DOJ Reached Out To San Bernardino Victims For Legal Support Before Going To Court Against Apple

from the and-they-want-us-to-believe-it's-not-a-pr-campaign? dept

Tue, Feb 23rd 2016 11:40am — Mike Masnick

The FBI keeps insisting that it's legal fight with Apple is not about the precedent and not about using the tragic incident in San Bernardino as an emotional plug to break down strong encryption. And yet... now it's come out that even before going to court, federal prosecutors from the DOJ went to the families of those killed in the San Bernardino attacks and asked them to file an amicus brief of support with the court:

Stephen Larson, the lawyer for the victims, told the Guardian the office of the US attorney for the central district of California contacted him on 14 February with a request to file a brief asking Apple to aid in unlocking the phone.

On 16 February, the federal attorney, Eileen Decker, requested a federal magistrate, judge Sheri Pym, issue a warrant for the unlocked iPhone 5C. Pym provided it that day.

Even more interesting? Larson himself hadn't previously been representing any of the victims. Instead, the local district attorney "connected him" with survivors and relatives of those killed.

It's not clear who he's actually representing right now. So far, at least a few of the relatives of those murdered have actually come out in support of Apple. We already mentioned Karen Fagan:

Karen Fagan, of Upland, is the ex-wife of Harry “Hal” Bowman and mother of their two daughters.

“This is a very different thing than asking for data that is Apple’s possession,” Fagan wrote in an email. “They have complied with all of those requests. This is asking them to build a new piece of technology that could be used to invade the privacy of any iPhone. Furthermore, the FBI is citing an act written in 1789 (instead of new legislative action) to justify their request.

“I know that it is a tempting argument to say that we should allow government access to private information in order to make people feel safe. After all, the argument goes, people who aren’t breaking the law have nothing to hide. While that may be true, American citizens have been granted privacy rights, and this request breaches those rights,” Fagan wrote.

And then there's Carole Adams as well:

Her son was killed in the San Bernardino, Calif., massacre — but Carole Adams agrees with Apple that personal privacy trumps the feds’ demands for new software to break into iPhones, including the phone of her son’s killer.

The mom of Robert Adams — a 40-year-old environmental health specialist who was shot dead by Syed Rizwan Farook and his wife — told The Post on Thursday that the constitutional right to privacy “is what makes America great to begin with.”

[....]

“This is what separates us from communism, isn’t it? The fact we have the right to privacy,” she said. “I think Apple is definitely within their rights to protect the privacy of all Americans.

I'm sure that plenty of others will sign on to Larson's amicus brief, but the fact that it was all pre-vetted by the DOJ certainly seems noteworthy, and highlights how the DOJ/FBI recognize how much of a publicity stunt this case really is.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: amicus brief, doj, fbi, precedent, publicity stunt, san bernardino, victims
Companies: apple

37 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 23 Feb 2016 @ 11:55am

The upside
Regardless of how the outcome of the case turns out, the tech industry has recognized that this is a threat to the security of their products and like all previous threats, it will be dealt with. I imagine that as we speak, Apple employees are currently working on a future revision of iOS that will require user interaction from within the interface (or some similar new security measure) in order to apply an patch to the firmware other than a complete wipe and reset making a request for future products of this nature impossible. That's how technology works. When bugs are found they are fixed even if the bug exists in the legal system.
[ link to this | view in thread ]
Anonymous Coward, 23 Feb 2016 @ 11:56am

Because the families of the victims are computer programming experts and security experts and privacy experts and constitutional law experts?!?

The only purpose of contacting the families to speak up on the issue is a purely emotional appeal, which doesn't belong among the factors that lead to a court decision.
[ link to this | view in thread ]
Anonymous Coward, 23 Feb 2016 @ 12:02pm

I certainly don't want some authoritarian dingaling parading my body (or loved ones) around for their cause. I should be making this more clear to those I know, in case it actually (however highly unlikely).
[ link to this | view in thread ]
Anonymous Coward, 23 Feb 2016 @ 12:08pm

Re:
I need to update my will:

"My body and organs may be used for non-profit medical research. My death, body and organs may not be used for political gain, publicity, or out of context in a court of law to influence the court via emotional means; only for facts-based deliberation."
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Whatever (profile), 23 Feb 2016 @ 12:09pm

Yet, the quotes from those who support Apple are both pretty misleading and meaningless. Apple's update system is incrediblysecure and any attempt to hack an Iphone generally leads to a bricked phone. Trying to apply a patch to "any iphone" just won't work.

