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

FBI Allegedly Paid More Than $1 Million To Get Into Encrypted iPhone... And To Avoid Setting Legal Precedent It Didn't Like

from the just-saying dept

On Thursday, FBI Director James Comey suggested that the FBI paid over a million dollars to a group of hackers who helped it get into Syed Farook's encrypted work iPhone. Of course, just as pretty much everyone predicted, the FBI found nothing of value on the iPhone. This was hardly a surprise. It was a case where we already know who did it, and that they were already dead. We also know that they destroyed their two personal iPhones, leaving open the question why anyone would think there was anything valuable on the work iPhone.

Specifically, Comey said that buying the exploit from this group cost the FBI "more than I will make in the remainder of this job, which is seven years and four months, for sure." Comey makes $185,100 per year at his job, implying that buying the exploit cost at least $1.3 million or so.

This has, understandably caused some to ask how it could possibly be worth it to pay so much money for an exploit that everyone must have known was worthless.

It would have been more responsible to give the FBI’s slush fund over to the victims’ families than to pursue such an obvious non-lead.

— Jonathan Zdziarski (@JZdziarski) April 21, 2016

Things that would've better served the American public with $1.3M than Comey's goose chase: Mental health funding.

— Jonathan Zdziarski (@JZdziarski) April 21, 2016

Of course, that is taking a slightly narrow view on things, considering that many people believe, strongly, that the FBI's motive here was really to extricate itself from the legal dispute over the phone that had the very strong potential of ending with a bad precedent for the FBI and the DOJ. When looked at through that lens, $1.3 million or whatever seems like very little money to pay...

Filed Under: doj, fbi, hack, iphone, james comey, precedent, syed farook
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

Matthew Keys Gets 2 Years In Jail For 40 Minute Web Defacement He Didn't Even Commit

from the punishment-fitting-the-crime? dept

The latest in the Matthe Keys case is that Keys has been sentenced to two years in federal prison for his involvement in a minor incomprehensible web defacement of an LA Times story that lasted for all of about 40 minutes. The prosecution was asking for 5 years, while Keys' lawyers asked for nothing more than probation. As we noted, the whole thing seems fairly crazy. It is entirely possible that Keys acted like an immature jackass regarding his former employer, but the actual case revolved around a single action: the claimed sharing of login credentials for the content management system of the Tribune Company, which another person (who is apparently known to law enforcement, but has never been charged with anything) used to do a minor defacement of a single story to have the headline read: Pressure builds in House to elect CHIPPY 1337.

This minor defacement was up for about 40 minutes before being taken down. When the government tried to add up the damages, the Tribune Company at first admitted that there were basically none. After being pushed, they "found" more damages and somehow it turned into nearly a million dollars, by making emails that "cost" $225 and talking about something totally unrelated to this hack -- some alleged harassment Key did by emailing people in a database from his former employer. If he actually did this (he denies it), it was a really shitty thing to do, but it also was not what he was on trial for.

Either way, the government needed the number to be at least $5000 so it could use the CFAA (Computer Fraud and Abuse Act) against Keys. From the sound of things at the sentencing hearing (mainly via reporter Sarah Jeong's excellent tweets), the judge initially did sound fairly skeptical about the government's arguments, but eventually went with 24 months in prison. Somewhat incredibly, someone from the LA Times even presented that this minor bit of digital vandalism was "an attack" on the entire journalism field, and since there's already difficulty in figuring out what news is real, this was a true threat to credibility for journalism as a whole. Really, now?

The prosecution also apparently whined to the judge that Keys has been talking publicly about his case, which, last I checked, is protected free speech:

Prosecutor does not like that Keys has been tweeting and giving interviews as follows pic.twitter.com/jdG5eUHkC2

— sarah jeong (@sarahjeong) April 13, 2016

While the judge at least indicated she didn't care about all that -- she still sentenced him to two years in prison.

And, really, that's the crux of the issue here. For everything that Matthew Keys was accused of doing -- and some of it was undoubtedly obnoxious -- the single thing he was charged with was violating the CFAA by distributing a username and password. And he's now been sentenced to two whole years in jail for that. How in the world does the punishment here fit the crime? As David Graham noted, this is basically the same sentence (actually slightly longer) that the "affluenza teen" received on the same day for killing four people while driving drunk. Or, as Adam Steinbaugh notes, Keys will end up spending about 18 days in prison for every minute that the LA Times defacement (which, again, he didn't actually do) remained online.

