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ACLU Joins Microsoft in Suit Against the DOJ

Suit-Against-DOJ

SAN FRANCISCO — Microsoft got an ally in its lawsuit against the Justice Department Thursday. The American Civil Liberties Union has filed a motion to join Microsoft’s effort to challenge DOJ gag orders that prevent the tech company from telling customers when the government has ordered it to turn over data.

The ACLU is a Microsoft customer. Microsoft filed its lawsuit in April, one of a number of legal challenges the Redmond, Wash., company has mounted against growing law enforcement requests for its cloud-based consumer data.

“A basic promise of our Constitution is that the government must notify you at some point when it searches or seizes your private information,” said Alex Abdo, a senior staff attorney with the ACLU Speech, Privacy, and Technology Project. “Notice serves as a crucial check on executive power, and it has been a regular and constitutionally required feature of searches and seizures since the nation’s founding.”

Microsoft spokesperson David Cuddy said the company "appreciates the support from the ACLU and many others in the business, legal and policy communities who are concerned about secrecy becoming the norm rather than the exception.”

Requests from law enforcement agencies for access to users' personal information routinely flood tech companies that store vast amounts of data in the cloud. Massive data centers run by Microsoft, Amazon and other big tech companies allow businesses and individuals to access email, photos and other content from multiple devices, wherever they are.

Law enforcement officials say that access to such data is critical to fighting crime and terrorism. Using the Electronic Communications Privacy Act, the U.S. government is increasingly targeting such data, according to Microsoft, which says the government has mandated secrecy in 2,576 instances over the past 18 months. People would know if the government went through their filing cabinet or their hard drive, but are unaware when their privacy in the cloud is intruded upon, they argue.

The 1986 law was written before the Web was born and long before Americans started sending, receiving and storing so much of their personal communications and documents on the Internet.

Microsoft alleges the Electronic Communications Privacy Act violates users' Fourth Amendment right that a search be reasonable and Microsoft's First Amendment right to talk to its users.

"Notably and even surprisingly, 1,752 of these secrecy orders, or 68% of the total, contained no fixed end date at all. This means that we effectively are prohibited forever from telling our customers that the government has obtained their data," Microsoft chief legal officer Brad Smith wrote in an April blog post when the suit was announced.

Tech companies increasingly are being drawn into legal battles with federal agencies over access to consumer information. A broad swath of major technology names filed amicus briefs on behalf of Apple during the iPhone maker's protracted battle with the FBI earlier this year over access to the smartphone used by one of the San Bernardino killers.

Read Article (Marco della Cava | usatoday.com | 05/26/2016)

Today Microsoft is fighting a battle to protect your digital privacy, tomorrow you may need to fight your own battle to protect your digital privacy. But only if you realize it’s been hacked and only if you know what you are talking about.

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Apple Files [Motion to Vacate] in FBI Case

Motion-to-Vacate

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.

The defense

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.

The filing

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.”

Background

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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