FBI Tests The Waters On Another Attempt To Force Apple To Unlock An iPhone

from the not-this-again dept

Earlier this year, as you recall, there were two big cases in which the DOJ and FBI sought to force Apple to make significant technological changes to iPhone software in order to allow the DOJ to brute force the passcode on some iPhones used by some criminals. Eventually, after Apple (and others) pushed back, and public opinion was turning against the FBI, the DOJ miraculously announced that it found its way into both iPhones and the cases were dropped. But the issue of forcing companies (and Apple especially) to backdoor their way into encrypted iPhones certainly has not been dropped. And it appears that the FBI may be testing the waters to see if it can try again.

You may recall the knife attack in a Minnesota mall last month that wounded 10 individuals. The attacker, Dahir Adan, was shot and killed by an off-duty police officer. The FBI is still investigating and guess what? Adan had an iPhone. And it's locked.

Thornton said the Federal Bureau of Investigation is still investigating Adan's activities and wants access to his cell phone.
"Dahir Adan's iPhone is locked and we are in the process of assessing our legal and technical options to gain access to this device and the data it may contain," Thornton said.

"Technical options" meaning if any of the previously obtained methods will work to break in... and "legal" options as in going back to court to try, once again, to abuse the All Writs Act to force Apple to create backdoored code. Stay tuned...

Filed Under: all writs act, dahir adan, doj, encryption, fbi, going dark, iphone
Companies: apple

Federal Prosecutors Use All Writs Order To Compel Suspect To Unlock Phone With His Fingerprint

from the but-it-still-may-not-have-worked dept

Law enforcement is still trying to break into iPhones and still using the All Writs Act to do so. A sex trafficking prosecution involving the ATF has resulted in a suspect being ordered to cough up his, um, fingerprint, in order to allow investigators to access the contents of his phone. Matt Drange of Forbes has more details [caution: here there be ad-blocker blocking]:

Prosecutors hoped that the search, conducted on an iPhone 5s by special agent Jennifer McCarty of the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives, would help them piece together evidence in an alleged sex trafficking case involving a man named Martavious Keys. Keys had the iPhone with him when he was arrested on May 19, according to recently unsealed court filings. A week later, on May 26, prosecutors asked the judge in the case to force Keys to open the device with his fingerprint, unlocking a potential trove of information including emails, text messages, contacts and photos stored on the device that could be used as evidence.

While courts generally agree that a fingerprint is non-testimonial -- despite its ability to unlock all sorts of testimonial stuff -- there aren't too many courts willing to extend that coverage to passwords. There are exceptions, of course, but items held in someone's mind are given a bit more deference than those at their literal fingertips.

And that's likely why the All Writs-compelled fingerprint access hasn't allowed the ATF inside Keys' phone. The feds can force Keys to place his finger on the iPhone screen all they want, but it likely won't unlock the device. Apple's security requires a passcode as well as a fingerprint if it's been more than 48 hours since the phone was last unlocked. The time elapsed between when the phone was seized and the order obtained for Keys' fingerprint added another layer of security to the phone -- one not so easily defeated with All Writs orders.

Keys is no one's idea of a sympathetic party. He allegedly forced two teen girls, aged 14 and 15, to have sex with men for several hours a day by drugging them into submission. Whether or not his phone contained more evidence is unknown. It's unclear from the recently unsealed documents whether federal investigators found another way into the device after the application of Keys' fingerprint failed to unlock the phone.

And that's sort of a problem. The government is using All Writs orders for a great many things these days, often during sealed cases and with little to no transparency. The fact that Congress apparently authorized this as a fill-in for things warrants couldn't necessarily reach has made the use of All Writs requests both indispensable and easily-abused. The fact that Congress authorized this in 1789 -- with no conceivable idea of the form "papers" would take over the next 200+ years -- usually seems to work in the government's favor.

A bit more transparency would go a long way to assuage concerns about abuse, but overuse/abuse of the 1789 Act is likely the reason there isn't more transparency. If the court decides it's going to compel Keys to turn over his passcode as well (assuming the phone hasn't already been cracked), at least it won't have to toss him in jail if he doesn't. Keys is already behind bars awaiting trial for his sex trafficking indictment. On one hand, that lowers the coercive value of imprisonment. On the other hand -- if he refuses and is hit with a contempt order -- he'll remain in jail indefinitely, even without having been found guilty of anything more than contempt of court.

