FBI Worm Burrows Into Apple, Feds Freak Farook's Phone, Brooklyn Intervenes: Pre-Argument Analysis, In re Search of An Apple IPhone, No. ED CM No. 16-10 (03/22/2016)

The iPhone 5c was released on September 20, 2013 and discontinued two years later.  The low end of the 5 series at $99, It now can be bought, refurbished, for $175.  Farook’s 5c, however, is of imminent contemporaneous utility and more precious than gold.

The facts of the case are undisputed.  Farook  and his wife, Malik, killed 14 people and injured 22 others at the Inland Regional Center in San Bernardino.  Farook’s employer, the County, had lent him a 5c in connection with his job. The iPhone was recovered after the attack, and the County gave its permission for the device to be searched.

In addition, the FBI obtained a search warrant for the iPhone based on the belief that Farook used the iPhone to communicate with some of the attack victims and that the device may contain critical communications and data prior to and around the time of the shootings.  The iPhone is password-protected and will permanently erase its data if 10 incorrect passwords are entered.

On February 16, the Riverside magistrate judge ordered that Apple provide reasonable technical assistance for examination of the iPhone.  Apple was to disable or bypass the security features on the device, thereby removing the auto-erase function, and avoid individual entry of possible passwords by hand when a brute-force attempt to try multiple passwords.  Apple was to report the reasonable cost of such a back-door engineering.  Apple moved to revoke the order.

The current controversy between Apple and the FBI is being fought on two fronts and things didn’t appear to be going well for Apple in either arena.  Indeed, the weakness of Apple’s dual situations seemed to imply that Apple simply took an anti-Fed position of no more cooperation without much of an assessment of its chances for successful refusal.

The first front, political, appeared dismal for Apple.  The current administration, moderately left, has firmly backed the FBI.  The current Congress has no majority for Apple, with even a senior Democratic Senator, Diane Feinstein,  the Vice Chair of the Senate Select Committee on Intelligence, opined that “Apple is not above the laws of the United States . . . .”

In light of this, the prospects for Apple’s proposal of a national commission, let alone favorable legislation, looked forlorn,.

The next administration, be it Trump’s or Clinton’s, may have even less sympathy for Apple.  Trump’s position is well-known. Clinton would likely be chary of any hint of being weak on security, given her e-mail fiasco.  The progressive Democrat candidate, Sanders, represents a thin ray of hope for Apple, based on the possibility of the formation of some socialist-libertarian Congressional faction, but the chances of this is at best 75-25, the South Carolina Democrat primary consensus.

In addition, it is unlikely that either candidate would appoint a pro-Apple justice to replace Scalia, for myriad reasons beyond the Apple issue.  First and foremost, the nominee of either Presidential candidate likely would not regard Apple as its most pressing legal issue to resolve compared to affirmative action, abortion, or mandatory union dues.  The Apple issue may not be the litmus test for the nominee.

Again, Trump’s predilection for a pro-business nominee is known, but it is likely that the nominee’s desire for expansion of the First Amendment and lessening the investigative power of the FBI is problematic.  Moreover, even if Clinton would nominate a moderately left Justice and have that nominee confirmed, there is no sure way of whether Apple’s security stance would be adopted by a less-than-wholeheartedly progressive Justice. Finally, it is unlikely that the newest appointees, Sotomayor and Kagan, with their extensive government backgrounds, would favor Apple on any of the proffered legal contentions.

And yet, the chair of the House Judiciary Committee held hearings on March 1 and implied that a legislative solution might be in the offing.  If nothing else, the testimony of the FBI director and the Apple chief counsel created a magnetic public forum for what appears to be a major public debade.

The second front in the 5c war, the legal battle, has no prognosis of success for Apple.  It requires a bit of digging to assess the merits of Apple’s brief, but the conclusion is fairly clear.

In its motion to vacate the magistrate judge’s order, the first step is to cut to the legal fundamentals by eliminating the political rhetoric in the 65-page presentation.  There is little winning law after the winnowing is done.  (Indeed, the caveat is that Apple’s legal arguments are so inchoate as to indicate a touch of sandbagging, with Apple walking into court on the argument date carrying yet another brief to replace the weak first one.)