The privacy issue is also moot. First and foremost, there is the question of ownership of the phone (the City owns, it, not the end user). They are acked for the phone to be unlocked and helping where possible. Second, the right to privacy is not without limits, and especially during a murder investigation. it's pretty hard to say "you can't read that, it's private". If the courts deem it worthy of review (and have done so in this case) there is no real privacy issues.

Honestly, when i read those quotes, I think that Apple is working harder than anyone to spin the story. It's working too, because you have bought into it hook line and "every other post on your blog this week".
[ link to this | view in thread ]
Anonymous Coward, 23 Feb 2016 @ 12:21pm

Re:
Apple's update system is incrediblysecure and any attempt to hack an Iphone generally leads to a bricked phone. Trying to apply a patch to "any iphone" just won't work.

Do you really think that Apple prepares a patch for every phone Individually? A signed patch can be applied to any phone running the same OS version, unless Apple complicate the patch itself to run a pre-install check.
[ link to this | view in thread ]
Anonymous Coward, 23 Feb 2016 @ 12:22pm

Re:
That said, I've had iOS 9.2.1 running on my iPhone for a while.

A few days ago, I started getting pestered by iTunes that my iOS was out of date. It wanted me to install an update to iOS 9.2.1. I've been ignoring it, but finally applied it yesterday, and the nag screens went away.

I have no idea what got updated on my phone from 9.2.1 to 9.2.1, nor why my phone suddenly started reporting it needed the update. It could be that they applied an out of band security fix; it could be that they installed a back door. I have no way of knowing.

Both sides are applying a large amount of torque to this story; I figure with that much force, eventually it'll fall apart and we'll be able to do a post mortem on the remains.
[ link to this | view in thread ]
Anonymous Coward, 23 Feb 2016 @ 12:24pm

Re: Re:
Ah, thank you! I'm sure your brain will be quite at home in our data processing center's Life Support and Analog Heuristics support infrastructure, supporting the court's Fact-finding analysis division.

The transfer was so easy, a child could do it. Unfortunately, DeForest Kelly was not available, so the transfer was effected by the Head of Antonin Scalia, recently installed in its own jar, attached to an Arduino-controlled robot body.

Again, thank you for your donation to the Department of Justice Posthumus Thinking Tank.
[ link to this | view in thread ]
Ninja (profile), 23 Feb 2016 @ 12:25pm

Re:
Honestly, when I read your comments, I see you are full of bullshit.

Second, the right to privacy is not without limits, and especially during a murder investigation.

Yes, if we are investigating a murder it's ok to screw all the rest of the population to get such murderer. Who cares about civil rights, it's a murderer!!!
[ link to this | view in thread ]
ysth (profile), 23 Feb 2016 @ 12:36pm

We've always been at war with Eastasia
That said, maybe there's something particularly concerning about Commie Islamists.
[ link to this | view in thread ]
Anonymous Coward, 23 Feb 2016 @ 12:37pm

Don't worry, we'll just manufacture another terrorist plot where we control everything this time around...
Not that the FBI would do something so low down and dirty as to manufacture a terrorist plot, I mean this is a government agency, they wouldn't put their agenda over the protection of the people now, would they?
[ link to this | view in thread ]
Anonymous Coward, 23 Feb 2016 @ 12:42pm

Re:
I haven't seen it, but I may have missed it. Is there an article on which you actually agreed with the stated opinion or perspective of a Techdirt writer?
[ link to this | view in thread ]
Anonymous Coward, 23 Feb 2016 @ 12:43pm

It's beginning to look like the DoJ/FBI have outsourced their PR to Patrick Zarelli.
[ link to this | view in thread ]
Anonymous Coward, 23 Feb 2016 @ 12:44pm

Re: Re:
Not to mention that it's not really a murder investigation. A murder investigation seeks to find out who the murderer is, what the motivation was, etc. We know who the murderers were. We already know about as much as we're going to know about the incident. This is just an information gathering exercise after the fact.
[ link to this | view in thread ]
Mark Wing, 23 Feb 2016 @ 12:51pm