Matthew Keys will spend ~18 days in prison for every sixty seconds that the LA Times said Chippy 1337 might pass in the House.

— Adam Steinbaugh (@adamsteinbaugh) April 13, 2016

And while Keys still maintains his overall innocence, even if he did exactly what he's accused of doing this sentence is absolutely insane and highlights just how ridiculous the CFAA is as a law -- and why it's so beloved by prosecutors who can use it to go after lots of people for doing really small things.

Filed Under: cfaa, cfaa reform, defacement, doj, jail, matthew keys, vandalism
Companies: tribune company

FBI, DEA Taking Two Different Approaches To Pending All Writs Orders Directed At Apple

from the shame-that-'one-size-fits-all-writs'-thing-didn't-work-out... dept

Some of the other iPhones the FBI tried to pretend weren't going to be the beneficiaries of a precedential All Writs order are apparently not even the beneficiaries of the agency's Break Into an iPhone Using This One Simple Trick! anticlimax in the San Bernardino case.

Director James Comey noted there were still more windmills to tilt at after discovering the still-secret exploit only works on a smallish subset of Apple's offerings. In two other cases, the agency has explored its available options. In one case in Massachusetts, it appears to be on the verge of abandoning its quest to force Apple to break into a phone for it, as Motherboard reports.

The Massachusetts case is unique because it's the first of its kind involving a newer model iPhone—an iPhone 6 Plus running iOS 9.1—that likely can not be unlocked using the mysterious method the government wound up using on the older iPhone 5c of Syed Farook, one of the San Bernardino shooters. In addition to security features that automatically wipe the device after 10 passcode attempts, newer models including the iPhone 6 and up have a hardware-backed security feature called Secure Enclave, which makes breaking into the devices significantly harder.

Thus, the case appears to have entered legal limbo, both because the government has failed to respond to Apple’s refusal and because Apple has no way of accessing the phone’s data anyway.

The order set forth by the magistrate judge is unique in the fact that it compels Apple to turn over whatever data it recovers from the phone but does not demand the data be encrypted. Nor has Apple been ordered to assist in the decryption process. All of that ultimately doesn't matter if Apple can't access the data in the first place, hence the stalemate and apparent abandonment.

Meanwhile, slightly to the West, another legal battle over compelled decryption/access continues to be waged. The antagonist in this one is the DEA, however, which is seeking access to an older iPhone. The DOJ has already been served one rejection by magistrate judge James Orenstein. It has appealed that rejection, bumping it up a level in the district court. Now, it's filed a letter stating its intent to leave its All Writs application unaltered as the method the FBI used in the San Bernardino case won't work with this phone either.

The drug dealer had an iPhone 5C running iOS 7 software, while the San Bernardino shooter was using an iPhone 5C running iOS 9, a later version of Apple's operating system.

"The government continues to require Apple's assistance in accessing the data that it is authorized to search by warrant," wrote Capers.

Whatever the exploit is that works with this narrow band of phones, Apple has yet to learn the details. The FBI has shared it with the Senate Intelligence Committee, which means privacy champions like Dianne Feinstein possibly have more info on this security flaw than Apple does. Apple, however, has stated it will not seek to legally compel the FBI to turn over details on the exploit -- which is incredibly gentlemanly considering the FBI has done little else lately but seek to compel Apple to perform all sorts of work for it.

Security researcher Jonathan Zdziarski -- in an open letter to FBI director James Comey -- argues that the FBI should turn over the details to Apple anyway for the safety of its customers.

What has been made painfully apparent to me for nearly the past decade in this field is that keeping an exploit secret is not possible, no matter how good an agency or corporation may be at keeping secrets – because an exploit is merely a dotted line on a blueprint. Mere knowledge of the general parameters of a vulnerability – even just the details of the device’s condition in this case – has been enough for security researchers to know exactly what security boundaries to start looking at, and they can do so now with the confidence that there is a known, exploitable vulnerability. One does not need to steal any exploit code in order to take advantage of a vulnerability; they only need to find the vulnerability; the way in already exists until it is closed.

[...]

