If FBI Can Get Into A Device Running iOS 9, Why Does It Say It Still Needs Apple's Help To Get Into One Running iOS 7?

from the questions,-questions dept

Tue, Mar 29th 2016 11:46am — Mike Masnick

The questions raised by the DOJ announcing that it was, in fact, able to get in to Syed Farook's work iPhone continue to grow. The latest is that, if it could get into that phone, running the fairly secure iOS 9, why is it still fighting the case in NY where it's trying to get into a drug dealer's phone running iOS 7? As you may recall, the case in NY has been going on for longer than the San Bernardino one. It started back in October when the DOJ demanded Apple's help in getting into the iPhone of Jun Feng (a drug dealer who admitted guilt, but who claims he forgot the passcode) and magistrate judge James Orenstein stepped in to ask Apple if this was a reasonable request.

Then, earlier this month, Orenstein wrote a pretty thorough dismantling of the Justice Department's position over the All Writs Act. The DOJ then appealed that ruling, which is now sitting in front of a non-magistrate judge, Margo Brodie. Part of the DOJ's argument made in the appeal was that this case is very different from the San Bernardino case, because in this case the phone is using iOS 7, which means that Apple already has the key to get in, and it doesn't require any further "burden" in terms of writing new code. As we noted at the time, this seemed to make the DOJ's case a little stronger.

However, now that the FBI has broken into the iOS 9 device (even if it claims the hack only works on some phones), it seems to argue in the exact other direction. Getting into an iOS 7 device is comparatively quite easy according to a bunch of folks. Apple really only ratcheted up the security in iOS with default encryption in iOS 8 -- meaning that any decent forensics team should be able to get into the iOS 7 device without much difficulty. Remember, a key part of the (somewhat made up) test that the DOJ insists must be used in All Writs Act cases like this is whether or not the third party's help is "necessary."

And in this case, the DOJ insisted that it had no way into this phone without Apple's help:

If you can't read that, it's from the appeal, and it directly claims that the government "has explored the possibility of using third-party technologies" but says that it can't do so safely. That's difficult to believe in the wake of the DOJ's claims that it successfully got into Syed Farook's much more secure iPhone.

And yet... the NY case moves forward, with the DOJ making a new filing today giving Apple more time to respond to the government's application. It is, of course, possible, that the DOJ will eventually drop this case as well, but its argument that it absolutely needs Apple's help here seems to be yet another misleading, or simply false, statement from the Justice Department.

E D N Y 15 Mc 01902 Dckt 000038 000 Filed 2016 03 29 (PDF)E D N Y 15 Mc 01902 Dckt 000038 000 Filed 2016 03 29 (Text)

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Filed Under: all writs act, doj, encryption, fbi, going dark, ios 7, ios 9, iphone, james orenstein, jun feng, margo brodie, necessity
Companies: apple

24 Comments

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Ninja (profile), 29 Mar 2016 @ 12:08pm

The Govt clearly dropped the other case because it was moving towards a precedent they don't want. The same will happen here. I'm HOPING Apple doesn't let this go that easily and tries to get an order that forbids law enforcement from use the All Writs Act in this specific way. Otherwise this just becomes a whack-a-mole game where the Govt keeps probing till they get the desired result.

Out of curiosity, is this a different circuit?
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DavidMxx (profile), 29 Mar 2016 @ 12:40pm

I cannot image that the All Writs Act could ever be used to force a company (or an individual) to write computer code that they did not want to write.

Computer code is speech, and the First Amendment states that the Government cannot force someone to say something that the person does not want to say. There is no conceivable argument the DOJ could make to override the First Amendment. When it comes to the All Writs Act versus the Constitution, the Constitution wins every time.
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Anonymous Coward, 29 Mar 2016 @ 12:46pm

Circuits [was Re: ]
… is this a different circuit?
Map: Geographic Boundaries of United States Courts of Appeals and United States District Courts(*)

• The Eastern District of New York is in the Second Circuit.
• The Central District of California is in the Ninth Circuit

(*) Despite the title of the map, it doesn't label the actual districts, and seems to do a rather poor job of even showing district boundaries within New York. You can, though, see the district boundaries within California. The map is a government publication…
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Anonymous Coward, 29 Mar 2016 @ 12:54pm

Re: Circuits [was Re: ]
… seems to do a rather poor job of even showing district boundaries within New York.
Hmmm, when verifying the link after posting… I notice that zooming in on New York shows cyan boundaries on cinnamon background. So, the boundaries are indeed there in the New York part of the map, but I do have to zoom in to see 'em.

