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More Inception than legal argument at this point The US Department of Justice has appealed a decision by a New York judge to refuse the FBI access to an iPhone: one part in a wider legal battle between law enforcement and Apple. The New York case is separate from the San Bernardino case in California, over which Apple and the FBI have been very publicly fighting. However the decision by a New York magistrate last month to shoot down the FBI's demand that Apple help agents access a locked iPhone, and his rationale for doing so, have been widely cited and referenced, not least by Apple. In New York, the iPhone belongs to alleged drug dealer Jun Feng, whereas the San Bernardino phone belonged to mass killer Syed Farook. In particular, magistrate judge James Orenstein concluded that the FBI did not have the legal authority to compel Apple to help them bypass the phone's passcode and, critically, said the powerful All Writs Act was the wrong legal instrument to use.

The FBI is using that same act to argue for access in the San Bernardino case. Judge Orenstein wrote: The implications of the government's position are so far-reaching – both in terms of what it would allow today and what it implies about Congressional intent in 1789 – as to produce impermissibly absurd results. He added that to give the FBI and DEA the powers they requested would greatly expand governmental powers and put the All Writs Act's constitutionality in doubt. He also declared that since Apple has no responsibility for Feng's wrongdoing, he could not justify "imposing on Apple the obligation to assist the government's investigation against its will." The New York case was addressed by FBI director James Comey at a Congressional hearing on the Apple case last week, where he acknowledged that the FBI had lost. He tried to play down its importance by suggesting it was just one fight in a much larger battle. Regardless, the decision is important, so prosecutors have asked district judge Margo Brodie to look at it and grant them the court order that Orenstein denied. The FBI argues that Orenstein looked at the question too broadly and focused on possible future abuse rather than the actual case he was considering.

And then effectively accuses him of overreach by saying his ruling "goes far afield of the circumstances of this case and sets forth an unprecedented limitation on federal courts' authority." It also argues – as it has done in the San Bernardino case – that the request is device-specific and so does not constitute blanket approval for the FBI to break into any iPhone. As for Apple, unsurprisingly it is in favor of Orenstein's judgment, with a spokesman saying that the company "shares the judge's concern" that use of the All Writs Act in these case is a dangerous path and a "slippery slope". ® Sponsored: 2016 global cybersecurity assurance report card
Kārlis Dambrāns As expected, federal prosecutors in an iPhone unlocking case in New York have now asked a more senior judge, known as a district judge, to countermand a magistrate judge who ruled in Apple’s favor last week. Last week, US Magistrate Judge James Orenstein concluded that what the government was asking for went too far.
In his ruling, he worried about a “virtually limitless expansion of the government's legal authority to surreptitiously intrude on personal privacy.”The case involves Jun Feng, a drug dealer who has already pleaded guilty, and his seized iPhone 5S running iOS 7. Prosecutors have said previously that the investigation was not over and that it still needed data from Feng's phone.

As the government reminded the court, Apple does have the ability to unlock this phone, unlike the seized iPhone 5C in San Bernardino. Moreover, as Department of Justice lawyers note, Apple has complied numerous times previously. In its 51-page Monday filing, the government largely re-hashed its previous arguments, saying that existing law should force Apple’s assistance. In this case, the government arrested a criminal.

The government got a warrant to search the criminal’s phone. Law enforcement agents tried to search the phone themselves, but determined they could not do so without risking the destruction of evidence.

The government then applied for a second court order to ask Apple to perform a simple task: something that Apple can easily do, that it has done many times before, and that will have no effect on the security of its products or the safety of its customers.

This is how the system is supposed to work. In 2014 and 2015, Apple took a two-pronged approach to resisting government pressure: one was to make iOS 8 more resilient than previous versions of the operating system, making it impossible for Apple itself to bypass a passcode lockout.

The other crucial element was to impose firmer legal resistance in court filings.

