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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Thursday, February 18, 2016

USDOJ vs Apple: Privacy and National Security

Full disclosure, this blogger has an immediate family member that works for Apple and this blogger owns stock in the high-profile global company. That said, the show-down between the U.S. Department of Justice and Apple is so timely and important, with such critical privacy implications for users of devices connected to the Internet, we are compelled to blog on this topic.

This case [officially referred to on PACER as "In the matter of the search of an Apple iPhone seized during the execution of a search warrant on a black Lexus IS300 California license plate 35KGD203"] could be the perfect storm to allow the federal courts and ultimately the SCOTUS, to address and attempt to resolve the building tensions between the cyber-privacy of Internet-using citizens and the government's interest in maintaining national security in the terrorist era.

The San Bernardino shooting case in December has now brought these tensions from an esoteric philosophical discussion, to an actual terrorist investigation involving several deaths and one specific iPhone. In the ensuring federal investigation, the shooter's county-issued iPhone 5 device was recovered from his Lexus vehicle shortly after he was shot dead by law enforcement officers.

Due to the genius encryption and design of the recovered phone, the FBI techs cannot access the data contained on the phone; Apple is believed to have the capability to "unlock" the phone; a device it manufactured.

Federal magistrate judge Sheri Pym issued an order in the case stating:
  1. Apple shall assist in enabling the search of a cellular telephone [make, model and serial number], (the "SUBJECT DEVICE"), pursuant to a warrant of this Court by providing reasonable technical assistance to assist law enforcement agents in obtaining access to the data on the SUBJECT DEVICE.
  2. Apple's reasonable technical assistance shall accomplish the following three important functions: (1) it will bypass or disable the auto-erase function whether or not it has been enabled; (2) it will enable the FBI to submit passcodes to the SUBJECT DEVICE for testing electronically the physical device port, Bluetooth, Wi-Fi, or other protocol available on the SUBJECT DEVICE; and (3) it will ensure that when the FBI submits passcodes to the SUBJECT DEVICE, software running on the device will not purposely introduce any additional delay between the passcode attempts beyond what is incurred by Apple hardware.
  3. Apple's reasonable technical assistance may include, but is not limited to: providing the FBI with a signed iPhone Software file, recovery bundle, or other Software Image File ("SIF") that can be loaded onto the SUBJECT DEVICE. The SIF will load and run from Random Access Memory ("RAM") and will not modify the iOS on the actual phone, the user data partition or system partition on the device's flash memory. The SIF will be coded by Apple with a unique identifier of the phone so that the SIF would only load and execute on the SUBJECT DEVICE. The SIF will be loaded via Device Firmware Upgrade ("DFU") mode, recovery mode, or other applicable mode available to the FBI. Once active on the SUBJECT DEVICE, the SIF will accomplish the three functions specified in paragraph 2. The SIF will be loaded on the SUBJECT DEVICE at either a government facility, or alternatively, at an Apple facility; if the latter, Apple shall provide the government with remote access to the SUBJECT DEVICE through a computer allowing the government to conduct passcode recovery analysis.
  4. If Apple believes it can accomplish the three functions stated above in paragraph 2, as well as the functionality set forth in paragraph 3, using an alternate technological means from that recommended by the government, and the government concurs, Apple may comply with this order in that way.
  5. Apple shall advise the government of the reasonable cost of providing this service. 
  6. Although Apple shall make reasonable efforts to maintain the integrity of data on the SUBJECT DEVICE, Apple shall not be required to maintain copies of any user data as a result of the assistance ordered herein. All evidence preservation shall remain the responsibility of law enforcement agents.
  7. To the extent that Apple believes that compliance with this order would be unreasonably burdensome, it may make an application to this Court for relief within 5-business days of receipt of the Order.
Of course, Apple is hating both the spirit and the letter of the above court order. For its part, the world's most valuable company issued a statement to its customers via CEO Tim Cook, warning of the dangerous precedent the above order created in terms of circumventing Apple's significant user security features.

Cook also highlighted the potential privacy breaches that could flow from the precedent set in this case, including having the government force Apple to develop surveillance software programs that could: intercept private messages; access medical records and personal financial data; track a user's location; and co-opt a user's private photos and other data stored on a device.

We here at the Law Blogger expect Apple's lawyers to file an objection to the Court's order tomorrow or Monday latest. Then its on the the United States Court of Appeals for the Ninth Circuit in San Francisco for appellate resolution; if the case is fast-tracked, an opinion could be issued by the intermediate appellate court by April or May.

Depending on the rulings and given that the legal positions taken by the parties seem entrenched, the case could potentially be briefed and argued at the SCOTUS during its next term.

Meanwhile, the investigation remains stalled for months and any useful data stored in the recovered device is frozen and of no value to law enforcement and homeland security. Plenty of time for the bad guys, if there were any beyond the shooters, to get away.

Understandably, this irks a great many people; even those who value their own privacy. For our part, we will monitor this potentially seminal case and report all significant developments.

Post #525

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