DoJ Wants To Overturn NY Judge’s Precedent-Setting Ruling Against Unlocking iPhones

By Lucian Armasu
published

Recently, Judge James Orenstein from Brooklyn, New York, ruled that Apple can’t be compelled to unlock an iPhone 5S running iOS 7. The Department of Justice was not happy with that ruling, and it’s asking another judge to take a second look.

The NY case is a little different than the one in San Bernardino because it’s about an iPhone 5S running iOS 7, where some data could be retrieved by Apple before by taking advantage of some security design flaws within the iOS 7 operating system.

The FBI has also been somewhat misleading so far, because it implies Apple can help it unlock encrypted devices, when in fact, in the past, it could only extract unencrypted data from devices. That’s why the encryption prior to iOS 8 can be considered “flawed,” and why Apple fixed it in iOS 8. Too much data remained unencrypted prior to iOS 8, even though customers thought the local encryption would encrypt everything.

"Apple can perform this data extraction process on iOS devices running iOS 4 through iOS 7. Please note the only categories of user generated active files that can be provided to law enforcement, pursuant to a valid search warrant, are: SMS, iMessage, MMS, photos, videos, contacts, audio recording, and call history. Apple cannot provide: email, calendar entries, or any third-party app data," stated Apple in its own law enforcement guidelines.

Because security is all about trying to stay one step ahead of hackers, Apple fixed that flaw and therefore the loophole that the DoJ was using to get Apple to unlock iPhones. However, this hasn’t stopped the DoJ and the FBI from asking judges to compel Apple to find another way to unlock iPhones.

The New York case was a major setback for the DoJ, because if Apple can’t be compelled to take advantage of its own operating systems’ flaws in iOS 7 in order to unlock it for the government, then the government has an even weaker case for iPhones with iOS 8 and later. For those later versions, Apple would have to expend a larger engineering effort to bypass the stronger security protections, putting an even bigger burden on the company.

Winning the NY case alone is not going to be sufficient for the DoJ, because most iPhone users already have newer versions of iOS. However, if the DoJ wins the NY case by overturning the last judge's ruling, it would also open up the opportunity for the DoJ to win in the San Bernardino case, as well.

Then it would be able to compel Apple to unlock its devices no matter what its security is. Even if Apple makes it even harder for itself to hack its own devices, the DoJ and the FBI would use these precedents to push further.

It now remains to be seen if the DoJ can get a different ruling in New York. If it can’t, then the chances to succeed in the San Bernardino case will become that much slimmer.

Lucian Armasu is a Contributing Writer for Tom's Hardware. You can follow him at @lucian_armasu. 

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Lucian Armasu
Lucian Armasu
Lucian Armasu is a Contributing Writer for Tom's Hardware US. He covers software news and the issues surrounding privacy and security.
18 Comments Comment from the forums
  • hellwig
    Here's my question, HOW can the government possibly force anyone to unlock the iPhone? Even if the government imposes sanctions against Apple forcing them to cooperate, wouldn't Apple's employees, law-abiding citizens (mostly) of the U.S., have every right to refuse to develop said program? What would happen to them? If Apple clearly doesn't want to create the program, are they going to threaten to fire their employees who, as individuals, refuse to write said program? Can the government force Apple to force their employees to write this program?

    Imagine getting fired because the FBI wants to crack into someone else's phone. Someone you've never had any interactions with. What if all the developers with the necessary skills say no. Can the government force Apple to hire or train other people to write said program? Can they force Apple to hand over IP to another company, allowing said company to write said program?

    This goes far beyond one phone, anyone who can't see that is blind.
    Reply
  • falchard
    The all writs act compels a company to do what they can without unnecessary burden in the assistance of a criminal investigation. For instance a company can say no due to the cost of labor to do so. Or in Apple's case, design security flaws into their devices.
    Outside just a looking into and the investigator will need to contract the work. It carries no legal authority for the usage of force against individuals who don't comply.
    Reply
  • sykozis
    17626036 said:
    Here's my question, HOW can the government possibly force anyone to unlock the iPhone? Even if the government imposes sanctions against Apple forcing them to cooperate, wouldn't Apple's employees, law-abiding citizens (mostly) of the U.S., have every right to refuse to develop said program? What would happen to them? If Apple clearly doesn't want to create the program, are they going to threaten to fire their employees who, as individuals, refuse to write said program? Can the government force Apple to force their employees to write this program?

