In a discussion with Apple executives today, TechCrunch was informed that Apple had filled a ‘motion to vacate’ in the case of the FBI compelling Apple to assist in unlocking an iPhone belonging to Syed Farook. The executive said that “within hours” Apple had provided the information requested by the government on December 6 and again on December 16, and that it cooperated again on January 22 (responded to on the 26).
A Motion to Vacate asks the same court to withdraw its decision. Which in this case is the original court order compelling Apple to assist in unlocking the iPhone of Syed Farook. If granted, this would in essence, put the FBI and Apple back to square one.
Apple says that it would have to create a ‘Government OS’ or govtOS, for the FBI in order to cooperate with the FBI. It would also need to create an FBI forensics lab on site that Apple says could likely be used to unlock iPhones in the future, which law enforcement officials have already indicated in public statements.
In the motion, Apple hinges its argument on the fact that the FBI is attempting to greatly expand the use of the All Writs Act:
No court has ever granted the government power to force companies like Apple to weaken its security systems to facilitate the government’s access to private individuals’ information. The All Writs Act does not support such sweeping use of judicial power, and the First and Fifth Amendments to the Constitution forbid it.
On February 16, Apple says that the FBI filed an order with the court that required Apple to create this software and within hours the court had granted the request. Apple re-stated that it had no warning or communication from the government before the order was published.
Apple also states that the request violates Apple’s constitutional rights. Microsoft said today that it will file and amicus brief with the courts to support Apple in its battle with the government. At a congressional hearing today, its Chief Legal Officer Brad Smith said that the case has implications for others. Apple says that it expects more companies to file amicus support for its efforts to oppose the order.
Apples reasoning in the brief rests on three pillars. First, that forcing Apple to write code that weakens its devices and the security of its customers constitutes a violation of free speech as protected by the Constitution.
Second, that the burden the FBI is putting on it by requesting that Apple write the software and assist in unlocking the device is too large. The burden would then extend to what Apple views is the inevitable onslaught of additional devices that would follow after the precedent was set.
Third, Apple argues that the Fifth Amendment’s Due Process clause prohibits the government from compelling Apple to create the new version of iOS. Apple argues that there is no court precedent for forcing a company to create something new, like GovtOS.
Apple argues that if it complies, a litany of requests (it says hundreds) would come in within “a matter of days.” Its establishing that there is a precedent being set here, that this is not about an isolated case alone:
“The government says: “Just this once” and “Just this phone.” But the government knows those statements are not true; indeed, the government has filed multiple other applications for similar orders, some of which are pending in other courts. And as news of this Court’s order broke last week, state and local officials publicly declared their intent to use the proposed operating system to open hundreds of other seized devices -- in cases having nothing to do with terrorism. If this order is permitted to stand, it will only be a matter of days before some other prosecutor, in some other important case, before some other judge, seeks a similar order using this case as precedent.”
Apple is currently in a war of both court orders and public opinion in the case of a locked iPhone. The FBI want Apple to build a special version of iOS, that would weaken the device’s security and install it on the device. This version of iOS would allow the FBI to “brute force” the device’s pin code by trying it hundreds or thousands of times without delay or the device erasing itself.
It’s worth noting that Apple has had a long history of cooperating with law enforcement requests for information. While it has not unlocked iPhones, it has extracted data from phones.
FBI Director James Comey and Apple General Counsel Bruce Sewell are set to testify on encryption at a March 1 Congressional hearing.
Read Article (Matthew Panzarino | techcrunch.com | 02/25/2016)
Logic Dictates, the primary option for the FBI is to create their own world class hacking team and forensic laboratory. But to do so means they would have to compromise on the (character) of acceptable team members. So the questions are, (1) do they have a choice and (2) when will they, inevitably, do it? After all, it’s really the most economical way to go, no matter the cost.
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