The New York case is believed to be the first time that Apple openly resisted the government’s attempt to access a seized phone. Agree to disagree? This New York case pre-dates Apple's current battle with the government over a locked iPhone 5C that belonged to one of the shooters in the December 2015 terrorist attack in San Bernardino—that case is due to be heard in court next month in nearby Riverside, California.
In the California case, federal investigators asked for and received an unprecedented court order compelling Apple to create a new firmware to unlock the device.
In February 2016, Apple formally challenged that order, and the outcome is pending. Both the New York and California cases, however, involve the government’s attempt to use an obscure 18th-Century statute known as the All Writs Act, which enables a court to order a person or a company to perform some action. "Judge Orenstein ruled the FBI’s request would 'thoroughly undermine fundamental principles of the Constitution’ and we agree," an Apple spokesman told Ars in a statement. "We share the judge’s concern that misuse of the All Writs Act would start us down a slippery slope that threatens everyone’s safety and privacy." The New York case, however, marks the first time that a federal judge has ruled in favor of a more privacy-minded Apple. More recent amicus, or friend of the court briefs, supporting Apple, have cited Judge Orenstein’s ruling. “The government’s argument is: ‘I would have gotten away with it too, if it weren't for you pesky magistrate!’” Riana Pfefferkorn, a legal fellow at the Stanford Center for Internet and Society, told Ars.
C'mon, Bill.
It's not a stretch. We remember the 1990s Bill Gates says reports of him backing the FBI in the ongoing saga with Apple over the unlocking of a killer's iPhone are inaccurate. Asked about widespread reports that the former Microsoft CEO and the world's richest man was taking the Feds' side, Gates told Bloomberg News on Tuesday that he was "disappointed" with the reporting and that it "doesn't state my view on this." In an earlier interview with the Financial Times, Gates questioned whether the FBI's court order would set a larger precedent. "This is a specific case where the government is asking for access to information.

They are not asking for some general thing, they are asking for a particular case," he told the newspaper.

The issue of whether the FBI request would represent a legal precedent has become a central aspect of the broader push for public opinion on the issue. After a number of companies and high-profile CEOs, most recently Facebook's Mark Zuckerberg, have come out in support of Apple CEO Tim Cook, Gates' comment led to the FT leading with the claim that he had "broken ranks" with Silicon Valley. According to Gates, however, he has a more nuanced view about "striking a balance" in providing government access to information rather than in deciding who is right, the FBI or Apple. "I'm hoping we can have a discussion," he noted, adding that it will be the courts and Congress that ultimately decide the issue. Future fear Gates' larger point is that, in future, terrorist acts may be larger and scarier than random shootings and could include nuclear or biological threats. Under these scenarios, the government "shouldn't be completely blind," he argued, but there should be "safeguards" to prevent abuse. It's unlikely that Gates did not have an intimate understanding of exactly what the FBI is asking of Apple and what the broader implications of that are. As such, it was noteworthy that he would argue the case that the FBI is making: that the court order requiring Apple to assist the FBI in opening up the locked iPhone of San Bernardino shooter Syed Farook does not set a precedent. However, that very argument may have been undermined by a new court document that had just been unsealed in which an Apple lawyer points to no fewer than 12 other cases in which the US Justice Department is asking for access to iPhones. Apple alluded to the fact that there were other cases that would be impacted by the current case in an Q&A posted on Monday, but with the unsealing of this court document, we now know that there are an additional four phones in Illinois, three in New York, two in California, two in Ohio and one in Massachusetts that the federal government wishes to access. Further highlighting the fact that it is not solely a case of access to phones in the rare incidences of terrorist acts – none of the 12 other cases are thought to have any connection to terrorism. In other words, what Apple has said repeatedly – that agreeing to create a version of its mobile operating system that can be used to bypass its phones' security would serve as a precedent for law enforcement to gain access to future phones – does appear to be true. That puts recent comments by FBI director James Comey in a new light. He wrote this week that the legal argument "is actually quite narrow" and any use of the court order would become "increasingly obsolete." The big question now is how the FBI is choosing to define the word "narrow." ® Sponsored: Building secure multi-factor authentication
Cook and Comey vie for public opinion but look to Congress/America for resolution Analysis In the latest salvo in a very public war, Apple's CEO and the FBI's director have published letters arguing their cases over gaining access to a locked iPhone. In Apple's corner, Tim Cook sent an all-staff email Monday morning in which he argued that the case represents a "precedent that threatens everyone's civil liberties." FBI director James Comey meanwhile wrote a letter published on Sunday in which he argued the opposite: that the legal argument "is actually quite narrow" and its use would become "increasingly obsolete." The war of words highlights the importance that public opinion is going to have on this critical test case, where the privacy of the individual is going to be weighed directly against the ability of law enforcement to investigate crimes.