As I said in the previous post: goverment work…
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Synergy Waffle (profile), 29 Mar 2016 @ 12:54pm

Re:
You'd think that, wouldn't you? So far, the FBI/DOJ don't seem to care.
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Whoever, 29 Mar 2016 @ 1:08pm

Because the FBI didn't break into Farooks' phone?
The sole purpose of the suing Apple over Farook's phone was to establish a precedent. Since it looked likely that the only precedent the FBI would get would not be what the FBI wanted, the FBI withdrew, to cover themselves and not to lose face, they lied about breaking into Farook's phone.
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Anonymous Coward, 29 Mar 2016 @ 1:11pm

I could swear the 5c in question had iOS 8 on it
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MadAsASnake (profile), 29 Mar 2016 @ 1:20pm

Re: Because the FBI didn't break into Farooks' phone?
Exactly. Why else would they classify the technique?
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Anonymous Coward, 29 Mar 2016 @ 1:32pm

Re:
I could swear the 5c in question had iOS 8 on it
The 5c is the San Bernardino iPhone. It runs iOS 9. See p.4 (p.6 in PDF) of the Memorandum of Points and Authorites attached to the Government's Ex Parte Application (Feb 16, 2016) and also see para 2 (p.2: ln 15) of the Supplemental Pluhar Declaration (Mar 9, 2016).

Perhaps you meant to say the 5s ? The 5s is the E.D.N.Y. one.
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Anonymous Coward, 29 Mar 2016 @ 1:44pm

Re: Re:
Perhaps you meant to say the 5s ? The 5s is the E.D.N.Y. one.
If you meant the E.D.N.Y. phone then see third paragraph on p.5 of Government's Oct 22, 2015 reply, under the heading “Statement of Facts”.
… iOS 7, which is installed on the Target Phone…

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frank trezza, 29 Mar 2016 @ 2:06pm

Perhaps the reason is the cost
Unlocking the iPhone cost the FBI $218,004 and it would cost about the much for each subsequent one. https://pbs.twimg.com/media/CeufMi1XEAAfC4F.jpg

This is why they want a backdoor, that way it wouldn't cost them anything.
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Anonymous, 29 Mar 2016 @ 2:21pm

Let's just call a spade a spade: It's the Department of Injustice.
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Anonymous Coward, 29 Mar 2016 @ 2:27pm

Re: Re:
Perhaps you meant to say the 5s ? The 5s is the E.D.N.Y. one.
Although, somewhat curiously, a copy of the Governments Oct 8, 2015 application [Case 1:15-mc-01902-JO Document 1 Filed 10/08/15] (which document is also reproduced as Exhibit A [Case 1:15-mc-01902-JO Document 15-1 Filed 10/22/15] attached to the Government's October 22 reply), identifies the E.D.N.Y. device as an iPhone 5.
The iOS device is an iPhone 5 labeled DEA Exhibit N-67, with IMSI number 310260572923753 and telephone number (908) 463-3333.
This is not consistent with other documents in this case, which identify the device as an iPhone 5s.
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Anonymous Coward, 29 Mar 2016 @ 2:40pm

Re: Re: Re:
This is not consistent with other documents in this case, which identify the device as an iPhone 5s.
Wikipedia:
The iPhone 5 is a smartphone . . . . preceding the iPhone 5S and iPhone 5C.
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Anonymous Coward, 29 Mar 2016 @ 3:01pm

Re: Re: Re:
This is not consistent with other documents in this case, which identify the device as an iPhone 5s.
The iPhone where the government wants Judge Brodie to overrule Magistrate Judge Orenstein's decision is, according the government, an iPhone 5s.