Given that it’s only a matter of time before a criminal finds the blueprint to this vulnerability, I urge you to consider briefing Apple of the tool and techniques used to access Syed Farook’s device. While the part of the tool that brute forces a PIN does not seem to work on newer devices, the locks that it picks in order to get past the front door most certainly can be vulnerabilities that carry over into newer devices. Depending on the nature of these components of the solution, criminals or nation states could take advantage of them to install malware, spyware, ransomware, or to infect a target by other means. Individual components of this tool may be very dangerous to millions of Americans, even if the solution as a whole is not viable.

Not that the FBI will be swayed by the words of highly-respected iPhone forensics expert. It tuned out security researchers during its quest for alternate unlocking methods and it likely could care less who else gets in as long as law enforcement agencies get in first.

Filed Under: doj, encryption, fbi, james comey
Companies: apple

DOJ Reopens Asset Forfeiture Sharing Program After Temporary, Budget-Related Shutdown

from the and-there-was-much-[law-enforcement]-rejoicing dept

Right before the end of last year, the DOJ -- facing budget cuts -- announced it would be ceasing its "equitable sharing" program with local law enforcement agencies. These agencies complained loudly about the unfairness of being decoupled from the asset forfeiture money train, as this partnership often allowed them to route around more restrictive state laws.

Today, they're breathing more easily, thanks to the DOJ's resumption of the temporarily-disabled program.

The Justice Department has announced that it is resuming a controversial practice that allows local police departments to funnel a large portion of assets seized from citizens into their own coffers under federal law.

The "Equitable Sharing Program" gives police the option of prosecuting some asset forfeiture cases under federal instead of state law, particularly in instances where local law enforcement officers have a relationship with federal authorities as part of a joint task force. Federal forfeiture policies are more permissive than many state policies, allowing police to keep up to 80 percent of assets they seize.

A North Carolina sheriff is looking at getting his hands on nearly a million dollars -- all tenuously tied to illegal activity.

“(The equitable sharing program) is a great benefit,” Graves said. “It takes money from the drug trade and puts it to better use for the community.”

He said that according to the best estimate from pending cases, equitable sharing should provide the sheriff’s office with approximately $846,000.

Meanwhile, another North Carolina sheriff says the lack of sharing might have resulted in dead officers had the feds not resumed handing out money taken from people never charged with a crime.

“The restoration of the Equitable Sharing Funds will serve as a boost to the morale of law enforcement professionals nationwide,” said Alamance County Sheriff Terry Johnson. “These monies were used by my agency in the past to purchase much needed equipment for the safety of our officers and the citizens of our communities. I am very thankful to God that we did not lose any officers because of the lack of safety equipment during the suspension of the Equitable Sharing Program…"

And it appears New Hampshire is either heavily-reliant on equitable sharing, or its representatives heavily-reliant on law enforcement support. Both senators and the state's governor issued statements welcoming back the DOJ's set of twisted incentives.

Then there's this article, with a headline that appears to have been written by law enforcement.

Money coming back: Federal program resumes helping local municipalities

This is not good news for citizens, as they're now facing an increased risk of having their cash and belongings taken from them without ever being charged with a crime. The best move would have been to leave this permanently defunded. The DOJ isn't saying how it's making up the $1.2 billion difference that resulted in the shutdown last year, but it likely has something to do with the fact that its seizures -- via the FBI and DEA -- are still generating plenty of "income."

Filed Under: asset forfeiture, doj, equitable sharing, police, stealing

FBI Won't Tell Apple How It Got Into iPhone... But Is Apparently Eager To Help Others Break Into iPhones

from the just-one-phone! dept

Remember how the FBI insisted over and over again that the case in San Bernardino was not about setting a precedent and was totally about getting into "just that one phone?" Of course, no one believed it, but pay close attention to what's happening now that the FBI was able to hack into Syed Farook's work iPhone. The DOJ has also said that the crack was limited to just that type of phone and probably wasn't widely applicable. However, at the same time, the Justice Department probably has no interest in sharing the details of the vulnerability with Apple:

The FBI may be allowed to withhold information about how it broke into an iPhone belonging to a gunman in the December San Bernardino shootings, despite a U.S. government policy of disclosing technology security flaws discovered by federal agencies.

Under the U.S. vulnerabilities equities process, the government is supposed to err in favor of disclosing security issues so companies can devise fixes to protect data. The policy has exceptions for law enforcement, and there are no hard rules about when and how it must be applied.