Filed Under: all writs act, encryption, fingerprint, phones, unlock

So Much For The Fifth Amendment: Man Jailed For Seven Months For Not Turning Over Password

from the enjoying-your-rights,-citizen? dept

The FBI recently spent more than $1 million for assistance in decrypting a device's contents. It may have overpaid. Alternatives exist, whether it's a $5 wrench or indefinite imprisonment for not helping the government with its prosecution efforts.

A Philadelphia man suspected of possessing child pornography has been in jail for seven months and counting after being found in contempt of a court order demanding that he decrypt two password-protected hard drives.

The suspect, a former Philadelphia Police Department sergeant, has not been charged with any child porn crimes. Instead, he remains indefinitely imprisoned in Philadelphia's Federal Detention Center for refusing to unlock two drives encrypted with Apple's FileVault software in a case that once again highlights the extent to which the authorities are going to crack encrypted devices. The man is to remain jailed "until such time that he fully complies" with the decryption order.

The Fifth Amendment should prevent the government from punishing a person for not testifying against themselves, which is what's being argued by the defendant's representation in its appeal to the Third Circuit. (Although it's actually indirect representation. The government's case is actually against Doe's devices ["United States of America v. Apple MacPro Computer, et al"] and his lawyer is hoping for a stay of the contempt order during the appeal process.)

Mr. Doe… has a strong likelihood of success on the second issue: whether compelling the target of a criminal investigation to recall and divulge an encryption passcode transgresses the Fifth Amendment privilege against self-incrimination. Supreme Court precedent already instructs that a suspect may not be compelled to disclose the sequence of numbers that will open a combination lock — clearly auguring the same rule for any compelled disclosure of the sequence of characters constituting an encryption passcode.

Doe's rep also argues that the All Writs order obtained by the government has no jurisdiction over Doe or his devices.

Mr. Doe’s first claim is that the district court lacked subject matter jurisdiction. The claim stems from the government’s apparently unprecedented use of an unusual procedural vehicle to attempt to compel a suspect to give evidence in advance of potential criminal charges. Specifically, the government took resort not to a grand jury, but to a magistrate judge pursuant to the All Writs Act, 28 U.S.C. § 1651. (Ex. F at 1).

It is black letter law that the All Writs Act never supplies “any federal subject-matter jurisdiction in its own right[.]” Sygenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 31 (2002) (citation omitted). It is equally well-settled that the Act has no application where other provisions of law specifically address the subject matter concerned. Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 40-42 (1985). The compelled production of evidence in advance of criminal charges is specifically addressed by Rules 6 and 17 of the Federal Rules of Criminal Procedure, which authorize the issuance and enforcement of grand jury subpoenas; and by 28 U.S.C. § 1826(a), which specifies the authorized penalties for a witness who refuses without good cause to give the evidence demanded by the grand jury.

As it stands now, Doe is still being held in contempt of court for refusing to decrypt his devices for investigators. The district court that held him in contempt has refused direct appeal of that order, resulting in the labyrinthine legal strategy of using the government's case against Doe's devices as a vehicle for challenging the lower court's contempt order.

Doe has not been charged, yet he's in prison. Backing up the government's assertions for holding him in contempt are two dubious pieces of hearsay. One is from his estranged sister, who claims to have seen child porn on Doe's computer, but can't actually say whether it was located on the devices the government is seeking to have decrypted. The other is from some sort of law enforcement encryption whisperer, who can apparently see things in the scrambled bits.

The government’s second witness was Detective Christopher Tankelewicz, a forensic examiner with the Delaware County District Attorney’s Office. He testified only that it was his “best guess” child pornography would be found on the hard drives. (Ex. J at 346). According to Tankelewicz’s understanding of the Freenet online network (in which he admits having no training), there were signs on an Apple Mac Pro computer seized with the hard drives of a user accessing or trying to access message boards with names suggestive of child pornography. (Ex. J at 306, 311-312, 339-340). In rather ambiguous testimony, Tankelewicz did not appear to say this meant any image traded over these boards was on the hard drives. (See Ex. J at 303-317, 336-340, 345-350). Instead, he identified a single image he believed there to be a “possibility” was on the drives. (Ex. J at 308-309). As he described it, the image was of “a four or five-year-old girl with her dress lifted up, but the image itself was small so you really couldn’t see what was going on with the image.” (Ex. J at 308).