    Imagine getting fired because the FBI wants to crack into someone else's phone. Someone you've never had any interactions with. What if all the developers with the necessary skills say no. Can the government force Apple to hire or train other people to write said program? Can they force Apple to hand over IP to another company, allowing said company to write said program?

    This goes far beyond one phone, anyone who can't see that is blind.

    No, the Government can not force Apple to hand over their own intellectual property to another company nor can the government force Apple to hire or train anyone for any purpose.

    This is just further proving the belief that the Government has an agenda and isn't only interested in this one case.

    While I'm not a fan of Apple or their products, I am quite proud of Apple for standing their ground. Most companies wouldn't fight for their customers nearly as hard as Apple is.
    Reply
  • heliomphalodon
    Apple talks a good game when it comes to encryption and protecting the privacy and data security of their customers - and I'm behind them 100% on this. But... if Apple didn't have its own back door into the iPhone, the FBI's demand would never even have come up. "What back door?" you ask. The back door that allows Apple itself to install a new version of iOS on the iPhone without the user's consent. If Apple were truly concerned with its users rather than its bottom line, it would close this back door once and for all and thereby put itself (and its customers) permanently beyond the reach of law enforcement hacking, however well-intentioned it claims to be.
    As for the whole political/PR kerfuffle around the All Writs Act, the decisions of the courts, the demands from law enforcement and the pushback from Apple, the inconvenient truth is that there is no middle ground, and hence no possibility of compromise. Either the encryption is unbreakable, or it isn't. It would be wonderful if it were possible to grant access to law enforcement on a one-off basis when they have the proper warrants and act within the limits defined by the Constitution - but it just isn't. If the LEOs can get in, so can the bad guys. I can understand the government's desire that "thou shalt have no secret that we cannot reveal" but that's just too bad for them. They complain that they will be hampered in their investigations and that crimes will go unsolved. Well, I'm sure they could get a lot more convictions in the absence of the 5th Amendment, or if they could forget about that pesky exclusionary rule. But we, the people, have declined to remove these limits on their investigative powers.
    Bottom line - all governments, by their very nature, seek control. Encryption reduces that control, so governments oppose it. So be it. This is a battle they cannot win, so they should give up their crusade against encryption and privacy and instead focus on how to best do their jobs in the modern world.
    Reply
  • lorfa
    Overturn ruling Against Unlocking.. ugh, too many negatives!
    Reply
  • Achoo22
    This is such a joke. The government owns your phone via carriers, regardless of what you do or don't do.
    Reply
  • krr711
    Why aren't the liberals telling the democratic party they have extended their reach? If we mention some minority group it is forbidden but this affects every human on the planet. Where do the politicians stand?
    Reply
  • abbadon_34
    Why are Republicans (Cruz and Paul) the only ones in the government that respresent the Libertarian view, and respect privacy over big government? Is it that none of the voters care or understand enough about these issues to make them a priority?
    Reply
  • Avus
    I think this is the time both DoJ and FBI wish they are in China... If this happen in China, the PLA are already storm in Apple HQ and get whatever tech and people they need.
    Reply
  • house70
    17627451 said:
    Why aren't the liberals telling the democratic party they have extended their reach? If we mention some minority group it is forbidden but this affects every human on the planet. Where do the politicians stand?

    Sorry for busting your bubble, but the current Republican leading candidate has a similar position with the one you put only on Democrats, going as far as to boycott Apple until it gives in. I guess the issue crosses party lines but a huge margin. Given Trump's popularity, I suspect he's not the only Republican to think like that.

    I have been boycotting Apple for a long time, but for different reasons; on this issue, I stand with them.
    Reply