Take, for example, the following expansive Apple approach:

“This is not a case about one isolated iPhone. Rather, this case is about the Department of Justice and the FBI seeking through the courts a dangerous power that Congress and the American people have withheld: the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe. The government demands that Apple create a back door to defeat the encryption on the iPhone, making its users’ most confidential and personal information vulnerable to hackers, identity thieves, hostile foreign agents, and unwarranted government surveillance.”

The Apple dispute in front of the magistrate judge is most certainly about one phone.  The florid argument that the issue of “the basic security and privacy interests of hundreds of millions of individuals around the globe” is certainly not the case, as the hundreds of millions, depending on where they are domiciled, will receive due process from their governments on an individual basis.

Taking one more step, why does Apple complain about US authorities when it is perfectly clear that more authoritarian governments have the power to demand the actual back-doors without due process simply by denying Apple their lucrative markets?  Indeed, who knows if Apple has not already done so? (See http://www.latimes.com/business/technology/la-fi-apple-china-20160226-story.html)

The Riverside magistrate judge ordered that Apple provide reasonable technical assistance for examination of the iPhone. Apple was to disable or bypass the security features on the device, thereby removing the auto-erase function, and avoid individual entry of possible passwords by hand when a brute-force attempt to try multiple passwords.  Apple was to report the reasonable cost of such a back-door engineering.

Apple makes two arguments.  The first is that the All-Writs Act, the basis of the magistrate judge’s order, doesn’t apply.  The second is even if it does, the First Amendment overwhelms it.

The All Writs Act discussion turns initially on US v. NY Telephone, 434 U.S. 159 (1977).  Pursuant to a search warrant, the police sought to install pen registers on phones involved in gambling.  The phone company objected to cooperating with the police.

The All Writs Act provides:

“[A]ll courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” (28 USC section 1651(a))

A federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.  The court acts in its discretion with the following mandate:

“[A] federal court may avail itself of all auxiliary writs as aids in the performance of its duties, when the use of such historic aids is calculated in its sound judgment to achieve the ends of justice entrusted to it.” (Adams v. United States ex rel. McCann, 317 US 269 (1942))

The power conferred by the Act extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice and encompasses even those who have not taken any affirmative action to hinder justice. (US v. Field, 193 F.2d 92 (2d Cir. 1951), cert. den. 342 US 894 (1951))

Under the circumstances, refusal to aid the FBI “threatened obstruction of an investigation . . .” as the warrant could not be effectuated without the aid of the phone company. (US v. NY Telephone, supra)

Apple gave the FBI the 5c cloud-based backups only through October 19, when Farook stopped backing up the phone. Therefore, there is a gap between October 19 and December 2, when the massacre occurred, for which no 5c data exists.

There is a password stored on the device known only to Farook. After ten unsuccessful tries at entering the password, the 5c will wipe the phone irretrievably.  The entry turns not on disabling encryption on the phone, but rather on impairing of the wipe-out feature on the iPhone.

Other complications appear.  The password could be digits or letters, and there is a feature on the 5c which escalates a mandatory delay between the entry of each digit or letter which increases as incorrect passwords are entered.  Also, because the phone uses only manual entry of the password, a supercomputer brute force attack cannot be accomplished without modification of the IOS.

The Riverside order requires the destruction of the auto-wipe function, the time increases between entry of password digits or letters and the creation of a pathway for supercomputer entry which evades manual entry of the password.  The IOS would have to be modified.

Apple estimates that six to 10 engineers would be required for these tasks and it implicitly concedes that the cost of fulfilling the Riverside order is estimable and compensatable. However, Apple seems to contend that even if it retains a copy of the modified software or even destroyed it, it would be hacked.

In this case, Apple puts forth three bases as reasons why the All Writs Act would not apply: that the order is overly burdensome, that it has no significant connection to the crime, and that its participation in the data inquiry is not necessary.  Apple was invited by the magistrate judge to submit a bill for its services. Clearly the reimbursable value of the services required to create the back-door was not burdensome.

Apple hardly is in a position to claim it is too distant from the situation to be the subject of the order.  It manufactured (and possibly sold) the iPhone, and all concede it is the only party which could create the back-door.  Surely also, Apple is involved in Farook’s crimes in the sense that its technology creates a gap in the investigation of the case.

Something of a throw-away argument is made by Apple under the Fifth Amendment, that the order denied it due process.  This appears circular, as Apple’s present attempt to vacate the order appears to satisfy due process.

