In a very different case in which Apple was fighting a law-enforcement agency that was trying to compel it to weaken security on its iPhones, the US Department of Justice is asking a higher court to reconsider a ruling in a Brooklyn case involving a methamphetamine dealer (who has already admitted guilt) that the All Writs Act -- also the center of the skirmish between Apple and the FBI in a California case -- cannot be used to force a third-party to weaken security on its product.
Magistrate Judge James Orenstein ruled in the Brooklyn case that the Act
could not be used to compel an unwilling third-party -- in this case Apple, but the principle applies to all tech companies or services that encrypt data -- to deliberately weaken the security of its products, even if it would help agencies like the DOJ in their pursuit of justice. In the Brooklyn case, the DOJ is seeking to force Apple to decrypt the contents of the dealers' phone by any means necessary, but cannot force the dealer himself to do so due to Fifth Amendment protections.
The All Writs Act has been
increasingly used by agencies like the FBI and DOJ to try and compel companies that encrypt data to develop a "backdoor" that allows law enforcement methods to either defeat the built-in security or remove it entirely, effectively rendering the entire contents readable. The requests raise numerous privacy and civil liberty issues, starting with the Fourth Amendment ban on undue search and seizure (and disallowing writs in pursuit of that), the Fifth Amendment's ban on self-incrimination, and -- in one of Apple's more novel arguments -- the iPhone maker's contention that code is speech, and therefore protected under the First Amendment, along with the argument that the All Writs Act cannot be used to compel speech or unwilling assistance.
The DOJ has indicated
it will challenge Orenstein's ruling, exactly as Apple has promised to fight the FBI and other agencies' new interpretation of the All Writs Act all the way to the Supreme Court. After the FBI claimed that its use of the AWA was a unique "last resort" that it only intended to use for this one case, Apple produced a list of
nine other occasions where the US government had tried to use the All Writs Act to force compliance to its demands; the courts and Apple had refused the usage in seven of the nine cases, with two still pending.
The FBI has also claimed that Apple's concern that any "backdoor" into the iPhone would be discovered and exploited by others was "not a real thing," given the company's outstanding track record on security thus far. Apple has countered that there is no law that compels an independent party from producing new code to counteract existing code, and that the various government agencies are exceeding their authority within the All Writs Act. Critics have said that the government is using the various cases -- a drug case in Brooklyn, a mass-shooting workplace violence case in San Bernardino -- to launch an unconstitutional power grab that may aid select investigations, but at the cost of compromising security for every mobile device user.
In an editorial in
The New York Times on Monday, Apple SVP of Software Craig Federighi noted that the FBI and other agencies would prefer Apple go back to the state of security offered by the iPhone in 2013, when iOS 7 was the current release and the storage area of the iPhone
was largely unencrypted. This, Federighi notes, would now allow hackers wide access to the devices, as exploits to gain access to data on the iPhones running that system are now well-known and commercialized for monetary gain.
In an ironic move, the Department of Justice cited the California order -- which is being challenged by Apple, and has not been complied with -- as evidence that the All Writs Act can be used to compel innocent third parties to do the work the FBI apparently cannot. Director James Comey of the FBI was forced to admit during testimony before the House Judiciary Committee last week that the agency
could not get around the encryption Apple had put in place, but not because of Apple's refusal to help; the FBI itself had
botched an attempt to force an iCloud backup of the seized iPhone 5c's contents, resulting in a block on updating its backup that Apple would have been able to provide had the agency not blundered in its attempt to change the iCloud password.
In the Brooklyn case, the government wants access to drug dealer Jun Feng's iPhone because it believes the device contains contact information on buyers, other dealers, and related individuals. Feng himself cannot be compelled to unlock the iPhone because of self-incrimination protections, and the DOJ has not detailed what, if anything, it has tried to break or bypass the security lock on the iPhone itself.
As with the San Bernardino case, Apple has pointed out that it has provided all the metadata and other information it has to the agency, as it does without fail for warrants routinely. The DOJ is now asking another judge in a higher court, District Court Judge Margot Brodie, to hear the case again.
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