A methamphetamine distribution case in the District Court for the Eastern District of New York has the government trying a new approach in its fight against strong cryptography.
Prosecutors believe there is strong evidence on an iPhone 5s belonging to an alleged drug dealer. They requested and were granted a warrant that a warrant be issued for the phone’s data, and later, on October 9th, asked Apple whether or not it would be possible for them to help and if so, whether this would be overly burdensome.
Apple replied that while it was technically feasible, it would unduly burdensome in that it would tarnish their brand. To be fair to the government and overtly clear: Apple has routinely complied with requests at the behest of the government over the years. Like most companies, they prefer to abide by the laws of a given country when they don’t affect their profit margins.
Apple’s October 19th reply was, in the government’s eyes, unusual although last year, Apple said it would no longer be helping police agencies in most cases. The court’s brief on the matter, from prosecutors, states a number of cases in which Apple was fine with helping the government. One of the first, in 2008, was related to child pornography.
Since the Edward Snowden revelations have come to permeate the national conscience more and more, cryptography has become a popular topic among people who otherwise may have never known the word. It has become popular for technology companies to create an image of protecting user privacy. Apple CEO Tim Cook said in a September 2014 interview:
When we design a new service, we try not to collect data. So we’re not reading your e-mail. We’re not reading your iMessage. If the government laid a subpoena on us to get your iMessages, we can’t provide it. It’s encrypted and we don’t have the key.
The shift in policy at Apple is evident in that older iPhones can be unlocked by the company. Prior to iOS 8, regardless of what Tim Cook and other say, Apple could and often did unlock phones for the government in criminal cases. Seemingly when it became popular to be the protector of user data, Apple took that tack. Presumably they realized that the data fight is an ultimate Achilles heel for its big competitor on many fronts, Google. Google collects data as a business model, and to pivot away from that could be risky at best.
Interesting in this brief is the government’s argument that since Apple licenses software to users, users have less rights, and that Apple must comply with lawful orders. This is an unprecedented argument.
Apple wrote and owns the software that runs the phone, and this software is thwarting the execution of the warrant. Apple’s software licensing agreement specifies that iOS 7 software is “licensed, not sold” and that users are merely granted “a limited non-exclusive license to use the iOS Software.” […]
Apple provides other ongoing services to device owners, including one that may be used to thwart the execution of a search warrant: “erase your device” which allows a user to send a command remotely to erase data on an iPhone. […] Had the phone obtained a network connection while agents examined it, that erase command could have resulted in the data on the phone becoming permanently inaccessible.
The ball is currently in Apple’s court. The government’s new argument that since Apple owns the software, it is responsible for it, could have far-reaching implications if it is not struck down by later, higher courts. Internet companies which do not allow customers to own their data, in particular, could then be vulnerable to NSA snooping in entirely new ways.
Images from Shutterstock and Twitter.
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