Both sides feel they have a strong case. Cook's email was turned into a public Q&A posted on the Apple website.
In it, he highlights the "outpouring of support we've received from across America" since he formally – and publicly – refused to abide by a court order that required Apple to write a version of its mobile operating system so the FBI could unlock the phone of San Bernardino shooter Syed Farook. Public debate Cook is certain that an open public debate on the matter will fall down in Apple's favor, given the increasingly personal information American citizens store on their phones and a general distrust of the federal government. As such, he and Apple are painting the case as one that has far-reaching impacts. "This case is about much more than a single phone or a single investigation," he wrote. "At stake is the data security of hundreds of millions of law-abiding people, and setting a dangerous precedent that threatens everyone's civil liberties." The FBI's Comey paints the opposite picture: that this is a rare and extraordinary case. "The San Bernardino litigation isn't about trying to set a precedent or send any kind of message," he wrote. "It is about the victims and justice.

Fourteen people were slaughtered and many more had their lives and bodies ruined. We owe them a thorough and professional investigation under law." Interestingly, both sides recognize in the middle of tearing down the other side that they may have hit an impasse that will require a large public debate to decide. Cook specifically highlighted a proposal before the US Congress to create a special commission to look at the issue of encryption and privacy, which is at the heart of the matter. He wrote: "We feel the best way forward would be for the government to withdraw its demands under the All Writs Act and, as some in Congress have proposed, form a commission or other panel of experts on intelligence, technology and civil liberties to discuss the implications for law enforcement, national security, privacy and personal freedoms.

Apple would gladly participate in such an effort." 'Awesome new technology that creates a serious tension' Apple would likely gain more from Congress' general inability to achieve anything due to partisan in-fighting, but the FBI's Comey also lends some weight to the idea of taking the issue out of the boxing ring and into more institutional hands. "Although this case is about the innocents attacked in San Bernardino, it does highlight that we have awesome new technology that creates a serious tension between two values we all treasure – privacy and safety," he wrote. "That tension should not be resolved by corporations that sell stuff for a living.
It also should not be resolved by the FBI, which investigates for a living.
It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before." There were, of course, some side-swipes by both sides: the FBI accusing Apple of putting marketing ahead of the country's security and Apple implying that the FBI is either incompetent or disingenuous when it caused the iCloud back-up of the phone in question to lock up. But both sides appear to have realized that they are not going to reach a solution between themselves, and an endless public fight is going to rapidly make both of them look bad. Journalists: Crucial details in the @FBI v. #Apple case are being obscured by officials. Skepticism here is fair: pic.twitter.com/lEVEvOxcNm — Edward Snowden (@Snowden) February 19, 2016 Survey Increasingly, in the first of what will likely be numerous surveys on the matter, reputable survey company Pew Research Center found that the FBI's perspective is slightly more popular. A majority – 51 per cent – of those it spoke to said they felt Apple should unlock the phone, whereas 38 per cent said the company should not, and 11 per cent were undecided. The topic had a surprising level of awareness: 75 per cent of the 1,002 people it spoke to were aware of the issue and 39 per cent said they had heard "a lot" about it. Perhaps more surprisingly, there was almost no difference in opinion between Republicans and Democrats on the issue, with 56 and 55 per cent respectively saying Apple should open the phone. There are obviously all sorts of other factors and questions that may come into play.

And most significant will be if the case represents a precedent. There isn't credible polling data yet on how they would change support for the court order, but it is not hard to imagine that if the FBI's order was taken to be a legal precedent, that could lead to it being granted access to many more people's phones; then the balance of agreement could shift the other way. ® Sponsored: Addressing data governance requirements in a dispersed data environment