No one wants to see a sex offender walk away from charges, but at this point, Doe hasn't even been officially charged with anything more than contempt. The problem with that charge is it has no end date. He can either stay in jail or comply with the order, even when the order conjures jurisdiction out of nowhere and violates his Fifth Amendment rights. If the government doesn't have enough evidence to pursue a case against Doe, it should cut him loose until it does.

Filed Under: all writs act, child porn, contempt, encryption, fifth amendment, in rem, jail, password, philadelphia

Even The Surveillance-Loving Wall Street Journal Is Bashing The FBI For Its War With Apple

from the didn't-see-that-one-coming dept

The Wall Street Journal has been a reliably pro-surveillance voice over the years, calling Snowden a "sociopath" while calling for even less NSA oversight, making up bizarre conspiracy theories, and fighting back against any surveillance reform. It even once argued that the tech industry should put backdoors into its encryption to better help the surveillance state.

That's what makes its recent editorial, The Encryption Farce (possibly behind a paywall, though the version I just opened showed up fine), so remarkable. It completely bashes the FBI over its attempts to force Apple to build a backdoor into its encryption -- though mainly because of the ridiculous fact that in the two most high profile cases, the DOJ magically got into the phones just as the cases got serious. The WSJ editorial doesn't pull any punches, asking what the hell is going on at the Justice Department:

If history repeats itself first as tragedy and then as farce, what does the FBI have in store next for its encryption war with Apple? After withdrawing its demands in San Bernardino and then reopening hostilities with a drug prosecution in Brooklyn, the G-men abruptly dumped the second case over the weekend too. Is anyone in charge at the Justice Department, or are junior prosecutors running the joint?

The editorial goes on to mock the FBI's claim that these cases are all about getting into just that phone, and notes that constantly finding ways in at the last minute are destroying the FBI's credibility.

This second immaculate conception in as many months further undermines the FBI’s credibility about its technological capabilities. Judges ought to exercise far more scrutiny in future decryption cases even as Mr. Comey continues to pose as helpless.

It goes on to suggest that the FBI stop bringing these cases, and that the President and the DOJ should put an end to this ridiculous attack on encryption:

Yet forgive us if this “conversation” now seems more like a Jim Comey monologue. The debate might start to be productive if the FBI Director would stop trying to use the courts as an ad hoc policy tool and promised not to bring any more cases like the one in Brooklyn.

Meanwhile, the White House has taken the profile-in-courage stand of refusing to endorse or oppose any encryption bill that Congress may propose. If the Obama team won’t start adjusting to the technological realities of strong and legal encryption, they could at least exercise some adult supervision at Main Justice.

On its own, such an editorial might not seem like a huge deal, but coming from the Wall Street Journal -- a source that has previously championed much greater surveillance and even supported backdoors -- it's a surprising shift. And it shows just how badly the DOJ and FBI miscalculated in their attempts to use the courts to get their desired results in breaking encryption.

Filed Under: all writs act, doj, encryption, fbi
Companies: apple, wall street journal

DOJ Drops Other Big Case Over iPhone Encryption After Defendant Suddenly Remembers His Passcode

from the wait,-what? dept

While so much of the attention had been focused on the case in San Bernardino, where the DOJ was looking to get into Syed Farook's iPhone, we've pointed out that perhaps the more interesting case was the parallel one in NY (which actually started last October), where the magistrate judge James Orenstein rejected the DOJ's use of the All Writs Act to try to force Apple to help unlock the iPhone of Jun Feng, a guy who had already pled guilty on drug charges, but who insisted he did not recall his passcode.

There were some oddities in the case. Feng had pled guilty and there was some issue over whether or not there was still a need to get into the iPhone. The DOJ insisted yes, because Feng's iPhone might provide necessary evidence to find others involved in the drug ring. The other oddity: Feng's iPhone was running iOS7. While the device itself was a newer model iPhone than the one in the Farook case, it still has an older operating system, where it was known that Apple (and others) could easily get in. So it made no sense that the FBI couldn't get into this phone. In fact, Apple's latest filing in the case, just over a week ago was basically along those lines, noting that the DOJ claimed Apple's assistance was "necessary," but that seemed unlikely.

