The Department of Justice likes to plea that mobile phone encryption favors criminals and that “children will die” because of Apple’s security design choice to embrace encryption, as was reported by the Wall Street Journal earlier in November. The issue weighs heavily on the thick white brow of the executive department, and newly obtained court documents from two federal criminal cases — one in Oakland, California and the other in New York, New York — reveal that the agency is using a law enacted in 1700s to force mobile phone makers to assist investigations dealing with encrypted phones.
The specific law in question is the All Writs Act, an 18th century law that permits courts to issue a writ, or order, which commands a person (or company) to act or abstain from acting in some way. It was recently invoked in the two instances above on October 31, 2014, approximately six weeks after Apple announced that it would expanding its encryption feature under iOS 8, as grounds for accessing user data. Ironically, the discovered documents state that an iPhone 5S was involved in the Oakland case, although no specific phone is cited for the New York case.
In both instances, the federal judge agreed that the phone manufacturers must obey; however, the unique approach of obtaining information curtails full access and leaves it up to judge’s individual interpretation. For example, prosecutors requested a federal judge to “assist in the execution of a federal search warrant by facilitating the un-locking of an iPhone” in the Oakland case and Magistrate Judge Kandis Westmore responded by ordering Apple to “provide reasonable technical assistance to enable law enforcement agents to obtain access to unencrypted data.” But as it turns out, Apple does not retain encryption keys for iOS 8 devices, making it theoretically impossible for the company to provide “reasonable technical assistance.” So, even in the event of a search warrant, there’s nothing the company can do to decrypt the content even if its obligated to do so.
As a result, Magistrate Judge Westmore added: “It is further ordered that, to the extent that data on the iOS device is encrypted, Apple may provide a copy of the encrypted data to law enforcement but Apple is not required to attempt to decrypt, or otherwise enable law enforcement’s attempts to access any encrypted data.”
In the second federal case — this one in New York — a similar ruling was decreed by Magistrate Judge Gabriel Gorenstein on the same day as Westmore (October 31, 2014), citing the All Writs Acts as ground for compelling the unnamed phone manufacturing to provide “reasonable assistance” in unlocking the phone. Since the case remains pending, and thus, is sealed, there’s no way to verify if the company challenged the judge’s orders or not, states The Wall Street Journal .
In earlier incident from 2005, a New York Magistrate Judge named James Orenstein downright refused to accept the All Writs Act as justification for the fed accessing real-time mobile phone data, going as far as to refer to it as a “Hail Mary play,” meaning, an all or nothing, low-probability pass move.
In the end, it’s encouraging that court is not simply using the All Writs Act as a mandate to compel Apple and its constituents to install a backdoor, although it does raise questions about the extent that the government can force companies to break their own products. Apple’s approach in dealing with the legal ramifications is the real winner here: since the company cannot simply opt out of complying with a warrant to provide information on criminal activity, it merely eliminated the means of providing said information.
Source: Ars Technica
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