The FBI saw the opportunity to strike a blow to encryption and they went all in. This has nothing to do with the victims, or terrorism. It's about politics. I wouldn't be surprised if Comey tries to parlay this into a political career if he "wins" the debate.
[ link to this | view in thread ]
Quiet Lurcker, 23 Feb 2016 @ 1:01pm

Seeking a new descriptive term or word
We've all heard the reports of the FBI creating terrorist 'plots' out of thin air for whatever ill-conceived reason.

Now, the FBI is attempting to get the families of the San Bernardino victims to speak out in favor of forcing Apple to ... do whatever it is the feds are asking them to do.

I'd suggest 'astroturfing', or perhaps 'false flag politics' but those already conveys similar ideas and connote some modicum of effective camouflage and desired result.

Can we come up with a term or expression to suggest an attempt at astroturfing which has been or will most likely be bungled in some fashion?
[ link to this | view in thread ]
Anonymous Coward, 23 Feb 2016 @ 1:08pm

Re:
You seem to be under the misconception that Comey's position is that of a law enforcement officer, rather then the political head of a government agency; that he was appointed by merit, rather then cronyism.
[ link to this | view in thread ]
Anonymous Coward, 23 Feb 2016 @ 1:19pm

Re: Seeking a new descriptive term or word
Astroturf-toe-ing?
[ link to this | view in thread ]
Anonymous Coward, 23 Feb 2016 @ 1:29pm

Re:
Second, the right to privacy is not without limits, and especially during a murder investigation.

This isn't about the privacy of the shooters. It's about the privacy for those who own iPhones.

They can't ALL be under investigation for murder.

Please, try and keep up. I was better with you trying to argue a backdoor isn't a backdoor, rather than this slop.
[ link to this | view in thread ]
David, 23 Feb 2016 @ 1:36pm

This explains so much.
Just waiting for the time where the DOJ gets its timing wrong and tries milking some deed before it happens.

I mean, just think about all the "foiled terrorist plots": the "terrorists" tend to be from the bottom of the clue drawer. Maybe that's not who the FBI was aiming for. But when they figured that's what they got, they harvested early rather than risk getting the real constitution-jerker bungled by incompetence.

This one here was a success, so of course they are riding it for all they can. Crime-surfers.
[ link to this | view in thread ]
Anonymous Coward, 23 Feb 2016 @ 1:37pm

Re: Re:
Actually, it's not about the privacy for those who own iPhones either -- it's about the government's ability to use the All Writs Act to compel individuals/corporations to create/modify product to defeat security protections.

The precedent this would set is just as bad if you never touch an Apple product. If the precedent is set, then ANY software company can be compelled to do the same -- and possibly under a gag order at that. Since this is a novel application, it wouldn't fly under a gag order, and needs its day in public court.
[ link to this | view in thread ]
AricTheRed (profile), 23 Feb 2016 @ 2:01pm

Re: Seeking a new descriptive term or word
CrimeSurfing!
[ link to this | view in thread ]
mountainbiker (profile), 23 Feb 2016 @ 2:49pm

#StandWithApple
If you'd like to support Apple's stance on privacy, there is a White House petition at

https://petitions.whitehouse.gov/petition/apple-privacy-petition
[ link to this | view in thread ]
Anonymous Coward, 23 Feb 2016 @ 3:30pm

The DOJ and FBI playing down and dirty, welcome to the old world order, nothing new there. That pig didn't own the phone either, the county did. Same people as the ones saying Windows 10 is free I imagine. Possession is 9/10 of the law?
[ link to this | view in thread ]
Anonymous Coward, 23 Feb 2016 @ 3:53pm

Re: Don't worry, we'll just manufacture another terrorist plot where we control everything this time around...
"Not that the FBI would do something so low down and dirty as to manufacture a terrorist plot"

Perhaps the FBI needs access to the phone to destroy evidence of complicity and/or prior knowledge which would embarrass the FBI.

