Apple for the day

Eric Lichtblau and Joseph Goldstein have an article in The New York Times about the on-going battle between Apple and the FBI:

In the latest volley in its high-profile fight with Apple, the Justice Department said that a Federal judge in Brooklyn, New York had erred last week in refusing to order the company to unlock a drug dealer’s iPhone.
“Apple is not being asked to do anything it does not currently have the capability to do,” Justice Department prosecutors said as they appealed the decision made last week by Magistrate Judge James Orenstein of the Federal District Court for the Eastern District of New York.
The prosecutors argued that their demand for technical help was a routine law enforcement request, no different from the “dozens” of times that Apple had agreed to cooperate in cases before this one, and that it “in no way upends the balance between privacy and security.”
Lawyers and analysts on both sides of the encryption debate are watching the Brooklyn case closely, because they believe it could foreshadow the ultimate outcome of the case involving an iPhone used by one of the attackers in the December 2015 terrorist rampage in San Bernardino, California.
The two cases are very different in some ways, one involves a high-level terrorism investigation, the other an inquiry into a low-level drug dealer, but both center on whether the Justice Department can use a 1789 statute to force Apple to unlock an iPhone.
Unlocking the iPhone in the Brooklyn case would be far easier for Apple, because it involves a device running an older operating system with simpler encryption.
In the San Bernardino case, Apple lawyers say the company would have to create an entirely new program to get into the iPhone used by Syed Rizwan Farook, who, along with his wife, killed fourteen people. That phone was running the latest operating system.
The San Bernardino case offers prosecutors what they believe is a strong test case to establish the government’s power to force a technology company to unlock its own encryption. Among the factors they cite: The California rampage was the biggest terrorist attack on American soil since 11 September 2001; Farook is dead; and the phone was owned by his employer, San Bernardino County, where he worked as an environmental health specialist.
“The government certainly believes they have a very strong set of facts in San Bernardino,” said Eric A. Berg, a former Justice Department lawyer who now works on electronic surveillance issues at a Milwaukee, Wisconsin law firm. The Brooklyn case, on the other hand, “muddies the waters for them in what they’re trying to do.”
In his ruling last week, Judge Orenstein expressed concern that the government was claiming almost limitless authority to compel Apple to cooperate with law enforcement requests. And he noted that, while Apple had declined to help the Justice Department unlock this specific phone, “Apple is not doing anything to keep law enforcement agents from conducting their investigation.”
But prosecutors, in their appeal, claimed that Apple was, in fact, getting in the way by installing certain features on its products. “Apple’s software is actively impeding the execution of the search warrant in several ways,” the filing said, adding that Apple’s auto-erase feature, which can wipe the device clean if the passcode is entered incorrectly ten times, “is the technological equivalent to barring the door.”
The prosecutors’ brief did not address all of Judge Orenstein’s concerns about government overreach, saying that such worries “go far afield of the present case”.
“Much of Judge Orenstein’s reasoning appears to be driven by a forward-looking concern for preventing future government abuse,” the brief said. Supreme Court precedent on the matter, it added, prohibits judges from “using speculation about future harm as a basis to bar relief in a specific case”.
Apple and its supporters argue that forcing the company to create what they say is a “back door” around its own encryption controls would set a dangerous precedent and threaten the security of hundreds of millions of users. In an unusual show of support, some forty companies and organizations have filed briefs in support of Apple’s position.
Apple, in a statement following the Justice Department’s appeal, said that “we share the judge’s concern that misuse of the All Writs Act, the law prosecutors are citing in their demand, “would start us down a slippery slope that threatens everyone’s safety and privacy.”
Timothy H. Edgar, a civil liberties specialist, said that the outcome of the Justice Department’s demands on Apple might ultimately hinge on whether the courts view the “burden” placed on Apple as unreasonable. If the courts look at that burden as simply the number of engineering hours it might take Apple to unlock the phones, the Justice Department has a strong case, he said. But if that burden includes diminished security or possible harm to Apple’s reputation among its customers, the outcome might be different.
Michael Sussmann, a Washington lawyer and former Justice Department prosecutor who works on electronic surveillance cases, said he thought it was doubtful that the Supreme Court would step into the fray anytime soon, unless rulings that emerge from New York and California appellate courts are in direct conflict. In cases involving new technology, he said, “The Supreme Court likes these cases to percolate in the lower courts for awhile and let the law be made, and observe how it’s made, before stepping in.”

The New York Times has an op/ed about the case:

What does the government want?The FBI is trying to force Apple to help investigators gain access to an iPhone used by Syed Rizwan Farook in the December 2015 mass shooting in San Bernardino, California.
Bureau officials say that encrypted data in Farook’s phone and its GPS system may hold vital clues about where he and his wife, Tashfeen Malik, traveled in the eighteen minutes after the shootings, and about whom they might have contacted beforehand.
It sounds like a simple problem but the solution would be complex. The password mechanism built into the phone will erase the phone’s data after ten incorrect password attempts. That security is standard issue on newer iPhones and to get around it, Apple says it would have to create new software.
Why is Apple resisting?
The company has been fighting a federal court order requiring it to provide access to the F.B.I., on the grounds that it violates its right to due process.
Apple also says that forcing it to write new software violates its First Amendment right, an argument that has some precedent. Courts have ruled in the past that writing code is a form of free speech.
The F.B.I. says it only wants Apple to create software to break into this one phone. But the company fears it could create a permanent way to bypass iPhone password protection for law enforcement or even the spy agencies of other countries.
In a similar case in Brooklyn, a judge last week ruled in Apple’s favor. 

Why does the dispute matter?Simply put, the government contends that cooperation in cases like this could help prevent future terrorist attacks against Americans.
Privacy advocates and Apple supporters say they worry that, if the FBI succeeds in getting access to the software overriding Apple’s encryption, it would create easy access for the government in many future investigations.
Apple senior executives, for their part, have said their defiance was not a business choice. But cooperating with the government now could quickly lead to murkier situations internationally, especially in China, where officials have been pushing for greater control over the encryption and security of technology sold there.
China has become Apple’s second-largest market after the United States. People there spent sixty billion dollars on Apple products in the last fiscal year.
Saying yes to the United States government could make it hard for Apple to later say no to China, and saying no could significantly affect the company’s bottom line.

Where does Silicon Valley stand on the issue?Google, Amazon, Facebook, Microsoft, and a parade of other technology companies filed a barrage of court briefs in support of Apple.
Despite what the FBI says, many in the industry worry the San Bernardino case could be a prelude to many others, and they point to a number of other pending cases in which the government wants Apple’s help to unlock iPhones.
Though officials like Defense Secretary Ashton Carter say it is not the case, industry leaders worry the government is trying to create a permanent “back door” that would allow investigators or spies to circumvent encryption or password protection. 

What happens now?Apple and law enforcement officials have been explaining their positions to both the public and Congress, but in the end it is a court case, not a popularity contest.
Both Apple and the Justice Department will have an opportunity to file briefs, and the Federal court will hold a hearing on the matter in California on 22 March 2016. Both sides are prepared to appeal. 

Rico says that The New York Times has finally mentioned what the Feebs think they'll find on the San Bernardino phone:

FBI officials say that encrypted data in Farook’s phone and its GPS system may hold vital clues about where he and his wife, Tashfeen Malik, traveled in the eighteen minutes after the shootings, and about whom they might have contacted beforehand.