And... late on Friday, the DOJ did the exact same "run away!" move it did in the Farook case, telling the judge that it had suddenly been given the passcode, so there was no need to move forward with the case at all.

The government respectfully submits this letter to update the Court and the parties. Yesterday evening, an individual provided the passcode to the iPhone at issue in this case. Late last night, the government used that passcode by hand and gained access to the iPhone. Accordingly, the government no longer needs Apple’s assistance to unlock the iPhone, and withdraws its application.

According to a (paywalled) WSJ article, Feng, who has been waiting for his sentencing, and thinking that his case was otherwise over, only just found out that there was this big fuss around his own case... and told the DOJ he miraculously remembered the passcode. Hallelujah. A miracle... and the DOJ was magically saved from a precedent it didn't want.

The Wall Street Journal reported last week that Mr. Feng only recently learned his phone had become an issue in a high-stakes legal fight between prosecutors and Apple. Mr. Feng, who has pleaded guilty and is due to be sentenced in the coming weeks, is the one who provided the passcode to investigators, according to people familiar with the matter.

Of course, it's worth noting, however that while this particular case may be effectively over, it's not that great for the DOJ, in that no one got to officially review magistrate judge James Orenstein's fairly epic smackdown of the DOJ earlier in the case. That, of course, has no value as a precedent, but that doesn't mean it won't be quoted or pointed to in other, similar cases.

On the flip side, of course, there's the argument that every time the case starts looking bad for the DOJ, they miraculously get into the phone in question. At the very least, this ought to raise questions about why the DOJ keeps insisting that it needs Apple's help... But the fact is these cases are going to keep coming.

Filed Under: all writs act, doj, encryption, going dark, iphone, jun feng, passcode
Companies: apple

EFF Sues DOJ Over Its Refusal To Release FISA Court Documents Pertaining To Compelled Technical Assistance

from the EFF:DOJ::Coroner:Dr.-Nick dept

Given the heightened interest in the government's efforts to compel companies like Apple to break into their own products for them, the EFF figured it would be a good time to ask the government whether it had used FISA court orders to achieve these ends.

Naturally, the government would rather not discuss its efforts to force Apple, et al. to cough up user data and communications. Hence the secrecy surrounding its use of NSLs, subpoenas and gag orders. Hence, also, its desire to keep cases involving All Writs Acts orders under seal if possible. Hence also (also) its refusal to discuss the secret happenings in its most secret court.

The EFF filed FOIA requests with the DOJ in October of last year and followed up with more in March. The October request sought documents about FISA court decisions related to requests for technical assistance from US companies. After a few months of back-and-forth, the DOJ claimed only two responsive documents were found -- neither of which was a court decision… and neither of which would be released.

The EFF's most recent request broadened the search parameters in hopes of landing more responsive documents.

Any “decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review (as defined in section 601(e)),” issued from 1978 to June 1, 2015, “that includes a significant construction or interpretation of any provision of law, including any novel or significant construction or interpretation of the term ‘specific selection term.’”

It also requested the same documents for the period of June 2015 to the present. As of this point, it has yet to receive a response.

The EFF is now suing the DOJ for wrongfully withholding responsive documents and other violations of FOIA regulations, including "performing inadequate searches."

The documents it's seeking are of significant public interest, especially now that the FBI's All Writs-enabled technical assistance demands are at the center of a second war over encryption. As staff attorney Nate Cardozo points out, the devices and services used by millions of Americans shouldn't be subject to the whims of secret courts relying wholly on government ex parte presentations and submissions.

“If the government is obtaining FISC orders to force a company to build backdoors or decrypt their users’ communications, the public has a right to know about those secret demands to compromise people’s phones and computers,” said Cardozo. “The government should not be able to conscript private companies into weakening the security of these devices, particularly via secret court orders.”

