On the heels of the FBI officially dropping its case against Apple in San Bernardino and revealing that the "tool" it used to get into the San Bernardino shooter's work-issued iPhone 5c only works on that model and older, the US Department of Justice has said that it will continue to appeal its loss in a similar case in Brooklyn. Last month, Magistrate Judge James Orenstein blocked a DOJ request to use the All Writs Act (AWA) to force Apple to develop software to crack into an iPhone 5s used by a drug dealer.
In the Brooklyn case, the drug dealer has pleaded guilty to the crimes, but the DOJ wants the contact information on the iPhone or other information that might be useful to other investigations -- what used to be called a "fishing expedition" -- beyond the bounds of the case. The dealer has said that he can no longer remember the passcode, and thus cannot unlock it for authorities -- and the agency fears that if he could, the courts would find that the agency forced him to incriminate himself, which would render any evidence found on the device useless to them.
Thus, the DOJ is planning to appeal the judge's ruling, which found that the AWA offered no basis on which the government could force innocent third-parties such as Apple to weaken its device security. In his 46-page ruling, the judge
excoriated the government for attempting to use the AWA as a way around numerous civil liberties and constitutional issues, starting with the First Amendment problem that software code has been ruled to be a form of speech, and is thus protected from the government forcing individuals or companies to "say" what the government wants.
There are also problems with the Fourth Amendment prohibition against unwarranted search since the entirety of the iPhone's contents, rather than selected data, would be available; and the Fifth Amendment's ban on self-incrimination. The judge called the government's arguments "obnoxious to the law," and also noted that the only solution the government was asking for would put all other smartphone devices at risk, and would be prone to abuse.
Legal experts give the government a low chance of winning the appeal on a variety of grounds: in addition to the constitutional problems with using the All Writs Act in this manner, the only case in which the government won an order forcing Apple to obey it
was dropped in part because the FBI feared the judge would reverse the order in light of the considerable additional information the publicity from the case revealed, including the falsity of various FBI claims on how it would use such a tool.
Some critics have noted that the DOJ may actually be intentionally trying to lose the appeal, since that would give it grounds to approach Congress with legislative proposals that would give it the same powers. While many in Congress appear to understand the larger and deeply troubling implications of Apple having to develop a method to compromise the security of its devices, there has been at least one attempt already to promote legislation that would force all tech companies to provide the government with a "backdoor" to its devices -- which would, in turn, force other governments to demand the same access, leading to an effective killing of smartphone and mobile device security.
Apple attorneys have noted that while the company is not presently sure of the exact method the FBI ended up using to hack into the iPhone 5c, the government has said the method
will not work on newer iPhones, and that any future hack that could work on other iPhones would be "short-lived," since Apple works continuously to improve the security of its devices. The attorneys said that the FBI and DOJ are less concerned about the individual cases, such as the San Bernardino iPhone case, and trying more to set a precedent that would compromise the security of all devices.
Attorneys for the company indicated that in the appeal, they will focus on whether the government has truly exhausted all avenues to cracking into the iPhone 5s in the Brooklyn case before resorting to the AWA, or if the government is simply seeking a shortcut to avoid some difficult work. It should be noted that security analysts believe they know the method the FBI finally used in the San Bernardino case, and point out that if they are correct, it is a form of "storage imaging" that has been a well-known but time-consuming and expensive method of revealing iPhone contents around for a number of years -- suggesting the FBI did not do due diligence in trying to get into the device.
Apple has, as it turns out, acted to help the government under the All Writs Act in years past, according to a new report that outlines a history of the company's cooperation with the government. Apple has
consistently assisted the government when asked to under lawful warrants with whatever information it could offer, but the amount of data Apple can provide has thinned over the years as the company has improved its security practices. Apple says it does not improve security to thwart government intrusion or law enforcement, but rather to protect its customers from hackers and other bad actors -- including some governments -- that attempt to steal personal data from users.
Attorneys for the company say they will use the appeal as an opportunity to put pressure on the FBI to reveal the method it used to crack the San Bernardino iPhone, since it may bolster the company's claim that the FBI failed to investigate all possible options before attempting to use the court to compel assistance Apple does not want to give. Broadly speaking, methods of various complexity exist that can break into or bypass the security on iPhones older than the iPhone 6, contingent on what version of software the iPhone is running (iOS 8.4 or earlier). It would appear that the existence of the Secure Enclave that is part of the Apple Pay system is a key element that keeps user data safe in later iPhones.
The rulings in these cases, and any future legislation, have far-reaching consequences for all mobile device makers; indeed, in the case of the fragmented Android system in which most users are running older versions of the OS, the government may already have much greater leverage to access many more models at present, and critics say the current moves by the government are attempting to set a foundation that will prevent security from being strengthened in the future.
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