, Apple has objected to a warrant recently unsealed in Massachusetts federal court for a phone belonging to an alleged gangster, according to a lawyer for the defendant,” Smythe reports. “The order was made public this month in response to efforts by the American Civil Liberties Union of Massachusetts. The group is trying to expose a process of issuing warrants for private data that has largely gone on in secret.”

Read more in the full article here.

MacDailyNews Take: Again, Congress, not the courts — legislation by the peoples’ representatives, not judicial decrees — should decide this issue.

SEE ALSO:
Apple’s fight against U.S. government overreach rages on in Brooklyn – April 15, 2016
U.S. government to continue effort to force Apple to unlock iPhone in Brooklyn – April 8, 2016
U.S. government appeals Apple win in Brooklyn iPhone encryption battle – March 7, 2016
Can the FBI force a company to break into its own products? No, says U.S. Magistrate – March 2, 2016

37 Comments

  1. Hey, good news is good news. One more case down…

    It’s like zombies… you are happy there is one less zombie, but as you look down the road, there’s always another one on the horizon.

    1. Your analogy is excellent. By now, everyone has a feeling for zombies and undead hordes, because of the surfeit of them in pop culture, starting in 1950.

      They are constantly closing in, but one less zombie at least affords hope. If we can only hold out a bit longer….

    1. Or, just possibly, they did what they should have done originally—trade the defendant a more favorable sentencing recommendation and a promise of use immunity in exchange for his passcode. There were always ways to access the data without compelling Apple’s participation, which means that it was never a proper case to test the scope of the All Writs Act.

      Not to beat a dead horse, but there is nothing in the US Constitution to restrict the government from decrypting data on a device that they are searching pursuant to a proper warrant. There is nothing to prevent compelling a third party to cooperate with a search under proper circumstances (for example, forcing a bank to allow access to a safety deposit box).

      The question is whether these particular orders to Apple meet the requirements for a proper exercise of the courts’ authority to protect their own jurisdiction. I don’t think they do, in part because Apple’s cooperation isn’t truly necessary. The San Bernardino and New York cases both show that the government has alternatives—expensive and inconvenient though they might be.

      The question of forcing the creation of a back door past device security systems is clearly a legislative matter that should be decided in Congress and not in the courts. I’m just not sure that the politicians understand the issue well enough to decide the question correctly.

      1. Hey TxUser, just a couple of monkey puzzles for the weekend. Could be linguistic, could be mental but they are points to consider.

        “there is nothing in the US Constitution to restrict the government from decrypting data on a device that they are searching pursuant to a proper warrant.”

        Actually there is, technology. Right now we’ve seen that the current state of encryption can be broken but theoretically it could be that one day perhaps even now.

        The other thing that prevents and restricts your government from decrypting data on a device that they are searching pursuant to a proper warrant and that is the laws of physics. You can a nice iPhone that is in pieces, destroyed as some may say but all there pieces are there, the mass is still there, nothing has been removed, just physically rearrange like a Humpty Dumpty puzzle. That’s a form of encryption, the physical data has been rearranged, permanently encrypted. You can’t put it back together, you can’t travel back in time to when the iphone was unencrypted and worked.

        That’s one of the many reasons why I prefer the study of the laws of physics.

        Again just a point to consider, maybe I read or interpreted what you said wrong.

        I got another puzzler below.

        1. I didn’t say there wasn’t anything to prevent the government from reading an encrypted device. By definition, unbreakable encryption is unbreakable. I said there was nothing in the Constitution to prevent it. With a proper warrant, the government is perfectly free to try and break the encryption, even if that proves impossible.

          There is nothing in the Constitution to prevent dropped objects from falling upwards, either. The laws of physics like gravity are not derived from the Constitution and cannot be amended through a legislative process.

          Too many people on both sides of this debate are getting the two domains confused. Just because something is commanded by law (or a valid warrant) does not make it physically possible. Just because something is physically possible does not make it legal.

          1. Yes, it’s an issue for me understanding the wording it just sound like sometimes the universe is dependent on the constitution not preventing it but there’s nothing in the universe that prevents it from doing so. Then again there nothing outside of the universe, so it’s all encompassing, unlike the constitution.

            Thanks again.

            Sorry if the second puzzler took so long to post but it’s there now.

            Actually a big thank you, I am really appreciative of your insights and the way you put a clear perspective on things.