It was quite unseemly how quickly the Apple ID was changed, and it destroyed the ability to easily gain access to the data. Perhaps intentional?
[ link to this | view in thread ]
Anonymous Coward, 23 Feb 2016 @ 4:40pm

Re: Re: Re:
TRUE.

which is why I, who have never owned an Apple phone, and has no intention of ever owning an Apple phone, someone who is generally considered to be an "apple hater," strongly back them in this matter.

It's not about this bastard. It's not about Apple. It's not about the Apple fanbois. It's about everyone. Sure, it's JUST the FBI now (the same FBI that under it's founding director kept a selection of files that could end the career of almost every major political figure and government official of the day), but what about when it's the Chinese or the Russians? Once it's done once, it's almost impossible for Apple to refuse any request, and that's not even considering if this build where to be leaked. Can you imagine what a scammer could do with it?

No, this is bad. It's bad for everyone who doesn't think 1984 seems like a utopian paradise.
[ link to this | view in thread ]
Whatever (profile), 23 Feb 2016 @ 6:43pm

Re: Re:
"Yes, if we are investigating a murder it's ok to screw all the rest of the population to get such murderer. Who cares about civil rights, it's a murderer!!!"

Gee Ninja, I didn't think you were quite that much of an idiot. Opinion changed, I guess.

My point is that during an investigation, the courts may order access to things that would otherwise be private. This is the phone used by the person who committed the crime, and the investigation may go to areas that for others is private.

My point is that during an investigation of a major crime, police do look in places where you (the accused) might consider private, but that are not - say your bank records or your mailbox. Privacy isn't an absolute.
[ link to this | view in thread ]
David, 24 Feb 2016 @ 1:01am

Re:
Possession is 9/10 of the law?

Actually, possession would explain a lot of U.S. politics.

Though one does not really need to look for demons any more. People think they possess money, but particularly in politics, it's rather the other way round.
[ link to this | view in thread ]
Ninja (profile), 24 Feb 2016 @ 4:02am

Re: Re: Re:
No. If it will go over the rights of the rest of the population nothing justifies. Nothing.
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 4:50am

Re: Re: Don't worry, we'll just manufacture another terrorist plot where we control everything this time around...
Not to mention their insistence that apple provide them with cracking software as opposed to them provide apple with the phone to open internally..
[ link to this | view in thread ]
alternatives(), 24 Feb 2016 @ 5:18am

I'm not finding the actual case filing on-line
Is there a URL on archive.org like you can find for RECAP for this case?

(And it has never been obvious to me how to search RECAP - has anyone done a tutorial?)
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 5:35am

Re: Re: Re: Don't worry, we'll just manufacture another terrorist plot where we control everything this time around...
have you ever considered the idea that they don't hand evidence to a third party just for fun?
[ link to this | view in thread ]
John Fenderson (profile), 24 Feb 2016 @ 6:23am

Re:
"Possession is 9/10 of the law?"

And it can get you 20 years in the state pen.
[ link to this | view in thread ]
JBDragon, 24 Feb 2016 @ 9:14am

Re: The upside
Apple already requires a Password for a Firmware update and pretty much everything else.

The only thing I can think of to get around that is a new Modified version of iOS that the government wants that correctly Digitally signed by Apple and somehow forcing a Auto update. Maybe there's a way to get around by doing that?!?!

That still requires work from Apple to do such a thing that the court has no right in asking Apple to do.
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 10:10am

Re: Re:
there was an un-numbered update to fix a 'problem' with the touch ID.

see, if someone got their touch ID fixed by an unauthorized source, it can get messed up and brick the phone (in the name of security).

People got upset, so Apple fixed it.

Now if you get your touch ID fixed by an unauthorized source, it simply shuts off the touch ID function.

Now, why that was an un-numbered update, I am not sure. It should have been 9.2.2.
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 11:30am

Re: Re: The upside
Apple already requires a Password for a Firmware update and pretty much everything else.

What about a factory reset, are the FBI expecting Apple to be able to us that to force an upgrade without destroying any data?
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 5:13pm

Re: Re: Re: Re: Don't worry, we'll just manufacture another terrorist plot where we control everything this time around...
It's quite common that law enforcement agencies outsource to skilled third parties. The third party usually signs an agreement covering their involvement and responsibilities.
[ link to this | view in thread ]