FBI, Apple continue cat-and-mouse game over iPhones in New York

A new day, a new iThing, a new quest for precedent

Despite walking away from a high-profile confrontation, the FBI is not giving up on its cat-and-mouse game with Apple over access to iPhone data, and the issue has now moved to New York.

On Friday, the Feds appealed a decision last month by a Brooklyn magistrate, James Orenstein, to reject their demand that Apple help them gain access to an iPhone used by a drug dealer. The appeal notes:

"The government's application is not moot, and the government continues to require Apple's assistance in accessing the data that it is authorized to search by warrant."

In his judgement in March, Orenstein slapped down the FBI's demand and claimed its use of the 1789 All Writs Act was improper. He wrote: "The implications of the government's position are so far-reaching – both in terms of what it would allow today and what it implies about Congressional intent in 1789 – as to produce impermissibly absurd results."

The dealer in the Brooklyn case, Jun Feng, has since pleaded guilty and is due to be sentenced. But the FBI is appealing the magistrate's judgment because the All Writs Act forms the centerpiece of its strategy to get a legal precedent that would force all companies to allow it access to information held on their products or run through their services.

It is the same Act that the FBI claimed entitled it to force Apple to allow it to open up the phone of San Bernardino shooter Syed Farook, and it is the Act it wants to use in the future whenever technology moves ahead of current law.

All about the numbers and digits

The two cases – Farook and Feng - are very similar but also significantly different due to the two phones in question. Farook's phone was an iPhone 5C running iOS 9 and Jun Feng's an iPhone 5S running iOS 7.

Apple can break into any phone running version 7 of its operating system and, in fact, it has done so repeatedly for law enforcement in the past. It cannot, however, break into version 9 and has said that to do so it would have to effectively create a new operating system – something it claims the FBI cannot legally compel it to do.

Due to the nature of the Farooks' case – the shooting of innocent civilians in what many view as a terrorist act done in the name of radical Islam – the FBI felt it had a case that would play extremely well both in public and in the courts.

But after Apple put up a strong defense and with even Washington starting to turn against the FBI's tactics, the Feds decided not to risk losing its core legal argument that the All Writs Act gives it the authority to oblige companies to act.

It backed down from the 5C/iOS 9 fight literally the day before it was due in court by claiming it had found a third party that could access the device. And now with the Feng case, it is hoping to use the situation of a phone that Apple acknowledges it can break into but is refusing to do so to bolster its interpretation of the All Writs Act.

How convenient

Things are further complicated by the fact that the FBI is refusing to provide anyone – even Apple – with details of how it cracked the phone. It has claimed however that the approach only works for an iPhone 5C – a claim that many people are suspicious of.

To complicate things even further, a different case featuring a different iPhone – this one thought to be an iPhone 6 or 6S – taking place in Baltimore may also have a bearing on the case.

In that case, a further magistrate ruled in favor of the FBI and ordered Apple to help investigators gain access to data on a phone belonging to an alleged gang member, Desmond Crawford. Under the order – which was unsealed Friday – magistrate Marianne Bowler said Apple must provide "reasonable technical assistance" to the FBI to get the information off Crawford's phone.

Both Apple and the FBI are accusing one another of playing games and being less than straightforward in their positions. And there is a growing consensus among everyone involved that the issue is going to have to be decided in Congress rather than the law courts, given its complexity, variety and precedent-setting nature.

To that end, the FBI is fighting to ensure that its authority under the All Writs Act is not diminished and Apple is fighting to make sure it cannot be obligated to break its own designs to give the FBI access.

When it comes to Congress, that fight is just beginning, with the first draft of a bill being published Friday that would oblige all companies to provide access to unencrypted data on any device or service they provide on presentation of a warrant.

In expectation of that approach, a pushback against it has already been started, with Senator Ron Wyden last week exhorting digital rights activists and tech companies to work together to block the legislation in the same way they did over the SOPA and PIPA bills.

This issue is far from over. ®

PS: According to documents unsealed today, a magistrate judge in Massachusetts granted an FBI request to order Apple to help investigators extract data from an iPhone in a Boston gang case. The request was approved in February, but the Feds have not made any use of the order, amid the San Bernardino brouhaha.

Similar topics

Other stories you might like

  • Prisons transcribe private phone calls with inmates using speech-to-text AI

    Plus: A drug designed by machine learning algorithms to treat liver disease reaches human clinical trials and more

    In brief Prisons around the US are installing AI speech-to-text models to automatically transcribe conversations with inmates during their phone calls.

    A series of contracts and emails from eight different states revealed how Verus, an AI application developed by LEO Technologies and based on a speech-to-text system offered by Amazon, was used to eavesdrop on prisoners’ phone calls.

    In a sales pitch, LEO’s CEO James Sexton told officials working for a jail in Cook County, Illinois, that one of its customers in Calhoun County, Alabama, uses the software to protect prisons from getting sued, according to an investigation by the Thomson Reuters Foundation.

    Continue reading
  • Battlefield 2042: Please don't be the death knell of the franchise, please don't be the death knell of the franchise

    Another terrible launch, but DICE is already working on improvements

    The RPG Greetings, traveller, and welcome back to The Register Plays Games, our monthly gaming column. Since the last edition on New World, we hit level cap and the "endgame". Around this time, item duping exploits became rife and every attempt Amazon Games made to fix it just broke something else. The post-level 60 "watermark" system for gear drops is also infuriating and tedious, but not something we were able to address in the column. So bear these things in mind if you were ever tempted. On that note, it's time to look at another newly released shit show – Battlefield 2042.

    I wanted to love Battlefield 2042, I really did. After the bum note of the first-person shooter (FPS) franchise's return to Second World War theatres with Battlefield V (2018), I stupidly assumed the next entry from EA-owned Swedish developer DICE would be a return to form. I was wrong.

    The multiplayer military FPS market is dominated by two forces: Activision's Call of Duty (COD) series and EA's Battlefield. Fans of each franchise are loyal to the point of zealotry with little crossover between player bases. Here's where I stand: COD jumped the shark with Modern Warfare 2 in 2009. It's flip-flopped from WW2 to present-day combat and back again, tried sci-fi, and even the Battle Royale trend with the free-to-play Call of Duty: Warzone (2020), which has been thoroughly ruined by hackers and developer inaction.

    Continue reading
  • American diplomats' iPhones reportedly compromised by NSO Group intrusion software

    Reuters claims nine State Department employees outside the US had their devices hacked

    The Apple iPhones of at least nine US State Department officials were compromised by an unidentified entity using NSO Group's Pegasus spyware, according to a report published Friday by Reuters.

    NSO Group in an email to The Register said it has blocked an unnamed customers' access to its system upon receiving an inquiry about the incident but has yet to confirm whether its software was involved.

    "Once the inquiry was received, and before any investigation under our compliance policy, we have decided to immediately terminate relevant customers’ access to the system, due to the severity of the allegations," an NSO spokesperson told The Register in an email. "To this point, we haven’t received any information nor the phone numbers, nor any indication that NSO’s tools were used in this case."

    Continue reading

Biting the hand that feeds IT © 1998–2021