The DOJ Turns to a 225 Year Old Law to Force Either Apple or Google to Unlock a Password-Protected Smartphone
On October 16 we posted a report titled "CBS 60 Minutes: Apple has the Power to Upend the Rule of Law." The report covered an interview with FBI Director James Comey who revealed his views about internet surveillance in general and in context with Apple and Google's latest encryption technology specifically. "Apple and Google will have the power to upend the rule of law. Until now, a judge could order those companies to unlock a criminal suspect's phone. But their new software makes it impossible for them to crack a code set by the user." Last week we posted a follow-up report titled "The DOJ's War with Apple & Google Heating up over Encryption," where Apple executives vehemently objected to the DOJ's new argument that Apple's new encryption could lead to a dead-child while waiting for a warrant. A new report has surfaced this evening that shows us that the government is pulling a rabbit out of their hat to overrule Apple or Google's positon on encryptioin and forcing them to allow a warrant to be exercised in order to open the smartphone.
The Wall Street Journal (WSJ) is report tonight that "The Justice Department is turning to a 225-year-old law to tackle a very modern problem: password-protected cellphones." The report later revealed that Judge Gorenstein ruled that "It is appropriate to order the manufacturer here to attempt to unlock the cellphone so that the warrant may be executed as originally contemplated," he wrote on Oct. 31. The judge gave the manufacturer, referred to only as "[XXX], Inc.," five business days after receiving the order to protest.
Prosecutors last month persuaded a federal magistrate in Manhattan to order an unnamed phone maker to provide "reasonable technical assistance" to unlock a password-protected phone that could contain evidence in a credit-card-fraud case, according to court filings. The court had approved a search warrant for the phone three weeks earlier. The phone maker, its operating system and why the government has not been able to unlock it remain under seal. The WSJ surmises that the phone in question is an iPhone, but Apple has refused to comment on the report.
James Margolin, spokesman for the U.S. attorney's office in the Southern District of New York, said, "It's not that unusual for the government to use an All Writs order to get a phone-maker to unlock a phone."
But Albert Gidari, a partner at Perkins Coie LLP who has worked with technology firms on surveillance matters, questioned the government's approach. "There's danger in this. How far do you have to go" to assist the government, he asked. See the WSJ report for more on this developing story.
For sure this is a going to be a long standing battle between Apple, Google, the DOJ and other intergovernmental agencies. Many civil liberty groups are keeping a close eye on these developments. Jennifer Granick, director of civil liberties at Stanford University's Center for Internet and Society stated in the WSJ report that "It's part of what I think is going to be the next biggest fight that we see on surveillance as everyone starts to implement encryption."
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