Irreal

This is why my “Note to journalists” in today’s earlier post was necessary:

State of tech coverage: published AFTER the FBI Director corrects his earlier lie about not seeking a precedent: pic.twitter.com/mVkXT4P3eL

— Kontra (@counternotions) March 2, 2016

By now you will have heard that Federal Magistrate Judge James Orenstein of the Eastern District of New York has ruled in case parallel to the San Bernardino case involving the FBI and Apple. At issue in the San Bernardino case is whether the All Writs Act can be used to force Apple, against its will, to break into the iPhone 5C used by one of the shooters.

The New York case heard by Judge Orenstein is similar. In that case the government was seeking to force Apple—again under the All Writs Act—to assist them in breaking into an iPhone. This time the phone in question was an iPhone 5S running iOS 7. Because the OS was iOS 7, breaking into the phone was less burdensome then it would have been had it been running iOS 8. Nevertheless, Judge Orenstein refused to order Apple to assist the FBI.

What struck me was how closely Judge Orenstein’s decision tracked Apple’s response to the San Bernardino order that I wrote about last Sunday. Both argue that the All Writs Act does not apply in these cases because Congress considered the action the FBI is urging and rejected it and because it will, in fact, represent a significant burden on Apple.

Sarah Jeong over at Motherboard has an excellent summary of Judge Orenstein’s decsion and what it means for the San Bernardino case. You should definitely read Jeong’s piece but I urge you to also read Orenstein’s decision itself.

Note to journalists: If you’re feeling inclined to comment or report on the FBI vs. Apple controversy and you haven’t read Apple’s response to Judge Pym’s order and Judge Orenstein’s decision then remain silent because you’re not qualified to speak on the matter. You don’t have to understand the mathematics behind the crypto or even the technical details of what Apple is being asked to do but you do need to understand what the government is asking, why they’re asking for it—no, it’s not to recover data from the phone—and why complying would be a significant burden on Apple. You can discover all these things by reading Apple’s response and Judge Orenstein’s decision. Until you do, refrain from commenting on the case. I’m not a lawyer and I had no difficulty reading and understanding them; I’m sure you won’t either.

Irreal readers are certainly aware of the latest drama playing out between the FBI and Apple. The FBI applied, ex parte, to a federal magistrate for an order compelling Apple to assist the FBI in breaking into an iPhone 5C used by one of the San Bernardino shooters. The magistrate granted the order and Apple promptly announced that it would appeal¹.

It’s important that Apple prevail because despite the government’s disingenuous assurance that this is a one-time request dealing only with one phone, the point of the FBI’s request is to establish a precedent. Indeed, the government has several more cases lined up and ready to go as soon as the case is resolved. Nationwide, there are probably hundreds of cases where prosecutors want Apple to break into phones.

Apple’s public discussion of the case emphasized that complying would put the security of every iPhone user—something that Apple has worked very hard to secure—at risk. Irreal readers, I’m sure, will find that argument compelling but is it sufficient to quash the magistrate’s order?

We needn’t have worried. Apple has filed their motion to vacate the order and it seems to me—speaking as a non-lawyer—to be devastating to the government’s case. To me—again, speaking as a layman—Apple’s most persuasive argument was that the All Writs Act, which the government depends on to justify their action, does not apply in this case because

1. the Congress already considered the matter and refused to act, and
2. that complying does, in fact, represent a significant burden on Apple.

On the second point, Apple pointed out that after the initial effort², once the precedent is set they will receive a flood of similar applications and that will require hiring additional full-time staff to deal with them. Furthermore, they can’t, as the Government suggests, simply destroy the break-in software after the data is recovered because they may be called in some future trial to testify on their methods and procedures and to produce the software as evidence.

Apple already has significant legal and engineering staff dedicated to dealing with government requests for data and they understand the need to document each step they take and to establish a chain of custody for any hardware they work on. They make a good case that complying with the order will result in a significant and ongoing burden.

There’s plenty more and you really should read Apple’s brief. It’s entertaining and instructive even if you aren’t a lawyer. If you don’t have time for the brief itself, The Intercept_ has an excellent summary of the important points it raises. The Intercept_ describes the brief as “a legal motion for the ages.”