Apple Inc has said it would like the government to share how it cracked the iPhone security protections. But the Federal Bureau of Investigation, which has been frustrated by its inability to access data on encrypted phones belonging to criminal suspects, might prefer to keep secret the technique it used to gain access to gunman Syed Farook's phone.

Or, as iPhone forensics guru Jonathan Zdziarski succinctly summarized:

FBI: You should do it, it's just one phone
Apple: No it isn't
FBI: We got in
Apple: You should say how, it's just one phone
FBI: No it isn't

Yeah.

Meanwhile, the DOJ may not be interested in helping Apple patch that hole, but it is apparently at least willing to look into other cases where it can help law enforcement break into locked iPhones. There are some (somewhat conflicting) reports saying that the FBI has agreed to help prosecutors in Arkansas try to get into a couple of iOS devices in a murder case there. Of course, it may not be the same technique or situation (and the FBI might not be able to get in, either).

However, this does show just how eager law enforcement is to get into lots of phones, and how important it is that Apple actually be able to protect its users from those who do not have legitimate reasons to hack into phones. It's too bad that the FBI is apparently choosing to hold onto the info that helps it in a few cases while failing to protect the rest of the public who may use Apple devices.

Filed Under: arkansas, disclosure, doj, encryption, fbi, going dark, iphone
Companies: apple

UK Law Enforcement Trying To Force Man They've Never Charged With A Crime To Decrypt His Computers

from the see-smoke,-presume-arson dept

British hacker Lauri Love stands accused of causing "millions of dollars" in damages to US government computers -- charges he's been facing for more than two years. These charges originate in the US, but it's the UK that's been trying to get Love to give up his encryption keys for the past couple of years.

Under RIPA (Regulation of Investigatory Powers Act of 2000), the UK government can charge Love with "failure to cooperate" by refusing to comply with the order to decrypt files. To date it has not done so, despite Love blowing off its demands since the middle of February 2014.

The only charges Love is facing have been levied by the US Department of Justice. He has fought extradition for the past couple of years and the UK government has yet to make any progress on that front. However, UK law enforcement has stepped up its efforts to force Love to turn over passwords and keys. J.M. Porup at Ars Technica has seen a copy of the request and has more details.

In the NCA's submission to the court, which Ars has seen a copy of, the government demanded that Love turn over the passwords and encryption keys to his confiscated devices. The devices in question include a Samsung laptop, a Fujitsu Siemens laptop, a Compaq computer tower, an SD card, and a Western Digital hard drive. The NCA in particular wants Love to decrypt TrueCrypt files on the SD card and external drive.

This seems like a very severe demand from the National Crime Authority, considering it still hasn't -- despite two years and two arrests -- seen fit to bring criminal charges against Love. This is also its second attempt -- one using a separate legal authority (not RIPA Section 49, as was used earlier) -- to compel Love to comply with its demands.

Meanwhile, Love is (logically) suing the UK government for the return of his devices.

Love's argument in his civil case is that if the police aren't going to charge him with a crime, they should return his property. "The problem is that the NCA are effectively arguing that any information that cannot be read and comprehended by the police has a presumption of guilt," Love told Ars in an e-mailed statement.

As Love points out, equating encryption with guilt has severe ramifications for anyone who uses it.

"This has clear and troubling implications for groups that handle sensitive communications or other data—journalists, advocates, activists and whistleblowers, and members of the legal profession.

"An executive body of the state is saying that any information to which they are not privy... cannot be owned and kept securely but instead confiscated and access denied," Love added. "This is a fundamental reversal of rights and the potential for abuse is alarming."

The NCA claims it wants Love to decrypt his devices so he can prove his ownership of any information or data found on them -- which allegedly includes pirated film and documents obtained (without permission) for US government websites. Love sees this as nothing more than the NCA trying to help out its American counterparts by using the UK's more permissive laws to obtain information about Love's hacking activities. And, it must be pointed out again -- the NCA wants to force the uncharged Love to crack open his devices so it can find something to charge him with.

Maybe there's something incriminating stored on Love's computers. Maybe not. But either way, UK law enforcement is working backwards from a presumption of guilt. And it's basing this all on things it can't see. This belief system is similar to that held by many law enforcement agencies, which have spent much of the last few months claiming an encrypted phone is a "guilty" phone in front of judges, Congress and to members of the media.

Filed Under: decrypt, doj, encryption, lauri love, nca, passcode, ripa, uk, us

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