Filed Under: all writs act, doj, fisa, fisa court, foia, technical assistance, usa freedom act
Companies: eff

Apple Responds To DOJ's Attempt To Get Into Drug Dealer's Phone: Why You So Dishonest?

from the and-off-we-go dept

As we've discussed at length, there are multiple cases going on right now in which the US Justice Department is looking to compel Apple to help access encrypted information on iPhones. There was lots of attention paid to the one in San Bernardino, around Syed Farook's work iPhone, but that case is now over. The one getting almost but not quite as much attention is the one happening across the country in NY, where magistrate judge James Orenstein ruled against the DOJ a little over a month ago, with a very detailed explanation for why the All Writs Act clearly did not apply. The DOJ, not surprisingly, appealed that ruling (technically made a "renewed application" rather than an appeal) to an Article III judge and the case was assigned to judge Margo Brodie.

Apple has now filed its argument against the DOJ, making a variety of points, but hitting hard on the idea that the DOJ is flat out lying in now claiming that Apple's assistance in unlocking this phone is "necessary." As we've noted, the end result of the San Bernardino case, where the FBI eventually "figured out" how to get into the phone, raises questions about whether it truly exhausted all possibilities in this case -- which involves a newer phone, but an older operating system.

... the record is devoid of evidence that Apple’s assistance is necessary—and remains so even after a similar claim of necessity was proven untrue in a recent proceeding in California. Indeed, in its original application to Judge Orenstein, the government acknowledged that it sought Apple’s help to spare the government from having to expend “significant resources.”...

[....]

The government has made no showing that it has exhausted alternative means for extracting data from the iPhone at issue here, either by making a serious attempt to obtain the passcode from the individual defendant who set it in the first place—nor to obtain passcode hints or other helpful information from the defendant—or by consulting other government agencies and third parties known to the government. Indeed, the government has gone so far as to claim that it has no obligation to do so... notwithstanding media reports that suggest that companies already offer commercial solutions capable of accessing data from phones running iOS 7, which is nearly three years old.

And, of course, Apple suggests (as it has all along) that the DOJ is totally misreading and/or misrepresenting the All Writs Act:

The government would have this Court believe that the All Writs Act, first enacted in 1789, is a boundless grant of authority that permits courts to enter any order the government seeks—including orders conscripting private third parties into providing whatever assistance law enforcement deems appropriate—as long as Congress has not expressly prohibited its issuance. DE 30 at 18. But that characterization of the All Writs Act turns our system of limited government on its head. It simply is not the case that federal courts can issue any order the executive branch dreams up unless and until Congress expressly prohibits it. That construction of the All Writs Act has it exactly backwards. If the government’s view is correct, Congress would never need to pass permissive legislation in the law enforcement context because everything would be on the table until explicitly prohibited. That may be what the government prefers, but it is not the legal system in which it operates.

The company also questions whether or not it's really necessary for the government to get into this phone, given that the defendant in the case, Jun Feng, has already pled guilty and the phone hasn't been used in years. Also, the government didn't even seek a warrant to get into the phone for over a year after seizing it.

Apple also raises some procedural concerns. As noted above, the government just asked for a new judge to review, rather than doing an official appeal, and Apple points out that it's doing this to try to avoid certain standards:

In its papers, the government takes great pains to characterize its brief as a renewed application rather than an appeal from Judge Orenstein’s order, presumably to bolster its contention that Judge Orenstein’s order should be reviewed de novo.... In doing so, the government attempts to obscure the fact that this matter was extensively briefed, a hearing was held, supplemental briefing was provided, and Judge Orenstein issued a 50-page order. Moreover, the government’s insistence that it is entitled to a do-over is belied by Federal Rule of Criminal Procedure 59 and Section 636 of the Federal Magistrates Act.

One of the key points made by the DOJ in its filing in this case was that Apple had been fine with previous such All Writs Act orders on phones running iOS 7, where it does have more access to information. But Apple notes that the details of this case are different in important ways: this is the first case where the judge specifically brought Apple into court, rather than ruling without Apple being involved at all (i.e. "ex parte").

To be sure, courts have previously issued ex parte orders directing Apple to “assist in extracting data from an Apple device through bypassing the passcode in order to execute a search warrant.” But the government’s cited orders were issued ex parte, without Apple’s participation, without the benefit of adversarial briefing on the scope of the All Writs Act, and with no supporting analysis. Apple also was not a party in United States v. Blake, No. 13-CR-80054 (S.D. Fl. July 14, 2014), in which the court denied the defendant’s motion to suppress evidence gathered from an iPhone that Apple helped unlock. Accordingly, such cases are not even persuasive authority on the scope of the All Writs Act, let alone precedential; certainly such ex parte orders issued with little analysis should carry less weight than Judge Orenstein’s lengthy and reasoned opinion.

