The Feds’ Battle With Apple Isn’t Over—It Just Moved to New York
The government backed down last month on its attempt to force Apple to unlock the San Bernardino iPhone, but it’s not giving up its fight to compel the tech giant to cooperate in other cases, specifically a case in New York. On Friday, the government filed an appeal in the New York case—which involves a routine drug case, rather than a terrorism investigation, and a suspect who has already pleaded guilty.
Apple says the appeal is just another attempt by the government to continue its fight to establish a precedent for forcing companies like this to assist in bypassing encryption.
In late March, after a much-publicized court battle, the government pulled a Hail Mary and withdrew its demand for Apple to create a software tool that would help it gain access to a locked iPhone belonging to one of the alleged San Bernardino shooters. After insisting for weeks that only Apple had the ability to help it unlock the phone, the day before a scheduled court hearing in that case, the government announced that an unnamed third party had provided it with a method for unlocking the phone without Apple’s help. The government refuses to disclose the method.
The New York device is an iPhone 5s running iOS 7, as opposed to the San Bernardino phone, which is a 5c running iOS 9 software. The government is claiming in the New York case, as it did in San Bernardino, that it cannot extract data from the phone on its own and requires Apple’s help to do so. FBI Director James Comey mentioned this week that the method the feds used to access the San Bernardino phone won’t work on newer models like the iPhone 5s.
But an Apple attorney told reporters in a phone call this morning, on condition of anonymity, that the company plans to fight the government’s appeal by challenging its claim that it’s exhausted all possible methods to extract data from the phone on its own. If the government could, at the last minute, produce a solution to unlock the San Bernardino phone, it’s reasonable to conclude that it can also uncover a method to extract data from the New York phone, the attorney said.
Apple does not know the solution the government says it used to unlock the San Bernardino phone. But the company’s attorney noted that Apple is confident the unlocking method will have a short shelf life, since the company continues to improve security for its operating systems. At some point, he said, Apple will develop and implement a fix for whatever vulnerability the government may be using to get into that phone.
Like it did in the San Bernardino case, the government is invoking the All Writs Act to make its case to compel Apple to extract data in the New York phone. But unlike the California case, the government isn’t asking Apple to create a new tool to undermine its security in order to help crack the password on the phone. It’s simply asking Apple to extract data from the phone, something Apple has done in other cases in the past.
Earlier this year, Magistrate Judge James Orenstein in the Eastern District of New York ruled in favor of Apple, arguing that the government’s reading of the All Writs Act was “so expansive—and in particular, in such tension with the doctrine of separation of powers—as to cast doubt on the AWA’s constitutionality if adopted.”
Orenstein argued that the All Writs act cannot be used as a “gap filler” that gives law enforcement powers that Congress never granted it or explicitly denied. “In particular, unlike the government, Apple contends that a court order that accomplishes something Congress has considered but declined to adopt—albeit without explicitly or implicitly prohibiting it—is not agreeable to the usages and principles of law,” he wrote in his ruling, referring to the fact that Congress had previously passed on the opportunity to force companies to undermine encryption when it doesn’t possess a key to do so.
Apple’s attorney also highlighted the fact that the New York case is a routine law enforcement matter, not a terrorism case involving a desperate attempt to prevent massacres. This undermines Comey’s assertions in a recent letter to the Wall Street Journal that the San Bernardino case was simply about a single iPhone and the government’s fight against terrorism, and not about setting a precedent. Apple’s attorney said the New York case is simply another attempt by the government to establish a precedent for compelling companies to assist the government under the All Writs Act.
But application of the Act requires the government to show that it has no other method of extracting data from the phones, and according to experts who spoke with WIRED previously, that’s not necessarily the case with the New York phone, and about a dozen other iPhones the government is trying to force Apple to unlock in other cases. These experts say there are ways the government can extract data on phones without Apple’s help, using outside contractors or the NSA—methods that it has already used in the past.
As WIRED previously reported, the FBI has a sole-source contract with a mobile forensic firm founded in Israel called Cellebrite, which offers data-extraction services and tools for iPhones, Android, and Windows phones and Blackberries. According to that company’s web site, these tools can extract data from locked iPhones that are using any version of operating system up to 8.4.1, the last version of iOS 8 that Apple released.
The government has asserted in the New York case that “examining the iOS device further without Apple’s assistance, if it is possible at all, would require significant resources and may harm the iOS device.” But Cellebrite uses what’s called a boot-loader extraction method with phones that involves loading a custom operating system into the device’s memory during the boot sequence and making the user-data partition read-only so that data on the phone is not harmed.
It’s not known if Cellebrite’s methods will work on the New York phone.
But Apple’s attorney said during the phone call today that it plans to challenge the government on whether it has done everything it can do, and sought all help available to it, to unlock the New York phone.
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