See p.7 under “Preliminary Facts”
Agents conducted a search of Feng’s home, pursuant to a warrant, and seized an Apple iPhone 5s running iOS 7.
And also p.9, “Statement of Facts”
The Apple iPhone 5s running iOS 7 that is the subject of the government’s application was seized pursuant to a search warrant from the residence of Jun Feng . . .
[Case 1:15-mc-01902-JO Document 30 Filed 03/07/16]
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Anonymous Coward, 29 Mar 2016 @ 3:11pm

Re: Re: Re: Re:
p.7 … p.9
These are the page numbers in the PDF, and as marked in the PACER header.

The page numbers marked at bottom of the document are no marking (p.7 in PDF / PACER header) and “p.3” (p.9 in PDF / PACER header).
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AmericaWhereAreYou (profile), 29 Mar 2016 @ 4:14pm

It would be funny as hell if they go through all this trouble just to find 100 nude selfies.
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Anonymous Coward, 29 Mar 2016 @ 4:28pm

Nice to see the government can afford an iPhone for their employees. Seeing as she was in charge I doubt anything of use will be found on his government phone.
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jim, 29 Mar 2016 @ 8:01pm

Re:
But, then why is hacking, illegal?
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Uriel-238 (profile), 29 Mar 2016 @ 9:29pm

"The FBI/DOJ don't seem to care."
The FBI / DoJ only care if the courts care. Their interest is to secure convictions, not see the truth. The truth doesn't interest them. Convictions do, and if they could get them by beating confessions out of people, they wouldn't hesitate.

In fact, during the JEHoover days, beating confessions out of suspects was a standard FBI modus operandi.
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Anonymous Coward, 29 Mar 2016 @ 9:38pm

Re: Re: Re: Re:
[Case 1:15-mc-01902-JO Document 30 Filed 03/07/16]
Also see Exhibit A: Mar 7, 2016 Application (p.54 in PDF), attached to the government's March 7, 2016 Memorandum of Law:
The iOS device is an iPhone 5s labeled DEA Exhibit N-67, with IMEI number 013888005800316, IMSI number 310260572923753, and telephone number (908) 463-3333.
( Note—
   These copies of these documents have PACER headers:
   • “Case 1:14-cr-00387-MKB Document 144 Filed 03/07/16” (Government's Memorandum of Law)
   • “Case 1:14-cr-00387-MKB Document 144-1 Filed 03/07/16” (Exhibit A)

   See the very first document in the linked PDF:
CIVIL DOCKET FOR CASE #: 1:15-mc-01902-JO

… United States v Feng, 14-CR-387. The Clerk of Court shall add Apple Inc. as an interested party in United States v. Feng. All documents must be filed on both dockets.
)

Compare the identifying characteristics of the iPhone 5s in the March 7, 2016 Application (Exhibit A) with the identifying characteristics of the iPhone “ 5 ” which was the target of the Government's Oct 8, 2015 Application. I'm seeing the same “DEA Exhibit N-67” and the same “IMSI number 310260572923753”, and the same “telephone number (908) 463-3333”. The difference is just that “ 5 ” is not “ 5s ”.
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Anonymous Coward, 30 Mar 2016 @ 2:12am

For an agency that creates "fake" terrorist acts to support laws that restrict their citizens basic rights. I would not trust them with anything much less the truth about their actions.
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DannyB (profile), 30 Mar 2016 @ 9:43am

Consider this possibility
Maybe the FBI did NOT manage to crack the iOS 9 device. Maybe they just said they did to make that PR disaster, and a possible 'bad' precedent go away.

Maybe the FBI really does need help with cracking any other phone than this one that was supposedly cracked using secret methods, and the results of which we will never hear about again -- other than the FBI saying: make this case go away, thanks for playing.
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Whatever (profile), 31 Mar 2016 @ 5:01am

The questions are perhaps easier to answer if you aren't looking for a conspiracy in every action.

The IOS9 phone that was accessed is an older phone. The version of IOS that it was on happened to be vunerable to a certain type of attack (some have reported it to be a chip replication trick, others say they used a straight security hole).

The IOS7 phone may be on a version that is not vulnerable to the security hole used to access the other, or may be using a longer password for encoding or similar. We don't know.

The biggest question is now that you raised 20k to cover a story that is already over, how are you going to spend the money?
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