    2. At first my reaction was the same as yours.

      However, did the DOJ just supply Apple with a precedent in terms of case law. Case law as defined by Merriam Webster: “Law established by judicial decisions in cases as distinguished from law created by legislation —called also decisional law. Does this mean that Apple can use this decision as an argument in future cases regardless of whether it was appealed of not?

      Anyone know?

      1. The term “precedent” has (at least) two meanings:

        1. A prior decision that can be used to bolster a lawyer’s argument that a later court should do the same thing. In this sense, precedent is only persuasive, since the second court is free to ignore the prior decision and reach its own conclusion. Generally speaking, this sense applies when the first court is at the same or a lower level than the second court. It also applies if the prior decision never became final for some reason, usually because the case was appealed or dismissed.

        2. A prior decision that is binding authority. Courts try to follow their own prior decisions (a principle called stare decisis). They are bound to follow decisions of a higher court in their appeal chain. So, a case finally decided by the Court of Appeals for the Fourth Circuit is binding on all the courts in the Fourth Circuit, but only advisory elsewhere.

        The San Bernardino and New York cases were never final because the government dismissed their petitions, and the preliminary decisions were only by a United States Magistrate Judge, the very lowest level, so they would not be binding precedent even if they had become final judgments. They do have some persuasive force.

    3. If Apple products were designed to be absolutely unhackable then no court on the planet could “force” Apple to “unlock” the device. As long as Apple sells products that are capable of being hacked governments will be suing Apple. Therefore, Apple needs to design products that are unhackable instead of making them pink and pretty. Unless, of course, Apple is incapable of designing an unhackable device.

  2. Asking someone to relenquish phone access should be treated the same way as asking them to violate their 5th amendment rights. No one can make you.

    Law enforcement may use words (sometimes referred to as ‘rhetoric’) to intimidate, or threaten all kinds of nastiness (that may make you ‘cringe’), but ultimately a phone is a private piece of property.

    It’s not an item to be commandeered by a representative of the state under any circumstances.

    If your sensibilities are too fragile to understand this, then perhaps you should educate yourself on individual property rights in the US and privacy laws.

    Ask yourself this question: When I buy a phone, do I own it, and the information on it, or does someone else? Am I just ‘borrowing’ it from Apple, or the gov’t, or whomever…

    This answer will tell you a lot about yourself. If you are not already curled up in a fetal position in a corner, marinating in your own excrement because somebody said ‘mean things’ then, perhaps, there’s still hope for you.

    Orwell’s ‘1984’ was written as a warning. Not as an instruction manual.

    At least thoughts & opinions are still private. For now.

    1. If the NSA wants to conduct searches without warrants, they need to persuade Congress and the states to amend the Fourth Amendment to the US Constitution. If you want to ban searches entirely, you need to do the same thing. There is nothing legally special about phones to distinguish them from other private information like the letters in your filing cabinet or the diary locked in the top drawer of your bedside table. Those are, and always have been, subject to search with a proper warrant. If you want to change that, you need to get the Bill of Rights amended. Good luck with that.

      1. Puzzler number two:

        “If the NSA wants to conduct searches without warrants, they need to persuade Congress and the states to amend the Fourth Amendment to the US Constitution.”

        Now from what I have read that organization has done exactly that, and more according to Snowden who alleges that they engaged in industrial espionage and more than that sabotage.

        Now I’m 99% confident that this organization has indeed done this, and this is where the question begins. In light of that I’d say that if organization wants to conduct searches without a warrant all they really need to do it call it spying as if probably falls under a totally different situation.

        Do spies need warrants? I don’t think so. Ironically it’s physically the same process. The procedure may be different, with a search warrant you can knock on the front door before you take a photo of something, when spying you sneak through the back door before you take a photo of something but in both case of this hypothetical scenario you are taking a photo of something.

        Ironically, while the process is the same in the first instance you are trying to solve a crime in the second you are committing one, at least from the perspective of the country being spied upon.

        I’ve tried to point out that you can’t conduct a search without a warrant but you can spy without out one, at least from my understanding. Again I’m not a legal expert, but it does appear to me that physically there can be a lot of similarity with the two processes.

        1. I’ve wondered whether or not the memories you instill into your smartphone have the same status as diary entries. The authorities want them to be the same so that they can obtain court orders to access those memories.

          But I am thinking beyond 1789 and its conception of “papers and other personal effects.” Back then, if you shared a confidence with another, neither of you would have been compelled to divulge it because it was in your heads. Search warrants did not apply to thoughts. Today, we all transfer many of our thoughts to devices.

