Apple CEO Tim Cook’s major argument in objecting to the FBI’s request to assist in unlocking San Bernardino shooter Syed Farook’s iPhone 5c is the precedent it would set in doing so.
As it turns out, Cook had a leg to stand on when he defiantly objected to a federal magistrate’s order last week. Apple attorney Marc J. Zwillinger of D.C. law firm ZwillGen yesterday unsealed a response to the court that shows Apple has received a dozen similar requests to unlock users’ devices since October.
Zwillinger’s note to U.S. magistrate judge James Orenstein was dated Feb. 17 and was a response to a request that Apple demonstrate that it has received other requests from the FBI or other government agencies in this vein.
All of the orders are under the auspices of the All Writs Act of 1789 and come from numerous jurisdictions: New York, California, Illinois and Massachusetts. Apple objected in 10 of the 12 requests and is waiting for a copy of the underlying motion and a new warrant in the two other requests. The devices in question are mostly iPhones, including two iPhone 3 devices running very old versions of iOS that lack many of the security mechanisms in place on later versions, including Farook’s 5c. Four of the requests, however, are to unlock iPhone 6 or 6 Plus devices that include Secure Enclave and strong encryption that are hampering the FBI in unlocking the terror suspect’s device.
Zwillinger’s note reaffirms Apple’s opposition to last week’s order.
The unsealed document appeared on the heels of a public appeal on Sunday from FBI Director James Comey, who denied the order is an attempt to set a precedent. As in other arguments against Going Dark, the government and law enforcement’s term for its inability to extract evidence from encrypted devices despite having court order permitting them to do so, Comey played on the emotional aspects of the argument.
“Fourteen people were slaughtered and many more had their lives and bodies ruined. We owe them a thorough and professional investigation under law. That’s what this is. The American people should expect nothing less from the FBI,” Comey wrote in a public letter.
Apple no longer holds the encryption keys to unlock user its phones and tablets, instead has moved them to the devices. This means that Apple cannot be compelled via court orders to hand them over.
Last week’s court order, granted by Judge Sheri Pym, mandates Apple assist in cracking Farook’s four-digit passcode. Security mechanisms on the phone implement, with each incorrect guess, a lag that grows between incorrect guesses and eventually after 10 incorrect guesses, the phone will be wiped. The FBI wants the data on the device to aid in its investigation of the shooting and any alleged terrorism contacts Farook may have stored on the device.
“We simply want the chance, with a search warrant, to try to guess the terrorist’s passcode without the phone essentially self-destructing and without it taking a decade to guess correctly. That’s it,” Comey said. “We don’t want to break anyone’s encryption or set a master key loose on the land. I hope thoughtful people will take the time to understand that.”
Cook has been silent since his initial objection to the court order when he called the FBI’s actions a dangerous expansion of its authority under the All Writs Act.
“The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data,” Cook said. “The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.
“Opposing this order is not something we take lightly,” Cook said. “We feel we must speak up in the face of what we see as an overreach by the U.S. government.”