Apple audaciously claims that, code being expression, it is shielded by the First Amendment from the production of code. One could easily get lost on this one.  Apple states that code is speech and therefore it cannot be compelled to create a back door, which would be code/speech under free speech doctrines.

Apple has made a fuzzy presentation in its brief.  Using string citations with no attempt to discuss the cases individually, it has cast the argument in a general framework and walked away from it.  The government or the magistrate judge will have to devote substantial efforts to creating Apple’s argument and then destroying it, but the essential questions are if code is speech, is being ordered to create speech necessarily the same as free speech itself, and if so, is it protected speech under the First Amendment?  No clear conclusion can be reached by examining Apple’s litter of citations from many different contexts.

And yet, on February 29, a Brooklyn magistrate judge bought most of Apple’s arguments and refused to issue an order to Apple for the back-dooring of an IOS 7 iPhone used in crimes. The Brooklyn order (In re Order, No. 15-MC-1902 (JO) (02/29/2016) is initially premised on a history of unsuccessive legislative attempts to create a statutory scheme for  government inquiries into cellphone data.

Despite the fact that none of these became law, thereby causing the current Apple impasse, the magistrate judge deemed the use of the All Writs Act sought in the Brooklyn case would be to give the government “authority that Congress chose not to confer.”  This is a questionable conclusion, as a cardinal rule of statutory interpretation is that there be a statute.

In addition, Apple was found to be “too far removed from [the] criminal conduct to have any obligation to assist the DEA’s investigation” under the All Writs Act, not the least reason being it was not a public utility like NY Telephone.  Moreover, there was no technological link:

“Nothing in that description even remotely suggests that the licensed software played any meaningful role in [the] crime comparable to the role the telephone company’s property played in the crimes under investigation in N.Y. Tel. Co.”

In addition, to argue that licensed software was the key to All Writs Act analysis eliminated the discretion of the trial court.

“If Apple’s retention of intellectual property rights in the software deployed in a device sold to the public sufficed to render it sufficiently close, for purposes of the AWA, to any crime committed by any user of such a device, it would eventually render the first discretionary factor under N.Y. Tel. Co. a dead letter. As constantly increasing computing power is continually squeezed into ever smaller storage devices, the category of consumer products containing licensed software will continue to grow. In a world in which so many devices, not just smartphones, will be connected to the Internet of Things, the government’s theory that a licensing agreement allows it to compel the manufacturers of such products to help it surveil the products’ users will result in a virtually limitless expansion of the government’s legal authority to surreptitiously intrude on personal privacy,”

The magistrate judge concluded that Apple was doing nothing affirmative to thwart the investigation, as it was doing nothing positive at all.  He broadly stated in dictum that the government cannot “dictate to a private company in the business of manufacturing smartphones the extent to which it may install data security features on such devices.”

Here is the crux of a hidden issue.  Apple has taken a marketing position that only the user should have control of its contents and has steadily moved to minimize back doors and increase encryption.  It may make this choice as an independent business entity, but may it manufacture a warrant-proof phone?  It does no good to impugn Apple’s motives.

“[F]or all of the government’s manifest outrage, there is simply nothing in the record that leads me to question that Apple’s recent stance against being compelled to assist the government in bypassing the security it markets to its customers is anything other than a genuine reflection of both how it perceives its private interest in commercial success and the policy preferences of its leaders.”

The burdensomeness of the order to a third party involves legislative decisions about intangibles such as corporate freedom and other “legitimate societal interests . . .”:

“Congress would undoubtedly consider in this context all of the potential harms to Apple, not just the financial ones; a court should do no less.”

Because of these intangibles, the fact that Apple could be compensated for the time of its engineers does not bar a finding that an order could be burdensome.

Finally, the government made an insufficient showing of the necessity for an order.

“[T]he government may be entitled to relief under the AWA if it can satisfy the remaining statutory requirements and discretionary factors. . . . [I]f the government has access to resources that would in fact allow it to vindicate this court’s jurisdiction without compelling Apple to take action it finds objectionable – that fact would weigh heavily against granting relief.”

At this stage of the Riverside litigation, it is uncertain what effect the Brooklyn decision will have.  One point is clear-if the Riverside court buys the Brooklyn logic, the issue of Apple cooperation will be deferrred until the government can make a clearer case for the necessity of Apple involvement.  This will kick the can down the road for Congress and the new Administration.

More by | James Ching James Ching , Law.com Contributor
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