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You are here: MacNN Forums > News > Mac News > US DOJ: Apple lacks legal standing to refuse iPhone unlock order

US DOJ: Apple lacks legal standing to refuse iPhone unlock order
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NewsPoster
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Oct 23, 2015, 01:12 PM
 
A federal filing has shed some light on the court matter involving Apple's unwillingness to unlock an iPhone 5s owner's phone running iOS 7. The filing, made yesterday, points out the suspect's name, as well as device type, and notes that Apple has had no problem unlocking devices with court order in the past. Additionally, the US attorneys claim that Apple has no legal standing to decline the search warrant on the basis of tarnishing the brand of the company.

The defendant was charged with three counts of possession and distribution of methamphetamine. The iPhone was seized from the suspect's home, and is currently held as evidence by the department of justice.

Judge James Orenstein so far, is refuting rulings from the '70s that have been applied by judges recently, and are now being used by the US government to compel Apple to unlock the phone. In his statement, Orenstein stated that Apple is free from what is required of a "highly-regulated public utility," and as a private firm can "choose to promote its customers' interest in privacy over the competing interest of law enforcement."

In September 2014, Apple said that encryption on devices with iOS 8 or above could only be unlocked by the owner of the device, and the company would no longer store encryption keys. Apple does have a policy for law enforcement to follow for unlock requests -- it was last updated at the end of September of this year. The policy declares that "iOS devices running iOS versions earlier than iOS 8.0, upon receipt of a valid search warrant issued upon a showing of probable cause, Apple can extract certain categories of active data from passcode locked iOS devices."

US law enforcement contacted Apple about the locked device on October 7 -- Apple then required the agency to verify the OS revision. Once it did so, Apple informed it that Apple would schedule the extraction within two weeks. According to the court filing, no objections were raised by Apple during this time frame.

On October 8, the search warrant was applied for, to direct Apple to extract the data, using Apple-recommended language. Apple was contacted, who then informed the court that the data was not backed up onto iCloud, and the device had a remote wipe request by a user pending that was made after the government seized the phone.

The US government claims that "Apple cannot reap the legal benefits of licensing its software ... and then later disclaim any ownership or obligation to assist law enforcement when that same software plays a critical role in thwarting execution of a search warrant." Citing previous examples, the federal attorneys believe that Apple is not "so far removed from the underlying controversy that its assistance could not be permissibly compelled."

The federal filing states that "Apple has acknowledged that it has the technical capability to do so again in this case. It musters only two reasons not to compel its assistance now: it invokes the costs associated with devoting employee time to bypassing passcode-locked iPhones involved in criminal activity and potentially to testifying in federal court."

The second reason referred to is Apple's previous statement that routinely unlocking seized pre-iOS 8 iPhones without being court-compelled to do so would tarnish its reputation for privacy and security with its customers, breaking a bond of trust. The US government is seeking an expedited judgement to use the materials found on the phone for trial. Arguments, and a follow-up Apple filing, are expected later today.

( Last edited by NewsPoster; Oct 24, 2015 at 02:32 PM. )
     
Bittyson
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Oct 23, 2015, 02:05 PM
 
Apple is making a ridiculous argument. It's like claiming I don't have to follow any laws because it would be a buzz kill.
     
Inkling
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Oct 23, 2015, 02:09 PM
 
Apple, with about $150 billion in cash reserves, claiming not to be able to afford the mere pittance obeying this court order would cost? Mere posturing I suspect. And what is the crime behind this subpoena? That matters a lot. And if Apple is serious about security for users, why doesn't it give us easily encrypted email? Why does it just squawk when there's a crime serious enough to trigger a court order?
Author of Untangling Tolkien and Chesterton on War and Peace
     
Flying Meat
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Oct 23, 2015, 02:30 PM
 
No. What you are referring to is just one part of the Apple claim. There are legal arguments to be made with regard to specific instances of application.
To ignore that would be ceding all rights not specifically applicable, merely because "someone says so".
I applaud Apple's stand for personal privacy, even against the legal system if the requests are not supported by actual warrants supported by actual rulings.

You may recall Apple was recently asked for an explanation as to why it might not unlock a phone in a very wishy-washy statement by a judge that sort of went along the lines of "We might not compel Apple to unlock this phone, but we're asking anyway." And so, we have further action after Apple supplied their mutlipart response.
If Apple is compelled to unlock the phone, it will be done through due process and with a solid legal trail.
     
alansky
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Oct 23, 2015, 02:49 PM
 
Bad move on Apple's part. I am totally against the widespread surveillance of people who have not been charged with any crime; but in this case, I don't know what Apple is thinking unless they are eager to be charged themselves with obstruction of justice.
     
Charles Martin
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Oct 23, 2015, 04:21 PM
 
Apple is not "obstructing justice" here -- there is no evidence whatsoever that the iPhone contains any incriminating evidence. Because of that, this gets into Constitutional protection issues. They have already laid out what they can (and can't) technically do. It is up to the judge to decide if they can be COMPELLED to do so. Apple did not sue to stop any extraction -- the judge is the one who put the stoplight on this until certain legal issues can be resolved (which is what is happening now).
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Flying Meat
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Oct 23, 2015, 05:19 PM
 
To quote from the article: "Judge James Orenstein so far, is refuting rulings from the '70s that have been applied by judges recently, and are now being used by the US government to compel Apple to unlock the phone. In his statement, Orenstein stated that Apple is free from what is required of a "highly-regulated public utility," and as a private firm can "choose to promote its customers' interest in privacy over the competing interest of law enforcement.""
So the judge in the case is attempting to look out for everyone, including Apple. You WANT that in a judge.

It's not like the DOJ doesn't overreach.
     
Spheric Harlot
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Oct 24, 2015, 05:17 AM
 
The article says:
The federal filing states that "Apple has acknowledged that it has the technical capability to do so again in this case. It musters only two reasons not to compel its assistance now: it invokes the costs associated with devoting employee time to bypassing passcode-locked iPhones involved in criminal activity and potentially to testifying in federal court."
What's the second reason? Or are time required for bypassing passcode locks and time required for testifying seen as two reasons in that statement?

It seems to me that Apple is doing the right thing: they WILL unlock they phone, but not unless it can be proven beyond any legal doubt that they HAVE TO.

And they've set it up such that, since iOS 8, they cannot, regardless of what law enforcement might like.
     
Charles Martin
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Oct 24, 2015, 02:29 PM
 
Spheric: as usual, you have it spot on. The second reason is that Apple has said that doing unlocks without being compelled to do so would tarnish its reputation for privacy and trust with its customers. That line was in the original draft, I'm not sure why it got lost in the edit. I'll restore it.
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quebit
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Oct 25, 2015, 07:22 PM
 
I'm with Apple on this one. Their support for personal privacy is far more important than "supporting evidence" for a small criminal case (in the grand scheme of things, this guy will just walk on bail anyway). If they do this, it sets the precedent for other cases which would not be good.

I also think the guy was an idiot for not upgrading the OS on his phone :-) He's probably an Android switcher !!!
     
   
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