          So, are devices like written diaries, as the authorities desire? Or are they extensions of the brain? Siri tells me things. Are those open to police probes?

          The founding fathers didn’t write this change of agency into the Constitution, because they didn’t see it coming. We need better laws, and they had best respect the intent of the Bill of Rights.

          1. Nice to see you again.

            Do diaries have special status? Can they not be searched under the laws of your country as they would be any other personal effect?

            The technology of transferring thoughts to pen and paper results in something that is searchable, in fact all personal effects at the time were searchable and so there was no need to distinguish it. Now we are coming for the first time in history to something that is not searchable, an encrypted iPhone.

            There is nothing in the laws of physics that prevents humans from changing or modifying their perceived laws. For example a free and civilized nation might perceive the notion of human rights while others may ignore that and learn that you can label someone an enemy combatant and totally remove their human rights thus allowing you to do anything you want to them. Hitler learned that and then started to apply it to all sorts of different groups, and I’m sure left unchecked your country will do that same. After all once you learn to devalue one human being, you can learn to devalue them all.

            Have a great weekend.

            1. Being as it’s National Conspiracy Theory Day, here’s some What Ifs:

              What if the authorities come to my house with a search warrant, and find my diary. Can they force me to unlock it? If not, they can hire a locksmith. Suppose I carelessly left it unlocked. What if it’s written in French? Can they force me to translate? If not they can hire a translator. What if it’s not French, but a cipher? Can they compel me to provide the plaintext? If not they can hire a cryptanalyst. What if they read it and find a person of interest mentioned only by initials, like R.W.? Can they force me to divulge his identity? If not they can subpoena me. What if I left the final sentence of the diary incomplete, its ending presumably still in my head? If I refuse to reveal it, can they jail me for contempt of court?

              Every one of those steps is a barrier to the authorities’ investigation—a type of lock that requires my agency, or that of another, to circumvent. The only one that works is the one where the information is locked in my head and I have the right to remain silent. Yet that right has eroded to near uselessness, if words in statutes are minced and twisted until their meaning is acceptable to the authorities.

              It’s said that the State Department suspected the Hungarian genius John Von Neumann’s loyalties and put the FBI after him, but found nothing because he simply memorised everything.

            2. I don’t see your question or its answer as remotely difficult, minced, or twisted.

              If your diary has a combination lock, they cannot force you to provide the combination (same answer as with passcode on an iPhone). If it has a physical key, they cannot force you to reveal its location unless they promise some level of immunity. If they have a warrant, of course they can pick the lock themselves or hire someone to do it (same answer as with iPhone).

              Whether your diary is in English, French, Navajo, code, or cipher, they cannot compel you to translate if it might incriminate you. They are perfectly free to hire a translator or cryptographer (same answer as with iPhone). Same goes for persons identified by initials (that is actually a form of code).

              You are correct that the only thing that can remain secure from a warrant or subpoena is what is only in your head and not written down someplace, but that is not an “erosion.” That has been the rule in America since before there was a United States, and in England long before that. The invention of mechanical and electrical recording and communications devices did not alter the principles established in the days of quill pens. If it exists physically, it is subject to discovery. If it only exists mentally (and could subject the person to criminal liability), it is not

            3. What about this:

              http://www.theatlantic.com/technology/archive/2013/07/could-the-government-get-a-search-warrant-for-your-thoughts/278111/

              There comes a point where anything can be recognised as having a physical basis: thus, discoverable.

              My point is that laws presume human agency, but the latter co-evolves with technology and the laws should be interpreted accordingly. Authorities always prefer their self-serving interpretation (what I meant by “mincing words”) over an interpretation that meaningfully preserves individual liberty, privacy, and dignity. It’s clarity in these laws that’s what’s eroding, as technology continues to extend our bodies, extruding our once sacrosanct thoughts—and begins to redefine human agency.

            4. In reply to your post at: Monday, April 25, 2016 – 1:21 pm I believe that anything that the authorities find with a proper search warrant can be searched. This is according to your laws, because at the time everything was searchable. From what I understand of your laws are you required to assist the authorities to decipher your poems to R.W. the answer is “no”.

              What has changed is that there is emerging technologies that make things “unsearchable” i.e. an encrypted iPhone or other similar effects. Certainly there are ways to decrypt an iPhone as FIB has recently demonstrated, even though it cost them over a million dollars to do it, it can be done. Will this persist in the future? Who know, Apple is improving the mousetrap.