Most of the other arguments cover things discussed earlier, around why the All Writs Act doesn't apply and why CALEA covers this situation and does not require Apple to assist.

So, while the San Bernardino case may be over, the NY case is still raging. I imagine the DOJ's next filing will be... interesting as well.

Filed Under: all writs act, doj, encryption, james orenstein, jun feng, margo brodie
Companies: apple

Burr & Feinstein Officially Release Anti-Encryption Bill, As Wyden Promises To Filibuster It

from the and-off-we-go dept

Last week, we wrote about a "discussion draft" of Senators Richard Burr and Dianne Feinstein's new anti-encryption bill that would effectively require any company doing anything with encryption to make sure that encryption was flat out broken, putting everyone at risk. Feinstein and Burr's offices refused to comment on the criticism of the draft, insisting that they were still working on the bill. Well, late Wednesday Burr officially released a copy of the bill and it's basically the same insane bill we saw last week. As far as I can tell, the only real change is further defining what is meant by a "court order." It used to just say any court order, but now says only court orders for specific issues, but it's a pretty broad list: crimes involving serious bodily harm, foreign intelligence, espionage, terrorism, sexual exploitation of a minor, a "serious violent felony," or a serious drug crime. So, I guess we should feel relieved that it won't be used for cases where someone's caught trespassing or something? It's still a ridiculous bill (and it still doesn't explain what the penalties are).

Meanwhile, Senator Ron Wyden has renewed his opposition to the bill by going a step further and promising to filibuster if the bill is brought to the floor:

“The encryption debate is about having more security or having less security. This legislation would effectively outlaw Americans from protecting themselves. It would ban the strongest types of encryption and undermine the foundation of cybersecurity for millions of Americans. This flawed bill would leave Americans more vulnerable to stalkers, identity thieves, foreign hackers and criminals. And yet it will not make us safer from terrorists or other threats. Bad actors will continue to have access to encryption, from hundreds of sources overseas. Furthermore, this bill will empower repressive regimes to enact similar laws and crack down on persecuted minorities around the world,” Wyden said.

“Americans who value their security and liberty must join together to oppose this dangerous proposal. I intend to oppose this bill in committee and if it reaches the Senate floor, I will filibuster it.”

Stay tuned, because this fight is just beginning...

Filed Under: all writs act, backdoors, dianne feinstein, encryption, richard burr, ron wyden

Using The All Writs Act To Route Around The Fifth Amendment

from the all-fun-and-games-until-someone-loses-a-right dept

USA Today's Brad Heath has dug up another use for the FBI's now-infamous All Writs Act orders: skirting the Fifth Amendment. In a 2015 case currently headed to the Appeals Court, the government is attempting to use All Writs to force a defendant to unlock his devices.

The order finding Francis Rawls guilty of contempt contains a footnote pointing to the government's use of an All Writs order to force Rawls to unlock his devices -- and, one would think -- allow the government to dodge a Fifth Amendment rights violation.

On July 29, 2015, the Government obtained a search warrant for certain electronic media previously seized by Delaware County and Philadelphia County law enforcement officials. Dkt. No. 1. On August 3, 2015, the Government made an application pursuant to that All Writs Act to require Francis Rawls to assist in the execution of a previously executed search warrant.

"Assist in the execution" means forcing Rawls to possibly provide evidence against himself, depending on what's contained in the devices. However, the court didn't see it this way. It considered his unlocking of the devices to be "non-testimonial." While it did grant him a chance to respond to the All Writs application, it ultimately found in favor of the government.

Importantly, the August 27th Order rejected Rawls contention that providing any assistance to the Government would violate his Fifth Amendment privilege against self-incrimination.

More on the court's reasoning can be found in the order granting the government's All Writs application -- again relegated to a footnote.

By way of a "Motion to Quash Government's Application to Compel" filed August 26, 2015, Mr. Rawls objects to providing assistance to the government in the execution of the search warrant because his act of decrypting the electronic devices seized by the government would be considered testimonial and, therefore, violate his Fifth Amendment privilege against self-incrimination. However, federal courts have recognized the "foregone conclusion" doctrine. The courts hold that the act of production of encryption codes is not testimony - even if this production conveys a fact regarding the possession or authenticity of the images contained in the electronic devices - if the government can show with "reasonable particularity" that, at the time it sought to compel the assistance of Mr. Rawls, it already knew of the materials, thereby making any testimonial aspect a "foregone conclusion."

[...]

Here, the Affidavit of Special Agent David Bottalico, supporting the application for a Search Warrant, establishes that (1) the Government has custody of the electronic devices; (2) prior to the Government's seizure, Mr. Rawls possessed, accessed and owned all the electronic devices; and (3) there are images on the electronic devices that constitute child pornography. Therefore, under the "foregone conclusion" doctrine, requiring Mr. Rawls to assist in the decrypting of those devices does not violate his privilege against self-incrimination.

According to this reasoning, the government already "knows" what's contained on the devices, so there's nothing incriminating about Rawls unlocking them for it. But why would that require the use of an All Writs order? It would seem if the evidence is a "foregone conclusion," then there's no need for the devices to be unlocked at all. The government should have all the evidence it needs to continue with its prosecution.

The All Writs Act is in place to work around limitations in law -- for situations where current laws don't completely apply. Lately, it seems to used most often to advance ahead of Congress and exploit areas where technology has outpaced legislation. In this case, the Act is being used to create a loophole in the Fifth Amendment -- seemingly for no other reason than to allow the government to bolster its case. While that is the point of seeking evidence, it would appear the government already has evidence of criminal activity and is using All Writs to do what it can't do directly without jeopardizing its prosecution: force Rawls to unlock his devices.

The case citations are also illuminating. Apparently all the government needs to acquire an All Writs order compelling decryption is the knowledge that a.) said device exists and b.) the government knows where it is located.

[U]nited States v. Sabit, 2014 WL 1317082, at *2 (E.D. Mich. April 1, 2014) ("[W]hen a witness produces a document that the government knows exists, the act of production is tantamount to a "surrender" and is not "testimonial.")

[...]

United States v. Fricosu, 841F.Supp.2d1232, 1236 (D. Colo. 2012) (defendant's Fifth Amendment privilege against self-incrimination was not implicated by requiring her to produce the unencrypted contents of a computer, when the government knew of the existence and location of the computer's files); In re Boucher, 2009 WL 424718, at *3 (D. Vt. Feb. 19, 2009) (requiring defendant to produce an unencrypted version of his laptop's Z drive did not constitute compelled testimonial communication when the government previously knew the location of the Z drive and its files).

Brad Heath notes that this a "more common" use for All Writs requests. There does appear to be some history here. Notably, a similar effort made during a prosecution over similar subject matter was denied by a magistrate judge in Wisconsin. While the judge in the 2015 case found the unlocking of devices to be "non-testimonial" and a foregone conclusion, Judge William E. Callahan Jr. found it to be "compelled incrimination" -- a violation of the defendant's Fifth Amendment rights.

This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with “reasonably particularity”—namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.

The only difference between the two cases is the strength of the government's assertions as to the defendant's "personal access and control" of the devices in question. Because much of the docket is sealed in the 2015 case involving Rawls, we can't see firsthand what evidence the government provided that makes this case stronger than the 2013 case where its All Writs request was denied. (We do have access to Rawls' lawyer's arguments to the contrary.) The footnote contained in the contempt order only points to an affidavit by an FBI agent stating that devices were in Rawls' possession and he owned them -- right up until they were seized.

So, it appears the Fifth Amendment only goes so far in the US judicial system. But if it's that limited, it would seem an All Writs order is extraneous. If there's nothing protecting defendants from incriminating themselves when compelled by an All Writs order, then there's nothing stopping the FBI from "sweating down" defendants until they comply. As interpreted in this case, the only difference between an All Writs order and several hours of nonstop interrogation is FBI man-hours.

Rawls' case made be headed for the Appeals Court, but he'll be spending that intervening time in jail. His motion to stay the contempt order pending appeal was also denied.

Filed Under: all writs act, encryption, fbi, fifth amendment, francis rawls

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

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.

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