              All this safeguard comes down to the user, the personal user. When it comes to this, no amendment, no law, no treaty is going to stop an entity determined on getting what they want. The case in point, the big case in point is this war on terror your nation recently engaged upon. Now there is an international treaty known as the Geneva conventions that were put in place to protect people. Ha, look what happened, in a nutshell your nation renamed them enemy combatants and stripped them of any and all human rights. Now when an organization can dehumanize one group, left unchecked they will be able to dehumanize anyone they wish. We’ve seen that with Hitler, and we’ve seen what has happened with those who did not sign the Geneva convention, i.e. the Japanese of World War 2.

              They thought they could get away with it, but in the end, they ended up paying dearly for it. It should have served as a warning to others but I guess those who do not learn by history will learn by its repetition. Personally I’d be horrified by a nation that resorts to torture, especially, especially one who should know better but in the long wrong I think a very hard lesson looms on the horizon.

              Always a pleasure Herself, have a great week.

        2. Let’s try again. The important thing is to keep the domains distinct. Just because something is physically possible does not mean that it is legal. Conversely, it is easy to propose situations that would be perfectly proper legally, but physically impossible (for example: the Justice Department pipedream of an encryption system that is 100% accessible to anyone who holds a valid warrant and 100% secure from anyone else).

          Spying—that is, searches and seizures—by US law enforcement directed against US citizens on US territory are plainly covered by the Fourth Amendment. Any search without a proper warrant must still be reasonable, and must fall within one of the narrow exceptions to the warrant requirement. There are special courts to issue warrants in national security cases, but they are subject to the same Constitutional requirements as any other courts. Evidence that is seized through an unreasonable search, and “fruit of the poisonous tree,” is inadmissible in any US court.

          Spying against foreign nationals outside US territory is plainly not subject to the Fourth Amendment. The only legal limits are defined in international treaties ratified by the US Senate. Essentially anything else is legally permissible and any information gained is admissible in a US prosecution. The fact that the search or seizure may have been criminal under local law is legally irrelevant in this country.

          There is a gray area in between—foreign agents inside the US, US citizens overseas, and international conversations with one end in the US. The courts tend to resolve those based on the facts specific to the particular case.

          1. All right, I’m good with the domestic search with a warrant. You helped clarify a few things but I think that overall I had a good understanding on it.

            Now to me spying is an international concept, usually for when countries are at war. I’m certainly no expert in international law and as you point out those are defined by international treaties.

            There area a lot of news articles that do say that the NSA did violate these international treaties based on this distinction:

            “Targeted surveillance—in which governments monitor the communication of a specific individual—may be necessary and proportionate to thwart an identifiable threat. But mass surveillance by its nature is not proportionate because it involves governments sucking up vast quantities of information in response to vague threats in the hope of finding useful intelligence at some point in the future.”

            Once again I’m not an expert in international law so I’m not saying anything one way or the other, even though my opinion of their actions is not a positive one.

            What’s your slant on this, do you think the NSA violated international treaties?

            Again thanks for the time you spend on this topic, I hope there are many from the MDN community that appreciate it as well.

    1. A thought:
      What if these cases are being dropped, with sudden remarkable solutions, because of their publicity, their visibility to the citizenry?

      Will we get bored of them to the point of allowing the feds to get away with wrecking our Constitutional rights? Or will the corporate controlled media bury news of future attacks on the US Constitution? Or how about another 9/11 style event is set up to scare / FUD us all into further submission?

      Where did I put my cynicism deflection beanie?

  3. This is getting to be harassment.
    Apple has to pay lawyers each time, which means you and I (Apple’s customers) have to pay the lawyers each time and you and I (taxpayers) also have to pay the other lawyers each time.

  4. So let me get this straight, the DoJ cannot force an individual that they have in custody for a crime, to unlock their own phone which may have been used as a tool to commit that crime. But, they think they can force the maker of the phone to unlock it, who has nothing to do with the crime, cannot unlock it without compromising the security and privacy of everyone and would find the cost and effort burdensome with thousands of ongoing cases. Does this seem fucked up to anyone else but me?

    The MacDailyNews take is wrong. This matter should not be decided by Congress, it should not even be up for debate, because it is just plain wrong.
    Besides, there are those in congress that have already proven they are too stupid beyond words when it comes to the debate on encryption.
    http://www.wired.com/2016/04/senates-draft-encryption-bill-privacy-nightmare/

    And it if the dumb fucks of America keep voting for Donald ‘the fraud’ Trump then the USA’s future is looking very bleak.

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